Affirmed and Opinion filed December 19, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00514-CR

                     ANDRE JAMAL SLOAN, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1347009

                                OPINION

      A jury found appellant Andre Jamal Sloan guilty of capital murder, and the
trial court sentenced appellant to a mandatory punishment of life imprisonment.
Appellant challenges his conviction on the ground that the trial court erroneously
denied his motion to suppress his recorded statement. Appellant challenges his
sentence on the ground that a mandatory punishment of life imprisonment is cruel
and unusual in violation of the Eighth Amendment to the United States
Constitution. We affirm.

                                   BACKGROUND

      In 1990, Wistong Javier Potes and his wife Tamara Potes were attacked in
their house. Wistong was shot in the head, causing his death. Tamara was raped
by multiple men and also shot in the head, but she survived. At the hospital, a rape
kit was used to collect evidence, and her nightgown was taken into evidence. A
year later, she was shot and killed in an unrelated incident. The investigation of
Wistong‘s murder went cold.

      In 1993, a jury convicted appellant of an unrelated capital murder and
assessed punishment at life imprisonment in the Texas Department of Criminal
Justice. This court affirmed his conviction on direct appeal. See Sloan v. State,
No. 14-93-00891-CR, 1997 WL 110000 (Tex. App.—Houston [14th Dist.] Mar.
13, 1997, pet. ref‘d) (not designated for publication).

      In 2010, Sergeants Eric Clegg and Michael Holtke were working in the Cold
Case Unit of the Homicide Division for the Harris County Sheriff‘s Office. The
Sheriff‘s Office submitted the physical evidence stored in the Potes case, including
the nightgown and rape kit, to the Harris County Institute of Forensic Sciences
(HCIFS) for forensic testing. The HCIFS notified the Sheriff‘s Office of a ―DNA
CODIS hit,‖ meaning that DNA from the rape kit or nightgown matched the DNA
from a criminal defendant stored in a state database.       The DNA matched to
appellant.

      The sergeants obtained a search warrant for appellant‘s DNA and a bench
warrant to have appellant transferred from prison to the Harris County jail. On
September 3, 2010, appellant was brought to the Sheriff‘s Office for an interview


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and the taking of his DNA. An audio-visual recording was made. Clegg told
appellant that he was in custody, and Clegg read Miranda1 and Article 38.222
warnings to appellant. Appellant waived his rights and agreed to be interviewed.
Appellant denied involvement in the Potes case. Holtke gave appellant a business
card at the conclusion of the interrogation.

       On Labor Day, September 6, a clerk for the Cold Case Unit, Rebecca
Sweetman, received a phone call from a man identifying himself as Andre Sloan.
The man asked for Holtke. Sweetman notified Clegg, and the sergeants went to
the Harris County jail on September 8. Jailers escorted appellant to the inmate
processing center where the sergeants and appellant went to a small office used by
supervisors at the jail. Appellant was brought to the sergeants in handcuffs, but the
handcuffs were removed. The sergeants were not wearing firearms. The sergeants
asked appellant if he wanted to see them, and he said that he did. Appellant told
the sergeants that he wanted to speak with them to ―get some closure‖; appellant
said he had prayed about it and wanted to help the sergeants get the information
they needed. The sergeants asked some questions, and the interview lasted about
twenty minutes. Holtke recorded it on a hidden audio recorder. The sergeants did
not mention the Miranda or Article 38.22 warnings or tell appellant that he was
free to leave.

       Appellant was indicted for the capital murder of Wistong Potes, and he
moved to suppress his two recorded statements. The trial court denied the motion
after a hearing,3 and the jury eventually heard redacted versions of appellant‘s two

       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
       2
           Tex. Code Crim. Proc. Ann. art. 38.22.
       3
        Clegg, Holtke, and Sweetman were the only witnesses called at the suppression hearing,
and appellant‘s recorded statements were played for the court. The historical facts discussed
above are primarily drawn from the testimony at the hearing and the recorded statements.

                                                    3
recorded statements—State‘s Exhibits 1A and 2A. The jury found appellant guilty
of capital murder. Because the State did not seek the death penalty, appellant‘s
punishment was automatically assessed at life imprisonment.4 The trial court
granted the State‘s motion to cumulate the sentence with appellant‘s prior
convictions for burglary and capital murder.

