              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-0888-08



                              THAI NGOC NGUYEN, Appellant

                                                   v.

                                     THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                              DALLAS COUNTY

        J OHNSON, J., filed a dissenting opinion.

                               DISSENTING OPINION

        Officer Johnson stopped appellant for a number of traffic violations–no front license plate,

malfunctioning brake light, and driving with high beams with oncoming traffic. The dashboard

camera in the police car recorded the entire encounter, from initial stop to arrival at the police station

after the arrests.

        The officer became suspicious of appellant and his passenger, Sanchez, because their

accounts of where they had been and what they had been doing did not match. He began to recite
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the required Miranda1 warnings for appellant and got as far as the right to have a lawyer present to

advise him prior to and during any questioning, the third of five parts of TEX . CRIM . PROC. article

38.22. At that point, appellant interrupted Officer Johnson and said that he wanted a lawyer. The

officer immediately ceased questioning him about the situation and did not complete the prescribed

warnings, thereby omitting admonishments that appellant could have an appointed lawyer if he were

unable to employ one, and that he has a right to terminate the interview at any time.

       Sanchez, the owner of the car, consented to a search of it. Officer Johnson and a second

officer who had arrived to assist him found methamphetamine. He arrested Sanchez for the drugs

and appellant for the traffic violations and placed both men in the backseat of his car. While the

officers searched, appellant and Sanchez argued.

       Based on their conversation as heard on the dashboard recorder, they agreed that the drugs

belonged to Sanchez’s cousin, Chris “Crispy” Sanchez. Sanchez seemed aware that he would be

charged because the drugs were in his bag and pressured appellant to accept responsibility for the

drugs, but appellant resisted. Sanchez called out to the officers. When Officer Johnson went to the

police car, Sanchez blamed appellant. The officer stated that he was not going to question appellant

about it. During that conversation, the officer’s contributions were limited.

       Sanchez:           He says it’s his, sir. That’s his, sir. That’s not mine.

       Johnson:           Well, I’m not gonna ask him about it. All right? If that’s what he told you,
                          that’s what he told you.
                                  ...

       Appellant:         I don’t want to go down for anything right now, I just want to get home.



       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                                   3

       Sanchez:        Dude, just tell him it’s yours.

       Johnson:        You’re not going home. You’re going to jail.

       Sanchez:        Can you tell him it’s yours, Dawg?

       Appellant:      Are you asking me?

       Sanchez:        Yeah.

       Johnson:        I’m not asking you anything.

       Sanchez:        Thai, I’m not going down for you. Just tell him, Dawg.

       Johnson:        Okay, right now, your partner here, your friend, is being faced with charges
                       for you.

       Appellant:      I am, too! I’m being faced with charges, with those same charges as he is.

       Johnson:        No, you’re not.

       Appellant:      What charges am I faced with?

       Johnson:        Right now you’re faced with traffic charges.

       Sanchez:        Dude, will you just tell him it’s not mine?

       Appellant:      What are the traffic charges? It’s not OURS!

During this exchange, appellant expressed his preferences, asked questions, and received only factual

answers from the officer. He also asserted that the drugs belonged to a third party. Officer Johnson

returned to Sanchez’s car and continued searching its contents.

       Sanchez continued to pressure appellant to claim the methamphetamine. They called the

officer over again.

       Johnson:        What are y’all yelling about?

       Sanchez:        I got you to tell you it’s not mine, it’s his.
                                                                                           4

Appellant:   It’s not his.

Johnson:     Huh?

Appellant:   It’s not his.

Johnson:     It’s not his?

Appellant:   No.

Johnson:     Yeah, it is. It’s in his bag.

Appellant:   But it’s not his. That’s the truth, sir.

Sanchez:     He handed it to me. It’s not mine, sir.

Appellant:   Please, I don’t want to go to jail. We both don’t want to go to jail.

Johnson:     Okay, well, you’re going to jail. Period. He’s going to jail for possession of
             meth.

Sanchez:     But it’s not mine!

Appellant:   It’s not his!

Johnson:     Okay, well, you can tell me that all night long, all right? You already told me
             you wanted to talk with an attorney, I’m not gonna ask you any questions
             about that. You want to tell me that that’s your stuff, then tell me that that’s
             your stuff.

Sanchez:     It’s the truth, sir, but please, I’m not going to jail for him.

Appellant:   Tell him it’s not yours.

Johnson:     He already told me that. Okay? That’s irrelevant.

Appellant:   You’re still gonna take him to jail?

Johnson:     It’s in his bag with his checkbook.

Appellant:   But it’s not his!

