









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1986-05


GERALD HERRERA, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

CALDWELL  COUNTY



 Johnson, J., filed a dissenting opinion in which Price, J., joined.

D I S S E N T I N G   O P I N I O N


	I respectfully dissent.  The state presented evidence during the guilt phase of trial that, in July 2001,
appellant was involved in a fight with a group of African-American males at a local bar after appellant's
sister got into an argument with one of the males.  Several participants were cut or stabbed, and witnesses
testified that appellant and his brother may have used knives during the fight.  Appellant attempted to leave
the scene with his parents after the fight, but police stopped and searched the car in which appellant was
riding and found a knife on the back floorboard of the car. They arrested appellant on an outstanding
warrant on an unrelated charge.
	The following morning at the jail, Lockhart Police Detective David Powell began a  "preliminary
investigation" and questioned appellant about the events from the previous night.   Powell testified at trial
that he asked appellant questions only to determine his level of involvement in the fight, if any.  Appellant
told Powell that he had participated in the fight and that the knife recovered from the car belonged to him. 
However, appellant was not advised of his constitutional rights, nor was his statement recorded.
	Approximately eight days after the fight, appellant provided to police a sworn written statement
admitting participation in the fight and ownership of the knife.  The sworn statement was not offered into
evidence at trial, but its contents, as well as that of the unrecorded oral statements, were introduced through
Powell's testimony.  Appellant filed a motion to suppress the unrecorded oral statements, but did not seek
a hearing on the motion prior to trial.  At trial, appellant objected to the introduction of the unrecorded oral
statements, but the trial court overruled his objection and admitted Powell's testimony.
Custodial Interrogation	The United States Supreme Court has held that an individual is "in custody" for Miranda purposes
if, under the circumstances, a reasonable person would believe his freedom of movement is curtailed to a
"degree associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 440 (1984)(quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983)); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996).  Moreover, the language of Miranda is devoid of any suggestion that the administration
of the warnings are tied to the reason that a particular individual is in custody.  Mathis v. United States,
391 U.S. 1, 4-5 (1968).  The sole, relevant, objective inquiry is the perspective of a reasonable person in
the suspect's situation.  Dowthitt, 931 S.W.2d at 255.  The custody determination must be made on an
ad hoc basis after considering all of the objective circumstances, and that "[s]tationhouse questioning does
not, in and of itself, constitute custody."  Id. at 257. 
	The term "interrogation" as it relates to the application of Miranda, refers not only to express
questioning, but also to any words or actions on the part of the police that the police knew or should have
known are reasonably likely to elicit an incriminating response.  Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980); Jones v. State, 795 S.W.2d 171, 174-75 (Tex. Crim. App. 1990).  The definition of
"incriminating" is broad and includes any inculpatory or exculpatory statements that the prosecution might
seek to introduce.  Jones, 795 S.W.2d at 176 n.7.  Whether an individual was both in custody and
subjected to police interrogation, therefore, requires a fact-specific inquiry.
Interrogation
	Sergeant Tedford testified that he stopped the Herreras' car.  Maria Herrera was driving, Natividad
Herrera, with an obvious recent injury to his eye, sat in the front passenger seat, and appellant sat in the
right-rear passenger seat.  As Tedford spoke with the Herreras, one of the injured parties, Shaun Russell,
approached Tedford, pointed at the Herreras, and said, "They cut me."  Russell did not at that time identify
which of the Herreras he meant.  Tedford asked for a warrant check on all three Herreras.  He arrested
appellant on an outstanding warrant on an unrelated charge.
	Powell testified that, when he was called to the scene by Tedford, "the first thing I did when I
arrived, I talked to the supervisor on the scene, Sergeant Tedford.  He gave me a brief rundown of what
he knew."  Presumably, the rundown included Russell's direct accusation against the Herreras.  In later
testimony, Powell denied that the Herreras were "suspects."
	Q.  Detective Powell, when you talked to Sergeant Tedford, he told you that a bunch of Blacks
had been stabbed, didn't he?

