Opinion filed January 29, 2010




                                            In The


   Eleventh Court of Appeals
                                          ___________

                                     No. 11-09-00179-CR
                                         __________

                             STATE OF TEXAS, Appellant

                                               V.

                        RAYMOND CASTRELLON, Appellee


                            On Appeal from 385th District Court

                                     Midland County, Texas

                                 Trial Court Cause No. CR-35692


                           MEMORANDUM OPINION

       The State appeals from the trial court’s ruling on Raymond Castrellon’s motion to suppress.
The trial court suppressed Castrellon’s statements made to Officer Fernando Carrasco. We affirm.
                                        Background Facts
       Castrellon was in the Midland County Detention Center serving time for revocation of
probation. Castrellon applied to serve his assessed jail confinement in the Midland County Jail
Work Release Program. The program required him to perform work for the county under the
supervision of the Community Work Program Supervisor and to be present for work from 7:30 a.m.
to 1:30 p.m. Castrellon’s application confirmed that he understood that violating any terms or
conditions of the program could result in the trial court revoking his participation in the program.
Potential violations included failing to report to the program, departing from the program without
permission, and failing to perform the work assigned.
         On January 28, 2009, Castrellon was working in the work release program under
Officer Carrasco’s supervision. That day, the work crew had lunch in the work release program
building. Officer Carrasco allowed Castrellon and two other inmates to go to Castrellon’s pickup
for a smoke break. Officer Carrasco testified that he was alerted that something was going on
outside, and he went outside to check on the situation. He testified that, as he approached
Castrellon’s pickup, he could smell what he believed to be marihuana coming from the vehicle.
Officer Carrasco testified that he asked what was going on and that one inmate replied that they were
listening to the radio and smoking cigarettes. He ordered Castrellon and the other inmates to get out
of the pickup and to go inside the work release program building. Castrellon entered the work
release program building and sat on a bench. Officer Carrasco testified that he asked Castrellon what
was going on in the pickup. His testimony was as follows:
                A. He sat down on the bench that we provide for them. He sat down, and I
         asked him. I said, “Well, what was going on?”

                   Q. And did he reply?

                  A. What he did, he sat there, and he shook his head. He said, you know – if
         I recall, he told me he wasn’t going to go get in trouble for anyone and that, you
         know, he just – “I’m not going to get in trouble for anyone,” he said.

                I told him, “Well, what was going on?” I said, “If you don’t tell me” – I said,
         “You know, I know what I smelt. Tell me what’s going on, or, you know, we can
         place you in jail.”

Officer Carrasco testified that Castrellon told him, “I’m not going to go to jail for those fools.”
Officer Carrasco further testified that Castrellon said, “Dope was being smoked in the pickup truck
and that Inmate Pruitt was the one that had it on his person.”1 Officer Carrasco’s interview with



          1
            We note that Castrellon’s statements were not inculpatory as he did not admit to smoking marihuana or having marihuana
in his possession.

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Castrellon lasted about five minutes. After Officer Carrasco finished talking with Castrellon, he
questioned the other two inmates. Castrellon walked outside and paced the length of the building.
Officer Carrasco did not advise Castrellon of his Miranda2 rights, and he did not audiotape or
videotape the interview.
        Castrellon was indicted for possession of a dangerous drug, namely marihuana, in a
correctional facility. Castrellon filed a motion to suppress his statements made to Officer Carrasco.
After a hearing, the trial court suppressed the statements, stating in its conclusions of law that:
        (1)         Castrellon was in custody when Officer Carrasco conducted his investigation;

        (2)         Castrellon’s rights against self-incrimination were violated under Miranda
                    and TEX . CODE CRIM . PROC. ANN . art. 38.22, § 3 (Vernon 2005); and

        (3)         Castrellon’s statements were not voluntary because they were coerced by
                    Officer Carrasco’s threat to take Castrellon to jail if he did not tell Officer
                    Carrasco what was going on.
                                                State’s Right to Appeal
        The State asserts that it has the right to appeal the trial court’s ruling on Castrellon’s motion
to suppress. The State has limited rights of appeal in criminal cases. TEX . CODE CRIM . PROC. ANN .
art. 44.01 (Vernon Supp. 2009). The State is entitled to appeal an order of a court in a criminal case
if the order grants a motion to suppress evidence, if jeopardy has not attached, and if the prosecutor
certifies to the trial court that the appeal is not taken for the purpose of delay and that the suppressed
evidence is of substantial importance to the case. Article 44.01(a)(5). The State asserts in its brief
that Castrellon’s suppressed statement was evidence that was substantially important to its case.
Castrellon does not challenge the State’s right to appeal. We, therefore, find that the State has a right
to appeal this case and will discuss its issues below.
                                                       Issues on Appeal
        In its second and third issues, the State asserts that the trial court erred by finding that
Castrellon was in custody and undergoing an interrogation and thereby requiring compliance with
TEX . CODE CRIM . PROC. ANN . art. 38.22 (Vernon 2005) and Miranda, 384 U.S. 436. The State also



