Ervin v. State

you’re claiming in this S.W.2d at 549. Q. indulge That’s what We must thus case? the inference that Mendoza suffered and diagnosed with an injury subsequent Yes, A. sir. 21, to her return to work April on 2003. compensable Act defines a The Despite the fact that Mendoza testified “damage physical or harm to the injury as 2002, injury that the relates back aggra- body.” of the structure lab. ann. tex. code vation of a preexisting condition is still a 2009). 401.011(26)(Vernon Supp. § As compensable injury for of purposes law, cannot be consid pain matter of alone Texas Compensation Workers’ Act. We v. damage body. ered Saldana error, sustain point Mendoza’s sole of re- Co., 807,

Houston Ins. 610 S.W.2d General verse the trial granting court’s of the sum- 1980, (Tex.Civ.App.-Houston [1st Dist.] mary judgment in favor Republic, of Old n.r.e.). However, aggrava writ ref'd and remand the case for further proceed- preexisting compen- tion of a condition is a ings with opinion. consistent this of the Act. See injury purposes sable Casualty Compa v. Peterson Continental 893,

ny, (Tex.App.-Hous 997 S.W.2d 1999, pet.); Cooper ton no v. St. [1st Dist.] Co., Paul Fire & Marine Ins. 1999, 614, no (Tex.App.-Amarillo 616-18 pet.). summary Republic judg-

Old introduced Ashley ERVIN, Appellant, ment evidence that Mendoza returned to 21, April work at Levitón on 2003. The v. Employer’s Report Injury First dated Texas, Appellee. The STATE of 6, 2003, only June indicated that not did work, reported Mendoza return to No. 01-08-00121-CR. 8, subsequent injury May complaining Texas, Appeals Court of arm, pain of numbness and her left (1st Dist.). Houston

thumb, finger, neck. index middle Employer’s Report The First also estab- 11, Aug. 2010. Mendoza experienced pain lished that Discretionary Review Refused thumb, to her neck and numbness to her Dec. 2010. index, finger April and middle since L- diagnosed 2002. Mendoza was 5,May

CTS on Employer’s Report Injury First genuine creates a issue of material fact as to whether Mendoza an aggrava- suffered

tion of a preexisting condition. Conse-

quently, Republic Old is entitled p. judgment as a matter of law. tex. r. civ. 166a(c). applicable standard of Under review, we take all evidence favorable every

the non-movant as true indulge reasonable inference and resolve Nixon, doubts in favor non-movant. Kahn, Law,

Leora Attorney Teicher Houston, TX, for Appellant. Caird, Jessica A. Assistant District At- Houston, torney, TX, for Appellee. KEYES, Panel consists of Justices ALCALA, and HANKS.

OPINION ALCALA,

ELSA Justice. Ervin, Appellant, Ashley appeals from a judgment convicting her for capital Brady murder of Davis. See Tex. Penal 19.03(a)(2) (Vernon § Supp. Code Ann. 2009). month pleaded guilty One later on June officers and, with the homicide division of the Houston jury guilty, found her be- jury. Department Police were working together

cause the State did not seek death missing persons to solve a report concern- automatically punishment was as- penalty, ing the disappearance of Maria Aparece imprisonment parole. at life without sessed Huy Ngo, and an offense that occurred 19.02(b)(1) (Vernon 2003), See id. § three weeks after the Davis murder. Offi- 19.03(a)(2)(Vernon 2009). Supp. § In sev- cers Arnold and Termuelen were attempt- issues, appellant challenges legal en ing to locate Keithron Fields to execute a sufficiency and factual of the evidence to “pocket” arrest him warrant for for that sustain the conviction and the trial court’s case. The officers did not have a warrant admission of her three statements made to for appellant, and she suspect. was not a which she claims were made in police, Because Keithron was dating appellant, Arizona, violation of Miranda v. 384 U.S. Officers Arnold and Termuelen tried to 436, 478-79, 1602, 1630, 86 S.Ct. house, locate him at appellant’s where she (1966). L.Ed.2d 694 We conclude that the mother, lived Serena Hawkins. sufficient; legally factually evidence is Keithron was not at the house at 3:00 p.m. properly that the trial court admitted the Hawkins, however, told the officers that statutory first because two statements appellant drove a black Nissan and worked warnings required appellant, were not at McDonalds at Deerbrook Mall. custody; who was not in that the court p.m., At 4:30 Officers Arnold and Ter- properly admitted the third statement that muelen, clothes, who in plain were went to waiver of following was made Mall, the McDonalds at the Deerbrook warnings because the evidence fails to they appellant working where found deliberately show that the officers em- register. They front cash asked her if she ployed a two-step interrogation technique would come with they them because were to circumvent Miranda. affirm. We conducting an investigation. She was “very polite” agreed. The officers Background asked about her car because may believed a black vehicle have 25, 2006, May walking On while she was Aparece Ngo been used in the offense. stop from the bus near her house at them When showed her black a.m., Mary around 5:30 Ann Crutcher car, it, they asked for consent to search approached by a man in a hoodie threaten- agreed. and she ing gun. her with a semi-automatic He At p.m., 5:40 while she was at the mall ran from her when she refused his demand lot, parking appellant signed a written con- give any money jewelry. him allowing sent officers to search her black attack, About an hour after this Davis was Nissan Sentra. The officers had the car away two at a cleaning blocks carwash his police department’s finger- towed to the barbeque pit. He was shot and killed with print keys stall. The to the with car went a gun semi-automatic used .380 cali- towed, the car it was when and officers ber ammunition. When she learned about keys could not recall whether her house death, his wife Davis’s noticed his cell ring keys were on the same her car phone missing. police was Houston officer that went with the car. case, A. assigned Brown was the Davis but he did not have information about who if Officer Arnold asked she coming police committed the offenses. “minded” station to give agreed. She statement. But hav- Ngo Appellant case. revealed that she to ing agreed allow the officers to tow her had a relationship people with the who car, needed a police ride to the were suspected committing the Aparece give station to her statement. She rode to Ngo and offense. Appellant dating was patrol the station in a marked unit Keithron; because Randle; was the cousin of Tim no an one with unmarked car from the Butler; was the “distant cousin” of Alvie homicide division was available to drive Johnson, and was friends with Dexter who station, her to the and Officer Arnold still in the past had lived near her. Appellant’s complete. had work in the field to Appel- first written statement described her mere lant left the mall in the car patrol shortly presence at capital murder of Aparece signed after she the consent form. She Tim, Alvie, Ngo by and committed Keith- handcuffed, custody, was not in was not ron, Dexter, they and when were all in her wished, and free to if leave she though Tim, black car with her as the passenger. have

she would had to ask the officer to let car, Dexter, the driver of her dropped off her out of the car because the car did not Alvie, Keithron, and who approached a have door handles the passenger inside minutes, blue car. After a few she saw compartment. car, driving Dexter the blue with Alvie in the back seat and Keithron in the front station,

When she arrived at passenger seat. Tim followed the blue car began speaking Sergeant she to Motard at to a wooded area park. near a Dexter p.m. Sergeant about 6:00 Motard was woods, pulled got into the Miller, people out of the by asked Officer who was investi- car, blue and took case, them to the woods. gating Aparece Ngo to speak Appellant then gunshots, heard two with a appellant. Appellant was not hand- pause small between cuffed, the shots. Dexter custody, was not and was told away Keithron drove in the Sergeant blue car Motard that “she was not under with Tim following them in arrest and she was car go anytime free to with her as the passenger. Dexter told explained wanted to.” He that he did not appellant he shot the people read the head. warnings to her because Appellant then went with the men to she was not in custody and he did not view apartment. Keithron’s complet- When she suspect. as a questioned He her be- statement, making ed girlfriend signed cause she was the of one of the notary, it before a suspects, representing that it and her car may have been in- true and correct to the of her Aparece volved in the best knowl- Ngo case. edge. first,

At Sergeant spoke ap- Motard pellant in desk, a conference room near his After appellant making finished the first but then moved to his cubicle type written Sergeant Motard dis- the statement on his computer. Appellant cussed appellant’s version of events with years was 17 age, completed 12 other officers to see if it was consistent years education, of formal and was to be- with what the officers had learned from gin her year senior high school that fall. speaking people to other given who had her, Before he started speaking to Ser- information Aparece about the Ngo geant food, drink, Motard offered her case. thought Because he the “same and the opportunity to go to the restroom. crew” that Aparece committed the Appellant declined all the offers. Ngo crime could be involved the Davis case, was cooperative spoke as she Officer Brown asked Mo- to Sergeant Aparece Motard about the and tard to ask about the unsolved “fishing expedi- was a the corner with a man a washing large Davis case. This said, tion,” according Sergeant to Motard. truck. Dexter “Let us out here[J” acknowledged got she had Dexter and Keithron my When out car. case, I they going information about the Davis knew were to rob someone some Motard decided to take a written in the carwash. I turned down around from her about that case. and turned Homestead onto [off] statement Guada- lupe. I drove around or two three for statement, appel- In the written second During minutes. that time I heard one acknowledged lant that three weeks before gunshot. It was loud and came from offense, Ngo the and she was with Aparece the I pulled direction the carwash. they when committed Dexter and Keithron back Guadalupe onto and saw Dexter night early one two other offenses on and Keithron in standing the street. that when morning. Appellant stated They their black hoodies on with the money lady from a Keithron tried to take up they holding hood were their in the stop, appellant passen- at a bus was stopped black bandana masks. I the car car. ger’s seat while Dexter drove her the[y] got both in. Dexter and that, appellant After became the driver of got they Keithron into the car and were her car. She Dexter and Keithron drove they out of breath like had been run- knowing they going to a carwash were ning. ... I drove on to Keithron’s house there, there, rob someone left them .... and we went inside picked up gunshot. them after she heard a added). Appellant’s description (Emphasis written said that stated, Dexter explained the case and Keithron to her that events in Davis they had shot the man at the carwash Dexter, ago, three weeks Keith- About because the man elbowed Dexter in an ron, I all Dex- night. and had been out attempt run away. According to Ser- in driving ter was and I was the back Motard, geant time he first learned in the seat. Keithron was front seat. that was the driver in the Davis morning, asleep I fell on the

Toward him during case was when she told driving back seat while were time he took the second from around. Sometime around mid-morn- her, point and it was at that that he first ing, passenger I heard the car door slam “possibly culpable.” be felt could getting and awoke to see Keithron back car. was wearing He hoodie The remainder of the second statement jacket and the hood was on his head. by appellant described weekend Keithron told Dexter the woman didn’t June 10 when Keithron borrowed her car any money off. have and we drove We and later told her the car had been stolen. neighborhood

were in the North- called ultimately of her car led to it recovery Manor. Dexter wood drove around being towed to station. When looking get streets someone to car, they the officers towed the found mar- money Apparently, from. there was no car, a firearm in the but ijuana and missed get money one to from so Dexter finding a .380 firearm was under me stopped got and let drive. Dexter recovering back seat. After the car from the back seat. police impound, appellant’s cousin Tim driving gave I started on Homestead toward took a .380 firearm out of the car and Keithron’s I apartment Humble. it Dexter. This evidence showed stopped light at the on Homestead and knew that Dexter had the same gun Hartwicke there caliber used to kill Davis. At carwash on statement, of this written appel- mistake, end acknowledged lant stating it lant represented the statement she agreed was Louis. She then to make an- true and time, made was correct to the best of other Sergeant statement. This Mo- knowledge, and swore to its contents. tard a tape used recorder to document the statement because that method was easier After made the she second written state- for him. Sergeant Motard read ment, Dexter, appellant was told that who her rights, explaining in trial testimony his speaking had been to Officer Abbondonda- “just precaution.” that he did so as a Ap- lo, speak wanted to with her if she wanted pellant waived her rights. Appellant was speak Appellant to him. walked alone offered food and a drink. She was allowed Dexter, Sergeant from Motard’s cubicle to and, to use the upon request restroom who was at Officer Abbondondalo’s cubicle. officers, according to the was not in custo- appellant spoke

Dexter and privately for statement, dy. The third began which several minutes before she returned to p.m. minutes, 1:20 and eight lasted about Sergeant Motard’s cubicle. When she re- repeated the contents of the first and sec- cubicle, turned to the appeared teary she ond statements in that all the statements eyed Sergeant and emotional. Motard be- subjects, concern the same capital upset lieved she was “everybody’s about Davis, murder of capital murders circumstance that are her friends.” Ser- Aparece Ngo. geant Motard and Officer Abbondondalo drove home at p.m. around 10:30 In the third recording p.m. or 11:00 and told her mother that documented reading Motard ap- hanging out with some bad pellant her rights and her waiver. He guys and needed to stop doing that. reminded her that night last she was at day, The next June the officers dis- station, police arrest, not under cussed the crimes and realized there awas had made some He statements. stated between discrepancy appellant’s state- it was his understanding that she ment, brother, who said Alvie and not her change wanted to her statements from the Ervin, Louis were at the Apa- murders of previous night in order to correct some of Tim, rece and Ngo, by the statements people the names of spoke about. In

Alvie, Dexter, who said Louis was a discussing the case about the man at the participant. Sergeant Motard was not carwash, appellant acknowledged that she sure whether appellant’s version was cor- drove the car and was with Keithron and rect or whether the statements the men Dexter. He asked her to finish her own were correct. narrative about what happened. She stat- Motard,

At 12:45 p.m., Sergeant Officer ed she was asleep her car with Dexter Brown, and Officer Abbondondalo driving. went to She awoke when she heard appellant’s house large and saw a group Keithron slam the car door after returning people there. Appellant agreed to return from robbery of a woman. She said police to the station to clarify her earlier Keithron stated the lady did not have any statements. She changed clothes and then money so he away threw her wallet. Ser- rode to the station in an geant unmarked Motard asked if lady was shot.