	A.  He told me that some people had been stabbed.

	Q. He didn't tell you Blacks were stabbed?

	A.  No.  He gave me some names which I knew to be Black persons.

* * * * *
	Q.  And Tedford also told you that they had been stabbed by Hispanics, did he not?

	A.  Not in those words, no.

	Q.  What did he say?

	A.  He said the Herreras were involved.

	Q.   Okay.  So you knew Blacks had been stabbed?

	A.  Yes, sir.

	Q.  And the Herreras were involved?

	A.  Yes, sir.

	Q.  And basically you suspected the Herreras of stabbing the Blacks, correct?

	A.  You're trying to put words in my mouth, sir.  That's not what I suspected.

	Q.  Okay.

	A.  I did not know that maybe the Blacks had attacked the Herreras and they were acting in self-defense.

	Q.  Okay.  But you knew-fine, but is it fair to say you suspected the Herreras of stabbing the
Blacks whether it was self-defense or otherwise?  Would that be fair?

	A.  No, sir, that would not be fair.  That would not be fair. I-they-I was told that the Herreras
were involved.  The extent of their involvement, I have no idea.

	Q. But they were suspects by being involved, weren't they?

	A. No, sir. They were involved. They were part of the fight.

	Q. They were part of the fight.  And that doesn't make them a suspect? 

	A. If you want to use that terminology, everybody in Caldwell County that night was a
suspect.
	Powell's testimony indicates that he got a "rundown" from Tedford, who had witnessed Shaun
Russell accuse the Herreras of "cutting" him.  Speculation by Powell that the Herreras might have acted
in self-defense, a  claim that requires an admission of the act, led to disingenuous answers to counsel's
questions.  Such speculation does not alter the fact that the Herreras were suspected of stabbing one or
more of the victims, having been publicly accused by a victim and a knife having been found in their car. 
I conclude that, when Powell went to the jail to speak to appellant, he knew that appellant was a suspect. 
Because  Powell already knew that appellant was involved in the fight in some capacity, he therefore also
knew or should have known that questioning appellant about the fight had the potential to determine the
nature and extent of appellant's culpability in the bar fight and therefore, the potential to elicit incriminating
responses.  Thus Powell's questioning constituted  "interrogation."
Custody
	In Jones v. State, 119 S.W.3d 766, 776 (Tex. Crim. App. 2003), a case that also involved
questioning of a jail inmate, we recognized the state's argument and citation of cases from other jurisdictions
holding that there must be a change in an inmate's surrounding or an added imposition upon his freedom
of movement before he is in "custody" for Miranda purposes, but we did not specifically adopt the state's
argument.  We concluded that, under the circumstances in that case, Jones was in custody for Miranda
purposes. (1)  We pointed out that Jones had been taken to a small (approximately 8' X 12') interview room
to meet with two officers, who informed him that they were investigating two specific murders and asked
him what he would think if Jones' good friend "Red" had already informed them that Jones had the "primary
responsibility" and was the "bad guy" in the two murders. Jones, 119 S.W.3d at 776. 
	 Although the record does not reveal the size of  the room in which appellant was questioned in the
Caldwell County Jail, it does reflect that appellant was interviewed by Powell, who was a law-enforcement
officer not employed in the jail.  Appellant's freedom was thus curtailed more severely than was usual in
the jail environment.  Powell, who had been given a "run-down" by the officers on the scene, engaged in
"a one-on-one interview" of appellant as an "involved person" in the investigation of a large bar fight that
resulted in severe injuries to several persons.  During that interview, appellant conceded his presence at the
bar when the fight broke out.  Pursuant to Dowthitt, appellant was "in custody" for the purposes of
Miranda from that point on.  Dowthitt, 931 S.W.3d at 257 ("[W]e believe that 'custody' began after
appellant admitted to his presence during the murders.")
	I am in no way suggesting a broad per se rule that Mathis requires Miranda warnings in every
instance in which an inmate is questioned by law enforcement while incarcerated on an unrelated charge
or conviction.  Whether an incarcerated inmate is in "custody" for Miranda purposes must be determined
on an ad hoc basis. 
Article 38.22
	Even if appellant had been given his Miranda warnings prior to questioning, the oral statements that
Officer Powell solicited from appellant while appellant was incarcerated are  inadmissible because the oral
statements fail to comply with the requirements set out in Tex. Code Crim. Proc. art. 38.22.  
	Generally, courts should interpret a statute in light of its plain language. Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991).  Section 3 of  Tex. Code Crim. Proc. art. 38.22 governs the
use of oral statements made as a result of a custodial interrogation and expressly requires that: (1) the
accused be given Miranda warnings; (2) he knowingly, voluntarily, and intelligently waive those rights; and
(3) an electronic recording of the statements be made. (2)
	Here, Powell testified that he neither gave appellant his Miranda warnings nor recorded appellant's
oral statements.  On the contrary, Powell testified that he conducted a "one-on-one interview" with
appellant and that he took notes on their conversation.  These notes, Powell testified, later became part of
his police report.  According to the plain language of the statute, Powell's actions are insufficient to satisfy
the requirements of Tex. Code Crim. Proc. art. 38.22.
Conclusion
 Miranda requires that a defendant who is in custody for Miranda purposes and subjected to police
interrogation be given proper warnings about his constitutional rights prior to questioning.  Appellant was
in such custody and subjected to custodial interrogation, but he did not receive Miranda warnings.  Further,
appellant's oral statements were not recorded as is required by Tex. Code Crim. Proc. art. 38.22.  It was
therefore error to admit his custodial statements into evidence. I would remand the cause to the court of
appeals for a harm analysis. (3)