        2
            Miranda v. Arizona, 384 U.S. 436 (1966).

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asserts that the trial court erred by finding that Castrellon was threatened or coerced into making his
statements to Officer Carrasco.
                                         Standard of Review
        In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give great
deference to the trial court’s findings of historical facts as long as the record supports the findings.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If the trial court’s ruling is reasonably
supported by the record and is correct on any theory of law applicable to the case, the reviewing
court will sustain the trial court’s findings. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.
App. 1996). We also must afford great deference to the trial court’s rulings on mixed questions of
law and fact if the resolution of those ultimate questions turns on an evaluation of credibility and
demeanor. Guzman, 955 S.W.2d at 89. Appellate courts, however, conduct de novo review on
“mixed questions of law and fact” not falling within the previous category. Id. A question “turns”
on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if
believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v.
State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).
                                    Voluntariness of Statement
        Once an accused presents evidence that raises the issue of voluntariness, the State must
prove, by a preponderance of the evidence, that the statement was voluntarily made. State v.
Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). A statement is involuntary if there was official,
coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the
product of an essentially free and unconstrained choice by its maker. Alvarado v. State, 912 S.W.2d
199, 211 (Tex. Crim. App. 1995). To determine if the confession was voluntary, the reviewing court
must examine the totality of the circumstances surrounding the acquisition of the statement to
determine whether it was given voluntarily. Id. Without coercive police conduct causally related
to the confession, there is no basis for concluding that any state actor has deprived a criminal
defendant of due process of law. Colorado v. Connelly, 479 U.S. 157, 164 (1986). A court should
examine the circumstances surrounding the confession, including the conduct of the law enforcement
officials and the capacity of the suspect to resist pressure to confess. United States v. Casal, 915
F.2d 1225, 1228 (8th Cir. 1990).       A confession cannot be used where the prisoner has been


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influenced by any threat because the law cannot measure the force of the influence used. Martinez v.
State, 127 S.W.3d 792, 796 (Tex. Crim. App. 2004) (citing Bram v. United States, 168 U.S. 532,
542-43 (1897)). The ultimate question to determine voluntariness is “whether the suspect’s will was
overborne” by the conduct of the state actor. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim.
App. 1997). Some relevant circumstances include the length of the detention and interrogation,
whether the defendant was permitted access to his family or attorney, and the presence or absence
of physical brutality. Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999,
pet. ref’d) (citing Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985), overruled on other
grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). A defendant’s characteristics
and status, as well as the conduct of the police, are also important concerns. Haynes v. Washington,
373 U.S. 503, 517 (1963).
       The State argues that Castrellon’s statements were voluntary because he was only interviewed
for five minutes, that Officer Carrasco’s demeanor was polite and respectful, that Officer Carrasco
did not point a gun at Castrellon or handcuff him, and that Castrellon did not ask to speak to a lawyer
or ask to visit with family members. The State also argues that Castrellon signed an application to
participate in the work release program whereby he agreed to follow the rules of the program. The
State, however, fails to address Officer Carrasco’s threat to put Castrellon in jail. Courts have held
that a defendant’s statement was coerced by a verbal threat alone and not physical brutality. See
Lynumn v. Illinois, 372 U.S. 528, 531 (1963) (confession involuntary when police told suspect
confession would produce help and recommendation of leniency, but denial would result in loss of
welfare payments and custody of children); Rogers v. Richmond, 365 U.S. 534, 535 (1961)
(confession involuntary when police told suspect they would take his wife into custody).
       Because of Castrellon’s status as an inmate participating in the work release program and the
conduct of Officer Carrasco, we conclude that the trial court did not abuse its discretion by finding
that Castrellon was coerced into making the statements to Officer Carrasco.              Even though
Officer Carrasco did not use a gun or handcuffs and spoke in a polite tone, Castrellon was threatened
with jail if he did not give a statement. Castrellon testified that he did not think that he could leave
until he told Officer Carrasco what happened outside. He further testified that he believed that, if
he did not talk to Officer Carrasco, he would be put in jail. Castrellon knew that Officer Carrasco


                                                   5
possessed some authority over him, and he believed that he could go to jail if he did not talk to
Officer Carrasco. Castrellon’s statement – “I’m not going to jail for those fools” – indicated that the
only reason he told Officer Carrasco what was going on was that he did not want to go to jail. The
evidence supports a conclusion that Castrellon’s will was overborne by Officer Carrasco’s threat to
take him to jail.
        Further, the State argues that Castrellon knew that he could go to jail if he did not follow the
rules of the work release program because he signed the application to do the work release program.
However, the application did not specify that answering any questions asked by the police or the
officer in charge was one of the rules of the program or that, by applying for the work release
program, he was waiving his right to remain silent.           We decline to hold that Castrellon’s
constitutional rights against self-incrimination were limited as a result of his participation in the
work release program.
        The evidence that we have outlined above, viewed in the light most favorable to the trial
court’s ruling, supports the trial court’s finding that Castrellon’s statements were not voluntary. The
trial court did not err when it granted Castrellon’s motion to suppress. We overrule the State’s third
issue on appeal. Because the trial court did not abuse its discretion in concluding that the statements
were not voluntarily given, the statements were properly suppressed for that reason, and we need not
address the State’s other two issues.
                                             Conclusion
        We affirm the trial court’s order.




                                                                RICK STRANGE
                                                                JUSTICE


January 29, 2010
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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