                    PD-0573-15
                 NO.   _______________

 TO THE COURT OF CRIMINAL APPEALS OF TEXAS



        Cliff Douglas Parker, Appellant
                       v.
          The State of Texas, Appellee



                   ***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                   ***************

            FROM THE COURT OF APPEALS

      SECOND APPELLATE DISTRICT OF TEXAS

                  FORT WORTH, TEXAS

                 NO.   02-14-00044-CR

                    TARRANT COUNTY
                TRIAL COURT NO. 1329800




 May 12, 2015                           R. Scott Walker
                                   STATE BAR # 24004972
                                 222 W. Exchange Avenue
                                   Fort Worth, TX 76164
                                         (817) 478-9999
                               (817) 977-0163 FACSIMILE
                                 Attorney for Appellant

           ORAL ARGUMENT NOT REQUESTED
                           1
                 PARTIES AND COUNSEL

The following is a complete list of all parties, as
well as the names and addresses of all counsel.

Appellant:                CLIFF DOUGLAS PARKER

Trial Counsel:            David C. Jones
                          Attorney at Law
                          3001 W. 5th Street,
                          Suite 200
                          Fort Worth, Texas 76107

Appellate Attorney        R. Scott Walker
for Appellant:            Attorney at Law
                          222 W. Exchange
                          Ave.
                          Fort Worth, Texas 76164

Appellee:                 The State of Texas

Trial Attorney for        D. Miles Brissette &
Appellee:                 Betty Arvin
                          Tarrant County Assistant
                          District Attorneys
                          401 W. Belknap,
                          Fort Worth, Texas 76196

Appellate Attorney for    Sharen Wilson
Appellee:                 Tarrant County
                          District Attorney
                          401 W. Belknap,
                          Fort Worth, Texas 76196




                          2
                 TABLE OF CONTENTS
                                                  PAGE
IDENTITY OF PARTIES AND COUNSEL   . . . . . . . .   2
TABLE OF CONTENTS. . . . . . . . . . . . . . . .    3
INDEX OF AUTHORITIES   . . . . . . . . . . . . . . 4
STATEMENT DECLINING ORAL ARGUMENT. . . . . . . .    5
STATEMENT OF THE CASE . . . . . . . . . . . . . . 6
STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . .    7
QUESTIONS PRESENTED . . . . . . . . . . . . . . . 7
STANDARD OF REVIEW. . . . . . . . . . . . . . . . 8
ARGUMENT (Whether the trial judge erred in denying
Defendant’s Motion to suppress the in-car video
and all evidence obtained against the Defendant
as a result of the illegal interrogation depicted
on the video . . . . . . . . . . . . . . . . . .     8
PRAYER . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 16
CERTIFICATE OF COMPLIANCE . . . . . . . . . . .     16




                          3
               INDEX OF AUTHORITIES
                      CASES

Dowthitt v. State,
    931 S.W. 2d 244 (Tex.Crim.App. 1996) . . . . 11

Garcia v. State,
    829 S.W.2d 796 (Tex.Crim.App. 1992). . . 14, 15

Guzman v. State,
    955 S.W.2d 85 (Tex.Crim.App. 1997). . . . . . 8

Morgan v. State,
   688 s.W.2d 504 (Tex.Crim.App. 1985). . . . . . 7

Nix v. Williams,
   467 U.S. 431 (1984) . . . . . . . . . . . . . 14

Rivera v. State,
   808 S.W.2d 80 (Tex.Crim.App. 1991). . . . . .   8

Shiflet v. State,
   S.W.2d 622,629 (Tex.Crim.App. 1985) . . .   9, 11

Stansbury v. California,
   511 U.S. 318 (1994). . . . . . . . . . . . .    10

State v. Daugherty,
   931 S.W.2d 268 (Tex.Crim.App. 1996) . . . . . 12


                     STATUTES

Texas Code of Criminal Procedure,
   Art. 44.02 . . . . . . . . . . . . . . . . . . 7

Texas Code of Criminal Procedure,
   Art. 38.22 §2 (a). . . . . . . . . . . . . .    10

                         4
Texas Code of Criminal Procedure,
   Art. 38.22 §5 . . . . . . . . . . . . . . . 10

Texas Code of Criminal Procedure,
   Art. 38.23. . . . . . . . . . . . . . . . .   12


         STATEMENT DECLINING ORAL ARGUMENT

    Oral argument of this case is not requested on

behalf of Appellant, and is hereby waived.




