Affirmed and Majority and Dissenting Opinions filed August 27, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00606-CR

               SUZANNE ELIZABETH WEXLER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1513928

                   DISSENTING OPINION
      The majority erroneously concludes Appellant was not in custody at the time
of her inculpatory and custodial interrogation. Appellant complied with police
instructions (conveyed via loudspeaker from an armored police vehicle by High
Risk Operations Unit personnel), exited the residence in which she was previously
located as an armed SWAT team prepared to enter and conduct a safety sweep,
was placed in a police car, was informed a search of the home from which she just
exited would be performed, was informed the drugs secreted therein would be
found, was asked where said drugs would be found (an inherently inculpatory
question under the circumstances), and was never informed she was free to leave.
Under these facts, “a reasonable person [would] believe that [s]he is under restraint
to the degree associated with an arrest.” Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996). Because Appellant’s statement to the officer during this
questioning was the only evidence that directly linked her to the drugs for which
she was prosecuted, I dissent.

                                 GOVERNING LAW

      “‘Custodial interrogation’ is questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Cannon v. State, 691 S.W.2d 664, 671
(Tex. Crim. App. 1985) (citing Orozco v. Tex., 394 U.S. 324 (1969); Mathis v.
United States, 391 U.S. 1 (1968); and Miranda v. Ariz., 384 U.S. 436 (1966)). See
also Miranda, 384 U.S. at 444 (“By custodial interrogation, [the United States
Supreme Court] mean[s] questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.”). Miranda is a promise from the judiciary to the People;
the majority breaks this promise by unreasonably concluding the instant facts do
not constitute “custody” as a matter of newly-created Texas law without citation to
any precedent which requires said conclusion.

      “A person is in ‘custody’ only if, under the circumstances, a reasonable
person would believe that his freedom of movement was restrained to the degree
associated with a formal arrest.” Dowthitt, 931 S.W.2d at 254; see also Gardner v.
State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). Texas law is clear that:




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       [A]t least four general situations . . . may constitute custody:
       (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.
Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.
Crim. App. 1985)); see also id. (“[C]ustody is established if the manifestation of
probable cause, combined with other circumstances, would lead a reasonable
person to believe that he is under restraint to the degree associated with an
arrest.”).

                                           ANALYSIS

       The instant facts facially trigger at least the first and third variants in
Dowthitt, the legal precedents sustaining same are readily ascertainable, and there
is no compelling reason to ignore any (much less all) of them; as a result, I reject
the majority’s conclusion that Appellant was not in custody at the time of her
inculpatory statements.

       Once a focused1 suspect is placed in a police vehicle under analogous
circumstances, commonsense dictates that the suspect’s “freedom of action” has

       1
          See Miranda, 384 U.S. at 444 & n.4. See also Shiflet, 732 S.W.2d at 624 (citing
Escobedo v. Ill., 378 U.S. 478 (1964)) and Ancira v. State, 516 S.W.2d 924, 927 (Tex. Crim.
App. 1974) (“The obvious purpose of the agents interrogating him was to elicit an incriminating
statement for ‘the investigation was no longer a general inquiry into an unsolved crime’ but had
begun ‘to focus on a particular suspect’[.]”); accord State v. Preston, 411 A.2d 402, 405 (Me.
1980) (“The more cause for believing the suspect committed the crime, the greater the tendency
to bear down in interrogation and to create the kind of atmosphere of significant restraint that
triggers Miranda . . . .”) (citing U.S. v. Hall, 421 F.2d 540, 545 (2d Cir. 1969) and Yale Kamisar,
“Custodial Interrogation” Within the Meaning of Miranda, in Criminal Law and the
Constitution, 335-85, Ann Arbor, Mich.: Institute of Continuing Legal Education, 1968).
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been significantly impacted. See Miranda, 384 U.S. at 444. Most directly, such
persons (as opposed to those who voluntarily enter such vehicles) are no longer
free to be in the physical place where they were located before being placed in a
police vehicle by a police officer;2 while certain interactions in more public spaces
would foreseeably yield less significant deprivations, Appellant left the protections
of a private home only after being instructed by an organized and well-equipped
amassment of law enforcement personnel.                Appellant’s placement in a police
vehicle significantly impacted her “freedom of action” and constituted custody.
See U.S. v. Blum, 614 F.2d 537, 540 (6th Cir. 1980) (defendant’s placement in a
police vehicle with a uniformed officer constituted a restriction on his freedom
sufficient to constitute custody).

