                                  NO. 07-03-0347-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                      JULY 25, 2005

                         ______________________________

                       JAMES FRANKLIN BROWN, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

         FROM THE 410TH DISTRICT COURT OF MONTGOMERY COUNTY;

          NO. 03-02-01113-CR; HONORABLE K. MICHAEL MAYES, JUDGE
                       _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      James Franklin Brown appeals his conviction for the felony offense of murder and

jury-assessed punishment of life imprisonment. Overruling the two issues appellant

presents for our review, we affirm.


                          Factual and Procedural Background


      The victim, twenty-year-old Brad Hawkins, occupied an apartment with his boyfriend,

Matt Albertson. Appellant also stayed there. Other people often visited the apartment, and
drug use and sale were common occurrences. On May 15, 2002, Hawkins and Albertson

were at the apartment with appellant, Rhonda Sellner, and another friend named Roland.

During the evening Hawkins fell asleep on a couch while Albertson, Sellner and Roland

went to a bedroom to use drugs.1 Roland left early the next morning. Hawkins was still on

the couch the next day, when Sellner and Albertson left to take Hawkins’s dog to a

veterinarian about 4 p.m., leaving appellant at the apartment. They returned with the dog

within two hours. Sellner left about 7 p.m. and, on her return about 1 or 2 a.m. on the 17th,

according to her testimony, Albertson and appellant met her at the door and “rushed” her

to the bedroom, shutting the door. Albertson told her he knew Hawkins was “cheating” on

him. Albertson and Sellner left together about 2:30 a.m., leaving appellant and Hawkins,

still on the couch, at the apartment.


       After several attempts to contact Hawkins by telephone, another friend, Jessica

Jolly, went to the apartment in the early morning hours of May 18 and discovered

Hawkins’s body on the couch. Investigation showed Hawkins had been struck on the head

with a baseball bat and shot. Based on the condition of the body, officers believed Hawkins

was killed on Thursday, the 16th. Houston Police Department investigator Waymon Allen

spoke with Roland the same day. Allen then took statements from Sellner and Albertson.

Appellant called Allen to talk about the investigation. Appellant accepted Allen’s offer of a

ride to the station.




       1
           Appellant did not participate in the drug use.

                                               2
       The first of three recorded interviews of appellant by Allen began about 4:30 p.m.

on May 19th.2 Appellant was told he was not required to speak with the officers and was

free to leave but not advised of his constitutional rights in accordance with Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After initially denying any

knowledge of how Hawkins died, appellant later claimed Albertson killed Hawkins by

striking him with a baseball bat, then shooting him with a rifle. He also admitted to taking

Hawkins’s car and computer. He offered to show the officers where he left the car. The

recorded interview ended approximately 7:30 p.m. Appellant agreed to ride with officers to

Liberty County to locate the car. Allen’s testimony indicates appellant assisted officers in

finding the car at a location in Liberty County, and in finding the residence in Hardin County

at which the computer was located, but appellant has not contested the officer’s assertion

he was not questioned about the murder during this trip.


       After recovering the car, Allen considered appellant to be in custody. On their return

to Houston appellant was taken before a magistrate and advised of his constitutional rights

about 4:30 a.m. on Monday, May 19th. Allen also gave appellant Miranda warnings before

the second interview, which took place at 4:45 a.m. in Allen’s car outside the jail. This

session primarily consisted of appellant reaffirming the statements made in the first

interview, including his position that Albertson was the person responsible for Hawkins’s

death. Leaving appellant at the jail, Allen drove to Galveston and reinterviewed Albertson.

On returning he conducted the third interview with appellant at the jail just before 2 p.m.


       2
        A second investigator named McCorvey was present during the interviews.
Additional details of the interviews will be discussed in connection with appellant’s first
issue.