Ford Taurus. While walking inter- lady said the was not shot. Ser- room, view Sergeant Motard mentioned geant Motard asked if this was when she the discrepancy about whether it was became the driver instead of Dexter. Ap- Louis or Alvie present who was pellant at the “yes.” Appellant said said that she Aparece and Ngo capital murder. Appel- drove the car back towards Humble. At near point, some the Homestead intersec- she believed was in custody when she tion, Dexter and Keithron asked to be let consented to the search and made the complied. out and she She let them out to police. statements Hawkins said near a carwash. Dexter and Keithron had she was not allowed to go with the officers hands, in their guns put on black speak to appellant when they initially bandanas and hoodies they got after out of went to the McDonalds and that appellant drove, Appellant the car. turned down a did not answer her phone cell when Haw- shot, street, new heard a and then turned kins called her. During cross-examination, back around to drive back towards the Hawkins acknowledged she previously had back, carwash. As she drove she saw been twice convicted of felonies. The trial Dexter and Keithron in their hoodies court denied the suppress, motion to mak- standing in the middle of the street flag- ing findings of fact and conclusions of law ging picked her down. She them up and to support the ruling.

they returned to Keithron’s house. She trial, At portions redacted of the three stated that Dexter told her the man statements were admitted into evidence. carwash him in attempt elbowed an to get Appellant presented no evidence in her away and that why he shot him. She defense. jury The charge allowed the jury stated Keithron story later confirmed this appellant actor, convict as a principal or to her. money No was taken from the party by as aiding murder, in the capital man. After returned to Keithron’s or aas as a party conspirator. house, very Dexter was interested in watching the news to see what hap- had Sufficiency of the Evidence pened to the man he shot. In her issues, fifth and seventh appellant When making finished contends the legally evidence is and factu- statement, she was shown where her fami- ally insufficient to sustain her conviction ly family was located in the room at the because the evidence failed to show that Louis, brother, station. she entered into a conspiracy with Dexter also speaking arrived and was a police Keithron to robbery, commit and/or Appellant officer. was not handcuffs or Dexter or Keithron shot and killed Davis in custody when she returned to be with in furtherance conspiracy, and that her family. she should have anticipated the killing spoke officers to an assistant dis- Davis as a result carrying out the con- attorney trict charges about whether spiracy. We determine that the evidence would be accepted appellant. When a appellant’s guilt shows conspirator as a

judge signed probable a cause warrant for under the law of parties. appellant, Sergeant Motard told Legal Sufficiency A. and Factual charge, about the family and she left the waiting area to walk with him back to his In a legal review, sufficiency we consider cubicle to await a patrol officer. A patrol the entire trial record to determine wheth- officer handcuffed and took her er, viewing the evidence in light most into custody after that. verdict, favorable to the a jury rational

Appellant filed written sup- motion to could have found the guilty accused of all press, which was litigated prior to trial essential elements of the beyond offense before jury. Officer Arnold and Ser- reasonable doubt. See Jackson v. Virgi- geant testified, nia, Motard 307, 319, as well as 2781, 2789, 443 U.S. 99 S.Ct. mother,

and her Hawkins. (1979); State, said 61 L.Ed.2d 560 Williams v. 694, State, (Tex.App. 312 S.W.3d 702-03 (Tex.Crim.App.2007). refd). “may weight not re-evaluate We A pet. -Houston [1st Dist.] the record evidence and credibility of if, in robbery commits the course of person our for that thereby judgment substitute committing theft and with intent to obtain Williams, 235 the S.W.3d of [factfinder].” of the he property, or maintain control the give responsi- deference to at 750. We intentionally, knowingly, recklessly or fairly factfinder to resolve bility of the another, injury inten bodily causes to or evidence, testimony, weigh in to conflicts tionally knowingly places or or threatens inferences from to draw reasonable bodily injury another in fear of imminent the facts. Id. 29.02(a) § or death. Tex. Penal Ann. Code if, factually when is insufficient Evidence (Vernon 2003); Sholars, 312 S.W.3d at (1) neutrally, is examined all the evidence Aggravated robbery robbery 702-03. is supporting the conviction is the evidence with the use or exhibition of a firearm. the ver support weak” to factfinder’s “too (Ver 29.02, §§ 29.03 Penal Ann. Tex. Code (2) evidence, considering conflicting dict or 2003); State, McElhaney non v. 899 “against the the factfinder’s verdict is writ, 15, 1995, (Tex.App.-Tyler S.W.2d 17 great weight preponderance refd). deadly weapon. A firearm is a State, 275 evidence.” Laster v. S.W.3d 1.07(17) (Vernon § Tex. Penal Code Ann. 512, (Tex.Crim.App.2009). In review 518 2009). Supp. evidence, sufficiency of the ing the factual complete afford almost defer we should may kill be inferred to “[I]ntent decision when that decision jury’s ence to a deadly weapon, from the of a unless it use upon credibility. an evaluation of is based would not be reasonable to infer that death (Tex. State, 699, v. 253 S.W.3d 705 Lancon jury may bodily injury to or serious could result from Crim.App.2008). The choose testimony and Sholars, believe some disbelieve oth the use of the 312 weapon.” at testimony. er Id. 707. 703; State, Dominguez S.W.3d at v. 125 755, (Tex.App.-Houston S.W.3d 761 [1st Although appellant challenges the ref'd) 2003, pet. (holding evidence Dist.] statements, of her we address admission kill permitted inference of intent to when analysis separately that matter from our gang defendant and other members of his sufficiency the of the evidence. “It is well- planned person walking to rob alone at reviewing in evidence suffi settled and, attempted in or claims, night, course theft ciency appellate court must presented, complainant, consider all of the evidence theft of defendant retrieved properly improperly whether or admitted.” shotgun from car trunk and shot loaded (Tex. State, 919, v. 827 Fuller S.W.2d 931 abdomen, complainant resulting in in com Crim.App.1992). death). plainant’s may Intent also be in ferred from the means used and the Capital Conspiracy

B. Murder Under inflicted, wounds and is a factual matter to Theory of Law of Parties jury be determined from all the A person capital commits murder if she facts and circumstances evidence. See intentionally knowingly or causes State, Hemphill v. intentionally death of an individual and (Tex.Crim.App.1974). deadly “When a commits the murder the course of com- range, and death weapon is fired close mitting robbery to commit attempting or results, an kill.” presumes the law intent to aggravated robbery. or Tex. Penal Code Sholars, 19.03(a)(2); 19.02(b)(1), §§ v. 312 S.W.3d at 703. Sholars Ann. parties, may at the be the law of scene considered in

Under deter mining whether a appellant guilty party found defendant was jury could have offense, mere presence but capital if it concluded that murder scene without more is insufficient to prove attempt murder committed in an guilt State, party. as a Valdez v. carry conspiracy aggravat out a to commit 321 (Tex.Crim.App.1979) (op. and, robbery deadly weapon, ed awith Miller, on reh’g); S.W.3d at though had no intent commit murder, was committed further it Analysis C. ance of the purpose unlawful should Appellant’s guilt is by established anticipated have been as a result the her own words documented in her second the carrying conspiracy. out of Tex. Penal and third statements. No evidence con 7.02(b) (Vernon 2003); § Love Code Ann. trary to her statements was admitted at State, 447, v. (Tex.App. 199 S.W.3d 452 statements, the trial. In her ref'd). 2006, Houston pet. Dist.] In [1st admits that she drove Dexter and Keith- partici the determining whether accused ron to the carwash where a man was wash pated may as a the court look party, to ing truck, a barbeque pit in a large before, occurring during, events and after dropped she them off there. She admits the commission of the offense. Ransom v. she knew Dexter and Keithron both had State, 288, (Tex.Crim.App. 920 S.W.2d 302 guns. put She them saw on their bandana 1994). that a knew “Evidence defendant they masks and as out of got hoodies her might guns his in co-conspirators use the car. She they states she “knew were robbery course sufficient of the can be to going to rob someone in the carwash.” demonstrate that the defendant should robbing While the two men were the man anticipated possibility have the of murder firearm, appellant at the with a carwash occurring during the of the course rob acknowledges stayed nearby. that she Af Love, bery.” 199 S.W.3d at 453. ter she loud gunshot coming heard a from carwash, the direction of the she returned an agreement par Since between pick to the location to Dexter and up together design ties to act in common can Keithron, the standing who were street words, proven seldom be the State of wearing holding black hoodies and their ten on the the rely parties, must actions of Appellant stopped black bandana masks. shown by direct or circumstantial evi car, car, they got in the drove dence, understanding an establish or a them from the carwash to Keithron’s design common to commit offense. house. State, (Tex. 308, Miller v. 2002, ref'd);

App.-Austin pet Wygal see v. evidence, jury this From State, (Tex.Crim.App. 555 S.W.2d reasonably ap could have determined that 1977) (circumstantial sufficient evidence into an pellant agreement entered party). agreement, show guilt as The if aggra Dexter and Keithron commit any, contempora must be made before or carwash, robbery vated the man at the event, neous with Davis, the criminal but de drove to the loca because she them termining one participated tion, whether has guns left them there with their offense, an court may hoodies, examine the wearing bandana masks before, occurring during, events and after knowing the man. going were to rob the commission of the offense. Beier v. jury reasonably could have deter also State, (Tex.Crim.App. 3-4 mined that Davis in fur Dexter murdered 1985); Miller, 83 him conspiracy S.W.3d at 314. Presence therance of the to rob be- Appel- recorded oral statement. tape the course of during him he shot

cause the three statements lant contends that that Davis’s wife phone cell taking Davis’s because she should suppressed Further- must be missing from Davis. said was statements, statutory warnings more, given have been from the two written statements reasonably determined when she made have jury could reasonably anticipat- custody, and the third have while she was should that she by Dexter as a the contents of repeated of Davis the murder ed statements, warning making two carrying conspiracy out of the first result the third statement ineffective. preceding he had a loaded firearm knew because she wearing a mask and hoodie he went when A. Standard of Review that immedi- also knew to rob Davis. She ruling on a mo “A trial court’s killed, Dexter ately before Davis any ruling like on the suppress, tion to nearby where to an area driven Keithron evidence, subject is to review admission of lady stop at a bus had robbed Keithron discretion.” Ama appeal on for abuse of with a firearm. (Tex. 872, State, dor v. 275 878 S.W.3d light in the most Viewing the evidence State, v. 181 Crim.App.2009); see Swain verdict, jury a rational favorable to 359, “In (Tex.Crim.App.2005). 365 acting as appellant, could have found ruling on a motion reviewing a trial court’s parties, law of under the conspirator courts must view all suppress, appellate capital all essential elements guilty of light most favorable of the evidence doubt. See beyond a reasonable murder ruling.” State v. to the trial court’s Gar

Love, Examining the at 453. 199 S.W.3d (Tex.Crim. cia-Cantu, 236, 241 253 S.W.3d evi neutrally, we conclude the evidence App.2008). is not too supporting dence the conviction jury’s verdict. See support weak to our review of the conduct We Laster, no S.W.3d at 518. Because 275 ruling through court’s a bifurcated trial appel introduced at contrary evidence was State, George of review. St. v. standard trial, jury’s lant’s we also conclude 720, (Tex.Crim.App.2007). 237 S.W.3d 725 “against great weight not verdict is engage do not in our own factual re We of the evidence.” See preponderance view, trier rather the trial court is sole State, 156, Roberson v. 16 S.W.3d 171 judge credibility of fact and of the 'd). 2000, ref We hold the (Tex.App.-Austin pet. weight given witnesses and the to be factually sufficient legally evidence is testimony. giv Trial courts are their Id. conspirator the conviction as a to sustain complete en almost deference determin parties. under the law of ing historical facts. Id. We are to “afford appellant’s fifth and sev- We overrule deference to trial the same amount of address, We need not there- enth issues. of law to fact rulings ‘application courts’ fore, appellant’s fourth and sixth issues questions,’ questions also known as ‘mixed legally evidence is and fac- that assert the fact,’ of law and if the resolution of those party convict her as a tually insufficient to on an questions ultimate turns evaluation by aiding capital murder. credibility and State v. demeanor.” Ross, 853, 856 (Tex.Crim.App. 32 S.W.3d Suppress

Motion to 2000) State, (citing v. 955 S.W.2d Guzman (Tex.Crim.App.1997)). We review challenges the trial court’s de- questions “mixed of law and fact” suppress nial of motion to the two de novo Id. falling category. within that written statements and third specifically, trial resorting More rather than to external facts not “custody” before the ultimate determination court when it made its court’s decision.1 above, question give a ‘mixed of law and As noted we “presents complete almost ” State, fact.’ Herrera v. deference to the trial court’s de- Therefore, (Tex.Crim.App.2007). we terminations when those determinations total deference to a trial turn on the credibility afford almost of the evidence be- Herrera, “custody” court’s determination when the fore the trial court. See turn questions of historical fact on credibil S.W.3d at 526. ity Id. at 527. and demeanor. Converse The trial court pre-trial made a ly, questions when the of historical fact do determination that statements demeanor, credibility not turn on we trial, were admissible. At the State asked “custody” judge’s

will review a trial deter questions Officer Arnold concerning the Here, in assessing mination de novo. Id. issue of whether appellant custody. was in properly whether the trial court admitted Appellant cross-examined Officer Arnold statements, we defer to the trial must on the issue as well. Both the State and Motard findings court’s and appellant questioned also Sergeant Motard witnesses, Officer Arnold were credible extensively on this Although, gen issue. were not Hawkins erally, pre-trial our review of a motion to St. George, credible witnesses. See 237 suppress pre is limited to the evidence S.W.3d at 725. where, sented the pre-trial hearing, as here,

Appellant suggests parties we should dis the re-litigate the issue dur merits, regard findings concerning ing the trial court’s the trial on the we review all credibility the of the witnesses. The rec the evidence presented. v. Gutierrez ord, however, State, 680, conflicting contains evidence 221 S.W.3d 687 (Tex.Crim.App. 2007); State, 799, many

from the various witnesses about Rachal v. 917 S.W.2d disputed facts. Reconciliation of the evi (Tex.Crim.App.1996). During the tri al, appellant’s attorney dence based on who is credible is a matter re-urged objec the uniquely reserved for the trial court. See tions to the appellant’s introduction of Furthermore, impeachment id. the of the statements and the trial court overruled suggested objections. officers that is in this case To the extent largely resorting differently comes from to evidence officers testified at the trial presented in other suppress hearing, trials —evidence not than at the motion to presented to the trial court in this case. the trial court considered that when it But our task is to review the appellant’s objections evidence overruled and when Gutierrez, actually before the trial court in this case it findings. made its See suggested opinion appeal, inconsistently It is that an in an proceeding. testified in another exists, appel- which concerns someone other than lant, type may If that of evidence then that appellant having characterizes as been post-conviction corpus be a basis for a habeas arrested when she went to the station. challenge that would assert trial counsel was appellate part opinion But that is not failing present impeaching ineffective for to case, puiport record in this and does not any evidence to the trial But court. absent legal analysis make a or determination that testimony by evidence that shows inconsistent Furthermore, appellant was under arrest. proceedings, the officers in other and absent the record before us did not intro- any prior appellate that ana- determination any impeach any duce evidence that would of arrested, lyzes whether the rec- testimony they may officers have ord in this case fails to show the court trial given proceeding. in another No evidence clearly by finding erred the officers credible. introduced in this case shows the officers 687; Radial, if, 917 S.W.2d at 809. ing among other things, the defendant court Because the trial ruled on the admis- given warnings set out in section sibility during 2(a) statements of article 38.22 before the statement trial, testimony the entire it considered of was made and the defendant “knowingly, making credibility the officers in its deter- intelligently, voluntarily” waived the mination, and we must defer to that find- rights Herrera, warnings. set out Herrera, 527; 241 S.W.3d at ing. See St. 526; 241 S.W.3d at see also Tex.Code Crim. S.W.3d at 725.