                         5
    All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
CLIFF DOUGLAS PARKER, Appellant-Applying for Review

V.

THE STATE OF TEXAS, Appellee



                        ************

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                        ************

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF

TEXAS:

                  STATEMENT OF THE CASE

      This   appeal    has   resulted         from    a   criminal

prosecution    for    capital       murder.      A    suppression

hearing was held that began on the 6th day of

January, 2014, and concluded on the 13th day of

January, 2014. (R.R., Vol. 3 p.87).             The

suppression motion was partially granted and

partially denied.      (R.R., Vol. 3, p. 81-82).            On

the 14th day of January, 2014, a jury was selected.

(R.R., Vol. 4).       On the 15th day of January, 2014,


                                6
after the ruling on the suppression motion, the

trial commenced.    (R.R., Vol. 5).     On the 18th day

of January, 2014, the jury found Appellant guilty

of the lesser included offense of manslaughter.

The next Wednesday, the jury set punishment at

imprisonment for life.    (R.R., Vol. 8, p.119).

    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered its written non-published memorandum

opinion on April 16, 2015.     The deadline for filing

a Petition for Discretionary Review is May 16,

2015.

           QUESTION PRESENTED FOR REVIEW

    The trial judge erred in denying Defendant’s

Motion to suppress the i- car video and all

evidence obtained against the Defendant as a result

of the illegal interrogation depicted on the video.

                   STANDARD OF REVIEW

    The Texas Court of Criminal Appeals set forth

the standard of review for a denial of a motion to

suppress under an abuse of discretion standard.


                           7
Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.

1991). The evidence is viewed in the light most

favorable to the trial court’s findings.    Almost

total deference is given to findings of fact that

have support in the record.    However, when a

determination of a fact issue cannot be determined

by looking to the credibility or demeanor of the

witness, the trial court’s determination of the law

and the application of the law to the facts are

reviewed de novo.   Guzman v. State, 955 S.W.2d 85,

89 (Tex.Crim.App. 1997).

                      ARGUMENT

    The Court of Appeals held that Cliff Parker’s

statements, which were made while he was in the

back seat of a police cruiser in what is commonly

referred to as ‘the cage,’ were admissible because

Mr. Parker was free to leave at any time.    However,

as the opinion states, a person is in custody when

law enforcement officers create a situation that

would lead a reasonable person to believe that his

freedom of movement has been significantly

restricted.   Court of Appeals Opinion, p. 5.,
                           8
Shiflet v. State, S.W.2d 622,629 (Tex.Crim.App.

1985).   Cliff Parker was placed in ‘the cage’ for

one hour and sixteen minutes.      The majority of that

time, a police officer had the door open, was

kneeling in front of the door, and was

interrogating Mr. Parker.       The officer certainly

did not tell Cliff Parker that he could leave.      Any

reasonable person in that situation would believe

that his freedom of movement had been significantly

restricted.

    The trial judge erred in denying Defendant’s

Motion to suppress the in-car video and all

evidence obtained against the Defendant as a result

of the illegal interrogation depicted on the video.

The trial judge made it clear that she did believe

statements depicted on the video were in response

to police interrogation.    (R.R. Vol. 3, p. 79).

Therefore, her only reason for denying the motion

was her belief that Cliff Parker was not in custody

while placed in the backseat of a police car with

no means of escape for one hour and sixteen

minutes.   She specifically stated that she was
                            9
denying the motion to supress the video because

Cliff was not in custody at the time of the

statement.   (R.R. V. 3, p. 81).

    Article 38.22 of the Texas Code of Criminal

Procedure provides that no statement of an accused

made as a result of custodial interrogation shall

be admissible against the accused in a criminal

proceeding unless the accused is warned of his

rights during the recording but before making the

statement, and the accused knowingly, intelli-

gently, and voluntarily waives any rights set out

in the warning.    Crim. Proc. Art. 38.22, §2(a).