       Comparable physical deprivations of drivers’ freedoms have historically
constituted custody in Texas even when there was no warrant. See Ragan v. State,
642 S.W.2d 489 (Tex. Crim. App. 1982) (citing Gonzales v. State, 581 S.W.2d 690



       2
          These facts are readily distinguished from non-custodial cases where people who have
reason to believe officers suspect they committed a crime voluntarily accompany police officers
investigating criminal activity to a certain location. See Shiflet, 732 S.W.2d at 630 (citing Ruth
v. State, 645 S.W.2d 432 (Tex. Crim. App. 1979); McCrory v. State, 643 S.W.2d 725 (Tex.
Crim. App. 1982); Ragan v. State, 642 S.W.2d 489 (Tex. Crim. App. 1982); Stewart v. State, 587
S.W.2d 148 (Tex. Crim. App. 1979); Stone v. State, 583 S.W.2d 410 (Tex. Crim. App. 1979);
Gonzales v. State, 581 S.W.2d 690 (Tex. Crim. App. 1979); Brooks v. State, 580 S.W.2d 825
(Tex. Crim. App. 1979); Scott v. State, 571 S.W.2d 893 (Tex. Crim. App. 1978); Newberry v.
State, 552 S.W.2d 457 (Tex. Crim. App. 1977); Lovel v. State, 538 S.W.2d 630 (Tex. Crim. App.
1976); Allen v. State, 536 S.W.2d 364 (Tex. Crim. App. 1976); Bailey v. State, 532 S.W.2d 316
(Tex. Crim. App. 1975); Adami v. State, 524 S.W.2d 693 (Tex. Crim. App. 1975); Ancira, 516
S.W.2d at 924; Graham v. State, 486 S.W.2d 92 (Tex. Crim. App. 1972); Evans v. State, 480
S.W.2d 387 (Tex. Crim. App. 1972); Brown v. State, 475 S.W.2d 938 (Tex. Crim. App. 1971);
Higgins v. State, 473 S.W.2d 493 (Tex. Crim. App. 1971); Calhoun v. State, 466 S.W.2d 304
(Tex. Crim. App. 1971); Tilley v. State, 462 S.W.2d 594 (Tex. Crim. App. 1971); Hoover v.
State, 449 S.W.2d 60 (Tex. Crim. App. 1969); and Bell v. State, 442 S.W.2d 716 (Tex. Crim.
App. 1969)).



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(Tex. Crim. App. 1979) (vehicle was weaving; driver was stopped for possible
DWI and asked to sit in patrol car while his license was checked; he was not free to
go; he was asked if he had been in trouble before); Scott v. State, 564 S.W.2d 759
(Tex. Crim. App. 1978) (driver stopped for routine license check, arrested for
outstanding traffic warrant, and placed in patrol car; when pistol was found in his
car, driver was asked to whom it belonged); Newberry v. State, 552 S.W.2d 457
(Tex. Crim. App. 1977) (driver was stopped for several traffic violations, and had
difficulty getting out of his car and finding his license; he was asked if he had been
drinking, what he had been drinking, how much he had been drinking, and what he
had been doing; he was then “placed under arrest,” although he had not been free
to go since he was stopped); and Harper v. State, 533 S.W.2d 776 (Tex. Crim.
App. 1976) (driver stopped for making a sudden turn while approaching a license
check point; registration records did not match the make of car being driven; driver
was asked to whom the car belonged)). Here, Appellant had just exited a private
home after being instructed to do so from an armored police vehicle, there was a
presumably valid search warrant for said home, she was placed in a police car, and
then she was informed police would find the secreted drugs about which a police
officer was asking while she was in the back seat of a police car in the midst of an
organized police operation. I simply cannot agree with the majority’s implicit
finding that Appellant’s freedom of action was not significantly impacted or that
she (and all similarly situated persons) are not entitled to constitutional protections
under comparable facts.

      Additionally, these facts demonstrate law enforcement “create[d] a situation
that would lead a reasonable person to believe that his [or her] freedom of
movement ha[d] been significantly restricted[.]” Dowthitt, 931 S.W.2d at 255. “It
is inconceivable that a person in such a situation could have reasonably concluded