George, 237 3(a) (Vernon 38.22, 2(a), §§ Proc. Ann. art. 2005). note that We also the standard of applicable review for the law to this case is For a statement taken from a pertaining law statements taken admissible, person to be adults, juveniles, from as person must be informed of the following suggests appeal. Appellant contends rights under the Code of Criminal Proce recently that because she had turned 17 dure: years age, warnings juveniles (1) right he has the to remain silent and should have been used in her case. See not make statement at all and that (Tex. State, Jeffley v. any statement he may makes be used 'd). App.-Houston pet. ref [14th Dist.] against trial; him at his juvenile procedures are inapplicable, (2) any may statement he makes be however, because, years at 17 age, ap court; used as evidence against him in pellant was an adult the time of the (3) he right has the to have a lawyer offenses. See id. present prior to advise him to and dur- Analysis B. of First Two Statements ing any questioning; issues, In first and second (4) if he employ lawyer, is unable to contends the trial court erred admitting right he has the lawyer ap- have a the first two statements. address the We pointed prior to advise him to and dur- together first two statements because ing any questioning; and were taken on the same within day a short (5) he the right has to terminate the period of time under the same circum- any interview at time. warnings. stances without Miranda

38.22,

Tex.Code Crim. Proc. Ann. art. Applicable Law

1. for Admission 2(a); State, § see v. Woods 152 S.W.3d of Noncustodial Statements 105, (Tex.Crim.App.2004). 116 The warn- ings provided in the virtually Code are Miranda,

In the United States identical to the Miranda warnings, with Supreme Court determined that an ac exception warning one cused, that an ac- custody, given held in must be —the cused right “has the to terminate in- required warnings “prior to questioning.” (Tex. any terview at time” State, 766, as set out in section v. Jones 119 S.W.3d 772 2(a)(5) required by is not Miranda. Herr- Crim.App.2003). comply The failure to era, 241 S.W.3d at 526. As with requirements with the Miranda the Mi- results in warnings, randa any warnings forfeiture of the article use statement ob 38.22 of the during interrogation by required only tained Code are when Id,.; prosecution there during interrogation. its case-in-chief. Id. is custodial Woods, 116; Similarly, the Code of Criminal Procedure 152 S.W.3d at Tex.Code Crim. 3(a).

provides 38.22, § is Ann. art. admissible Our con- Proc. against a defendant in a criminal proceed- “custody” struction of for arti- purposes of

205 State, 422, meaning with the of Martinez v. 171 S.W.3d cle 38.22 is consistent 430 2005, of Miranda. “custody” purposes (TexApp.-Houston for no [14th Dist.] Herrera, 241 S.W.3d at 526. pet.) (citing Stansbury California, v. 511 318, 323, 1526, 1529, 114 U.S. S.Ct. 128 may con general Four situations (1994)). L.Ed.2d 293 custody purposes of Miranda stitute (1) suspect physi is and article 38.22: Factors for if determining of his freedom of action in cally deprived person custody is in include “whether the (2) way; a law enforcement any significant suspect arrived at the place interroga he free to suspect officer tells the is not voluntarily, tion the length of the interro (3) leave; create law enforcement officers gation, suspect’s requests whether the lead a reasonable a situation that would refused, see relatives and friends are that his freedom of person to believe degree of control exercised over the significantly movement has been restrict State, 408, suspect.” Xu v. (4) ed; probable there is cause ref'd). 2002, (Tex.App.-San pet. Antonio law enforcement suspect, arrest factors, examining After each of those we suspect tell the he is free to officers do not probable also address whether there was State, v. 306 S.W.3d leave. Gardner cause arrest and whether (Tex.Crim.App.2009); see also Dowt of the four constituting custody situations (Tex. State, v. hitt Gardner, were established. 306 S.W.3d at Crim.App.1996). category ap The fourth only knowledge when the officer’s plies cause is communicated to the probable 2. Voluntariness of Arrival officer; suspect suspect to the or at Police Station custody only then “if even is established contends she was cause, probable the manifestation of com police when she arrived at the station be- circumstances, bined with other would lead (a) keys cause her car and were taken person a reasonable to believe that he is search, her voluntary without consent to degree under restraint associated (b) (c) her, phone her cell was taken from Gardner, with an arrest.” 306 S.W.3d at police she rode in a car to the 295 n. 48. station, (d) she was told she was question turns “[T]he free to leave. Neither the trial court’s whether, the facts circum under findings supports nor the record these as- case, person stances of the ‘a reasonable sertions. would have felt that he or she was not at liberty to terminate interrogation Keys a. The Car ” State, Nguyen leave.’ v. findings The trial court’s of fact (Tex.Crim.App.2009). The reasonable expressly appellant determine that consen presupposes an innocent person standard sually agreed to have the officers take her Dowthitt, person. 931 S.W.2d at 254. The car for a search. The court finds: subjective intent of law enforcement offi irrelevant, job, they cials to arrest is unless that 5. While at defendant’s intent is somehow communicated or other asked for consent to search her car after they it Sen- suspect. wise manifested to the Id. “The learned was a black Nissan possibly must tra which been as determination be made on described basis, they an ad hoc after all of the linked to the offense were investi- considering 255; (objective) gating. circumstances.” Id. at freely voluntarily defendant

6.The b. Cell Phone agreed to the search of her vehicle.... Appellant claims took officers her supports findings. The record these In anyone, cell so she could not call phone her, signed by appellant the consent form and Hawkins states that to she tried reach following acknowledgements: made the by cell phone but could not that However, day. the trial court found the consent, I giving

In this authorize the testimony by appellant and Hawkins as letters, any pa- officers to seize and all contrast, lacking credibility. In the trial materials, pers, and other property testimony by court found credible the they desire. officers who said did not take the cell right I understand that I have the to phone so it appellant. must have been with give this

refuse to consent search and Motard said was free sign form. can refuse this to call her mother if she wished and she threats, promises, I further state that no telephone. did not ask to use the He force, physical nor mental coercion of however, acknowledged, that he did not against kind have been used me in telephone. offer her the use of a Because agree sign order for me to this docu- by the evidence found credible the trial search(es) ment and to consent to the phone court showed that her cell was not that I have authorized above. officers, by taken from her correctly notes that her car reasonably could not believe she was in keys keys possibly house went custody for that reason.

with her towed car. Officer Arnold’s trial

testimony explained that keys the car like c. Ride in Patrol Car driver, ly the car and tow went with truck Although appellant states she “felt keys house may and that the have been like had to go [she] with them because keys. Although with the car he testified to,” they told the trial court [her] found inconsistently at the pretrial motion to testimony not to be credible. The by suppress hearing claiming that no one findings by of fact the trial court deter took car or keys, house Officer mined appellant voluntarily rode stated, testimony Arnold’s trial keep “[W]e back seat of a patrol car from her work to tower, keys so the the wrecker driv the police station. The findings of fact er[,] can what he do needs to do if he state, the trial court needs to turn the wheel.” The fact that the officers towed her car and took her voluntarily 7. The defendant agreed to keys cannot be a basis concluding ap go station to be inter-

pellant believed she in custody be viewed. cause the record shows consent 8. She in patrol was driven car to the State, ed to those actions. Dancy See v. station, against but she was not held her 777-79 (Tex.Crim.App. will, handcuffed, or to accompany forced 1987) (finding custody suspect no when the officer. voluntarily station, police came with to vol untarily questions, answered consented to 9. She go could have declined to give hair samples, po police consented to allow or she could have requested to be lice to take print his shoes to run compari job returned to her or at any home time.

sons, and was arrested at complied conclusion of Police would have with her re- interview). quest, but she did not make one.

The the trial supports record court’s 16. Sergeant threaten, Motard did not coerce, findings. Evidence shows that Officer Ar- or promise the any- defendant thing exchange if for her appellant going nold asked she “minded” statement. police

to the station to a give statement. explained Officer Arnold the reason 18. The defendant agreed in her first patrol she rode car rather than an written statement Sergeant Motard unsecured car was because all the homi- had told her she was not under ar- cide officers with unsecured cars were un- rest. ... available. was not handcuffed. The trial court found credible the testimo- Officer Arnold said that although she was ny by Motard, Sergeant who testified that in a patrol marked car with no door han- handcuffed, was not was not in inside, dles on the if had wanted custody, and was told him that “she was get to out could simply she have asked the not under arrest and she was free go to patrol officer to let her out of the car. anytime she wanted to.” Motard Furthermore, having voluntarily consented explained that he did not view her as a towed, having to her car appellant under- suspect, but instead girlfriend as the stood that the riding reason she was in the one of the suspects that her may car patrol merely car was for a ride to the have been involved in the offense. Fur- statement, give station to and not be- thermore, states, the first statement itself custody. cause she was in The ride “I have been I told am not under arrest.” police reasonably ap- car would not cause record, therefore, supports the trial pellant to believe she was in custody be- findings court’s that appellant knew she cause she consented to have officers take was not under arrest because she was searched, her car to be she was not in expressly advised of that Oregon fact. See handcuffs, if she was asked she minded Mathiason, 492, 495, v. 429 U.S. 97 S.Ct. going police give to the station to a state- 711, 714, (1977) 50 L.Ed.2d 714 (holding ment, voluntarily agreed go she to with the person not in when he came volun- station, police officers the marked tarily station, police was immediately police only car was the car available to arrest, informed that he was not under police drive station to give interview, participated in police and left and the officers would have hindrance). station without any request by honored her to not accom- Although keys went with her pany them. searched, police

car to the station to be we conclude, based on the trial court’s find d. Free to Leave record, ings and the was not in custody when she arrived at police Although appellant claims she was station. Appellant voluntarily consented leave, not told free to the trial accompany the officers to the police court expressly made findings contrary to station, and to have the officers search her stated, that assertion when it car and take her keys. The officers did statements, taking any 11. Before Ser- phone prevent not take her cell or geant Motard informed the defendant making from telephone calls. Further that she was not under arrest and that more, when she arrived sta she any could leave at time. tion, specifically she was told she was not

under arrest and could leave at time. police voluntarily, Length Interrogation of station demonstrate 3. reasonably that she did not believe she police was at the station Appellant in custody police was when she was with for four hours when she made the two at the police officers station for four hours. findings of fact written statements. State, 618, See Meek v. 790 S.W.2d state, at the “The defendant remained sta (Tex.Crim.App.1990) (finding custody no approximately p.m. tion from 6:00 until suspect voluntarily when came to station p.m.” 10:00 From approximately p.m. 4:30 of choosing, time his own was allowed to got police before she to the p.m. to 6:00 step building go unaccompa outside station, parking the mall interviews, nied to his car during and “a Arnold, lot and then she rode with Officer few hours” later was allowed to un leave police police with officer to the another complet hindered after statements were station. ed); Rodriguez, 326, State v. 986 S.W.2d approximately For the first hour from ref'd)( 1999, (Tex.App.-El pet. Paso det p.m. p.m., appellant gave 6:00 to 7:05 a ermining appellant al the Aparece Ngo cap- statement about hours); though interrogation lasted several ital murder that she witnessed when she State, Bradley v. 794-95 passenger

was a her black car. Be- ref'd) (deter (Tex.App.-El pet. Paso p.m. p.m., Sergeant tween 7:05 and 8:30 mining inteiTogation lasting approximately Motard discussed with other officers what noncustodial). six hours was appellant had revealed to him and he was out if anything asked to find she knew 4. Access to Relatives Friends Briefly, just the Davis case. before about Appellant had access to her rela Sergeant Motard asked p.m., appel- 8:30 spoke tives and friends. She to Dexter anything if lant she knew about the Davis privately after she made second state case and she said she did. He “asked her ment. The trial court findings made of if make another she would statement as to fact, as follows: that, agreed.” and she The second state- statements, 25. After giving both Ser- p.m. ment began 8:30 and ended at 9:15 geant Motard learned that Dexter want- p.m. speak ed to with the defendant. Here, period the four hour of time at the Sergeant 26. Motard asked the defen- police length station does not constitute a Dexter, if speak dant she wanted to of time that would per- cause reasonable and she stated that she did. son to believe that she in custody Sergeant Motard and Ab- [Officer]

because that length necessary of time was permitted bondondalo the defendant and due to the amount being of information privately approx- Dexter to converse multiple received from about the imately five minutes. crimes group people committed with whom she Appellant associated. re- The record shows that after she com- vealed extensive pleted information about how second

she because, witnessed four people capital spoke commit a to Dexter according to Ser- people, Motard, murder of two an report geant arrest,” auto theft “she was not under car, when Keithron had her speak and she wanted to to him when the robbery lady stop, at a bus and was told that he speak wanted to to her.

