Affirmed and Opinion filed May 21, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00893-CR

                       LESLIE RAY FOSTER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 10th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 16-CR-1600

                                     OPINION

      Appellant made custodial statements to two different interrogators in two
different settings, but only the second interrogator warned appellant of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Appellant moved to suppress both
of his statements, claiming that the interrogators had circumvented Miranda by
subjecting him to the two-step technique that is sometimes known as “question first,
warn later.” In response to appellant’s motion, the State stipulated that certain pre-
Miranda statements were inadmissible, but it argued that the post-Miranda
statements should be admitted because appellant voluntarily waived his rights under
Miranda. The trial court agreed with the State and denied appellant’s motion to
suppress. Appellant now complains of that ruling in this appeal from his conviction
for theft. For reasons explained more fully below, we conclude that the trial court’s
ruling was not an abuse of discretion.

I.    The Arrest

      In the early hours of the morning, several men broke into a motorcycle shop
by sawing through a metal wall panel. The break in was immediately detected by an
alarm company, which promptly notified the police.

      The police raced to the scene with their sirens off, hoping to establish a
perimeter before engaging the burglars. When they arrived, the police found
appellant standing out front and serving as a lookout. Appellant initially ran away,
but then he turned around and walked towards the police with his hands up. The
police saw a black object in appellant’s hand (later determined to be a cellphone)
and ordered appellant to stop and get on the ground. When appellant failed to follow
these instructions, he was tackled by an officer and a detective, the two individuals
who would later interrogate him.

      Appellant was arrested, handcuffed, and secured in the backseat of a patrol
car, but according to the officer who arrested him, he was not warned of his rights
because the scene was still active. The remaining burglars had taken off on foot, and
the police were still searching for them in a nearby field. The police called in a canine
unit to aid in the search, and as that search continued, appellant was transported to
the police station for processing.




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II.   The Custodial Statements to the Officer

      The officer who arrested appellant also transported him to the police station.
The officer’s patrol car was equipped with an interior video camera, which recorded
his interaction with appellant.

      The camera recorded roughly thirty-seven minutes of footage, beginning with
the officer’s race to the motorcycle shop. Appellant was apprehended approximately
five minutes into the recording, and he was secured in the backseat of the patrol car
another five minutes after that. He then sat alone for the next seventeen minutes as
the police continued to search the scene.

      The officer returned to his patrol car at about the twenty-seven minute mark,
and then he drove away without making any comments to appellant. The detective
was not present at this time.

      The officer drove in silence for a full minute, and then appellant broke that
silence by asking, “Did y’all get him?” The officer tersely responded, “Working on
it.” When appellant asked, “Huh?” the officer explained that there were two dogs on
the scent, and that “he’s gonna get bit.”

      The officer then began his own series of questions, asking appellant whether
he lived in the La Marque area, where the motorcycle shop was located. Appellant
answered that he was from Houston, but that he happened to be in the La Marque
area that evening. Without providing full context to his answer, appellant added that
“they came down to pick [him] up” and asked him “to stand out there and wave for
them.” The officer asked how many other men were out there, and appellant said
“about seven.” The officer continued, “Where did all the rest of them go?” Appellant
answered, “They seen y’all coming.”



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      For the next minute, the officer drove in silence, and then appellant restarted
the conversation. “How many did they apprehend?” he asked. The officer said,
“You’re the first.” Appellant continued, “What were they actually trying to do?” The
officer responded, “What everybody else does there in the middle of the night—
trying to steal shit.” When appellant asked what they were specifically trying to steal,
the officer said, “All that place has got is ATVs and bikes.”

      At that point, appellant heard over the officer’s radio that only two men were
seen running away, and one of them was wearing a white shirt, while the other was
wearing all dark clothing. Appellant then volunteered, “Oh that’s the one they call
Joe. He had on all black. . . . And the white shirt. That’s Joe and George.” The officer
asked whether those suspects were from the local area or from Houston, and
appellant said he did not know, but that they had picked him up. Appellant added,
“So that’s what they were up to.”