                                              3
that afternoon. After again advising appellant of his constitutional rights, Allen began by

telling appellant that adding up all of the statements and information pointed to him as the

killer. Appellant then presented a different version of events, telling Allen that Hawkins

owed a few thousand dollars to a drug supplier named Dee who either wanted to take

property for the debt, or have Hawkins killed.3 Appellant claimed he had refused to kill

Hawkins but agreed to let the killer know when everyone else had left the apartment and

unlock the door for him. For an hour of this third questioning session, appellant declined

to give the name of the person who killed Hawkins, but eventually named a tow truck driver

named Stormy as the killer.4 Appellant never admitted to committing the murder.


       Appellant was charged with murder by an indictment containing an enhancement

paragraph alleging a prior felony conviction. He filed a motion to suppress seeking

exclusion of his statements to police, alleging they were obtained in violation of his rights

under the Fifth Amendment to the United States Constitution, Article I, Section 10 of the

Texas Constitution and Articles 38.08 and 38.23 of the Code of Criminal Procedure. At a

hearing on this motion, the court heard testimony from appellant, Officer Allen, and a

Liberty County deputy sheriff. The State argued no Miranda warning was required before

or during the first statement because it was not a custodial interrogation as required to

trigger Miranda’s requirements. Appellant argued he was in custody at the inception of the

first interview and the failure to advise him of his constitutional rights required exclusion of


       3
        A second reason given for the murder was the belief that Hawkins would tell police
about those he did business with if he was arrested.
       4
       Allen eventually located a person known as Stormy and interviewed him. The
substance of that interview is not shown in the record.

                                               4
the statement. He also argued that violation tainted the second and third statements,

requiring their exclusion. At this hearing the trial court ruled appellant was in custody after

he admitted taking Hawkins’s car, and excluded the remainder of the statement. This

admission appeared on page 63 of the 89-page transcribed statement. The court found

the second and third statements admissible. It also found each of the statements was made

voluntarily.


       After conducting additional research, the court reconsidered the issue at a

subsequent hearing, finding all of the statements admissible. The parties proceeded to trial

on this ruling, but the State did not present to the jury that part of appellant’s first statement

appearing after his admissions on page 63. After a six-day trial, appellant was found guilty

and punishment was assessed at life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. Appellant now challenges that conviction in two issues,

complaining first of the denial of his motion to suppress, and second of the admission of

a photograph of the victim.


                                      Motion to Suppress


       Appellant’s contention that each of his statements to police should have been

suppressed rests exclusively on his federal constitutional rights recognized in Miranda and

its progeny. He does not argue on appeal the relevant provisions of the Texas Code of

Criminal Procedure required their exclusion. See Tex. Code Crim. Proc. Ann. art. 38.22

(Vernon Supp. 2004). Nor is there a contention any of his statements were coerced or

otherwise involuntary.


                                                5
       The requirement of Miranda that police advise a person of rights prior to questioning

applies if the person is “in custody or otherwise deprived of his freedom of action in any

significant way.” Miranda, 384 U.S. at 445; Stansbury v. California, 511 U.S. 318, 322, 114

S.Ct. 1526, 128 L.Ed.2d 293 (1994). The determination whether a person is in custody

within the meaning of Miranda must be made on a case by case basis considering all the

objective circumstances. Stansbury, 511 U.S. at 323; Dowthitt v. State, 931 S.W.2d 244,

254-55 (Tex.Crim.App. 1996). A person is in custody only if, under all the circumstances,

a reasonable, innocent person would believe that his freedom of movement was restrained

to the degree associated with an arrest. See Dowthitt, 931 S.W.2d at 255.


       In Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985), the court identified

four general situations which may constitute custody. They are: (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. After the

decision in Stansbury, the Court of Criminal Appeals clarified the fourth situation such that

an officer’s knowledge of probable cause must be manifested to the suspect. Dowthitt, 931

S.W.2d at 255. Appellant contends the third and fourth situations are applicable here. We

review a trial court's ruling on a motion to suppress for abuse of discretion. Villarreal v.

State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). At the hearing on a motion to suppress,




                                              6
the trial court is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. Id.


