                                  NO. 07-05-0339-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                    APRIL 12, 2006

                         ______________________________


                         THE STATE OF TEXAS, APPELLANT

                                           V.

                     JOSEPH LANDON RIDENOUR, APPELLEE


                       _________________________________

             FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                   NO. 6573; HONORABLE LEE WATERS, JUDGE

                        _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellee Joseph Landon Ridenour was charged with capital murder. The State of

Texas appeals from the trial court’s ruling on appellee’s motion to suppress. Presenting

a sole issue, the State contends the trial court abused its discretion in suppressing and

excluding appellee’s voluntary and inculpatory statements that were not the subject of
custodial interrogation and that were recorded on State’s Exhibit 4. We reverse and

remand.


      Appellee and the deceased had dated on and off and lived together at one time.

After the deceased was discovered, appellee was sought by law enforcement officers as

a person of interest. Appellee was not answering his phone nor his door, and officers

became concerned for his welfare upon learning he had recently been diagnosed with

diabetes and was suffering blackouts and diabetic comas. They contacted the apartment

manager who alerted the maintenance man to let the officers into appellee’s apartment.


      Upon gaining entry into the apartment, officers observed appellee holding a gun

under his chin and heard him pull the trigger, but the gun did not discharge. One of the

officers was able to secure the gun away from appellee without resistance. Appellee was

read his rights and handcuffed before being escorted to a patrol car by Reserve Deputy

Vincent Marasco for transport to the police department.


      According to Marasco’s testimony, he was not involved in the initial entry of

appellee’s apartment nor in any investigation but had been dispatched to the scene at a

later time where he was directed to secure the gun and transport appellee. Marasco was

equipped with a body microphone that transmitted to the video recorder in his patrol car.

According to Marasco, the video and audio ran continuously once he turned it on.




                                           2
       Approximately 35 minutes were recorded on the video labeled State’s Exhibit 4.

Portions of the audio are difficult to discern. The videotape spans the entire time from

when appellee was escorted out of his apartment and transported to the police station

where he and Marasco waited in an office until a detective arrived to interview him.

Marasco testified he did not question nor interrogate appellee at any time, but that appellee

did make voluntary statements to him as they engaged in casual conversation.


       Defense counsel’s objection that State’s Exhibit 4 did not comply with article 38.22

of the Texas Code of Criminal Procedure and that it was not an accurate recording was

overruled. The State argued that article 38.22 did not apply because the content of the

exhibit was not the result of custodial interrogation.


       After an in-chambers review of State’s Exhibit 4, the trial court made an oral ruling

that the audio/video device failed and was incapable of making an accurate recording. The

trial court also found that no oral statements made by appellee in response to questioning

by officers would be admissible. The trial court signed a written order denying appellee’s

motion with the exception that:


       because the Defendant was in custody, no oral statement made by the
       Defendant during the time period shown on State’s Exhibit 4 is admissible.
       In this connection with respect to Exhibit 4, the Court finds that an accurate
       recording of the Defendant’s statements was not made as required under
       Article 38.22, Section 3, Code of Criminal Procedure.


That same date, the trial court signed a clarification order providing in relevant part:


                                              3
       no oral statements of the Defendant made in respect to custodial
       interrogation is [sic] admissible. The Court makes no finding as to any other
       statements of the Defendant not made as a result of custodial interrogation
       which may be contained on State’s Exhibit 4.


       It is undisputed that appellee was in custody at the time State’s Exhibit 4 was

recorded. The State maintains, however, that any inculpatory statements made were not

the result of custodial interrogation, and thus, the trial court made a mistake of law in

applying article 38.22 of the Code. We agree.


       Generally a trial court's ruling on a motion to suppress is reviewed for abuse of

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Cr.App. 2002). However, where,

as here, we are presented with a question of law based on undisputed facts, we perform

a de novo review. See Dyar v. State, 125 S.W.3d 460, 462 (Tex.Cr.App. 2003).


       Voluntary, non-custodial statements are exempt from the requirements of Miranda

v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966), and article 38.22 of the

Code of Criminal Procedure. Granviel v. State, 723 S.W.2d 141, 146 (Tex.Cr.App. 1986).

Article 38.22 generally precludes the use of statements that result from custodial

interrogation, absent compliance with procedural safeguards. Shiflet v. State, 732 S.W.2d

622, 623 (Tex.Cr.App. 1985) (en banc). The State concedes appellee was in custody; thus,

the decisive question is whether appellee made any statements resulting from interrogation.


       Interrogation refers not only to express questioning, but also to words or actions of

police officers that they should know are reasonably likely to elicit an incriminating response

                                              4
from a suspect. Rhode Island v. Innis, 446 U.S. 291, 299-302, 100 S.Ct. 1682, 64 L.Ed.2d

297 (1980); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.–El Paso 1995, no pet.). As

conceptualized in Miranda, interrogation must reflect a measure of compulsion above and

beyond that inherent in custody itself. Innis, 446 U.S. at 300. When a suspect in custody

spontaneously volunteers information that is not in response to interrogation by officers, the

statement is admissible even though not recorded because it is not the product of custodial

interrogation. See Stevens v. State, 671 S.W.2d 517, 520 (Tex.Cr.App. 1984); Smith v.

State, 60 S.W.3d 885, 889 (Tex.App.–Amarillo 2001, no pet.).


       We have reviewed State’s Exhibit 4 in its entirety. Marasco testified that upon

reviewing the videotape he noticed it cut in and out, but confirmed the equipment was

functioning properly. While questioned on voir dire, he explained his body movements and

the distance between his body microphone and his patrol car may have affected the

recording.


       During our review of State’s Exhibit 4, we discerned comments by Marasco and

voluntary statements by appellee. While in the patrol car, Marasco asked appellee if he

was all right. At the station, Marasco told appellee he was removing the handcuffs and

later arranged for appellee to have coffee. Much of the conversation by appellee was

about his diabetes and his blackouts. He also made voluntary statements, i.e., not

remembering what he did during blackouts, having a bad temper, wondering if he was

dreaming, never being in trouble until then, never doing anything like that in his life.


                                              5
       There is nothing in the testimony at the suppression hearing or on the videotape to

indicate Marasco interrogated appellee by questions, words, or actions hoping to elicit

incriminating statements from him. Any inculpatory statements made by appellee, although

made while in custody, were voluntary because they were not made in response to

interrogation by Marasco. We conclude the trial court abused its discretion in granting the

motion to suppress based on article 38.22, section 3 of the Code of Criminal Procedure.

We sustain the State’s sole issue; however, we express no opinion regarding the

admissibility of State’s Exhibit 4 under the Texas Rules of Evidence or other applicable

laws or rules, nor should this opinion be read to preclude the taking of additional evidence

on the question of whether statements recorded on State’s Exhibit 4 were the product of

custodial interrogation.


       Accordingly, the trial court’s order on appellee’s motion to suppress is reversed and

the cause is remanded to the trial court for further proceedings.



                                          Don H. Reavis
                                            Justice


Do not publish.




                                             6