Article 38.22 does not preclude admitting

statements that do not stem from custodial inter-

rogation.    Crim. Proc. Art. 38.22 § 5.

    A person is in custody for purposes of Article

38.22 if there is restraint of freedom of movement

to the degree associated with a formal arrest.

Stansbury v. California, 511 U.S.318, 322 (1994)

(per curiam).     As stated earlier, a person is in

custody when law enforcement officers create a

situation that would lead a reasonable person to
                           10
believe that his freedom of movement has been

significantly restricted.        Court of Appeals

Opinion, p. 5., Shiflet v. State, S.W.2d 622,629

(Tex.Crim.App. 1985).     The determination of custody

is made on an ad hoc basis after considering all of

the objective circumstances. Dowthitt v. State, 931

S.W.2d 244, 255 (Tex.Crim.App. 1996).

    Cliff Parker was placed in a police car for one

hour and 16 minutes, believing that he was not free

to leave.   (R.R. Vol. 3, 78).      The doors on the

police car do not open from the inside, and there

is a plexi-glass wall between the front and back

seat.   (R.R. V. 5, p. 253 and 255).      When any

reasonable person is in a situtation where it is

impossible to leave, that person would certainly

not believe he can just walk away at any minute he

chooses.    Officer Minter patted Cliff down prior to

putting him in the car.    (R.R. Vol. 5, p. 251).

The officer then reached up and pointed the in-car

camera toward Cliff Parker.       (R.R. Vol. 5, p. 253).

Under these circumstances, there was certainly

restraint of freedom of movement to the degree
                            11
associated with a formal arrest.    Cliff Parker was

in custody for purposes of 38.22.

        Causation and the Exclusionary Rule

    The common law exclusionary rule has been

codified in Texas.   The applicable portion of the

statute reads:

    No evidence obtained by an officer or other

    person in violation of any provisions of the

    Constitution or laws of the State of Texas,

    or of the Constitution or laws of the United

    States of America, shall be admitted in evi-

    dence against the accused on the trial of any

    criminal case.   Tex. Code Crim. Proc. Ann.

    Art. 38.23.

“Once the illegality and its causal connection to

the evidence have been established, the evidence

must be excluded.”   State v. Daugherty, 931 S.W.2d

268, 270 (Tex.Crim.App. 1996).   Therefore, all

evidence in the instant case obtained due to police

illegally interrogating Cliff in the back of the

police car without reading Miranda warnings should

have been suppressed.
                          12
    There is a direct causal connection between the

illegal interrogation depicted on the in-car video

and the subsequent interrogations, one of which

contains a partial confession.     After talking to

officers at the scene which had talked to Cliff

while he was in the backseat of the police car,

Dectective Boetcher decided to immediately

interrogate Cliff at the station     (R.R. Vol.6, p.

113).   Then, after the custodial interrogation at

the police station, the detectives tried to

interview Cliff on a daily basis.    They could not

do so due to the fact that Cliff was in the

hospital.   After about two weeks, the interrogation

took place in which Cliff gave a partial

confession.   (R.R. V. 6, p. 136).    It is likely

that the partial confession would have never

happened absent the illegal interrogation depicted

in the in-car video.

    The State would like to argue that even had the

officers not interrogated Cliff in the police car,

they would have possibly decided to legally

interrogate Cliff at some later date and the
                          13
partial confession would have happened then,

bringing about the inevitable discovery of the

evidence through legal means, and that the evidence

would, therefore, not be subject to the

exclusionary rule.   However, the Texas Court of

Criminal Appeals has foreclosed the fruitfulness of

that argument.   Garcia v. State, 829 S.W.2d 796,

800 (Tex.Crim.App. 1992). Under the federal

exclusionary rule, such an argument would prevail.

The doctrine is called the inevitable discovery

doctrine.   The doctrine would require that when

evidence has been obtained by illegal means, and

the evidence would have been legally obtained had

the illegality not occurred, then the evidence is

not subject to the exclusionary rule.    Nix v.

Williams, 467 U.S. 431, 444 (1984).