       Appellant initially points to excerpts of the first interview as evidence a reasonable

person would believe he was in custody. He focuses on statements made by Officer Allen

to him that he was the last person to be seen with Hawkins, and that Hawkins died before

he, Albertson and Sellner left the apartment. Appellant characterizes as “threats” Allen’s

statement that if he did not find out exactly what happened, he would charge appellant,

Albertson and Sellner, because they were the only people present at the time of Hawkins’s

death. Then, citing Garza v. State, 34 S.W.3d 591 (Tex.App.–San Antonio 2000, pet.

ref’d), and Dowthitt, appellant concludes he was in custody at least by page 52 of the

statement when he admitted to being present when, as he alleged, Albertson killed

Hawkins.


       The objective circumstances surrounding the first interview include the facts that

appellant twice contacted police to speak with them concerning Hawkins’s death, and

officers transported him to the police station only because he had no other transportation.

When Allen picked appellant up, Allen told his mother they would bring him back at the end

of the interview. The interview was conducted at Allen’s desk rather than an interview room

and appellant was advised he was not under arrest, was not required to speak with the

officers and was free to leave. The interview lasted less than three hours. We do not find

the officer’s statements cited by appellant so accusatory as to negate the effect of the

advice he was free to leave. Considering the assertedly confrontational statements among



                                               7
all the circumstances, we cannot agree they rendered Allen’s questioning of appellant

custodial.


       Appellant urges that appellant’s admission he was present during Hawkins’s murder

is the same admission which established custody in Dowthitt. The facts surrounding the

questioning in Dowthitt are distinguishable. In that case, after twelve hours of intermittent

interviews, including a polygraph examination, the defendant admitted he was present “the

whole time” when the victims were killed. 931 S.W.2d at 253. As noted, Allen’s first

interview of appellant lasted less than three hours. In Dowthitt, the police disregarded the

defendant’s request to speak with his wife. Id. at 252. No similar factor is present here.

When Dowthitt was told he was not going home that night, he replied “Yeah. I’ve known

that for a long time.” Id. at 254. Here, there was no expression by the police or appellant

during the interview that he was no longer free to leave.5         Cf. 931 S.W.2d at 254

(recognizing holding of Stansbury that the subjective belief of police or the defendant are

relevant only if that belief is manifested by words or actions.) The evidence showed that

on their trip to Liberty and Hardin counties to locate Hawkins’s car and the other items after

the first interview, appellant rode in the front seat of Allen’s car and was not restrained.


       Too, in the context of Allen’s questioning, appellant’s statement acknowledging he

witnessed Albertson hit Hawkins with the baseball bat does not carry the significance of

Dowthitt’s admission he was present during the murder under investigation. Dowthitt

initially had denied being present, giving investigators a false alibi. 931 S.W.2d at 252.


       5
        Unlike Dowthitt, appellant did not express a belief he was not free to leave at the
end of the interview until his testimony at the motion to suppress hearing.

                                              8
After many hours of questioning, he still denied being present during the crime. Id. at 253.

Under the circumstances of his interrogation, and in light of his earlier contrary assertions,

the court found the admission of his presence during the murder was crucial and that a

reasonable person would have realized its incriminating nature. Id. at 256-57. Here,

appellant never denied he was among the few people who were present in the apartment

during the period surrounding Hawkins’s death. He knew before the interview session

began that Allen was aware of his presence during that time. While his admission he was

present (and awake) when, he alleged, Albertson hit the victim was not insignificant, it was

not such a crucial point in the interrogation as Dowthitt’s similar admission. We do not

agree that a reasonable person in his position would have believed he was no longer free

to leave after he made that statement.


