                                                                             RECEIVED
                                                                            COURT OF APPEALS

                                                                               JUL 0 1 2013
                                                                                 LISA MATZ
                                                                            CLERK, 5th DISTRICT




             IN THE COURT OF CRIMINAL APPEALS -
                         OFTEXAS
                           "-


                                        NO. PD-0152-12


                          RODNEY LAMONT HUNT, Appellant

                                                v.

                                   THE STATE OF TEXAS

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPE,ALS
                         KAUFMAN COUNTY

       JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE,
WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined. KELLER, P.J.,
dissented.

                                         OPINION

       A jury found appellant guilty of murder and assessed punishment at 99 years' imprisonment

and a$10,000 fine. On appeal, the court of appeals affirmed the judgment. Huntv. State, No. 05-07-

01408-CR, 2009 WL 659132 (Tex. App.-Dallas Mar. 16, 2009, pet. granted) (mem. op., not

designated for publication).   Appellant filed a petition for discretionary review, and this Court

remanded the cause to the court of appeals to reconsider in light of our then-recent decisions in

Martinezv. State, 272 S.W.3d 615 (Tex. Crim. App. 2008), and Carterv. State, 309 S.W.3d 31 (Tex.
                                                                                                     2

Crim. App. 2010). Hunt v. State, No. PD-0995-10, 2011 WL 303815 (Tex. Crim. App. Jan . .26,

2011 ). The court of appeals again affirmed, inserting summarizing language from Martinez and

Carter into the text of its prior opinion without further analysis. See Hunt v. State, No. 05-07-01408-

CR, 2011 WL 6415182 (Tex. App.-Dallas Dec. 22,2011, pet. granted) (mem. op., not designated

for publication). Appellant again filed a petition for discretionary review in this Court, which we

again granted. We reverse the judgment of the court of appeals and remand this cause to that court

with instructions to abate to the trial court for further findings.

                                                 Facts

        Police suspected appellant of murdering his girlfriend, Kelley Osgan, but did not have

sufficient evidence to charge appellant with the offense. The day after Osgan's body was found in

Kaufman County, a patrol officer spoke with appellant and told him that the investigator on the case,

Edward Black, wanted to talk to him. Appellant accepted a ride to the Kaufman police station. He

was not in custody.

        Appellant spoke with Detective Black and denied any involvement in the murder, but Black

had information from other persons that indicated that appellant was lying about when he last saw

Osgan. Black and appellant agreed that appellant would meet with Black a week later for another

interview and a polygraph, which would take place in Mesquite, a city that lies mostly within Dallas

County.

        About a week later, Black and a second detective, Barker, picked appellant up, because he

did not have a car, and drove him to Mesquite. After the polygraph was completed, Black and Texas

Ranger Shing questioned appellant at the Mesquite police station for about one hour and fifteen
                                                                                                                          3

 minutes, told him that he had failed the polygraph, 1 and that they had evidence that he had killed

 Osgan. Shing also showed appellant a photograph ofOsgan that had been taken while she was alive.

No Miranda warnings were given. At some point, appellant stopped denying involvement, became

emotionai, and confessed to the murder.                  Black took appellant back to the Kaufman police

department so that appellant could make a written confession. They did not talk during the thirty-

minute return trip.

          Back in Kaufman, appellant went outside to smoke, then appeared to be having physical

difficulties. An ambulance was called, but appellant declined treatment, told the crew that he was

fine, but was "just really nervous because he was confessing to murder." Appellant said that he did

not want to go to the hospital and that he did want to continue talking with Black. Black gave him

time to compose himself, and Shing offered food, which appellant declined. At that point, Black

informed appellant of his Miranda rights. After the warnings were given, appellant made another

statement confessing to Osgan' s murder. 2 During this interrogation, the officers referred to the first,

unwarned Mesquite statement at least nineteen times. 3

         Appellant moved to suppress both statements, the first because he had not been given the


            The record does not contain testimony from the polygrapher and thus does not reflect whether appellant
actually failed the polygraph. We have only a short exchange between Black and the prosecutor: "Q. And he ended
up failing the polygraph and then you and Ranger Shing talked to him? A. Yes, sir." III R.R. 15.
         2
           During his direct examination of Black, the prosecutor asked about the "techniques used to obtain the
confession." III R.R. 15.
         Q. Now, during that interview that- I guess the main technique that y'all used with the defendant was
                  basically saying you would tell the DA that he cooperated?
         A. That was one thing we told him, yes.
         Q. Saying the truth is going to help you out? You need to get right with God? Those kind of things?
         A. Yes, sir.