the capital murder of Davis. The amount walked alone from Mo- information, combined with the other tard’s cubicle to Officer Abbondondalo’s was, circumstances show was at cubicle where Dexter the two spoke privately reasonably for several minutes before she did not believe she was in Sergeant custody came back to Motard’s cubi- during she the time she was at the cubicle, cle. she returned to the she police When station making the first two state- appeared teary eyed and emotional. Ser- ments.

geant upset Motard believed she was “everybody’s about circumstance that are Degree of Control Exercised private her This visit with Dex- friends.” testified that she did away appellant ter from the officers shows leave, scared, not feel like she could reasonably did not believe she was in cus- and felt she had to do whatever the offi Meek, (find- tody. See 790 S.W.2d at 622 cers asked so that she would be allowed to ing part no because Meek was go home. She also claims she did not feel building go allowed to outside step comfortable requesting go to to the rest unaccompanied during to his car inter- room even though she to go. needed The views). court, however, trial found testimony her Hawkins said the officers told as lacking credibility and made findings go could not with them when to went contrary to these assertions. McDonalds, appellant talk to at the but the states, The trial finding court’s “Police testimony lacking trial court found her as did not restrict the defendant’s freedom of record, therefore, credibility. The does movement police while she was at the sta- support not the claim that Hawkins was tion.” The record shows officers did not appellant appellant denied access to before handcuff appellant nor restrict her free- police went to the station and while she dom of in any way movement while she was there. police was at station. She walked Furthermore, appellant went home after speak privately alone to with Dexter. she made the The statements. trial court Furthermore, found, the court and the rec- “Sergeant found that Motard and [Officer] shows, “Sergeant ord spoke Motard to then

Abbondondalo drove the defendant room, in a defendant conference home and left her there.” Sergeant Mo- then he took her to his cubicle where he tard drove home at around 10:30 typed out a written statement while she p.m. p.m. or 11:00 and told her mother that described the events.” appellant was hanging out with some bad guys and to stop doing needed that. Evi- appel- trial court determined that necessities, dence that went home after mak- lant was offered basic as ing states, the two statements shows that she did shown finding of fact that reasonably believe that she in “Sergeant Motard offered the defendant Beheler, custody. drink, See v. 463 food and but she declined.” The California 1121, 1124-25, U.S. S.Ct. 3519- trial court also found “the defendánt (1983) 20, 77 (holding person restroom; L.Ed.2d 1275 request did not to use the but it, not in custody based on facts that he vol- requested had she he would have direct- station, untarily accompanied police nearby to ed to restroom.” The record officers, permitted talked to and was explained shows that Motard home). return appel- We conclude that that an officer would have shown friend, Dexter, lant’s access to her when where the restroom was because she would station, there, she was at the get and to her not know how to but family making when she went home after requested go never to the restroom.

the second are facts that show He also her the opportunity go offered custody purposes in of Miranda began being the first restroom before she Gardner, or article 38.22. See statement. at 294. findings specifically- made

The trial court Appellant suggests probable officers had voluntarily appellant determining that cause to arrest her when she made written as the second signed acknowledging wit- first statement she follows: Ngo capital and mur- Aparece nessed the signed the state- 22. The defendant statement, however, appel- der. In that Sergeant Motard told her to ment after merely present lant said she was as it “if it’s correct.” sign Valdez, at the events. See witness threaten, Motard did not Sergeant 28. (mere presence at 321 insufficient S.W.2d coerce, any- the defendant promise or convict). probable There was no cause the second written thing exchange for and Aparece Ngo to arrest her for the statement. offense. The chose of her own defendant that after Appellant signed claims she statement. sign free will to the second statement, Sergeant the first Motard left findings supports record these then returned and told her that her and prom- not Sergeant Motard did shows him someone had informed that she was anything giving for her appellant ise the driver in the Davis murder. statement. Sergeant going also contends Motard was Because the evidence shows officers back forth to discuss her version with degree exercise the of control asso- taking did not while he the other officers arrest, an evidence fails to record, however, ciated with not statement. The does reasonably believed she show support these assertions. The trial court Jones, custody. Compare testimony concerning found appellant’s (finding person Furthermore, at 776 not credible. these events incarcerated in on facts that he was explained based Motard that he dis- room to meet with two jail, taken to small Aparece cussed version of the officers, and confronted with information Ngo case with other officers to at- had identified him as mur- that someone reconcile her statement with the tempt to derer). people of the other who statements

case,

given statements about that but he

6. Probable Cause during did so the break between the first testify and second statements. He did not that the Appellant asserts going that he was back and forth to talk to they when suspect believed to be a what him the officers about told looking to her for Keithron. went house making Appel- as she was the statement. appel contends the officers knew Háwkins suspect lant was not considered until at McDonalds before Hawkins lant worked in the acknowledged she was driver that. But Officer Arnold testi told them Davis case. suspect was not a fied finding learned where to find her from The trial court made a of fact stating, “Sergeant suspect what Hawkins told him. The trial court Motard did case, Brady in the Davis found Officer Arnold more credible than the defendant Furthermore, participation he not know her level of appellant. Hawkins and did spoke if was the focus of the when he to her about it. She was even investigation, investigation it would not render her as not the focus of because most, was, statements, throughout a witness.” he believed she was at the sta- Sergeant Mo- tion four The record shows that when hours to discuss two separate murders, capital asked about the Davis case went speak tard unescorted to Dexter, fishing privately a When with expedition. it was and went home af- during making admitted the of ter she made the statements. Under circumstances, written statement that she was these the second a reasonable person case, in the Davis the officers not the driver would believe that she was under re- probable degree first had cause to arrest her. straint to the associated with an id.; State, arrest. See Garcia v. 106 “Custody” 7. Four Situations 854, S.W.3d 858-59 (Tex.App.-Houston [1st Did Not Occur d) 2003, pet. ref (holding Dist.] reasonable person in Garcia’s situation would not have Deferring to the trial court’s find because, custody believed he was in al- ings credibility of fact based on the though probable there was cause witnesses, to arrest the three situations where first Garcia, he voluntarily went to police sta- custody are not shown here. is established tion, leave, (1) was told that he could volun- More was not specifically, tarily gave took 30 physically deprived of her freedom of ac minutes, only (2) two unarmed officers were any significant way, tion in an officer him, (3) with he was taken to leave, visitor’s room told her she was free to the left, where he unguarded, was with his officers did not create a situation that girlfriend, nothing prevented him from person would lead a reasonable to believe station); simply police leaving Trejos v. that her been freedom movement had State, 243 Gardner, (Tex.App.-Hous- S.W.3d significantly restricted. See d) ton ref 294; Dowthitt, pet. (finding [1st Dist.] no S.W.2d custody suspect when police “rode officer to the station” only and “was inter- Concerning the fourth situation where officer, police viewed one who inwas occurs, “custody” the record there shows clothes, plain setting”); an office-like probable cause to arrest Dowthitt, compare with 931 S.W.2d at 254 being when she admitted the driver (“custody” began when Dowthitt admitted case, any- Davis but the officer never did presence to his during murders because “a thing to manifest to her that he believed person reasonable would have realized the probable there was cause to arrest her. admission,” incriminating nature Gardner, See 306 S.W.3d at 295 n. 48. present and other factors were that “in- The record that appellant does show police the exercise of control” over volv[ed] reasonably by admitting knew that to be- him, lengthy interrogation lasting such as ing the in the driver Davis case that the hours, police over 12 accompany- officers probable officer had cause to arrest her. restroom, ing him to and police officers Furthermore, See id. the other circum- wife). ignoring requests his to see his stances detailed above would not lead person reasonable to believe that she 8. Conclusion

under degree restraint to the associated with an arrest. See id. ap- We conclude the record shows only voluntarily pellant reasonably

Not did she make the did not believe she was statements, appellant written went volun- voluntarily because she went to station, tarily station, police was told she interro- length of the leave, gation long could remained unhandcuffed was not so would have she had ac- made without the custody, warnings. she was in We believed (1) family, concerning the law friends and officers address midstream cess to her (2) degree warnings, appellant’s challenge prem- control over did not exercise be associated with an ar- invalidity her that would ised on the of the first two state- (3) rest, ments, have probable officers did not step the evidence that the two point arrest her until in her employed, cause to tactic questioning was not (4) when she admitted driv- second statement concerning the evidence whether cura- and Keithron and from the ing Dexter tive were in measures taken this case. Davis, robbery of and the offi-

aggravated Concerning 1. Law Midstream they manifest to her that cers did not Warnings cause to arrest nor did the probable was in custody. show she circumstances Midstream Miranda warnings are findings court made of fact and The trial Seibert, v. permissible. See Missouri not of law the conclu- supporting conclusions 600, 601, 2601, 2604, 159 542 124 U.S. S.Ct. in appellant custody, was not sion that (2004) (plurality holding L.Ed.2d 643 that findings sup- and conclusions are those two-stage whenever interview occurs and the We must ported by record. afford Miranda warnings ai'e delivered “mid deference to the trial court’s almost total stream,” admissibility post-warning that appellant determination was not in depends statement warnings whether the custody she made two written when accomplish could have been effective to Herrera, 241 See S.W.3d at statements. State, v. Martinez objective); S.W.3d We must do so because under 526-27. 615, 621-27 (Tex.Crim.App.2008) (holding question of wheth- these circumstances two-step interrogation technique that custody in er is a mixed to undermine Mi in way used calculated law and question of fact turns on the randa warning, by totality as shown made credibility determinations the tri- circumstances Martinez was custo court, which found al and her Miranda dy; did him give officer not credible and the officers who mother not him; warnings questioning before Mar See id. Because appel- testified credible. tinez polygraph made statements to exam lant was not when first two iner; after Miranda warnings, Martinez made, Miranda were warnings statements was confronted learned from facts Id. We hold the required. were not trial examiner; polygraph and entire statement by deny- court did abuse its discretion period to officers within occurred short ing suppress the motion two written time at same where poly station by appellant admitting statements re- occurred). graph into portions dacted evidence her trial. Courts should examine wheth We overrule first and second er deliberately two-step, the officer used issues. first, Car “question strategy. warn later” Analysis of Third Statement C. State, (Tex.Crim. ter v. issue,

In third If App.2010). contends the court deliberate finds effort, statement be suppressed post-warning third must then statements must because, although received be excluded unless “curative measures” made, warnings post-warning before the statement was are taken before the state Id. merely a ment statement was rehash of the is made. measures “[C]urative designed two written should be to ensure that a earlier statements were rea in the unlawfully person suspect’s obtained because' were sonable situation Appellant’s import Challenge and effect of would understand warning the Miranda and of Miranda Appellant’s entire reason for asking that Martinez, 272 S.W.3d at 621. waiver.” the third statement be suppressed is her measure, appropriate An curative for ex- theory that the first two statements were ample, is a substantial break time and unlawfully taken because Miranda warn- circumstances between unwarned ings given were not when she made the warning. and the Miranda Id. while in custody. statements We have measures allow the accused to Curative determined, however, already that because distinguish appreci- the two contexts and in custody was not when the first interrogation ate that the has taken a new two statements were given, Miranda turn. Id. warnings required. were not ap- Because Courts should determine “whether pellant’s challenge to the third statement interrogating the evidence shows that [the premised solely is give on the failure to deliberately employed two-step a officer] warnings Miranda before the first two ‘question-first, interrogation warn later’ taken, statements ground were a we have technique to circumvent [the] validity determined lacks appel- because Carter, protections.” Miranda 309 S.W.3d custody, lant was not in we hold the trial the “question at 38. Because of whether properly court admitted the third state- interrogating deliberately the officer with Martinez, by appellant. ment See 272 invariably held Miranda will warnings S.W.3d at 621-27. credibility turn on the of the officer’s testi mony in light totality of the of the circum Two-Step 3. Evidence that surrounding interrogation,” stances a Questioning Tactic Not finding regarding factual the officer’s cred Employed ibility appeal is entitled deference on only is reviewed for clear error. Id. But even if we assume trial at 39. court erred determining appellant was custody not in when she made the two-step question

Where the first two statements, ing deliberately the trial employed, findings tactic is not “a court made suspect responded supporting who has once to un that the offi determination yet questioning two-step warned uncoercive is not cers a employ questioning did thereby waiving disabled from rights principles his tactic to violate the of Miranda. confessing after he been given has The trial court found the officers’ testimo v.

requisite warnings.” Oregon ny they explained they Miranda credible when that Elstad, 298, 318, 1285, warning appellant 470 U.S. 105 S.Ct. did not read the be 1298, Carter, (1985); 222 84 L.Ed.2d 309 cause determined she awas witness situation, custody. at In this where the in events and not See Seibert, 614, first statement is unwarned but not 542 at 124 at 2611 U.S. S.Ct.

coerced, admissibility (observing “the subse that Elstad court took care to quent solely statement turn ... to warn should on mention that officer’s initial failure knowingly voluntarily may whether it that “oversight” is have been result Elstad, 309, exchange made.” 470 U.S. at 105 of confusion as to whether brief S.Ct. 1293; Carter, qualified interrogation”).

at 309 S.W.3d at 32. as “custodial Be “Un two-step strategy less deliberate is em cause the trial court found credible the Carter, ployed, applies.” testimony Elstad See 309 officers’ was not custody S.W.3d at 37. in when she made the first two statements, Elstad, if the officers in even erred Under the third state ment is admissible if appellant waived her custody, that she was not their belief rights having given after been the requi amount to a error does not deliberate warnings site Miranda and if she made tactic to circumvent Miranda. The trial knowingly voluntarily. statement Sergeant credible Motard’s ex- court found Elstad, See at at U.S. 105 S.Ct. planation questioning appellant about Carter, 1293; 32. Because “fishing expedition,” was a the Davis case tape recording shows that and. it determined circumstances Motard read rights her Miranda showed was not when at the start of third statement and that her role in the she admitted Davis case. subsequently voluntary made most, wrong if the officers were At about knowing statements demonstrating custody, whether was in that er- crime, culpability in the we hold that even mistake, but, ror in light shows if the first two statements were inadmissi findings trial court’s factual based on the ble for give warnings failure to witnesses, credibility of the it does not person custody, to a the third statement employ show a deliberate tactic to a two- would be admissible under Federal and step interrogation technique. Additional- Elstad, precedent. Texas case See ly, the evidence fails to show that the third 1293; Carter, U.S. 105 S.Ct. at taken after Miranda warnings S.W.3d at 32. We also hold that the ad given were was calculated mission of the third statement would ren warning undermine the Miranda because der the erroneous admission of the first the third taken after appel- statement was beyond and second statements harmless evening lant went home for the to spend reasonable doubt because the first state night family the with her and was taken ment did not mention the Davis case and only police after she returned to the sta- fully second statement’s contents were day. tion around noon next Mar- contained within the third statement. See Cf tinez, 272 S.W.3d at 621-27 (concluding Jones, 119 at 777.