      After receiving another update over the radio, the officer told appellant that
the dogs were closing in on the other burglars and that “somebody’s about to get
bit.” The officer then asked, “So how’d you get blood on your hands?” Appellant
said, “My knife,” which he indicated he had “probably dropped.”

      After another extended period of silence, appellant asked, “What actually did
they do though? That’s what I’m trying to figure out.” The officer responded, “That’s
what we’re still trying to figure out. We’re just trying to get everybody caught. Then
we can go back and find everything.”

      The conversation concluded after that, with appellant being removed from the
patrol car. In all, the conversation lasted less than ten minutes.




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III.   The Custodial Statements to the Detective

       Between one and two hours later, in a designated interrogation room at the
police station, appellant consented to give a recorded statement to the detective, who
was the other person who had apprehended him. The officer who had previously
transported appellant to the police station did not attend the interrogation.

       The detective began by asking for appellant’s biographical information,
including his date of birth, address, and phone number. This information was
transcribed on a form that warned appellant about giving a false statement to a peace
officer. That form was read to appellant, along with a separate form warning
appellant of his rights under Miranda. Appellant signed the Miranda form and
agreed to waive those rights.

       The detective then proceeded to interrogate appellant about his involvement
in the burglary, beginning with why appellant was in La Marque in the first place.
Appellant said that he came down to the area to see his girlfriend, who he later
admitted was a prostitute. He then said that he was approached by some “dudes”
outside her apartment complex, and they promised that they would “hook [him] up
with another female . . . and $100” if he “gave them a hand.” Appellant explained
that the men did not really need help with anything. They just wanted him to stand
in a location at some distance away from the motorcycle shop and, if he saw
anything, to run towards a building with the light activated on his cellphone.

       Appellant said that he suspected that the other men were “up to something,”
but he claimed that he did not know specifically that they were stealing motorcycles.
He also denied ever hearing or seeing them as they sawed through the walls of the
motorcycle shop.




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      Appellant informed the detective that there were about six burglars, and that
they were members of the Blood gang. He identified two of them by name,
describing the same Joe and George that he had mentioned to the officer in the patrol
car. Appellant asked if any of them had been caught, and the detective said that he
did not know because he had turned off his radio.

      Appellant also asked whether he was going to be charged with anything, and
the detective said that he was still trying to determine appellant’s involvement in the
crime. Though he described himself as a “crash dummy,” appellant essentially
claimed that he had been set up to be the fall guy.

      The interrogation ended after that, having lasted roughly forty minutes. Not
once during the interrogation did the detective ever refer to a statement that appellant
made to the officer.

IV.   The Motion to Suppress

      Appellant filed a written motion to suppress, but he did not specifically
complain of an impermissible two-step interrogation. Instead, he generally argued
that his statements were involuntary because they were made without the benefit of
counsel, because they were tainted by an illegal arrest, and because they were taken
in violation of article 38.22 of the Code of Criminal Procedure.

      The trial court conducted a brief hearing on the motion outside the presence
of the jury. The only witnesses who testified at that hearing were the officer and the
detective.

      The officer testified that the motorcycle shop has had a long history of break
ins. He described the police effort to establish a perimeter and capture the burglars.
He also said that he arrested appellant without warning him of his Miranda rights
because there was still an ongoing search for the remaining burglars.

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      The officer claimed that he did not engage appellant in any conversation until
appellant asked whether another person had been caught. Even though the officer
knew that appellant had not been warned of his rights under Miranda, the officer
never explained (nor was he asked to explain) why he began to question appellant
about the circumstances of the burglary.

      The detective testified that he did not accompany appellant in his transport to
the police station. The detective also testified that appellant never complained of
pain or asked for medical attention during his interrogation, even though appellant
had been tackled at the scene of the crime. The detective said that appellant had been
given the opportunity to use the restroom and to get something to drink before the
interrogation. The detective further said that appellant appeared to fully understand
that he had waived his rights under Miranda.