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that he or she was free just to walk away.” State v. Pies, 748 N.E.2d 146, 151
(Ohio Ct. App. 2000); see also State v. Snell, 166 P.3d 1106, 1110 (N.M. Ct. App.
2007) (questioning after placement in back of police car with doors locked
constituted custodial interrogation), cert. denied, 129 S. Ct. 626 (2008); State v.
Malik, 552 N.W.2d 730, 731 (Minn. 1996) (questioning after placement in a police
car was custodial where (1) police had knowledge of inculpatory acts, (2) police
were going to conduct a search, and (3) no one informed defendant he was free to
leave); State v. Wash., 402 S.E.2d 851, 853 (N.C. Ct. App. 1991), rev’d, 410
S.E.2d 55, 56 (N.C. 1991) (per curiam) (Greene, J. dissenting) (defendant was in
custody when he was placed in the back of a police car with handles that did not
work and his movement was restricted); State v. Preston, 411 A.2d 402, 405 (Me.
1980) (questioning defendant alone in a police car “increased the coercive nature
of the interrogation”); Commonwealth v. Palm, 462 A.2d 243, 246 (Pa. 1983)
(interrogation in front seat of Game Protector’s vehicle was a custodial
investigation); and People v. Sanchez, 280 A.D.2d 891 (N.Y. App. Div. 2001)
(reasonable people placed in a police car “would have believed that he [or she] was
in custody”) (citing People v. Yukl, 256 N.E.2d 172 (N.Y. 1969), cert. denied, 400
U.S. 851 (1970)). While there is no inherent wrongdoing associated with police
creating a situation where reasonable people believe they are incapable of leaving,
the majority ignores the impropriety of making inculpatory interrogatories after
creating such a scenario without first providing the People with Miranda warnings.

      In an era where the ubiquity of recording devices makes the People
increasingly aware that some alleged suspects are (inter alia) beaten, choked, and
executed for markedly less, the majority’s conclusion that Appellant was free to
simply walk away defies reason. Indeed, many people who have such unfortunate
interactions with law enforcement do not have the forewarning typically associated


                                         6
with (1) first being placed in a police vehicle, (2) a judicially-approved warrant,
(3) an armored police vehicle, (4) a well-armed SWAT team preparing to conduct
a protective sweep of the house from which they just exited under police
instruction, (5) traffic being re-routed away the block, and then (before, during, or
after accusatory questioning based on an officer’s personal and well-informed
suspicions of guilt) (6) unilaterally departing from police vehicles without express
permission to do so. Cf. Dewey v. State, 629 S.W.2d 885, 886 (Tex. App.—Ft.
Worth 1982, pet. ref’d) (appellant was not in custody where he exited the police
car during a conversation with officers, walked to his car, retrieved a beer, and
returned to the officers’ car).

      The officers here were not conducting a general investigation; instead, they
specifically targeted a specific house, acquired a warrant therefor, and then focused
on (then detained) Appellant when she compliantly egressed therefrom.             See
Ancira, 516 S.W.2d at 926 (“The questioning of appellant by the officer in the
police vehicle cannot be characterized as a general investigation into an unsolved
crime, nor was the questioning made under circumstances to bring it within the
ambit of general on-the-scene investigatory process.”). Additionally, the presence
of multiple police cars adds (at least marginally) to the question whether Appellant
was in custody for Miranda purposes. See State v. Ortiz, 382 S.W.3d 367 (Tex.
Crim. App. 2012). Finally, the implicit threat that Appellant would (at least) be
forcibly seized if she did not voluntarily leave the house (then submit to a detained
interrogation) expressly contravenes the majority’s conclusion that she was not in
custody. Martinez v. State, 337 S.W.3d 446, 455 (Tex. App.—Eastland 2011, pet.
ref’d) (“When the circumstances show that the individual acts upon the invitation
or request of the police and there are no threats, express or implied, that he will be
forcibly taken, then that person is not in custody at the time.”) (citing Dancy v.


                                          7
State, 728 S.W.2d 772, 778-79 (Tex. Crim. App. 1987)); see also Miller v. State,
196 S.W.3d 256, 264 (Tex. App.—Ft. Worth 2006, pet. ref’d) (citing Anderson v.
State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1122
(1997) and Sander v. Tex., 52 S.W.3d 909, 915 (Tex. App.—Beaumont 2001, pet.
ref’d) (citing Anderson and Dowhitt)).

      As a result, Appellant was in custody within the meaning of the United
States Constitution and she was entitled to Miranda warnings as a matter of clearly
established and heretofore unbroken law. The trial court erred in admitting her
statement.

      Finally, the inclusion of Appellant’s statement at trial was the only evidence
the State presented to connect her to the drugs and the State relied heavily on
Appellant’s statement in its closing argument. Even the State’s witness who was
responsible for collecting and logging the evidence at the scene testified he did not
know of anything connecting that evidence to Appellant. Jimmy Sherlock testified
on Appellant’s behalf that Appellant had been living with him for months prior to
the search at issue. Other than her statement to the officer while in custody on the
scene, there was no evidence in the record connecting Appellant to the drugs found
at the home. Therefore, the admission of the statement was harmful to Appellant.

      For the foregoing reasons, I would reverse and remand to the trial court for a
new trial without the statement obtained while Appellant was in custody, and
therefore I dissent.


                                /s/      Meagan Hassan
                                         Justice


Panel consists of Justices Wise, Zimmerer, and Hassan (Zimmerer, J., majority).

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