    However, the inevitable discovery doctrine is

not applicable to the statutory exclusionary rule

in Texas.   Garcia v. State, 829 S.W.2d 796, 800

(Tex.Crim.App. 1992).   The holding was based on

statutory construction principles.    The Court

stated, “Because article 38.23 is an enactment of
                          14
our legislature, it represents the democratic will

of Texans, not merely an evidentiary adjustment

made by the courts to remedy violations of the

law.”   Garcia v. State, 829 S.W.2d 796, 798

(Tex.Crim.App. 1992).    The legislature has met

several times since the Garcia case was decided,

and has not amended the statute to include an

inevitable discovery exception.   Therefore, it can

be reasonably inferred that the democratic will of

the people is to not allow evidence to be admitted

in criminal prosecutions in Texas under the

inevitable discovery doctrine, regardless of any

possible repugnant effects of such an application

of law.   All the evidence obtained after the

illegal acts of police in the instant case has a

direct causal connection to illegal acts of the

police and must be excluded as a matter of law.

                        PRAYER

    WHEREFORE, PREMISES CONSIDERED, CLIFF DOUGLAS

PARKER, Appellant, prays that this Petition for

Discretionary Review be granted; that this case be

submitted to the Court; that the Court of Appeals
                           15
decision be reversed and for such other relief for

which he shows himself entitled.



                     Respectfully Submitted,

                     /s/ R. Scott Walker
                     By: R. SCOTT WALKER
                     222 W. Exchange Ave.
                     Fort Worth, Texas 76164
                     (817) 478-9999
                     (817) 977-0163 Fax
                     Attorney for Appellant


              CERTIFICATE OF SERVICE
    A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 12th day of May, 2015.

                              /s/ R. Scott Walker
                              R. SCOTT WALKER
             CERTIFICATE OF COMPLIANCE
    I certify that this document complies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2400 words, and that the document is in 14
point type.

                              /s/ R. Scott Walker
                              R. SCOTT WALKER




                         16
APPENDIX




    17
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00044-CR


CLIFF DOUGLAS PARKER                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1329800R

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      Appellant Cliff Douglas Parker was charged by indictment with capital

murder. The jury convicted him of the lesser included offense of manslaughter

and assessed his punishment at life imprisonment. The trial court sentenced him

accordingly. In a single issue, Appellant contends that the trial court reversibly

erred by denying his motion to suppress his interview with a lieutenant of the fire

      1
       See Tex. R. App. P. 47.4.
department and all evidence stemming from the interview. Because the trial

court did not err in denying Appellant’s motion to suppress, we affirm the trial

court’s judgment.

Brief Facts

      Officers Lindsey Stewart and Carson Bell were dispatched to a house fire.

The officers could see the flames “all the way down the block.” They arrived

before any other officers or firefighters.   When they arrived at the scene, a

woman screamed that someone was still inside the burning house. Stewart and

Bell ran to the house. They saw Appellant standing on the porch, “nonchalantly”

smoking a cigarette. The officers ignored Appellant and kicked the door open.

As the officers entered the house, they saw an unconscious woman (Betty

Roberts) lying face down on the floor.

      As the officers attempted to remove Roberts from the burning house,

Appellant came inside and put his hands on Stewart’s back, blocking her

progress and causing her to drop Roberts.        Stewart pushed Appellant and

resumed her attempt to remove Roberts from the burning building.         Again,

Appellant blocked Stewart, causing her to drop Roberts a second time. Out of

concern for Bell’s, Roberts’s, and her own safety, Stewart pushed Appellant as

hard as she could. He fell outside onto the porch. The officers were then able

to remove Roberts from the house.

      Once outside, the officers tried to move Roberts to a safer location.

Appellant straddled Roberts and held her against the ground, blocking the


                                         2
officers’ efforts. The officers grabbed him by the shoulders and pulled him off of

Roberts, and eventually they were able to move Roberts to the yard.

      Stewart asked Appellant if anyone else remained in the house. He did not

answer. Stewart demanded that Appellant tell her if anybody was still in the

house. Finally, Appellant told her that someone was still in the back bedroom.

      As the officers prepared to re-enter the house, the fire department arrived.

Stewart told them that someone was still in the house. The firemen entered the

house and retrieved the second person.