       Appellant emphasizes that in Garza, officers reiterated the advice he was free to

leave after the defendant made a critical admission.             Some of the circumstances

surrounding Garza’s interview by police were similar to those present here. The police had

given Garza a ride to the station, and he was questioned for several hours without the full

panoply of Miranda warnings. 34 S.W.3d at 594. But police continued to question Garza

after he had admitted killing his wife. Id. at 595. Although the court did not find it dispositive

that police again told Garza he was free to leave even after he confessed to the killing, the

court found it to be a distinguishing factor from the otherwise similar facts in Dowthitt. Id.

at 597-98. Again, though, appellant’s admission to being present at the murder cannot

reasonably be compared to the admission by Garza that he had killed his wife.




                                                9
       Appellant also appears to contend the fourth circumstance described in Shiftlet

applied when he admitted to theft of the victim’s car at page 63 of the statement because

there was clearly probable cause to arrest for that offense and the officers did not tell

appellant he was free to leave. We need not evaluate that contention because the State

did not present to the jury any of the statement after page 63.


       Appellant also argues the trial court should have suppressed physical evidence,

including the victim’s car, obtained as a result of his interrogation. He relies on the Tenth

Circuit’s holding in United States v. Patane, 304 F.3d 1013 (10th Cir. 2003). However the

Supreme Court has since reversed that holding in Patane, finding the Fifth Amendment

does not require suppression of physical evidence obtained as a result of an unwarned,

voluntary statement. United States v. Patane, 124 S.Ct. 2620, 2630, 159 L.Ed.2d 667, 675

(2004).


       Appellant next contends his second and third statements should have been

suppressed because they were tainted by the illegality of the first statement. We cannot

agree, even assuming appellant is correct that Miranda warnings were required at some

point during his initial session with Allen. Appellant acknowledges the holding in Oregon

v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), that, unlike the Fourth

Amendment exclusionary rule, the rule adopted in Miranda is designed to protect against

a defendant’s compelled testimony. 470 U.S. at 306-07. The failure to administer Miranda

warnings simply creates a presumption of compulsion in the making of a custodial

statement. Id. at 307.     The court held when the “fruit” of a Miranda violation is a

subsequent, properly warned and voluntary statement, exclusion is not required. Id. at 309.

                                             10
In determining whether the subsequent statement was truly the result of knowing and

voluntary waiver of rights, a court should consider facts such as the amount of time

between the statements, change of interrogators, and change in location. Id. at 310. See

also Sterling v. State, 800 S.W.2d 513, 519 (Tex.Crim.App. 1990) (setting out additional

factors).


       Appellant contends his case is like that considered in Jones v. State, 119 S.W.3d

766 (Tex.Crim.App. 2003), in which an officer engaged in what was described as a

“discussion interview” with a person in custody, during which he transcribed verbatim the

interviewee’s oral statement, postponing Miranda warnings until he asked the interviewee

to sign the written statement. The court described the taking of the unwarned oral

statement and the warned written statement as a “nearly undifferentiated single event,

taking place in the same room as an uninterrupted and continuous process,” and found

Elstad not applicable to the procedure. Id. at 775. We do not see appellant’s second and

third statements as the result of an uninterrupted and continuous process beginning with

the first statement.


       Nor is this case like Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004),

decided after appellant’s brief was filed, in which the United States Supreme Court

addressed a “question-first” interrogation technique by which officers intentionally

questioned a person under arrest without giving Miranda warnings until the suspect

confessed, then gave the warnings and repeated the questioning to get the same

incriminating response. Id. at 2606-09. Missouri argued the procedure was sanctioned by



                                           11
Elstad, but the Court disagreed, finding it a “strategy adapted to undermine the Miranda

warnings.” Id. at 2612.