      At the close of the hearing, defense counsel orally argued that the statements
should be suppressed because of an illegal two-step interrogation, citing Martinez v.
State, 272 S.W.3d 615 (Tex. Crim. App. 2008). In response, the State stipulated that
appellant’s pre-Miranda statements were inadmissible, except for those statements
that were not precipitated by a question from the officer. As for appellant’s other
statements to the detective, the State argued that those statements should be admitted
because appellant voluntarily waived his rights under Miranda. The State also
distinguished Martinez on the facts: in that case, the same interrogators attended the
same interrogations at the same time, and they administered the Miranda warnings
midstream; whereas in this case, the interrogators at each interrogation were
different, and there was no showing that the second interrogator even knew that the
first interrogation had taken place.




                                           7
V.    The Trial Court’s Ruling

      The trial court denied the motion to suppress and made oral and written
findings.

      In the oral findings, the trial court determined as follows:

             All right. What we have here is a two-step situation or the
      question first situation that you see sometimes. In this case the
      Defendant initiated the conversation with the officer in the car. It was
      not a true interrogation. Nothing from that conversation came out in the
      second one of any substance that I observed.
            You have two different people. It’s a stretch to say that the
      questioning by, or conversation between [the officer] and the Defendant
      while he’s driving is an interview. So, I do believe that the correct
      approach is as we have done, to disregard the questions and answers
      given during that drive, but that the examination [by the detective] was
      given freely and voluntarily. And so, the Motion to Suppress will be
      denied.
      The trial court did not elaborate on the claimed two-step interrogation in its
written findings, though it did determine in pertinent part that the officer and the
detective were credible witnesses; that the detective was polite and conducted
himself in a professional manner; that appellant did not seem intimidated or coerced
by the detective when appellant voluntarily signed the form waiving his rights under
Miranda; and that during the interrogation, appellant never expressed a desire to not
speak with the detective or to withdraw the waiver that he had previously signed.

VI.   Applicable Law

      When a defendant receives midstream Miranda warnings and then later
moves to suppress his post-Miranda statements, the threshold question for the trial
court to decide is whether the interrogator deliberately employed a two-step
“question first, warn later” strategy. See Carter v. State, 309 S.W.3d 31, 38 (Tex.
Crim. App. 2010) (adopting Justice Kennedy’s concurring opinion in Missouri v.
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Seibert, 542 U.S. 600 (2004) (plurality)). If the two-step strategy was deliberate,
then the trial court must suppress any post-Miranda statements that were related to
the substance of the pre-Miranda statements unless curative measures were taken
before the defendant made his post-Miranda statements. Id. at 37. If the two-step
strategy was not deliberate, then the post-Miranda statements may be admitted if the
defendant voluntarily waived his Miranda rights after the initial Miranda violation.
Id. at 41.

VII. Deliberateness

       Whether the two-step strategy was deliberate depends on the interrogator’s
subjective intent. Id. at 39. That determination often turns on the credibility of the
interrogator in light of the circumstances surrounding the interrogation. Id. Because
the trial court is in a unique position to gauge the interrogator’s credibility, we, as
the reviewing court, apply a highly deferential standard of review, reversing the trial
court’s ruling only if it amounts to a clear abuse of discretion. Id. at 40.

       This case involves two interrogators (the officer and the detective), but as
appellant correctly observes, we are only concerned with the subjective intent of the
officer (rather than the detective), because it was the officer’s questions that
preceded the Miranda warnings.

       The trial court did not explicitly address the officer’s intent in its findings of
fact. Instead, the trial court determined that the officer had not engaged in a “true
interrogation” and that it would be a “stretch” to label his questioning as an actual
interview.