two-step interrogation technique was used 4. Evidence of Curative Measures way

in calculated to undermine Miranda warning, part in based evidence that all We have determined that the trial court properly admitted the three statements to officers occurred statements within because in was not when period place police short of time at same at the first two statements were made and station). warnings required. were not Al- We hold the record fails to show the ternatively, that, we have determined as- deliberately two-step, officers used a suming appellant in custody was when she first,

“question strategy. warn later” See made the first two statements so that Mi- Carter, record, 309 S.W.3d at 36. The warnings required, randa were the third therefore, fails to show the trial court com- statement, provided after Miranda warn- mitted clear in admitting error the third ings given, were is admissible because a statement. See id. In the absence of a deliberate two-step questioning technique tactic, two-step questioning deliberate the was not employed and the third statement Carter, in principles apply. Elstad voluntarily made. We need not ad- (“Unless S.W.3d at 37 a deliberate two- dress, therefore, way a third alternative step strategy employed, is ap- Elstad upholding judgment, which ap- would plies.”). ply if the record shows that curative meas- taken between the unlawful ures were reach this decision is because this would be statements and lawful statement. See a third way alternative of upholding the Seibert, U.S. S.Ct. 2612 judgment, unnecessary which is light “the (stating thought Elstad Court our holdings. other any causal connection between the first We hold the trial properly court admit- responses to the police and second ted the third statement because the first ”). Here, ‘speculative and attenuated’ two statements did not violate the require- third statement was made after ments of Miranda or the Code of Criminal statutory rights

waived her after she had Procedure due to the appel- evidence that approximately been home for 14 hours lant was not in custody when she made the p.m. from 10:00 on June 23 to noon on statements, and, first two alternatively, be- family June 24. She was at home with her cause the trial court’s findings and evi- before she returned station dence do not show that the officers delib- unhandcuffed, voluntarily, an un- erately employed two-step strategy to clarify marked car to her earlier state- circumvent requirements of Miranda. ments. focuses on Motard’s We overrule third issue.

use of the describing word “rehash” when the contents of the third statement in com- Conclusion parison to the contents of the second state- case,

ment. As used in this “rehash” affirm We the conviction. means that the substance state- transpir- ments was same—the events KEYES, Justice dissenting. ing day on the Davis was killed on the day Ngo were Aparece and killed. The KEYES, Justice, EVELYN V. however, statement, third of ap- consists dissenting. proximately a five minute ap- narrative I respectfully A jury ap- dissent. found pellant explains where she the events Ervin, pellant, Ashley guilty of capital about the Davis case and it was in this punishment murder and assessed at life narrative that she made the inculpating imprisonment the possibility pa- without Although statements. the record includes Appellant argues role.1 on appeal that her factors that weigh finding towards a two written statements and oral recorded curative measures were taken between the statement were custodial statements taken two first statements and the third state- pursuant to a deliberately employed “ques- ment, we need not decide whether first, tion warn later” interrogation tech- break in time and circumstances between nique protec- circumvent her Miranda the second and third statements show that She tions. contents that their admission the third indepen- statement was made against into evidence her at trial vio- dently of second statement so that lated of the States and Texas Con- warnings Miranda were effective. See United Martinez, stitutions and article 38.22 of the at Texas (observing appropriate Code of Criminal Procedure and that the curative measure is sub- Therefore, stantial break in time and agree. circumstances errors were harmful. I between unwarned statement and IMi- would reverse and remand for a new warning). randa The reason we need not trial. (Vernon 2009). § Supp. See Tex. Penal Code Ann. 19.03

FACTS on his based involvement an extraneous matter, the Aparece/Ngo missing persons’ Background A. Facts case. The police part were of the Gang 26, 2006, when May appellant On was 17 Murder Unit of the Houston Police De she, old, Fields, years Keithron and Dex- (HPD), partment investigating which was robbed Brady ter Johnson and killed disappearance of Maria Aparece and and Davis. Fields Johnson robbed and Huy Ngo on June gathering 2006 and Davis, appellant shot drove them to information to develop suspects.3 They and from the scene her car. Davis died appellant were aware that and Fields dat at of the crime the gunshot the scene from might ed had information that her car wound. crime; have they been involved in that 23, appellant been gave police ap On June two asked locate both Fields and police pellant’s car and to headquarters written statements confirm that describing an extraneous double murder owned a black Nissan. describing Davis murder without Officer D. Arnold and other officers being warnings.2 issued Miranda appellant’s went to home and asked for gave police day next she recorded Appellant’s Fields. mother stated that police headquarters oral re- neither Fields nor was in the garding the Davis murder that confirmed home, but she told the they officers that provided in the information her second could find at her work. The Appellant given

written statement. work, officers went to told her warning beginning at the of her doing investigation, were an statement, oral recorded and she waived them, if speak asked she would which rights. A warrant for her arrest was she request, did. At the officers’ immediately upon completion issued of her car, walked them to her a black Nissan recorded and she was arrested p.m., Sentra. At 5:40 signed a consent capital and indicted for murder. form to allow the to tow and search suppress moved to all three statements the vehicle. The officers towed the car for the Fourth and under Fifth Amendments further investigation. States United Constitution and arti- Appellant voluntarily agreed to answer cle 38.22 of the Texas Code of Criminal questions more transported Procedure. police headquarters in the back of a locked Suppression Hearing B. patrol and secured car. Sergeant Motard Sergeant P. Motard sup testified at the suppression testified at the hearing that pression hearing in po this case that the appellant was not handcuffed and that her sought 23, lice originally appellant on phone keys June cell and were not taken from questioning 2006 for about locating Fields her. He testified that the officers had no Arizona, 436, (2010) (not 2. (af See Miranda v. designated 384 U.S. publication) 478- for 79, 1602, 1630, 86 S.Ct. 16 L.Ed.2d 694 firming capital murder conviction of Dexter (1966). Aparece Darnell Johnson in deaths of and State, 01-07-00856-CR, Ngo); Fields v. No. Aparece/Ngo 3. The investigation resulted in (Tex.App.-Houston 2009 WL 723992 [1st arrest, trial, capital and murder convic 19, 2009, ref'd) (not pet. desig March Dist.] tions of Johnson and Fields. See Johnson v. publication) (affirming capital nated for mur State, AP-75,749, (Tex. No. 2010 WL 359018 Marquis der conviction of Keithron Fields in - 27, denied, 2010), Crim.App. Jan. cert. Aparece Ngo). deaths and U.S.-, 130 S.Ct. 177 L.Ed.2d 1101 victims, did not consid- warrant for her arrest and and that Johnson killed both Apa- custody, they just were er her Ngo. Sergeant rece and Motard took the trying to Fields’ location from her obtain written statement without giving appellant hoping just simply and “were she was a Miranda warning. Her statement in- witness.” He testified that could sentence, cluded the “I have been told I time, but she would have have left at am not under arrest.” asked if patrol had to have asked because the car she was to go allowed to the bathroom and was “a secured vehicle.” so; permitted to do she declined the offer of something to drink.

1. First Written Statement 2. Second Written Statement station, While at the Motard, by Sergeant interviewed who that, Sergeant Motard testified after he lay anything asked her to out she knew statement, took first written Aparece/Ngo Sergeant about the matter. unguarded remained at his that appellant Motard testified was not workstation. He did not tell her she could read her rights because she was Instead, her, go home. he told “Let me suspect to be a or in considered custo- just check with guys these other see and dy. Appellant provided Sergeant Motard know, how this whole thing you what is— with a detailed account of events that your information they’re is versus what killing Aparece Ngo, led to the remembering.” Sergeant Motard testified placing herself at the scene of the crime. that he left the workstation and met with Motard asked to me- Detective A. Brown and the team investi- Davis, morialize her account gating killing as written state- of Brady who ment, which she at his interviewing did workstation. were suspects male who Appellant’s signed p.m., at 7:05 had been taken into custody. He told she, Randle, indicated that Tim Alvie But- them her “sounded pretty ler, Johnson, Dexter good,” Keithron Fields and he then compared his notes riding Aparece were in her car before and with the investiga- information the other killed, Ngo were followed the tors obtaining were from their interviews.4 According opinion affirming opinion, Johnson Detective A. Brown of HPD’s homi capital Johnson's murder helped conviction cide division execute an warrant arrest Aparece Ngo, deaths of ar Johnson was Timothy Randle. Id. at *3. Detective marijuana possession rested for on June transported Brown Randle to the HPD homi (Humble P.D.) Department the Humble Police questioned cide division him. Id. Twen following report Fields' mother’s of unknown ty questioning into his of Randle minutes parking apartment vehicles lot of her headquarters, suspended HPD Brown the in complex Apa- of which turned out to be —one terrogation so that Randle could show him at n 1-2. Johnson, rece’s. WL Ngo’s Aparece’s the location of bodies. by Based on information obtained the Hum accompanied Id. HPD Officer Abbondondalo ble P.D. and the Fort Bend Sheriff’s De locating them to the crime scene. Id. After partment, investigating Apa- which was bodies, they returned to the homicide rece/Ngo missing persons report, Johnson division, questioning where Brown resumed charged aggravated robbery was with on June time, Ervins[, Randle. Id. “Around that County 22 and transferred to the Harris Jail. Louis,] appellant and her brother were also p.m., Id. at *2-3. Around 8:00 he was trans questioned arrested and at the divi homicide ported County from the Harris Jail to the sion.’’ Id. division, HPD’s homicide where Officer Ab- rights According opinion, HPD bondondalo read him to Fields also his and then questioned using tape him recorder. Id. obtained a warrant for Fields’ arrest on June 23, according given by Also on June to the Johnson 23 based on the statements Johnson that, Houston, northeast Johnson or Fields saw upon Motard testified Sergeant regard- learning appellant’s get a man at a carwash. Johnson asked to case, car, Detective ing Aparece/Ngo ap- out of the and he and Fields suspect appellant that had began left, Brown proached Appellant the carwash. Brady to the Davis relevant

information and returned gunshot then heard a Motard to Sergeant ques- He asked case. picked up She Johnson and carwash. concerning killing. the Davis appellant tion Fields, carrying who entered her car their that, then, until Motard testified Sergeant masks,” “black bandana and then she appellant no was suspicion he had drove them to Fields’ home. case, he

involved in the Davis charac- Sergeant Motard testified that he devel- her subsequent questioning his terized oped appellant possibly the belief that was “fishing expedition.” as a culpable killing during for the of Davis his record, before he According to the questioning appellant regarding taking appellant’s second written started case, her gave but he never Sergeant p.m., statement at 8:30 Motard warnings. Motard also testified that while Brady “brought up testified that he Davis he questioning appellant day was he me because Brown had asked to. So offered her food and drink and told her there a little brief conversation about that she was not under arrest. She did [appellant] that whole incident. And ac- given not call her mother. After she had knowledged that she was aware of circum- Sergeant second written surrounding stances his death.” Motard Abbondondalo, spoke Motard with Officer a state- appellant provide then asked Johnson, who had taken the statement of case, concerning ap- ment the Davis who was in in the same office. statement, appel- pellant agreed. In her then asked if Motard she would lant as the driver in the implicated herself Johnson, speak like to which she did. crime. After her state- provided Shortly gave after she her second state- orally, ment about the Davis case she con- ment, Motard, Brown, Detective sented to memorialize it as second writ- and Officer Abbondondalo took appellant ten statement. home, p.m. between 10:00and 11:00 According written second Appellant’s mother testified that she statement, in the preceding hours Davis’s (cid:127) phone tried to contact on her cell Johnson, death, and Fields appellant, get any response. but did not kind of night.” early morning been “out all In the testified that when the hours, asleep while in the place came to her of work if asked car, back driving seat of Johnson was she had a black Nissan Sentra. When she any around without evident destination. did, they said she asked to see her car and stopped

Appellant stated that Johnson signed she took them to it. She the con- got car and Fields out and robbed a wom- car, form they gave sent-to-search her because an. Fields returned to the he When the officers told her “it was for stated that the woman did not have them to bring my car downtown I money. Following robbery, appellant because wasn’t this car, it myself.” drove her and Johnson and Fields allowed to drive She did not approached were passengers. patrol As she believe that she could leave the car intersection and in go, police of Homestead Hartwick or that she was free to and the Fields, day.