Filed: November 21, 2007
Publish
1.  See also Cooks v. State, 844 S.W.2d 697, 734 (Tex. Crim. App. 1992)("Clearly, while incarcerated in the
Dallas County Jail, [Cooks] was 'in custody.'").
2.  Tex. Code Crim. Proc. art. 38.22 When Statements May Be Used
	* * * * 
	Sec. 2 No written statement made by an accused as a result of custodial interrogation is admissible as
evidence against him in any criminal proceeding unless it is shown on the face of the statement that:
	(a) the accused, prior to making the statement, either received from a magistrate the warning provided in
Article 15.17 of this code or received from the person to whom the statement is made a warning that:
		(1) he has a right to remain silent and not make any statement at all and that any statement he
makes may be used against him at his trial;
		(2) any statement he makes may be used as evidence against him in court;
		(3) he has the right to have a lawyer present to advise him prior to and during any questioning; 
		(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him
prior to and during any questioning; and
		(5) he has the right to terminate the interview at any time; . . .  
 
	Article 15.17 deals with the duties of arresting officers and magistrates.

 Sec. 3 (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall
be admissible against the accused in a criminal proceeding unless:
		(1) an electronic recording, which may include motion picture, video tape, or other visual
recording, is made of the statement;
		(2) prior to the statement but during the recording the accused is given the warning in Subsection
(a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights
set out in the warning;
		(3) the recording device was capable of making an accurate recording, the operator was competent,
and the recording is accurate and has not been altered;
		(4) all voices on the recording are identified; . . . . 
3.  The state briefly suggests that "[i]f this Court should find that the statement was improperly admitted, it
should hold that [appellant] failed to properly preserve this claim by attempting to offer the same or similar evidence
in the form of [his] written statement given to Officer Powell" a few days after his release from jail.  I again note that
the written statement was not offered into evidence at trial.  The state fails to delineate where in the record appellant
attempted to offer his written statement or to explain how an unsuccessful attempt would waive his prior objection to
Officer Powell's testimony regarding the contents of appellant's unrecorded oral statements.
	The state also suggests that, for the sake of judicial economy, this Court should address the harm from
such error, if any, and find it to be harmless beyond a reasonable doubt.  After a finding that the court of appeals has
erred in its decision on the admissibility of evidence, our practice is to remand to the court of appeals to conduct the
harm analysis in the first instance. See, e.g., Owens v. State, 827 S.W.2d 911, 917 n.7 (Tex. Crim. App. 1992); Hoang v.
State, 939 S.W.2d 593, 598 (Tex. Crim. App. 1996)("[I]t is not ordinarily this Court's bailiwick to pass upon questions
of harm in the first instance[.]"