      Another officer brought Appellant to Officer James Minter. Because of the

chaos of the still-active fire scene, Minter asked Appellant to wait in the back of

his police cruiser, and Appellant complied. Minter testified that he did not place

Appellant under arrest. He did not handcuff Appellant; he did not tell Appellant

that he was under arrest; he did not tell Appellant that he could not leave; and he

would have allowed Appellant to leave had Appellant asked to do so.

      About twenty-three minutes after Minter directed Appellant to wait in the

police cruiser, Lieutenant Steve Larison of the Fort Worth Fire Department

interviewed Appellant.    In an attempt to learn details that might help his

investigation and identify residents of the burning house, Larison talked to

Appellant for about twenty minutes. At this point, Larison had yet to determine

the cause of the fire. The cruiser’s video camera recorded the interview. After

more investigation, Appellant was charged with arson.




                                         3
      Roberts later died from injuries she suffered during the fire. Appellant was

then re-indicted for arson-based capital murder. The trial court determined that

Appellant was not in custody when the interview occurred and that the video of

the interview was therefore admissible as a matter of law.

Admissibility of the Statement

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. 2 We give almost total deference to a trial court’s

rulings on questions of historical fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor. 3

      Appellant argues that Miranda warnings were required because he was

subjected to custodial interrogation. 4 Additionally, code of criminal procedure

article 38.22 generally precludes the use of statements resulting from custodial

interrogation absent compliance with its procedural safeguards. 5




      2
        Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
      3
       Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
      4
       See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
      5
       Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West Supp. 2014).



                                         4
      As the State points out, the Texas Court of Criminal Appeals has outlined

four general situations which may constitute custody: (1) when the suspect is

physically deprived of his freedom of action in any significant way, (2) when a

law enforcement officer tells the suspect that he cannot leave, (3) when law

enforcement officers create a situation that would lead a reasonable person to

believe that his freedom of movement has been significantly restricted, and (4)

when there is probable cause to arrest and law enforcement officers do not tell

the suspect that he is free to leave. 6

      The State argues that the questioning of Appellant was not custodial

interrogation because, although Appellant was sitting in the back of Minter’s

police cruiser in what is commonly referred to as “the cage,” no one had

suggested that he was not free to leave; he was not handcuffed; if he had asked

to leave, he would have been allowed to leave; and police and firefighters were

trying to protect people and keep them safe in a chaotic, active fire scene. As

Judge Cochran has explained in describing the community caretaking function,

“[A police officer] is . . . expected to aid individuals who are in danger of physical

harm, to assist those who cannot care for themselves, and to provide other

services on an emergency basis.” 7


      6
       Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985).
      7
      Corbin v. State, 85 S.W.3d 272, 280 (Tex. Crim. App. 2002) (Cochran, J.,
concurring) (internal quotation marks and citations omitted).



                                          5
      Twenty-three minutes after Appellant entered the cruiser, Larison opened

its back door, knelt in front of the cruiser’s open door, and interviewed Appellant

as a witness to the fire. Larison inquired about Appellant’s description of the

events and facts known to him that might lead to additional information about the

cause of the blaze and about the identification of the residents of the burning

house. At that time, Appellant was not an arson suspect, and, as far as Larison

knew, Appellant was free to go when Larison left the interview. Indeed, at the

time of the interview, no arson investigation had begun.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. 8 The trial court’s determination that Appellant was

not in custody when he made his oral statements to Larison is supported by the

record. 9 We therefore hold that the trial court did not err by denying Appellant’s

motion to suppress, overrule his sole issue, and affirm the trial court’s judgment.




      8
      State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004).
      9
       See Dowthitt v. State, 931 S.W.2d 244, 254–56 (Tex. Crim. App. 1996).



                                         6
                                      /s/ Lee Ann Dauphinot
                                      LEE ANN DAUPHINOT
                                      JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2015




                              7
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00044-CR

Cliff Douglas Parker                      §    From Criminal District Court No. 2

                                          §    of Tarrant County (1329800R)

v.                                        §    April 16, 2015

                                          §    Opinion by Justice Dauphinot

The State of Texas                        §    (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS


                                       By _/s/ Lee Ann Dauphinot______________
                                          Justice Lee Ann Dauphinot