         3
           The state noted those events during its direct examination of Black: "Q. So basically going back to this
[Mirandized] taped interview, there's a lot of referring back to you already told me this, you just need to get this on
paper?" III R.R. 17.
                                                                                                   4

required warnings and the second because the police had repeatedly referred to the first statement

while obtaining the second. The state responded that both statements were admissible because

appellant was not in custody when he made them and, in the alternative, that any taint from the first

statement was attenuated before appellant made the second, written statement. The trial court held

a hearing on the motion after jury selection. On recross-examination, trial c.o unsel emphasized the

frequent references to the Mesquite statement while Black and Shing were obtaining the Kaufman

statement.

        Q. Detective Black, whenever you were talking to Mr. Hunt at the Kaufman police station,
I think you told us that sometime throughout that conversation you had to make reference to Mr.
Hunt about what he had told you earlier back at the Mesquite station.

       A. That's true.

       Q. And you did that fairly often?

       A. Yes, sir.

      Q. Would you do that or did you do that whenever he told you something different at the
Kaufman police station than what he had told you at the Mesquite police station?

       A. Yes, I did.

       Q. Something to the tune of now that's not what you told us at the Mesquite station?

       A. Yes, sir.

       Q. Or you told us something different at the Mesquite station? And Mr. Hunt would give
a response to your statement to that?
                      t   '
       A. That's correct.

        Q. Okay. So it would be-it would be fair to say that throughout the conversation you had
at the Kaufman police station you were making references to the conversation you had with Mr. Hunt
at the Mesquite station?

       A. Yes, sir.
                                                                                                                        5

       Q. Either correcting him on what he-correcting him on the story that he was now telling at
the Kaufman station o,r clearing up something that he told you at the Mesquite station?

        A. Yes, sir, it was done in the context to get the truth, trying to figure out what exactly was
the truth.

        Q. And then from that conversation at Kaufman station the result was the written statement
that we have in front of us right now?

         A. Yes, sir.

III R.R. 27-28.

         During the suppression hearing, the trial court questioned Black about the trip to Mesquite

and the events there. 4 After argument, 5 the trial court denied appellant's motion to suppress as to

both statements. At trial, the state introduced only the second statement.

         After he was found guilty, appellant moved for a new trial, and the trial court held a hearing.

The trial court's written findings of fact and conclusions of law found that the first statement, in

Mesquite, was the result of custodial interrogation because, in the audio statement made in Mesquite,

an officer told the appellant "that if he thinks he is going to get home by continuing to deny his

involvement he is mistaken because they already have enough on him." The trial court found, "At

this point a reasonable person would not feel that he was free to leave." It also found that the

interview was conducted without the required Miranda warnings. But the trial court, in ruling on

a claim "urging primarily ineffective assistance of counsel," also found thanhe second statement,



         4
            In response to questioning by the trial court about whether appellant knew, in Mesquite, that he was free
to leave, Black mistakenly responded by reciting events-appellant's panic attack and the call for an ambulance-that
took place after the return to Kaufman.
         5
           Defense counsel argued that the statements were inadmissible because they did not meet the requirements
of Tex. Code Crim. Proc. Art. 38.22, Miranda v. Arizona, or the United States and Texas constitutions. The state
argued that the statements were admissible and cited to Ickes v. State, No. 01-96-01540-CR, 1998 WL 734014
(Tex. App.-Houston [1st Dist.] Oct. 22, 1998, pet. ref' d) (mem. op., not designated for publication).
                                                                                                                   6

in Kaufman, was not tainted by the Mesquite statement and denied the motion for new trial.

         Some of the trial court's findings of fact are not supported by the record, the most important

of which is that the trial court misunderstood the order of events and the places in which they

occurred.6 However, the trial court's conclusion on the separate issue of appellant's trial attorney's

ineffectiveness is supported by the record, if not by the reasoning of the trial court in coming to that

conclusion.

                          1. Preliminary Legal Principles and Relevant Law

         Appellant contends that his Fifth Amendment rights were violated because the police who

interviewed him intended to circumvent Miranda by employing a deliberate two-step questioning

strategy. The state argues that appellant failed to preserve this issue for appellate review, and in the

alternative, that this Court should remand to the court of appeals to determine whether the claim was

preserved, and if it was, whether the police strategy was intended to circumvent Miranda . We begin

with an overview of the relevant law.

                                                   A. Miranda

         The Fifth Ainendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, commands that no person "shall be compelled in any crimina~

case to be a witness against himself." U.S. Canst. amend. V & XIV,§ 1; Malloy v. Hogan, 378 U.S.