       On appeal, we sustained appellant‘s first issue requesting abatement of the
appeal so the trial court could file findings of fact and conclusions of law. The trial
court filed its findings and conclusions, determining that appellant gave the second
statement voluntarily without coercion, and he was not in custody for purposes of
Miranda and Article 38.22. We reinstated the appeal and now address appellant‘s
remaining two issues.

                                 MOTION TO SUPPRESS

       In his second issue, appellant contends the trial court erred by denying his
motion to suppress State‘s Exhibit 2A—appellant‘s second recorded statement—
because (1) he was in custody and being interrogated without police obtaining a
second Miranda waiver; and (2) his confession was involuntary due to police
overreaching. We address each contention in turn.

I.     Custodial Interrogation
       Miranda warnings and Article 38.22 requirements are mandatory only when
there is a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex.
Crim. App. 2007). The meaning of ―custody‖ is the same for purposes of Miranda
and Article 38.22. Id. The defendant bears the initial burden to prove that a
statement was the product of a custodial interrogation. Id. The State has no

       4
         The Penal Code was amended in 2005 to mandate punishment at ―life without parole,‖
rather than simply life imprisonment. See Act of Jun 17, 2005, 79th Leg., R.S., ch. 787, 2005
Tex. Gen. Laws 2705, 2705.

                                             4
burden to show compliance with Miranda unless and until the record as a whole
―clearly establishes‖ that the defendant‘s statement was the product of a custodial
interrogation. Id. (citing Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim.
App. 2005)).

      ―In reviewing a trial court‘s ruling on a Miranda-violation claim, an
appellate court conducts a bifurcated review: it affords almost total deference to
the trial judge‘s rulings on questions of historical fact and on application of law to
fact questions that turn upon credibility and demeanor, and it reviews de novo the
trial court‘s rulings on application of law to fact questions that do not turn upon
credibility and demeanor.‖ Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App.
2012).   The custody issue is reviewed de novo when, as here, questions of
historical fact do not turn on the credibility and demeanor of the witnesses. See
Herrera, 241 S.W.3d at 527. We view the evidence presented on a motion to
suppress in the light most favorable to the trial court‘s ruling. State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006).

      Generally, a person is considered to be in custody for purposes of Miranda
and Article 38.22 when: (1) the person is formally arrested; or (2) the person‘s
freedom of movement is restrained to the degree associated with a formal arrest.
Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 677 (Tex. Crim. App. 2009).
However, for a person who is already an inmate of a prison or jail, ―the question
turns on whether, under the facts and circumstances of the case, ‗a reasonable
person would have felt that he or she was not at liberty to terminate the
interrogation and leave.‘‖ Id. at 678 (quoting Miranda, 384 U.S. at 532). A prison
inmate, like appellant, is not in custody per se. See id. Factors used to determine
whether a prison inmate is in custody include: (1) the language used to summon
the inmate; (2) the physical surroundings of the interrogation; (3) the extent to

                                          5
which the inmate is confronted with evidence of his or her guilt; (4) the additional
pressure exerted to detain the inmate or the change in the surroundings of the
inmate which results in an added imposition on the inmate‘s freedom of
movement; and (5) the inmate‘s freedom to leave the scene and the purpose, place,
and length of the questioning. Herrera, 241 S.W.3d at 532.

      The United States Supreme Court recently identified an example of an
inmate interrogation that was not conducted in custody for purposes of Miranda.
See Howe v. Fields, 132 S. Ct. 1181 (2012). The facts weighing in favor of
custody were that (1) the inmate did not invite the interview, i.e., he was
summoned; (2) the interview was lengthy, lasting five to seven hours; (3) the
officers were armed; (4) one of the officers used a ―very sharp tone;‖ and (5) the
inmate was not advised that he was free to decline to speak with the officers. See
id. at 1192–93. The facts weighing against a finding of custody included that
(1) the inmate was told that he could leave and go back to his cell whenever he
wanted; (2) the inmate was not physically restrained or threatened; (3) the
interview took place in a well-lit, average-sized conference room; (4) the inmate
was offered food and water; and (5) the door to the room was sometimes left open.
Id. at 1193. The Court held that the inmate was not in custody under the totality of
the circumstances, and the Court found it especially important that the inmate was
told he was free to end the questioning and return to his cell. See id. at 1194.