       The officer’s questions did amount to an interrogation, however, and they
violated Miranda, which is why the State stipulated that appellant’s answers must
be excluded. See State v. Cruz, 461 S.W.3d 531, 536 (Tex. Crim. App. 2015) (“In


                                            9
the Miranda context, ‘interrogation’ means ‘any words or actions on the part of the
police . . . that the police should know are reasonably likely to elicit an incriminating
response.’”). Nevertheless, by characterizing the officer’s questions as something
less than a true interrogation, and by rejecting appellant’s claim of a “two-step
situation,” the trial court implicitly found that the officer did not deliberately engage
in a two-step strategy, and that his violation of Miranda was merely inadvertent.
That implied finding is supported by the evidence that the colloquy between
appellant and the officer was initiated by appellant, not the officer, and that the
officer’s follow-up questions were conversational in nature. See Carter, 309 S.W.3d
at 40–41 (upholding a finding that a two-step strategy was not deliberate because the
interrogator’s colloquy was conversational).

      The trial court’s implied finding is also supported by the evidence that the
officer was not present for the detective’s interrogation and, vice versa, the detective
was not present for the officer’s interrogation. Indeed, because there is no evidence
that the officer knew that appellant would be interrogated by the detective (or in the
case of the detective, that appellant had already been interrogated by the officer), the
trial court could have reasonably determined that the officer did not intend to employ
a two-step strategy by undermining Miranda.

      Appellant argues that there was coordination between the officer and the
detective because they were both involved in appellant’s arrest, they both spoke to
each other after the arrest and before appellant’s transport, and they both interrogated
appellant close in time. These facts alone do not prove that the officer harbored an
intent to employ a two-step strategy. There was no direct evidence that the officer
and the detective had hatched a plan to violate Miranda when they spoke to each
other after appellant’s arrest and before his transport. Similarly, there was no
evidence that the officer and the detective spoke to each other at the police station

                                           10
following the officer’s initial interrogation. And during the detective’s follow-up
interrogation, the detective never referred to any specific statements that appellant
had made to the officer. On this record, the trial court was not required to find that
the officer had coordinated with the detective to employ a two-step strategy.

       Appellant argues next that the officer’s intent to employ a two-step strategy is
apparent on the face of the record because the officer knew that appellant was under
arrest but the officer interrogated him anyways. This argument also fails. The arrest
establishes that a Miranda violation occurred, but it does not establish as a matter of
law that the officer intended to employ a two-step strategy by violating Miranda. Id.
at 33 (upholding a finding that a two-step strategy was not deliberate even though
the interrogator began his questioning by asking “Y’all know what you are under
arrest for, right?”).

       Appellant also likens his case to Martinez, but the facts of that case are
remarkably different. The initial interrogation there occurred at police headquarters
after the issuance of an arrest warrant, and the interrogators engaged in deception
after a span of several hours to coerce the defendant’s incriminating statement. See
Martinez, 272 S.W.3d at 618. Under those circumstances, the Court of Criminal
Appeals held that the interrogators’ failure to advise the defendant of his rights under
Miranda was a “conscious choice,” not a mistaken belief that the defendant was not
in custody. Id. at 624. By contrast, there was no arrest warrant or police deception
in this case, and the initial interrogation occurred during a brief ten-minute transport
in a patrol car, when the officer and appellant were not even looking at each other
face-to-face. On these facts, the trial court had the discretion to determine that the
officer’s violation of Miranda was merely inadvertent and that, unlike in Martinez,
the officer did not intend to employ a two-strap strategy.



                                          11
      Because the record supports the trial court’s implied finding that the two-step
strategy was not deliberate, we need not consider appellant’s arguments about the
effectiveness of any curative measures. We consider instead whether appellant
voluntarily waived his rights in his subsequent interrogation after being warned of
those rights by the detective.