Johnson:     Do you not understand what I’m saying? If you want to tell me that that’s
                                                                                                   5

                       your meth, then tell me that’s your stuff. Other than that, it’s his.

       Sanchez:        Come on, Dawg! Please, I’m not going down for your shit!

       Appellant:      Honestly, I don’t want to, but it’s mine.

In this exchange, appellant stated that the drugs were not Sanchez’s without questioning by any

police officer about illegal conduct. Officer Johnson sought only to know why they were yelling at

him. When Officer Johnson again returned to the search, he found an Ecstasy tablet in Sanchez’s

bag. Sanchez again pressured appellant to claim the drugs. This time, appellant refused.

       After viewing the video tape from the dashboard camera, Officer Johnson did not charge

appellant with possession of controlled substances, but did charge him with hindering the

apprehension of Sanchez by falsely claiming that the drugs were his. Appellant moved to suppress

his claim of possession because of the failure of Officer Johnson to complete the recitation of the

Article 38.22 warnings and because the officer had coerced his claim. The trial court heard

testimony and reviewed the video tape, then denied the motion to suppress.

       The court of appeals found that the trial court erred in denying the motion to suppress based

on the officer’s statement, “Do you not understand what I’m saying? If you want to tell me that

that’s your meth, then tell me that’s your stuff. Other than that, it’s his.” It was only after that

statement that appellant said, “It’s mine.” On every other occasion, appellant said, “It’s not his.”

       There is no contention that appellant was not in custody or that he was not the one who

reinitiated contact. The bone of contention was the failure of Officer Johnson to complete the

required warnings after his recitation was interrupted by appellant.

       Hindering Apprehension or Prosecution, TEX . PENAL CODE § 38.05, states that a “person

commits and offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of
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another for an offense . . . he: . . . provides or aids in providing the other with any means of avoiding

arrest or effecting escape . . ..” At the end on the hearing on appellant’s motion to suppress, the trial

court made findings.

        [T]he conversation had between the officer and the suspect, that aren’t really at issue
        here in the Motion to Suppress, were initiated by the defendant and though that does
        not in and of itself make them a waiver of his rights, I believe considering all of the
        facts and circumstances that I have heard, that he was well aware that by talking to
        the officer it could bring charges upon himself and that he knowingly and voluntarily
        reinitiated contact after having been given the bulk of his Miranda warnings.

        I agree with the findings of the trial court. Appellant had been informed that he could remain

silent, that anything he said could be used against him in a court of law, and that he was entitled to

have a lawyer with him prior to and during questioning. Knowing those three things, he reinitiated

contact with the police, under coercion by only Sanchez and, before the statement by Officer Johnson

cited by the court of appeals, he stated at least six times, “It’s not his.” “It” certainly referred to the

methamphetamine found in Sanchez’s car, and “his” referred to Sanchez.

        Put in the form of a syllogism, if one of two possibilities must be true and A is false, then B

must be true. There were two people in the car. Legally, the drugs were possessed by at least one

of them. If appellant said that the drugs were not in Sanchez’s possession, then they, logically, had

to be in appellant’s possession. The word “mine” is not required.

        The video tape reveals that appellant knew, when he claimed the drugs and thereby

exonerated Sanchez, that he would be arrested instead of Sanchez; Sanchez had repeatedly assured

appellant that, if he would “take the rap” for Sanchez, Sanchez would bail appellant out. Appellant’s

repeated assertions that the drugs did not belong to Sanchez may in fact have been true–they may

actually have belonged to Sanchez’s cousin–but possession was the issue, not ownership. He
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certainly intended to at least hinder the arrest of Sanchez, if not the prosecution and conviction of

him.

       Because the word “mine” is not required in order to profess possession, appellant fulfilled

the requirements of Section 38.05 when, intending to “take the rap” for Sanchez, he initially claimed

the drugs during the second colloquy by saying, “It’s not his.” Officer Johnson’s only question up

to that point had been, “What are y’all yelling about?” This is not the sort of interrogation

contemplated by Miranda.

       Miranda,2 and our state statute,3 apply only to custodial interrogation. Although appellant

was undeniably in custody and had said that he wanted a lawyer, he reinitiated contact by calling out

to Officer Johnson. His first statement that the drugs were not Sanchez’s, which fulfilled the

elements of the offense of hindering apprehension, was not a result of police interrogation. The next

four iterations of that statement were also not the result of police interrogation; they all happened

before Officer Johnson said anything that could even be stretched into “reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Therefore, the incomplete

warnings do not bar admission of the statement.

       I respectfully dissent.



Filed: July 1, 2009
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       2
           Miranda, 384 U.S. at 476-77.

       3
           T EX . C O D E C RIM . P RO C . art. 38.22, § 3.