and the evidence obtained the Humble arrested that same 2009 WL investigators, P.D. homicide and Fields was at *2. They tell her that she was. asked and did not Detective Brown met compare to notes on what everybody had said go police headquarters, her to to and she about Aparece/Ngo murders and the Davis went with them because she “felt like I Appellant’s murder. statements con- they with them go had to because told me tradicted the statements of suspects Alvie They to.” took her to an interview room Butler, Randle, Timothy and Dexter John- police at the station. She did not believe by failing brother, son place her Louis leave, police she could and the did not tell Ervin, at the Aparece/Ngo murder scene. police she could. The took her cell Motard, Sergeant Abbondondalo, Officer phone give opportunity and did not her an and Detective Brown returned appel- anyone to call her mother or else. The lant’s home p.m. about 12:45 and asked her cooperated officer told her that if she to return station with them to home, signed the statement she go could “rehash” her previous statements about go Ap- but she was not allowed to home. the Aparece/Ngo and Davis murders and pellant did not believe that was under discrepancies. resolve some Appellant arrest, “but I did believe I had to what do was still in pajamas. She returned to to,” me asked and she did believe she police headquarters with them in their in their go was was not free to Ford Taurus. signed home. She her first written state- Sergeant Motard further testified that affirming, ment “I have been told that I he took the interview and recorded it. He willingly signed am not under arrest. I began by reading appellant her my consent to search for officers to search rights. Appellant rights waived her black Nissan.” gave the statement. After questioning, signed testified that after she which p.m., appellant concluded at 1:44 room,” was taken to the stayed “family the first written statement she unsecured where the family officers told her that her room, the interview officer and the would waiting. Sergeant Motard testified questions ask her and then leave and come appellant’s brother Louis had been back and On questions. ask more one of brought questioning, in for occasions, these he left the room came pending “opinion was asked to wait an back and said someone had informed him all this” from the District Attorney’s Of- that she was the Brady driver Davis fice. appel- Motard testified that only Sergeant ques- case. At first Motard unguarded lant remained while she waited case, tioned her about the just Davis but and was free to leave at time. The gave before she the second statement he police placed custody after joined by a second officer who asked they were told that Officer T. Miller had her if she was the driver. Her mental probable obtained a against cause warrant during state the second statement was the appellant. Sergeant Motard walked her during same as the first: she was scared office, back to his where she had made her and believed she had to do what the offi- before, day statements pa- filled out cers wanted her to do. She told the offi- perwork, patrol and called the unit. When during cers she was the driver the Davis came, it appellant was handcuffed for the gave murder when she the second state- first time jail. and taken to ment. 4. Trial Court’s Denial 3. Third Recorded Oral Statement Findings Motion and Sergeant Motard testified that the next Appellant’s argued counsel that all three 24, he, Abbondondalo, day, June Officer statements were custodial given statements for which she was not mained at the station from approximately warnings and that the oral third p.m. approximately 6:00 until p.m.” 10:00 “potentially fruit recorded statement day on the provided she her first two of the tree because poisonous statements. The trial court found Ser- that a lot Motard had indicated geant Motard and Officer Arnold to be that he asked about information on the credible witnesses and to be a gathered oral was what he had non-credible witness. day

from the statement on the before.” suppression hearing, At the close of the C. Trial appellant’s the trial court denied motion to trial, At the State offered both redacted suppress. specific The court made find- and non-redacted appellant’s versions of ings that was not first written statement. Appellant object- when her first two gave she written state- ed to the admission of both being as that, although ments and she was in custo- violation of the Fourth and Fifth Amend- dy when her gave taped she oral state- ments to the United States Constitution ment, requirements the statement met the and applicable sections of the Texas Con- admissibility. The court also found stitution, 38.21, 38.22, as well as articles that the two written statements were not and 38.23 of the Texas Code Criminal that, therefore, custodial statements and Procedure. The court admitted the re- any “there would no poisonous be fruit dacted version of her first written state- tree.” ment with Aparece/Ngo references to the On appeal, appellant’s counsel filed a murders omitted. The court ap- overruled supplement motion to the record with writ- pellant’s objection to the admission of the ten findings of fact the trial court. redacted first written gave statement but granted This Court motion and the running objection. her a The State then provided findings trial court of fact. The appellant’s tendered second written state- trial court found that first two ment. Appellant repeated objections non-custodial; statements were it found under the Fourth and Fifth Amendments that the third statement was custodial and Constitution, to the United States the Tex- that appellant had been informed of her Constitution, 38.21, 38.22, as and articles rights under article 38.22 of the Code of and 38.23 of the Texas Code Criminal Miranda, Criminal Procedure and Procedure. objec- The court overruled the knowingly, intelligently, she and vol- gave appellant tions and a running objec- untarily gave up rights. those The trial tion. The permitted court then the State court police further found that the officers to read the two admitted written state- suspect appellant did not in either the ments into the record verbatim. Aparece/Ngo Brady case or the Davis case appellant’s first, redacted version of they questioned when appel- her and that statement, un-Mirandized written gave knowingly, signed lant her statements intel- at 7:05 p.m. on June ligently, voluntarily. The trial as read into the court’s record, findings also stated that although appel- indicated had consent- Nissan, lant ed to the open was not able to search of her black doors of the she known vehicle which she was Dexter Johnson since transported child, she was informed that she was not was a obligat- and that Keithron Fields was speak ed to with the boyfriend. officers and that she Appellant’s second un-Mir- could leave at time. The trial court’s andized written given on the findings also indicated that “re- evening of June 23 at p.m., 8:31 contained that, all the in complete description events The statement also said on the 10, 2006, participated which had on the weekend of June appellant let Keithron murder. borrow her car. He evening Davis’s took her to work and later say called her to that he that, provided The statement about was in “home area hanging with a three weeks before the date of her state- group of guys police when the up.” showed ment, Johnson, Dexter appellant, and They car, permission asked to look night. Keithron had been out all Fields and Keithron told them it okay. Be- car, driving Dexter was Keithron and cause he and Dexter knew police would was in the front seat. fell marijuana, they find running.” “took off asleep they on the back seat while were car, it, towed her searched She woke driving up around. when she drugs found the gun, and found one “but the door Keithron get- heard slam. they did not find the .380 that under the back in with ting jacket the car his on with back, back seat.” got When she the car up. He Dexter hood told that “the Dexter gun, asked for the and she sent it any money, woman didn’t have but he did back to him. They have her wallet.” threw the wallet The statement ended with appellant’s off, away and drove “looking for someone statement that she had been informed get money from.” There was no one to under section 37.02 of the Texas Penal from, get money stopped so Dexter and let person Code a commits per- the offense of appellant drive. jury “if with the intent to deceive and When at a stopped light they knowledge of the meaning, statement’s he saw a on the a man carwash corner with or she makes a false statement under oath washing large truck. Dexter ap- asked or swears to the truth of a false statement pellant let Keithron and him out there. previously made and the statement re- is did, knowing “they going She were to rob quired or authorized law to be made someone the carwash.” She drove under oath.” The statement did not con- minutes, around for two or three during tain a statement that appellant had been which time she heard one gunshot loud Miranda, rights. warned of her from the carwash. She returned and that, Sergeant ap- Motard testified after Keithron, picked up Dexter and who were pellant signed the second written state- standing up the street with their hoods ment, he allowed her to walk down the hall holding and them black bandana masks. Johnson, and talk with Dexter who inwas breath, They were out of if they as had custody. When asked about her mental ear, been running. They got into the state, he gotten testified “[s]he house, they all returned to Keithron’s emotional even before she went down where “Dexter turned the TV news up there and was teared and that kind of they showing.” see what were In her Johnson, thing.” After she met with appellant said Dexter told “once Abbondondalo finished with [Officer] her, “‘The man me elbowed like he was Johnson,” Sergeant Dexter Motard said, going take off and run.’ He ‘That is ” Officer Abbondondalo drove

why day I had to shoot him.’ The same home. Keithron told her the thing. They same only They were both a little nervous. did Motard further testified that get any money lady either from the day looking next the officers went Fields, stop they bus or from the man at the car- Keithron to locate went wash. She guns. “speak again knew both had with her about night” criminally culpable.” get any the in order He did not previous her statement “specific indicating between information” that she discrepancies “some up to clear the driver on the case until was Davis she other statements her statement Motard, working him we were on the told “while Sergeant Offi- that were made.” thought He Abbondondalo, appellant second statement.” and Detective Brown cer “possibly culpable,” was he did not but police in their car to took her downtown read her her Miranda at rights that time. Motard headquarters, Sergeant where her her Miranda rights and recorded read Sergeant Motard further testified that gave her record- the interview. After she statement, begun the second written statement, Sergeant Motard asked her ed 23, p.m. 8:31 on June “almost resembles “ran investigators to wait while the this However, taped part.” appel- when office.” When he thing whole the DA’s pointed tape lant’s counsel out that “on the was that the had obtained a advised you I that give noticed she would a narra- arrest, Sergeant warrant appellant’s for you give tive then then would addition- family appellant Motard informed her that al information and ask her if it was true or “stay had to with us.” He went to his correct,” testified, Sergeant Motard paperwork cubicle and filled out the and Well, particular in that instance she’s— the unit to come and “called did.” already working I’m off the second really statement. All I’m The State also offered the Mirandized doing that tape second statement on the was con- into evidence at recorded interview first, firming what she said in her her Appellant objected trial. on basis of tree, typed written statement because there that this poison “the fruit of the was earlier, pointed was—as we out there written statement produced from the discrepancy already was a in the first given was before” and on the basis of “all statement gave, she State’s 7. previous- the same that had been reasons” ly given. The trial court overruled the State’s exhibit 7 was appellant’s first writ- objection gave appellant running statement, ten containing description objection recording. to the After murders, Aparece/Ngo which was Sergeant State had confirmed with Motard not admitted. her Miranda appellant he had read Sergeant Motard further testified that rights taking before the recorded state- when .he her read ment, played recording the State to rights beginning at the of her recorded jury. 24, oral statement on June he had the feeling respect Motard testified cross-ex- same with to appellant’s

amination that “possible when was culpability” day he had had the brought questioning in for on June he after her second written statement and did not know whether had her during that statement when he determined phone, cell but he did not tell her she could that she had at point some driven the car that, use the He also testified telephone. killing. at the Davis He also testified that prior taking her first written when he took recorded state- p.m. 7:05 on June he would leave her ment on June 24 he would listen to for presence periods of time to see wheth- paraphrase while and then would er “her comported version of events add some additional information ascer- the version guys during of events that the other tained investiga- course of the [telling].” were He did not consider her a tion. The recorded statement was “a little that, said, suspect, although, “I felt that she could be different in I I doing as all was accurate; clarify was this told him he just trying going get was was Davis’s wife gave was the me about Bra- and return. got When he back with Davis, son, day was that accurate from the dy Davis’s wife and the ambulance was impression before.” His Davis there and Davis dead. He did not see target opportunity,” anybody “was a that John- else there got when he first it, son saw and that he directed carwash.

over to it. Nunez, Officer D. a crime investigator HPD,

In to Sergeant addition Motard’s testi- testified that he arrived at the mony, jury testimony heard the scene a little after 7:00 a.m. and met with Pettis, Reginald who lived next door to the the patrol officer who had been first to They evidence, carwash. He testified that he was in bed arrive. identified the did a video, sleeping May around 6:15 or 6:30 a.m. on scene and took photographs, gunshot 26 when he a heard and looked which he testified. He processed a beer Brady out the window and saw Davis’s can at the scene but found no fingerprints. anyone leaving

truck. He did not see the He found blood stain indicating evidence location. When the truck did not move standing by deceased had been minutes, got after 10 to 15 he dressed front right passenger door when he was carwash, walked to the where he found shot. The bullet that body entered Davis’s lying partially Davis under the truck. was recovered at the scene. He did not alive, bleeding process Davis was still from the vehicle order not to inter- part body, lower of his eyes his fere with processing the vehicle exam help closed. Pettis told him on the building. was Davis’s wallet money were way A middle-aged pockets. and called 911. man found in his Officer Nunez had up he did not know came personal knowledge and returned no of the actual shoot- ing. with the victim’s wife and son. Herbert Mary

Carl testified that he lived Frances Crutcher testified that about three blocks from the carwash. she went out her house on Raincove on got up May Herbert about 5:30 a.m. on the morning May 2006 about 5:20 He knew Davis because he worked with a.m. She did not have to day, work that him Independent at North Forest School but she wanted to take some brownies to warming District. While he was outside the bus driver on the 5:30 bus because it up go get his truck to coffee at the day Shell was his last on the route. The bus every station he morning, up as did Davis would come Homestead and turn on stopped by going stop and mentioned he was to Hartwick. The bus the middle the carwash to wash out his barbeque pit, of the block on Hartwick between Rain- which was in the truck. Herbert told cove and Homestead. It was dark out. going

Davis he was to the Shell station to stepped She into the bus and the driver coffee, get get slowly coffee. When he left to he up drove to her street with the door saw spoke open they Davis the carwash and as talked. She saw a young girl returned, him. he walking trying When about fifteen toward them like she was later, bus, lying why minutes Davis was on the to catch the which is thought she horn, ground. Herbert blew his but open, girl Davis driver had the door but the did not He got kept walking answer. out of the truck down the street. She had him, on, opened and touched and Davis backpack thought his and Crutcher she around, eyes and high thought smiled and turned and was a school kid. Crutcher it strange morning Herbert saw he had .been shot. Herbert was that at that time of by, the bus but girl pass would she around 6:37 a.m. He talked to Pettis and somebody was thought maybe going thought attempted to Crutcher. He rob- anyone bery up. She did see be- of Crutcher was related to the Davis pick description hind her. murder because of her suspect, weapon, proximity— the close dropped her off After the bus driver long city away, two blocks the first street house, away from her but about a house up and down one block—and the time. him, talking when was still Crutcher weapon Crutcher told the officers the coming up toward the noticed someone thought a small automatic that she to be a on, thought gotten he had but he bus. She .380, they casing recovered a .380 shell in front. She then heard him passed from the Davis crime scene. At first yell, “Hey you,” thought maybe he leads, did not have but June what time the next wanted to know bus by taken was Motard figure turned and saw a dark came. She gave from that them their first the corner. He was dressed all in significant lead. After he black, very was tall. He had on a and had the people names of three he believed hood, a cap, jacket black a black with and to have been capital involved mur- face, a over his black bandanna and he had Fields, appellant, der of and John- Davis— big kept walking. got hands. She He son. her, in front circling closer and started money, cross-examination, cursing demanding and but she On Brown testified that, any, told him not have day she did she about three o’clockon the crime, pajamas only keys. was in her and had her he phone received a call from the standing streetlight, He a office transferring was under and a woman who would not identify she could see he had a small silver auto- herself. The woman stated that jew- matic He then her pistol. demanded she had heard a shot and had looked out of elry. She did not remember she her her had window and seen two black run- males it, carwash, cross on until he reached for when she ning from the direction of the away. was about seven feet She said “no” looking waving. point, back and At that a away. again; and backed He reached and black four-door that like a looked Nissan away she said “no” again; pulled up backed and and Sentra driving someone else he turned and ran. She went in the house picked up and the two men left and police. get and called area. He did not her telephone num- ber and could not locate her afterwards. Later, her sister Crutcher and heard She said one of the men tall and overhead, helicopters thought and she slender, considerably and the other was maybe who had the man accosted her had stockier, might shorter and be a little bit somebody they tried to caught rob had but had hooded coats on so it was him, up so she went to the carwash. hard to tell. say, There the overheard her “I bet Schraub, you guy it’s the same tried to print rob J. a latent examiner with homicide, They HPD, me.” asked her to talk to testified that among print cards she girl did. Crutcher did not see the from the black Nissan Sentra there were again. get She did not see the robber in matches with Fields. Neither of the two any any kind of car and did not see on print cars cards from the crime scene matched her street or on the street he turned onto. the suspects. Stein,