      We evaluate the facts of appellant‘s interrogation in light of the factors
identified above, and we are guided by the Supreme Court‘s holding in Howe.
First, the trial court found that appellant initiated the second interview by calling
the Sheriff‘s Office and that appellant confirmed he had called asking to speak
with the sergeants and wanted to provide additional information. Although the
sergeants had ―summoned‖ appellant from prison to the Harris County jail, the

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sergeants did not summon appellant to this interview. Appellant summoned the
sergeants to the jail by asking to speak with them. This fact in particular weighs
against a finding of custody. Cf. id. at 1192–93 (facts supporting custody included
that the inmate did not invite the interview). As appellant said at the beginning of
the interview, the purpose was for him to ―get some closure‖; appellant said he had
prayed about it and wanted to help the sergeants get the information they needed.

      Next, there is little evidence about the physical surroundings of the
interview, other than it was conducted in an office at the jail sometimes used by
supervisors. There is no evidence in this record that the room was dimly lit, small
in size, or had any other characteristic that would favor a finding of custody. See
id. at 1193. The absence of such evidence militates against a finding of custody.
See Herrera, 241 S.W.3d at 532 (inmate failed to meet burden of proof on custody
issue).

      During the second interview, the sergeants did not confront appellant with
any evidence of his guilt, and the recording supports the trial court‘s finding that
the sergeants asked minimal questions. These facts weigh against a finding of
custody. One of the sergeants can be heard on the recording raising his voice,
which could conceivably weigh in favor of a finding of custody. See Howes, 132
S. Ct. at 1193 (officer‘s use of a ―very sharp tone‖ suggested custody, but this fact
was offset by other evidence militating against a finding of custody). However,
this dialogue was brief.

      The sergeants placed no additional pressures on appellant—in fact, the
sergeants were not wearing their firearms, and appellant‘s handcuffs were removed
for the interview. These facts weigh against a finding of custody. Cf. Howe, 132
S. Ct. at 1193 (officers wearing firearms would support finding of custody);
Campbell v. State, 325 S.W.3d 223, 236 (Tex. App.—Fort Worth 2010, no pet.)

                                          7
(custody established when the defendant was placed in handcuffs in light of all the
circumstances).

       Although the sergeants did not tell appellant he was free to leave, there is no
evidence in this record that the sergeants told appellant he had to answer their
questions or give a statement. It is less important—compared to Howe—that the
sergeants did not tell appellant he could leave because appellant initiated the
interview himself. A reasonable person in appellant‘s position would understand
that he was talking to the sergeants because of his own request to do so, and he
could have terminated the interview at his own request.                      Finally, the entire
interview lasted less than twenty minutes, and appellant did most of the talking
with only minimal questioning from the sergeants. These facts weigh against a
finding of custody.

       Based on these facts and the absence of any other evidence clearly
establishing that a reasonable person would have felt that he or she was not at
liberty to terminate the interrogation and leave, we hold that appellant‘s second
recorded statement was not the product of a custodial interrogation. Appellant
cites no factually analogous case holding otherwise.5



       5
          Appellant cites facts related to the first interrogation, which occurred five days prior to
the second interrogation. The first interrogation lasted longer and was conducted in a small room
at a different location where appellant was confronted with evidence of his guilt. Of course, the
sergeants had read appellant his Miranda and statutory rights and obtained a waiver of those
rights before the first interrogation. Given the lapse of time, there is no reason to believe the
coercive nature of that interrogation would have carried forward to a later interrogation
instigated by appellant. To the extent it would, we believe the earlier Miranda waiver similarly
would have carried forward to the second interrogation conducted by the same officers on the
same subject matter. See Jones v. State, 119 S.W.3d 766, 773 n.13 (Tex. Crim. App. 2003)
(noting that ―‗the mere passage of time‘ does not, by itself, automatically obviate prior Miranda
warnings,‖ and suggesting that a subsequent interrogation occurring several days after the receipt
of Miranda warnings would have been constitutional if the interrogation had been conducted by
the same officer regarding the same crime; collecting cases).