1, 8 (1964). The protection against self-incrimination is violated when law enforcement has elicited


         6
              After fmding that appellant was in custody in Mesquite, the trial court found that the "interview is
tenninated and paramedics are called to examine the Defendant to see how he is doing. A medic asks the Defendant
if he is all right and he says he is about to confess to murder. An officer offers to take the Defendant home. The
Defendant says he wants to get things over with. The Defendant is then taken from the Mesquite police station to the
police station in Kaufman."
           According to the record however, the Mesquite interview was tenninated, and they all returned to Kaufman,
where appellant had a panic attack. Black called for paramedics, who came and checked on appellant. He told them
that he was "just really nervous because he was confessing to murder." III R.R. 198.
                                                                                                                       7

an involuntary confession from a criminal defendant. Bram v. United States, 168 U.S. 532, 542

(1897); Rogers v. Richmond, 365 U.S. 534, 544 (1961). Under the landmark Miranda decision, a

confession is presumed to be involuntary if it was made pursuant to a custodial interrogation and

without adequate warnings to protect the privilege against self-incrimination. Miranda v. Arizona,

384 U.S. 436, 478 (1966V Unwarned confessions are accorded this presumption because '"the

coercion inherent in custodial interrogation blurs the line between voluntary and involuntary

statements, and thus heightens the risk' that the privilege against self-incrimination will not be

observed." Carter, 309 S.W.3d at 35 (quoting Dickerson v. United States, 530 U.S. 428, 435

(2000)). The admissibility of a custodial confession is conditioned upon warning a suspect of his

rights; failure to provide the warnings and obtain a waiver usually means that the confession will be

excluded at trial. /d. at 35-36 (citing Miranda, 384 U.S. at 467).

                                              B. Elstad and Seibert

         After Miranda, the question arose as to whether warned confessions that followed unwarned

confessions are still admissible. In Oregon v. Elstad, the Supreme Court addressed "whether an

initial failure of law enforcement officers [to administer Miranda warnings], without more, 'taints'

subsequent admissions made after a suspect has been fully advised of and has waived his Miranda

rights." Oregon v. Elstad, 470 U.S. 298,300 (1985). Elstad was questioned in his own home about

the burglary of a neighbor's residence. Elstad admitted that he was involved, and he was then


         7
           Miranda requires that "the person must be warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed." 384 U.S. at 444.
                                                                                                     8

arrested and transported to the county sheriffs office. There, deputies read Elstad his Miranda
                                                 J

warnings, and he gave a full statement admitting to the burglary. The Supreme Court upheld the

admission of Elstad's confession, reasoning that this situation had "none of the earmarks of

coercion," and "there is no warrant for presuming coercive effect where the suspect's initial

inculpatory statement, though technically in violation of Miranda, was voluntary." !d. at 316, 318.

The Elstad Court listed factors to be used to determine whether there was a coercive effect, or "taint"

from the unwarned statement on the warned statement: "the time that passes between confessions,

the change in place of interrogations, and the change in the identity of the interrogators all bear on

whether that coercion has carried over into the second confession." !d. at 310.

       In 2004, the Supreme Court addressed whether Miranda is violated when police elicit an

unwarned confession from a suspect, and then the interrogating officer warns the suspect and "leads

the suspect to cover the same ground a second time," resulting in a second, Mirandized, confession.

Missouri v. Seibert, 542 U.S. 600, 604 (2004). This tactic is referred to as "question-first, warn-

later." See id. at 610. A fractured court held thatth~re was a Miranda violation, with four justices

joining the plurality opinion, and two justices writing separate concurring opinions. The plurality

employed a multi-factor test to determine whether the Miranda warnings could have still been

effective and held that, "because the facts here do not reasonably support a conclusion that the

warnings given could have served their purpose," the post-warning statements were inadmissible.

!d. at 617. In a   c~ncurrence,   Justice Kennedy argued that "the admissibility of postwarning

statements should continue to be governed by the principles of Elstad unless [a] deliberate two-step

strategy [to undermine the Miranda warning] was employed." !d. at 621 (Kennedy, J., concurring).

                            C. "Question-first, Warn-later" in Texas
                                                                                                                               9

             This Court adopted Justice Kennedy's analysis in subsequent decisions. See Martinez, 272

 S.W.3d at 623; Carter, 309 S.W.3d at 37-38. Thus, in Texas, when a defendant has been given

midstream Miranda warnings, a trial court ruling on a motion to suppress the post-Miranda

statement on the grounds that it was involuntary is faced with the threshold question of whether the ·

questioning officer engaged in a deliberate two-step questioning strategy. See Carter, 309 S.W.3d

at 38. If the trial court finds that the officer engaged in a deliberate two-step questioning strategy,

"postwarning statements that are related to the substance of prewarning statements must be excluded

unless curative measures are taken before the postwarning statement is made." 8 Martinez, 272

S.W.3d. at 626 (quoting Seibert, 542 U.S. at 619 (Kennedy, J., concurring)). If the trial court finds

that the officer did not engage in a deliberate two-step strategy, the question of whether the post- ·

Miranda statement was voluntary is analyzed under the Elstad factors.