Detective Brown testified that he was D. a firearms examiner with HPD, called to the scene of the Davis crime testified that a fired .380 auto car-

225 (1) appellant and a fired bullet were recov- in her tridge case contends first two is ered from the crime scene. sues that the trial court in finding erred that her two written statements were not that, D. Arnold testified on June Officer coerced or the of an products unlawful 23, he the officers who checked among interrogation custodial voluntary, and were looking for Fields and who locat- locations (2) contends her third issue that inspect ed and asked to her car. the trial court erred in admitting her oral interviewed, appellant agreed Since to be statement, as it was a continuation of the get “we needed to to the office.... So previous interrogation, and the police offi expeditious, I in order to be unit “ ‘question-first-warn-later’ cers’ proce by drive stop pick up her to Miranda, dures” circumvented so that her 1200 Travis.” He remained at her work- “mid-stream” warnings place up, to finish since the car needed to beginning of her oral statement were transported by city be wrecker so it Seibert, meaningless under Missouri v. gone could be over the HPD crime U.S. S.Ct. 159 L.Ed.2d investigator. The officers took ap- scene State, (2004), Martinez v. keys car so the car could be pellant’s and Jones v. (Tex.Crim.App.2008), anyone towed. He did not recall whether State, 119 S.W.3d 766 (Tex.Crim.App. phone. They took her cell did not tell her 2003). The State contends why they wanted to search the car. in custody gave any when she of her jury charge The allowed to be objec statements and that she waived principal, convicted as a under the law of tion interrogation, to “mid-stream” or as a in a parties, participant conspiracy subject of her third issue. Brady in the that resulted death of Davis. jury The of capital convicted A. of Review of Standard Motion to

murder, trial and the court sentenced her Supress prison possibility to life in without the of subjected Individuals to custodial parole. in questioning protected by Texas are Supreme States’ in United Court decision OF ADMISSIBILITY APPELLANT’S Arizona, 436, Miranda v. 384 U.S. 86 S.Ct. STATEMENTS 1602, (1966), by 16 L.Ed.2d 694 article Appellant contends her first three 38.22 of the Texas Code of Criminal Proce failing issues that the trial court erred in Herrera, (stating dure. 241 S.W.3d at 526 suppress to her two written statements that both article 38.22 and Miranda apply and her recorded oral statement and persons custody being when are in admitting Ap each of them into evidence. interrogated). The determination of cus that pellant contends neither two writ the same for both Miranda tody is ten statements nor her recorded oral article 38.22. Id. should have been admitted Miranda, against Supreme her at trial because were all In held Court product an an taken cus pro “unlawful and “when individual is into longed” interrogation tody subjected questioning, custodial that violat ... and is to Arizona, under Miranda v. rights privilege against ed her is self-incrimination 436, 1602, 16 478, at 86 at jeopardized.” 384 U.S. 86 S.Ct. L.Ed.2d 694 384 U.S. S.Ct.

(1966), statute, questioning re Consequently, and the Texas confession such 38.22, 2(a), quires article that the be informed of his person section Texas Specifically, right right remain silent and his to an Code Criminal Procedure. to 226 479, only at 1630. on when an abuse of discretion

attorney. appeal Id. at 86 S.Ct. warnings State, 359, After the Miranda have been shown. v. 181 is Swain S.W.3d then given, person may knowingly a (Tex.Crim.App.2005). reviewing 365 In “But voluntarily rights. waive his Id. trial court’s decision on the admission of a warnings and until such and waiver unless confession, engage we do not in our own prosecution at are demonstrated review, we give factual almost total trial, a result of no evidence obtained as deference to the trial court’s determination against can be used him.” interrogation reviewing of historical facts while the trial obtained as a result of a Id. Evidence application of law de novo. court’s John interrogation without such warn custodial (Tex.Crim.App.2002); State, 644, son v. 68 S.W.3d 652-53 under the ings and waiver is inadmissible State, v. 10 uche Carmo 494, Fifth See id. at 86 Amendment. S.Ct. 323, (Tex.Crim.App.2000). 327 S.W.3d arti at 1638. It is also inadmissible under court, fact, as the sole trier of trial 38.22, 2 of the Texas cle section Code credibility evaluates the of the witnesses Procedure. See Tex.Code Crim. Criminal weight given to be and determines the (Vernon 2005).5 Ann. art. 38.22 An Proc. State, testimony. their Wiede v. custody must be accused who is held 17, (Tex.Crim.App.2007). 24-25 prior question given warnings Appellate give courts almost total defer generally “required is ing or State ence to a trial court’s determina forfeit the use of statement obtained questions tion when the turn on an evalua during interrogation during its case credibility tion of and demeanor. Herrera Martinez, in-chief.” 272 S.W.3d at 619 n. (Tex. State, v. 526-27 Miranda, (citing U.S. 1612). Here, however, Crim.App.2007). provides If an accused

S.Ct. statement, however, alleged police deliberately non-custodial the trial has may court admit that statement into evi two-step interrogation technique used a of given freely, voluntarily, dence if it was first, later,” “question warn in a calculated compulsion. and without Tex.Code Crim. way to warning. undermine the Miranda (Vernon 2005). 38.22, § art. 5 Proc. Ann. State, 31, See Carter v. 309 S.W.3d 36 Martinez, (Tex.Crim.App.2010); see also deny A trial court’s decision to admit or Seibert, evidence of a confession will be 272 (quoting overturned S.W.3d at 623 542 38.22, (3) provides: right 2 lawyer 5. Article section he the to have a has present during prior him to and by advise written statement made an accused [N]o interrogation any questioning; as a result of custodial is ad- against any (4) as evidence him in missible employ lawyer, if he is unable to a he proceeding criminal unless is it shown right lawyer appointed has the to have a the face of the statement that: prior during any to advise him to and accused, (a) prior making the the questioning; and statement, magis- either received from (5) right he has the to terminate the in- warning provided trate the in Article time; any terview at 15.17 of this code or received from the accused, (b) during prior to and person to whom the statement is made a making knowingly, of the in- warning that: telligently, voluntarily waived the (1) right he has the to remain silent and rights warning.... set out any not make statement at all and that 38.22, 2(a)-(b) § Proc. Ann. art. Tex.Code Crim. may statement he makes be used (Vernon 2005). trial; against him at this (2) any may statement he makes be used court; against evidence him in as

227 J., 622, (Kennedy, at 124 at 2616 [T]he U.S. S.Ct. standard of review of a trial court’s concurring)). finding of intent “shall not be set erroneous, clearly aside unless and due Appeals The Texas Court of Criminal regard shall be given to the opportunity recently adopted has expressly Justice of the trial judge court to credibility Kennedy’s concurrence Missouri v. Sei of the witnesses.” City Anderson v. analysis two-step bert for the of deliberate City, 564, 574, Bessemer 470 U.S. 105 Carter, 38; interrogations. 309 S.W.3d at 1504, 1512, (1985). S.Ct. 84 L.Ed.2d 518 Seibert, see at 124 at U.S. S.Ct. findings Factual concerning intent or J., However, (Kennedy, concurring). deliberateness should not be disturbed Kennedy’s Justice Seibert concurrence appellate an court absent contradict- provided guidelines no for conducting or ing extrinsic evidence or internal in- reviewing a Shi&eri-deliberateness deter consistencies render testimony Carter, mination. See “implausible on its Id. This face.” Therefore, the Texas Court of Criminal “great standard is similar to our defer- Appeals, following the in the trend federal ence” standard of review for all factual appeals, adopted circuit courts of has intent, findings, including if such find- clear error standard of review in making ings are supported by the record. See such determination. Id. at 39-40. Un State, Guzman v. question der this standard “the is whether (Tex.Crim.App.1997) (appellate courts the evidence interrogating shows [the should afford almost total if deference deliberately employed a two-step officer] question resolution an ultimate ‘question-first, warn later’ interrogation turns on an evaluation of credibility and technique to circumvent [the] demeanor). protections.”

Miranda Id. at 38. added). (emphasis observed, Id. The court trial court is the “[T]he ‘sole and exclusive ‘question Because “the of whether the judge trier of fact and of the credibility of interrogating deliberately officer withheld ” witnesses,’ particularly when a mo- warnings invariably will turn on tion to suppress is based on the voluntari- credibility testimony the officer’s ness of a confession. Id. 41^2. There- light totality of the circumstances fore, the appellate give great courts “must surrounding interrogation the ... offi- [the deference ‘to judge’s the trial decision to credibility] cer’s is a factual finding enti- evidence, admit or exclude such which will tled to appeal’ deference on and reviewed appeal only be overturned on where a fla- only Thus, clear for error.” Id. at 39. ” grant abuse of discretion is shown.’ Id. “the rights accused’s Miranda protections State, 42 (citing at Delao v. 235 S.W.3d turn on whether the trial court finds an 235, 238 (Tex.Crim.App.2007)). arresting questioning prior officer’s to the advisement of Miranda rights was inad- Appellant’s B. First and Second Writ- vertent or to an acquire intended advan- ten Statements tage in interrogation process.” Id. issues, In her first and second Thus, specific finding by factual the trial contends her first and second written regarding credibility court the officer’s is giv- statements were custodial statements great of reviewing assistance to the court. protection adequate en without the Mi-

Id. randa warnings. Texas, Appeals Court Criminal held in In determinations of whether an

Carter: is custody by asking adult are made

228 (2) person significant way; in the same when a law whether a reasonable enforce- “believe that his free- ment officer suspect circumstance would tells the that he (3) leave; movement was restrained to the cannot when law enforcement dom of degree with formal arrest.” officers create a that would associated situation State, 244, 931 a person Dowthitt v. S.W.2d 254 lead reasonable to believe that (Tex.Crim.App.1996) (citing Stansbury sig- v. his freedom of movement been has 325, (4) 318, restricted; California, nificantly 114 511 U.S. S.Ct. and when there (1994)). 1526, 1530, probable 128 L.Ed.2d 293 At is cause to arrest and law en- trial, suspect has the initial burden of forcement officers do not tell the custody” that he is “in establishing he is free to leave. Herrera, 241 purposes. S.W.3d at S.W.2d 255. The fourth circum- custody A determination of requires stance also the officer’s requires a court to examine all of the knowledge probable cause be communi-

objective surrounding circumstances suspect cated to the that the “manifes- questioning and to determine whether cause, probable tation of combined person those circumstances reasonable circumstances, other would lead a reason- would have felt that he or she was not at person able to believe that he is under liberty interrogation terminate the degree restraint associated with an Dowthitt, leave. 254-55. custody arrest” for to be established. Id. Ultimately, “the determination of Appellant contends that she inwas cus- basis, must be made on an ad hoc after tody when she made her first statement considering (objective) all of the circum- physically because she deprived of her State, (citing stances.” Id. at 255 v. Shiflet freedom of action when police officers cre- (Tex.Crim.App.1985)). ated situation that led her to believe her Stansbury,

Prior to the Texas Court of freedom of movement had been restricted. Appeals recognized Criminal four factors Specifically, appellant contends that (1) determining custody: as relevant car, warrantless seizure of her the seizure (2) arrest; probable subjec- cause to keys of her phone, young age and cell (3) tive intent of the police; the focus of inexperience, transportation po- (4) investigation; subjective car, headquarters lice in a patrol locked Dowthitt, belief of the defendant. incriminating and the statements she made Stansbury, S.W.2d at 254. After it held totality created a of circumstances that (2) (4), subjective factors in- made her statements custodial for Mi- tent of law enforcement officials and the purposes. randa See id. at 255. defendant, subjective belief of the are ir- The Texas Court of Appeals Criminal

relevant unless intent is somehow has considered cases like this twice in re- communicated or otherwise manifested to Dowthitt, years. cent In the appellant Id.; suspect. Stansbury, the see 511 U.S. went to the give sheriffs office to a written 1530; State, 114 Dancy S.Ct. at v. statement about a double murder in which 778 (Tex.Crim.App.1987). son, only appellant’s and not appellant Dowthitt,

In the Court of Ap- Criminal himself, a suspect. was 931 S.W.2d at 252. peals provided four sets of circumstances No warnings given. Miranda were Id.

in which an interrogation may be consid- finished, statement, signed the ered custodial: lunch, left for then returned and asked