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II.    Police Overreaching

       Appellant also contends his confession was involuntary due to ―police
overreaching‖—namely, ―(1) the inherently coercive circumstances, and (2) the
failure of the officers to disclose that the appellant‘s statement was being recorded
secretly.‖

       Appellant did not mention police overreaching in his motion to suppress or
during the suppression hearing. He made no specific argument for suppression
other than the failure of the sergeants to repeat the Miranda and Article 38.22
warnings to appellant before the second interview and obtain a second waiver.
Because appellant did not raise this distinct issue in the trial court, no error has
been preserved for our review. See, e.g., Resendez v. State, 306 S.W.3d 308, 315
(Tex. Crim. App. 2009) (specific suppression argument not raised in trial court was
not preserved for appellate review); see also Tex. R. App. P. 33.1.

       Appellant‘s second issue is overruled.

                                        PUNISHMENT

       In his third issue, appellant contends that his mandatory sentence of life
imprisonment violated the Eighth Amendment because he was precluded from
presenting mitigation evidence.           The State contends that appellant failed to
preserve any error. We agree with the State.6

       Appellant failed to preserve error because he did not object or otherwise
complain to the trial court about the constitutionality of the sentencing statute that
mandated life imprisonment for adult offenders convicted of capital murder. See

       6
         We assume for argument‘s sake that the case law concerning life without parole
sentencing is applicable to appellant because, as he contends, the trial court‘s order cumulating
his two life sentences ―created a ‗synthetic‘ sentence of life without parole.‖ We need not
approve of that argument to resolve this appeal.

                                               9
Karanev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (―[A] defendant
may not raise for the first time on appeal a facial challenge to the constitutionality
of a statute.‖); Wilkerson v. State, 347 S.W.3d 720, 722, 724 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref‘d) (no error preserved for facial challenges to the current
sentencing statute mandating life imprisonment without parole for an adult
offender convicted of capital murder); see also Tex. R. App. P. 33.1(a).

      Appellant contends he should be excepted from preserving error because any
objection would have been futile at the time of sentencing and he now raises a
―right not recognized‖; he contends the United States Supreme Court ―took a new
direction‖ in sentencing law with Miller v. Alabama, 132 S. Ct. 2455 (2012), and
thus weakened earlier precedent approving of mandatory sentences. We disagree.

      Except for fundamental error that appellant does not assert, an objection in
the trial court is required to preserve error for appellate review; the ―right not
recognized‖ doctrine does not apply. See Sanchez v. State, 120 S.W.3d 359, 365,
367 (Tex. Crim. App. 2003) (―[T]his ‗right not recognized‘ doctrine is inconsistent
with our current law of error preservation. . . .             The ‗right not recognized‘
exception to the contemporaneous-objection rule relates to a kind of fundamental
error . . . that Marin[7] generally eliminated from our jurisprudence.‖).

      Regardless of Sanchez‘s general disapproval of the ―right not recognized‖
exception, it would not even apply on the facts of this case. Miller announced a
rule—mandatory punishment of life without parole for juvenile offenders violates
the United States Constitution—that was consistent with earlier Supreme Court
precedent. See Miller, 132 S. Ct. at 2470 (―Our ruling thus neither overrules nor
undermines nor conflicts with Harmelin.[8]‖); Rivera v. State, 381 S.W.3d 710,

      7
          Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).
      8
          Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991) (holding that the Eighth
                                              10
714 (Tex. App.—Beaumont 2012, pet. struck) (refusing to apply ―right not
recognized‖ exception for an adult offender because Miller did not change existing
law). Appellant is an adult offender convicted of capital murder, and Miller‘s
holding is limited to juveniles.

       Appellant‘s third issue is overruled.

                                          CONCLUSION

       After abating this appeal for findings of fact and conclusions of law and now
overruling appellant‘s remaining issues, we affirm the trial court‘s judgment.




                                    /s/            Sharon McCally
                                                   Justice


Panel consists of Chief Justice Frost and Justices McCally and Busby.
Publish — Tex. R. App. P. 47.2(b).




Amendment does not prohibit a mandatory sentence of life without parole for an adult convicted
of a drug possession crime, without the opportunity to present mitigation evidence).

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