                                                       2. Analysis

                                                    A. Preservation
          We first address the main issue in.the state's brief: whether appellant preserved his Seibert

complaint. The state argues that appellant merely raised an Elstad issue of whether the second

statement was voluntary and did not raise a Seibert deliberateness issue in the trial court or the court

of appeals. 9 Thus, according to the state, appellant failed to preserve the issue that is presently before


         8
            Curative measures taken from the Seibert opinion and suggested by the Martinez court include: "(1) a
substantial break in time and circumstances between the unwamed statement and the Miranda warning (Kennedy);
(2) explaining to the defendant that the unwamed statements, taken while in custody, are likely inadmissible
(Kennedy); (3) informing the suspect that, although he previously gave incriminating information, he is not obligated
to repeat it (plurality); (4) the interrogating officers refrain from referring to the unwamed statement unless the
defendant refers to it first (plurality); or (5) if the defendant does refer to the pre-Miranda statement, the
interrogating officer states that the defendant is not obligated to discuss the content of the first statement (plurality)."
Martinez, 272 S.W.3d at 626-27.
         9
             See discussion of Elstad and Seibert, supra Sec. lB.
                                                                                                                    10

this Court, and we should dismiss appellant's petition as improvidently granted. We disagree.

         To preserve an issue for appellate review, a defendant must first raise that issue in the trial

court. TEX. R. APP. PROC. 33 .1 . Eschewing hyper-technical requirements for preservation, we have

stated that "all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial

judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the

judge to understand him at a time when the trial court is in a proper position to do something about

it." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Appellant properly raised the

issue of voluntariness in the context of the midstream warnings in the trial court and the court of

appeals, and by doing so, he preserved his deliberateness complaint.

         We observe that, at the time of his trial and while he was pursuing a direct appeal, this Court

had not yet adopted Justice Kennedy' s approach in his Seibert concurrence. 10 A finding of deliberate

circumvention of Miranda was not clearly required in Texas until Martinez. 11 Therefore, all

appellant needed to raise in the trial court and the court of appeals was a voluntariness issue in light

of appelJant's being given midstream Miranda warnings.

         At trial, appellant filed a motion to suppress that alleged "any statements made by [appellant]

were involuntary and coerced and enticed from [appellant]." Appellant also alleged that "the •

statements made by [appellant] were tainted by the illegal and unlawful detention and arrest" in

violation ofhis rights under the United States and Texas Constitutions and Article 38.23 of the Texas

Code of Criminal Procedure. The trial court held a hearing on the motion, during which appellant



         10
           Martinez, 272 S.W.3d 6I5, was decided December I7, 2008 . Judgment in this case was entered October
II, 2007, and appellant filed his brief in the court of appeals on June I5, 2008-.
         11
          This is why in 2009, when appellant filed his first petition for discretionary review in this Court, we
remanded to the court of appeals to reconsider in light of Martinez and Carter.
                                                                                                                     11

 extensively questioned the officers about how they used the unwarned Mesquite statement to elicit

the second, warned, Kaufman statement. Following the guilty verdict, appellant filed a motion for

new trial alleging ineffective assistance of counsel. In its findings on the motion, the trial court

found that "the second confession is not so tainted as to make it inadmissible."

          In his direct appeal, appellant argued that the second confession was tainted by the first and

also that the interrogating officers employed an impermissible "question-first, warn-later" technique.

Appellant specifically cited Seibert for the latter complaint, as well as Martinez, as that case was

pending in this Court at the time. The court of appeals recognized that appellant had raised a Seibert

issue and cited to that case in its analysis in both its 2009 and 2011 opinions. See Hunt, 2011 WL

6415182 at *6; Hunt, 2009 WL 659132 at *5. Clearly, that court had notice of appellant's Seibert

complaint in the context of the voluntariness issue.

         We find that appellant properly preserved his Seibert issue for appellate review.

                                                B. Deliberateness

         We next address appellant's sole issue: whether the court of appeals's holding conflicts with

Martinez and Carter. 12 Appellant argues that police employed a deliberate two-step questioning

strategy to circumvent Miranda and then failed to take curative measures to ensure that appellant

would understand the "import and effect of the Miranda warning and of the Miranda waiver." We

begin with the threshold issue of whether the police employed a deliberate two-step questioning

strategy. See Carter, 309 S.W.3d at 38.