       Here more than eight hours elapsed between the first two interviews, and another

seven hours between the second and third. And, significantly, before giving the second

statement, appellant was taken before a magistrate who advised him of his rights. The

plurality opinion in Seibert states, “In a sequential confession case, clarity is served if the

later confession is approached by asking whether in the circumstances the Miranda

warnings given could reasonably be found effective.” 124 S. Ct. at 2610 n.4. A warning

given by a magistrate would in most cases be effective for this purpose, see Sterling, 800

S.W.2d at 520, and we see no reason to conclude otherwise here. The warnings were

repeated by Officer Allen at the beginning of the later sessions.6 Granted, appellant

remained in the company of police after the first interview. However, the nature of

appellant’s first statement,7 the passage of time between the statements, the changes in

location without intervening questioning, and the intervening appearance before a

magistrate make the circumstances here more akin to those in Elstad than to those in




       6
        It merits note Allen’s Miranda warnings were not a perfunctory recitation, but were
given individually and he asked appellant if he understood each right before continuing.
       7
        The Supreme Court notes in Seibert that when police finished with the unwarned
questioning, “there was little, if anything, of incriminating potential left unsaid.” 124 S. Ct.
at 2612. The same cannot be said of appellant’s first statement to Officer Allen.

                                              12
Jones and Seibert.8 We find no reversible error in the admission of appellant’s recorded

statements, and overrule his first issue.


                                  Admission of Photograph


       Appellant’s second issue assigns error to the admission of a photograph of the

decedent. It was the fourth photograph of the victim offered by the State. The first two

were personal photos of Hawkins before his death. The third was taken by police at his

apartment. It shows Hawkins lying on the couch where he was killed. It was taken from

the right of the couch and shows only his forearms across his chest and blanket covering

the lower half of his body. His head is obscured behind a cushion. The challenged

photograph also shows Hawkins on the couch and was taken from slightly left of the couch.

It also shows his forearms, with blood on his left elbow. It also shows a portion of his face.

At trial appellant objected to the exhibit as cumulative and “highly prejudicial in that it shows




       8
         Appellant elsewhere in his brief argues he was motivated to give the second and
third statements by “cat out of the bag” thinking. The Supreme Court declined in Elstad to
endorse the theory that the psychological effect of a non-Mirandized but otherwise
voluntary “disclosure of a guilty secret” requires that later disclosures be considered
involuntary even though preceded by Miranda warnings. 105 S. Ct. at 1294-95; see
Seibert, 124 S. Ct. at 2612 (plurality opinion) and 124 S. Ct. at 2619 (O’Connor, J.,
dissenting). We do not read Seibert to require our acceptance of such a theory here. Too,
the cat appellant let out of the bag in his first statement was that he was present when
Hawkins was killed. In that statement, and again in his second statement, appellant
blamed the killing on Albertson. A “cat out of the bag” theory cannot explain appellant’s
assertions in his third statement that another person killed Hawkins with appellant’s
cooperation.

                                               13
his face.” The State responded the exhibit was relevant to establish the victim’s identity

and to “track that body to the morgue.”9


       Appellant cites our opinion in Contreras v. State, 73 S.W.3d 314 (Tex.App.– Amarillo

2001, pet. ref’d), as setting forth factors relevant to determining if admission of an exhibit

of this type falls within the zone of reasonable disagreement, making the trial court’s ruling

supportable. Id. at 321. Those factors included gruesomeness, number, detail, size, color

and perspective. Id. Contreras involved a challenge to two autopsy photographs of the

victim depicting both a stab wound and large incisions made by the medical examiner. Id.

We found them gruesome “to some extent” but not “horrifying or appalling,” and overruled

the challenge. Id. at 322.


       The photograph challenged here does not show any wound and cannot fairly be

characterized as gruesome.10 Appellant does not challenge the State’s asserted need to

present a photograph partially showing the victim’s face for purposes of identification. He

did not offer to stipulate to that identification at trial. We overrule appellant’s second issue.




       9
       We perceive this to mean the State sought to have a basis for comparison with the
subsequently introduced autopsy photographs.
       10
       By contrast, appellant did not object to State’s exhibit 72 taken during the autopsy
and showing the victim’s crushed skull after his scalp was removed.

                                               14
                                       Conclusion


      Having overruled both of appellant’s issues, we affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




Do not publish.




                                            15
