                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00516-CR

                                      Kedreen Marque PUGH,
                                            Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018CR6053
                           Honorable Stephanie R. Boyd, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: April 15, 2020

REVERSED AND REMANDED

           Kedreen Marque Pugh was convicted by a jury of possession of a controlled substance with

intent to deliver. On appeal, Pugh challenges the trial court’s denial of his motion to suppress and

the admission of a firearm into evidence. Because we hold the trial court erred in denying the

motion to suppress Pugh’s statement, we sustain Pugh’s first issue, reverse the trial court’s

judgment, and remand the cause to the trial court for further proceedings consistent with this

opinion.
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                                           BACKGROUND

       Pugh was arrested by a task force on an outstanding murder warrant while driving his

wife’s vehicle. After he was arrested and handcuffed, Pugh was placed in the back of a marked

patrol vehicle to be transported to police headquarters by uniformed officers Johnny Lopez and

Troy Thompson. The transporting officers were in contact with officers at the scene of the arrest

as Pugh provided information necessary for his wife to pick up her car. Detective Joe Rios, who

led the stop and arrest, drove the car from the highway access road to a gas station, but did not

undertake any search of the car. Instead, he intended to allow Pugh’s wife to pick up the car.

       A few minutes after Pugh was driven from the scene of the arrest, the following exchange

occurred:

            Pugh:      Officer?
            Officer Lopez: Yes, sir.
            Pugh:      I’m going to be honest, sir; I got stuff in the car, man.
            Officer Lopez: What do you got in the car?
            Pugh:      I got drugs in the car, and I got a small handgun.

Officer Lopez radioed Detective Rios and informed him of Pugh’s statements. Prior to this

exchange, Pugh had not been read his Miranda warnings. Based on Pugh’s statements, Detective

Rios searched the car and found the drugs and handgun.

       Pugh filed a motion to suppress claiming his statement regarding the drugs and handgun

being in the car was the result of custodial interrogation, and he had not been read his Miranda

warnings prior to making the statement. After a hearing, the trial court denied the motion.

                                      STANDARD OF REVIEW

       “We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review; fact findings are reviewed for an abuse of discretion, and applications of law are reviewed

de novo.” State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). In this case, the factual

circumstances under which Pugh made his statement are undisputed. The only evidence presented


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at the hearing on the motion to suppress was the video recording of the exchange between Pugh

and Officer Lopez. No testimony was presented, and it was undisputed that Pugh was not read his

Miranda warnings before Officer Lopez asked him “What do you got in the car?” Accordingly,

“we are presented only with a legal issue.” Id.

                                            DISCUSSION

       “The Miranda rule generally prohibits the admission into evidence of statements made in

response to custodial interrogation when the suspect has not been advised of certain warnings

(including that the suspect has the right to remain silent and the right to counsel).” State v. Cruz,

461 S.W.3d 531, 536 (Tex. Crim. App. 2015). “Failure to administer Miranda warnings creates a

presumption of compulsion.” Oregon v. Elstad, 470 U.S. 298, 306 (1985). “Consequently,

unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment

must nevertheless be excluded from evidence under Miranda.” Id. at 307. “A Miranda violation

does not constitute coercion but rather affords a bright-line, legal presumption of coercion,

requiring suppression of all unwarned statements.” Id. at 306 n.1 (emphasis in original). “Thus,

in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant

who has suffered no identifiable constitutional harm.” Id. at 307.

       “This is not to say, however, that all statements obtained by the police after a person has

been taken into custody are to be considered the product of interrogation.” Rhode Island v. Innis,

446 U.S. 291, 299 (1980). “In the Miranda context, ‘interrogation’ means ‘any words or actions

on the part of the police ... that the police should know are reasonably likely to elicit an

incriminating response from the suspect.’” Cruz, 461 S.W.3d 536 (quoting Innis, 446 U.S. at 300-

01). Thus, interrogation includes both “express questioning [and] its functional equivalents.” See

Innis, 446 U.S. at 300-01.




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         “A determination of whether or not an interrogation occurred focuses on the perceptions

of the suspect, not the intent of police.” Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San

Antonio 2005, no pet.) (citing Innis, 446 U.S. at 301). “However, the police cannot be held

responsible for the unforeseen results of their actions and words.” Id. (citing Innis, 446 U.S. at

301-02). “Thus, interrogation can only extend to words and actions of police officers that they

‘should have known’ would likely elicit an incriminating response.” Id.

         In this case, Pugh told the officer he “was going to be honest with” him and that he had

“stuff in the car.” Based on this statement, Officer Lopez should have known Pugh was going to

make some type of incriminating statement, since he “was going to be honest with him” about the

“stuff” he had in the car. As a result, Officer Lopez should have known asking Pugh what he had

in the car would likely elicit an incriminating response. Therefore, because Pugh’s statement was

the result of custodial interrogation, the trial court erred in denying the motion to suppress the

statement. 1

         “Because the alleged error is constitutional in magnitude, we conduct our assessment of

harm using the standard set forth in Rule 44.2(a) of the Rules of Appellate Procedure.” Lopez v.

State, 582 S.W.3d 377, 389 (Tex. App.—San Antonio 2018, pet. ref’d). Rule 44.2(a) provides that

an appellate court “must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” TEX. R. APP. P. 44.2(a). In conducting a harm analysis of an error involving a

constitutional protection, “the question for the reviewing court is not whether the jury verdict was



1
  In its brief, the only case cited by the State in analyzing Pugh’s statement was England v. State, No. 12-01-00057-
CR, 2002 WL 220861 (Tex. App.—Tyler Feb. 13, 2002, no pet.) (not designated for publication). In England,
however, the appellant invoked his right to an attorney. 2002 WL 220861, at *1. The issue presented on appeal was
whether the State established the appellant waived the right to counsel he previously invoked by initiating further
conversation with the police. Id. Accordingly, the issue presented in England is readily distinguishable from the issue
presented in the instant case.


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supported by the evidence. Instead, the question is the likelihood that the constitutional error was

actually a contributing factor in the jury’s deliberations in arriving at that verdict.” Scott v. State,

227 S.W.3d 670, 690 (Tex. Crim. App. 2007); see also Snowden v. State, 353 S.W.3d 815, 822

(Tex. Crim. App. 2011) (noting considerations in deciding whether constitutional error resulted in

harm include “the nature of the error (e.g., erroneous admission or exclusion of evidence,

objectionable jury argument, etc.), whether it was emphasized by the State, the probable

implications of the error, and the weight the jury would likely have assigned to it in the course of

its deliberations”).

        In this case, Pugh’s statement to Officer Lopez that he had drugs and a handgun in his

wife’s car led to the search of the car. Other than the expert’s testimony identifying the drug

recovered as heroin, the only witnesses to testify were Detective Rios and Officer Lopez, and both

witnesses testified regarding the statement. Finally, during closing argument, the State repeatedly

referred to the statement as evidence establishing Pugh’s possession of the heroin. Accordingly,

we hold the erroneous admission of Pugh’s statement likely was a contributing factor in the jury’s

deliberations in arriving at a guilty verdict and, therefore, resulted in harm.

                                            CONCLUSION

        The trial court’s judgment is reversed, and the cause is remanded to the trial court for

further proceedings consistent with this opinion.

                                                    Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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