         12
            As stated in appellant's petition for discretionary review: "whether the Court of Appeals holding conflicts
with this Court of Criminal Appeals'[s] holding in Martinez v. State and Carter v. State by finding police did not use
a deliberate two-step interrogation technique to circumvent Miranda to obtain a second confession?" We note that
the court of appeals did not explicitly determine whether the police used a deliberate two-step strategy. Instead, the
court affirmed on the basis that "appellant's second confession was not so tainted as to make it inadmissible." 2011
WL 6415182 at *9.
                                                                                                    12

        Whether the tWo-step questioning strategy was deliberate hinges on the interrogating officer's

subjective intent. Carter, 309 S.W.3d at 39. When the officer testifies at a hearing on a motion to

suppress, the officer's demeanor and testimonial evidence "are especially relevant to a deliberateness

determination." !d. at 40. Thus, when the trial court, after having the chance to observe the officer's

testimonial evidence and demeanor, has made an explicit factual finding regarding the deliberateness

of the strategy, a reviewing court must employ a deferential standard of review and may reverse only

upon a showing of abuse of discretion. !d. at 40-42. If the trial court did not make explicit findings

regarding deliberate use of a "question-first warn-later" strategy, a reviewing court may find that the

officer employed such a deliberate two-step questioning strategy if it is clear from the facts in the

record. See Martinez, 272 S.W.3d at 624.

        In Martinez, the defendant was arrested for his involvement in a robbery and murder. He

was not given Miranda warnings upon arrest, but was brought to police headquarters, questioned

about the crimes, given a polygraph, and told he failed the polygraph. This process took 3-4 hours.

Police officers then took Martinez to a municipal court magistrate, who gave Martinez the Miranda

warnings. !d. at 618. This Court found that "the absence of Miranda warnings at the beginning of

the intem~gation process was not a mistake based on the interrogating officers' mistaken belief that

appellant was not in custody, but rather a conscious choice." !d. at 624. Since no curative measures

were taken to offset the damage done by the failure to warn at the outset, the second statement given

to the police was involuntary and should have been excluded.

       Appellant argues that the trial court's finding that appellant was in custody when he gave the

first statement should compel us to conclude that the trial court found that police deliberately

employed the two-step questioning strategy.       Appellant contends that the trial court made a
•




                                                                                                                                13

     credibility determination against the officers "in specifically finding that Appellant was in custody

     at the time of his first pre-Miranda interrogation by police despite the interrogating officer's

     characterization to the contrary," 13 and therefore, "the deliberate two-step process was at work."

    However, the trial court' s finding that appellant was in custody in Mesquite is not necessarily a

    credibility determination against the officer; the trial court may have believed that circumstances that

    surrounded the Mesquite statement led the officers to a mistaken belief that appellant was not in

    custody. The record does not reveal information on that issue. And even if the trial court did make

    a credibility determination against the officers as to the issue of custody, it does not necessarily mean

    that the trial court believed that the officers were employing a deliberate strategy to circumvent

    Miranda.

              The trial court in this case made no findings to which we must defer regarding the

    deliberateness issue. It is also not clear from the record before us whether the officers employed a

    deliberate two-step strategy to circumvent Miranda. Although the trial court stated its reasons for

    finding that appellant was in custody when he took the lie-detector test and confessed for the first

    time, the basis for its second ruling- that the Kaufman statement was not tainted by the lack of

    warnings before the Mesquite statement-appears to have been evidence in regard to the separate

    issue of ineffective assistance ofcounsel. If the trial court considered appellant's claims of a

    deliberate two-step strategy of"question-first, warn-later" under Martinez and Seibert and made a

    ruling on that basis, it is not in the record.




              13
                Appellant is referring to the trial court's finding that "a reasonable person would not feel that he was free
    to leave" after appellant was given the lie-detector test, told by police he "failed" the test, and ''that if he thinks he is
    going to get to go home by continuing to deny his involvement he is mistaken because they already have enough on
    him." I C.R. 69.
                                                                                                    14

                                           3.   Concl~sion


       Because the trial court did not make any findings as to whether the police employed a

deliberate two-step strategy to circumvent Miranda, and the record is not clear on that issue, we

remand to the court of appeals with instructions to abate this cause to the trial court so that it may

make findings as to the applicability of Martinez and Carter, which shall be forwarded to the court

of appeals.



Delivered: June 26, 2013
Do not publish