VIII. Voluntariness

      The trial court expressly found in its findings of fact that appellant understood
his Miranda rights and that he voluntarily agreed to waive them when he spoke with
the detective. We review this finding for an abuse of discretion. See Carter, 309
S.W.3d at 41–42.

      The video recording from the detective’s interrogation shows that the
detective was neither intimidating nor coercive, but rather “polite” and
“professional” as the trial court described. The detective spoke calmly to appellant,
and he removed appellant’s handcuffs at the beginning of the interrogation so that
appellant could sign the form where he agreed to waive his rights. The handcuffs
stayed off for the remainder of the interrogation.

      Appellant was cooperative during the interrogation. He answered
affirmatively when the detective asked whether he understood his Miranda rights,
and his answers to the detective’s questions about the crime were coherent and
responsive. As the trial court found, there is nothing from the interrogation indicating
that appellant made his statements against his own will, or that he expressed a desire
to withdraw the waiver that he had previously signed.

      Appellant argues that his post-Miranda statements to the detective were
involuntary because they were a continuation of his pre-Miranda statements to the
officer. This argument turns on a mixed question of law and fact, and under the


                                          12
governing standard, “the finder of fact must examine the surrounding circumstances
and the entire course of police conduct with respect to the suspect in evaluating the
voluntariness of his statements.” See Oregon v. Elstad, 470 U.S. 298, 318 (1985).
The factors to be considered in this examination are “the time that passes between
confessions, the change in place of interrogations, and the change in identity of the
interrogators.” Id. at 310; see also Hunt v. State, No. PD-0152-12, 2013 WL
3282973, at *4 (Tex. Crim. App. June 26, 2013) (not designated for publication) (“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.”).

      Here, the evidence showed that the detective’s interrogation occurred between
one and two hours after the officer’s interrogation. The evidence also showed that
the locations of the two interrogations were different: the detective’s interrogation
was more typical, occurring in a designated interrogation room at the police station;
whereas the officer’s interrogation was less typical, occurring in a moving patrol car.
And the identity of the interrogators was not continuous: the detective was not
present for the officer’s interrogation, and the officer was not present for the
detective’s interrogation. In light of these various separations, the trial court could
have reasonably determined that appellant voluntarily waived his rights because he
understood that the detective’s interrogation was not a continuation of the officer’s
interrogation.

      In one final issue, appellant contends that his post-Miranda statements were
involuntary because he was suffering from untreated schizophrenia. Appellant did
not raise this issue in his written motion to suppress, nor did he develop any evidence
or present any argument relating to this issue at the live hearing on the motion to
suppress. The State did not address this issue either. Because the issue was never

                                          13
brought to the attention of the trial court, we conclude that it was not preserved. See
Vasquez v. State, 483 S.W.3d 550, 554–55 (Tex. Crim. App. 2016).

      Even if this issue had been preserved, we would overrule it. The voluntariness
of a statement given by a person with a mental illness is reviewed under the totality
of the circumstances, which is the same standard that applies to persons with regular
mental capacities. See Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007).

      The video evidence does not reflect that appellant exhibited any obvious signs
of mental illness during the detective’s interrogation. Appellant spoke clearly and
concisely. His answers were responsive and focused. The detective also testified that
appellant appeared to be comfortable and that he never asked for medical attention.
Based on the totality of the circumstances, the record supports the trial court’s
finding that appellant voluntarily waived his rights under Miranda. See Umana v.
State, 447 S.W.3d 346, 353–58 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(upholding a trial court’s finding that a waiver was voluntary, despite a claim of
untreated mental illness, where there was evidence that the defendant “knew what
he was talking about,” “seemed to understand what the officer was asking him,”
“[did] not appear as though he’s in any way delusional,” and “didn’t appear to be
hallucinating”).

IX.   Conclusion

      The trial court’s judgment is affirmed.


                                        /s/     Tracy Christopher
                                                Justice


Panel consists of Justices Christopher, Jewell, and Hassan.
Publish — Tex. R. App. P. 47.2(b).

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