(1) when the suspect physically is de- to change his statement because it con- prived of his freedom of in any action tained a false alibi. Id. At point, this the a five was interviewed over hour custodial encounter into custodial appellant one. p.m., when his second until 6:00 Id. The court stated:

period signed, also without Mi- statement was appellant While did not admit to com- warnings. Id. Because of inconsis- randa offenses, mitting the his admission that statements, the tencies between his two present he was during the murders was to take a appellant polygraph was asked incriminating, person and a reasonable test, did, finishing which he about 11:00 would have incriminating realized the test was p.m. polygraph Id. The recorded nature of the admission. Given the videotape. polygraph on Id. When length interrogation, of the the existence finished, polygraph operator was told involving of factors police exercise of appellant that he had not told the appellant control over (accompanying he complete everything, truth about breaks, appellant at restroom ignoring in. The brought the detective back Id. wife), requests to see his intensively questioned then appellant was damaging establishing proba- admission for more until he videotape two hours arrest, ble cause to we believe “cus- signed placing wrote and a statement him- tody” began appellant admitted to after self at the scene of the crime. Id. at 252- presence during his the murders. then taken to the 54. The was writ- detective’s office work on his third added). Id. at (emphasis signed ten which was at 3:55 similar Under circumstances in Jones v. warnings a.m. Id. at 254. No Miranda State, the Appeals Texas Court of Criminal given were until the statement com- was held that the appellant “clearly was written, pletely given but his custody” purposes of Miranda. three he warnings Miranda times before 766, 771-72, (Tex.Crim.App. the third statement. Id. signed 2003). The defendant in that case was Appeals Court Criminal held under arrest and incarcerated for out suspect was not a when he standing posses traffic warrants and for station, voluntarily came but sion of a controlled when he substance he one progress- became as interview interviewed. Id. at 771. While incarcerat Id. at the appellant ed. 256. While had ed, he given implicat two statements suspect been told that he was not a at 7:00 ing himself in a murder and had received the court it p.m., apparent held that was warnings Miranda for both. Id. Nine or a.m., suspect by that he had become a 1:00 later, days questioned ten he was while in beginning polygraph at the examina- jail about two extraneous murders on the tion. Id. When he was told around 1:30 by investiga basis of information obtained going permitted a.m. that he was not to be given tors. Id. He was not leave, express “This assertion itself warnings being before confronted with the However, amounted to an arrest.” Id. friend, “good Ricky statements of his ‘Red’ though expressed even never Roosa,” had named and told Roosa a desire to leave and was not told he could “primarily responsible him as for the mur a.m., not leave until 1:30 he was in Ap ders.” Id. The Court Criminal present from the time he admitted he was peals stated: murder, a.m., during around 1:00 be- cause, admission, point, appellant orally At that admitted police after this “the had his involvement in the two murders. As probable cause to arrest.” Id. The “cru- appellant appellant cial that the confessed and described de- admission” was offense, present during Ranger the crime turned the non- tails of the [Texas A.] they him appel- what who informed that were inves- Akin wrote down “verbatim” form, asking tigating Peoples a statement the Sanders and mur- lant said on minutes, the transcribing answers After five ten Akin questions and ders. or inter- they along. went The entire appellant as asked what he would think if an hour-and-a-half. “they” by appellant’s good view lasted about been had told story, finished his Akin appellant When appellant “pri- friend “Red” that next to and got up, appellant, sat down mary responsibility” and was the “bad rights appeared legal went over the guy” in the two murders. This was a of the written form. Then top at the police “interrogation” environ- classic Akin and read the statement appellant circumstances, ap- ment. Under these corrected mis- together and pellant clearly custody pur- in for takes, revisions, signed initialed poses gave Miranda when he of at the bottom. Akin statement.

Jones, 119 S.W.3d at 771-72. added). (emphasis Id. Appeals contrast

The Court of Criminal found, expressly The trial court follow- ed the circumstances Jones with the ing hearing appellant’s motion to Supreme States controlling United Court suppress, appellant’s first two written admissibility on the of unwarned case statements were non-custodial. It further statements, Elstad, Oregon v. 470 U.S. police found that the not sus- officers did 298, 105 222, (1985), S.Ct. 84 L.Ed.2d pect appellant Aparece/Ngo in either the in which the defendant was held not to be Brady case or the case when Davis custody gave incriminating when he an questioned her that appellant gave Ap The of statement. Court Criminal knowingly, intelligently, statements observed, peals voluntarily. The court found that although open unwarned and warned statements was not able to the doors of [T]he nearly given during in this case were vehicle in which she was trans- event, single taking ported, undifferentiated she was informed that she was not place obligated in the same room as an uninter- speak the officers and rupted process. and continuous she could leave at time. It also literally written Akin statement was found that “remained at the sta- transcription appellant’s approximately p.m. of unwarned tion from 6:00 until Appellant approximately oral statements. did not 10:00 p.m.” day on the finally make a after he provided second statement her first two statements. Final- warnings; ly, received his Miranda he sim- trial court found Motard ply signed the written statement that he and Officer to be Arnold credible witnesses had dictated to Akin before he was to be a non-credible witness.

warned. All of these went findings to the issues at 775. The court stated: intent, custody and the officers’ hence to voluntariness, Tar- was incarcerated the admis- therefore County Thus, suspicion sibility, rant Jail under statements. I capital when he transported findings murder would review the trial court’s un- part jail early to another in the der the clear error standard set out in hours the morning Ranger to meet to determine Carter whether “contradict- Akin and another officer. ing He was taken extrinsic evidence or internal inconsis- 12’) x (approximately to a small 8’ in- ... testimony” going tencies render [the] terview room to meet with two officers to the issues of and the officers’ intent, credibility on which the trial court’s was seized and towed from her workplace “ based, findings ‘implausible were on its without a warrant and without reason ” face,’ and, therefore, whether the trial being given, but with her Appel- consent. “clearly finding erred” in the offi- suppression

court lant testified at the hearing testimony appellant’s cers’ credible and that the sign officers told her to a consent contradictory testimony not credible. See form to search her car because “it was for Carter, n. bring them to it downtown because I wasn’t myself.” allowed to drive it Sergeant sup- Motard testified evidence is undisputed appellant that that pression hearing police originally transported police headquarters to in a sought appellant question- on June 23 for car, locked and secured patrol was not told ing about Fields’ involvement the Apa- leave, she could and could not have left rece/Ngo they crime because knew Fields asking without and being by let out dated, had they and information who police had towed car. Appellant her might that her car have been involved testified that phone her cell was taken crime, that had been asked her, from and her mother testified that she confirm that she owned a black Nissan. tried to call on phone her cell but He further testified that was not could not reach her. The trial court found handcuffed, keys that her phone cell appellant’s that testimony at the hearing her, were not taken from and that credible, not and it found that Ser- officers her in custody did consider but geant testimony Motard’s at the suppres- just trying were to locate Fields and “were hearing phone sion that her cell keys hoping just that simply she was a witness.” were not taken from her and that she The trial Sergeant court found Motard’s have left the police car was credible. could testimony to be credible. not testify did at trial. How- trial, Sergeant At Motard testified that ever, Officer Arnold testified at both the he had received on day information suppression trial, hearing at trial. At killing the Davis that a black Nissan Sen- he testified that the officers took appel- pulled tara had up picked up the two keys by lant’s so the car could be towed running men seen from the carwash and city by wrecker so it could be searched words, left the area. In other he investigators. HPD crime scene He also testified that he knew May 26 that testified that when agreed to be someone other than the two black males get interviewed “we needed her seen from running the carwash had been expeditiously, officer” so he police called a driving the black Nissan Sentra that car to her. transport And Mo-

picked up. them Sergeant Motard also tard testified that when appellant was suppression hearing testified at the brought questioning on June 23 he police were seeking appellant on June did not know whether she had her cell only to ask her about Fields and about phone, but he not tell did her she could use car. But he also testified at telephone. hearing police seeking that the who were part Gang were of the HPD Murder appellant’s The evidence at trial further Brown, Unit headed Detective which that appellant directly showed was taken had been gathering information about the from her police headquarters work to Aparece/Ngo missing persons’ give case. All her statement to a uniformed appellant’s witnesses in suppression hear- officer in an interview room down the hall ing agreed and trial suspects Apa- car from where the other in the culpable” point, and murder cases at this he did not read her

rece/Ngo disappearance her being were rights. in the Davis murder case for interrogated these held Detective Brown testified at appellant’s crimes, the results of their warned trial that the HPD team investigating appellant’s unwarned interrogations and Davis murder did not have leads at systematically interrogation being checked by taken Appellant’s first. Ser- throughout evening. against each other 23, geant gave Motard on June them their at Sergeant appellant’s Motard testified first After that state- significant lead. that, written prior taking trial her first ment, he of three he people had names (regarding Aparece/Ngo Fields, appellant, believed to be involved— murders) p.m., ap at 7:05 he would leave and Johnson. pellant periods of time to see whether Appellant’s testimony suppression at the comported “her version of events with the hearing regarding sequence of events guys version of events that the other were Brown’s, corresponds to Detective Ser- that “I felt that she [telling],” and could be Motard’s, geant and Officer Arnold’s trial criminally He culpable.” also testified testimony. She testified that between the he did not tell she could leave. signed time she her first written statement

Rather, appellant signed after the first at 7:05 time p.m., gave and the she her her, just statement he “Let me check told statement, Sergeant second written Mo- guys with these other and see how this her questions, tard would ask then would know, thing you your whole what infor is— leave come ques- back and ask more they’re mation is versus what remember workstation, tions. On one occasion he left the room ing.” He then left the met and came back and said someone had in- with Detective Brown and the team inves formed him that she was the driver in the tigating killing Aparece and the Davis Ngo killings, Appellant told them her statement Davis case. also testified at the pretty good,” suppression hearing Sergeant “sounded Motard compared investigators joined by “just notes on what the other were second officer be- learning from their interviews with the fore” the start of her written second state- suspects in custody.6 According to Ser ment at 7:05 and that that officer asked geant testimony, Motard’s trial Detective whether she was the driver in the suspected might Brown “have Davis At gave murder. the time she information on” the Davis case and asked second statement did not believe she arrest, continue questioning try Motard to her to was under but she did not believe get Sergeant information on case. she was free to leave. also testi- Motard at the at suppression hearing testified hear fied that she was scared ing during that he and discussed the both statements and believed she killing Davis before he took the second had to do what the officers wanted her to written statement. He at trial testimony testified do. Motard’s at trial get “specific that he did not information” confirmed emotional after state indicating appellant given was the driver on the she had her second statement as Davis until him being gotten case she told “while we one which emo- “[s]he working were tional ... up second statement.” and was teared and that kind Although thought “possibly thing.” he she was Johnson, *2-3; Fields, testimony WL This is corroborated the time opinions. lines in the and Fields See 2009 WL Johnson *2.

According testimony, to the undisputed testimony was not credible and that Ser- appellant was never read her Miranda geant Motard’s and Officer Arnold’s testi- rights recording until the was started on mony was credible. only warning her third statement. The Sergeant Motard’s and Officer Arnold’s to given prior she was that was the warn- testimony on the issues of intent and indi- ing recited in her second written statement trial, custody however, cia of along with person that a commits the offense of perju- above, the other evidence recited demon- ry “if with the intent to deceive and with strates that the testimony internally was knowledge of meaning, the statement’s he inconsistent, and therefore findings these or she makes a false statement under oath Thus, were clearly erroneous. I would not or swears to the truth of a false statement defer to the trial findings, court’s but previously and the made statement is re- totality would review the of the evidence to quired by or authorized law to be made determine whether it shows that appellant Sergeant under oath.” And Motard re- in custody was when gave she each of her

peatedly testified at trial only statements and whether it shows that the for taking reason the recorded oral state- interrogating officers deliberately em- ment was to clarify whether the written ployed first, a two-step question warn later appellant given about interrogation technique to circumvent her day Davis the before was accurate. That and, protections, thus, whether oral immediately recorded statement was her three statements should all have been procure used to an arrest warrant while Carter, excluded. See 309 S.W.3d at 38. appellant was detained at police headquar- ters, immediately and the warrant was Under Supreme Dowthitt and the upon served her as she waited with Ser- opinion Court’s in Stansbury, person a is geant police Motard for a unit to arrive to (1) custody in if significantly deprived he is police take her from headquarters jail. to (2) of his way; freedom of action in some Following suppression hearing at law enforcement officer tells him he cannot Motard, Arnold, which Officer (3) leave; law enforcement officers create testified, appellant the trial court a situation that would lead reasonable found that in custody was not person to believe his freedom had been when gave she her first and second written (4) significant way; restricted in a that, although statements and she inwas there probable is cause to arrest and law third, custody for the recorded suspect enforcement officers do not tell the the statement met requirements for Dowthitt, he is free to leave. admissibility because had been at 255. informed of her rights knowingly, in- I would conclude that all four of the telligently, and voluntarily gave up. them custody indicia of were satisfied before The court also found that the officers did appellant gave her first written statement. suspect appellant not in either Apa- Specifically, I appel- would conclude that reee/Ngo case or the Davis case when lant questioned significantly deprived of her free- her. It found that although keys dom of action open having could not taken doors to the towed, and her car police being placed car in which a locked transported she was headquarters, HPD car was informed that secured that she could not leave, obligated she was not exit speak asking being with the without not told car, officers and leave at get having could time. Fi- she could out of the her cell taken, nally, the trial court found that appellant’s phone being told she could call, parallel those in being po- taken to These circumstances telephone amake Jones, at the Ap- to be interviewed in which the Court Criminal headquarters lice Gang the HPD Mur- peals desk of a member found that the cus- suspects hall from down the tody gave der Unit when he his un-Mirandized crimes, being and not Jones, the same 119 S.W.3d at statements. See leave. See Dow- was free to told that she Specifically, being 771-72. after confront- thitt, I also at 255. would friend, “good ed with the statements of his conclude, basis of the same evi- on the Roosa,” Ricky ‘Red’ and told that Roosa dence, law enforcement officers that him “primarily responsible” had named as lead a created a situation that would

had being for the murders about which he was in situation person appellant’s reasonable questioned jail, appellant orally in ad- been her freedom had restricted to believe mitted his involvement in the two murders. significant way. in See id. a Id. at 771. As he confessed and described offense, ques- the officer however, the details of the assuming, that the fore- Even tioning him “wrote down ‘verbatim’ what of control were not going indicia form, appellant asking situa- said on a statement sufficient to constitute custodial tion, transcribing I hold that the situation soon questions would and the answers as became custodial under both Jones and along.” went Id. After an interview when, gave before she her first hour-and-a-half, Dowthitt lasting about an the offi- police headquarters, written at “got cer up, appellant, sat down next to information indi- appellant orally provided legal rights ap- and went over the that mur- cating present that she was for the written form. peared top at the of the Jones, Aparece. ders of and See Ngo Then and read the state- [he] in (holding appellant at 771-76 S.W.3d together ment corrected asked him what he custody when officers mistakes, revisions, signed initialed police investigating would think if murders 772. statement at the bottom.” Id. at friend” had said he “good had been told his case, Also paralleling this Court of for two mur- “primary responsibility” had Appeals Criminal observed in that Jones (hold- Dowthitt, ders); 931 S.W.2d at 257 “the unwarned and warned statements ... custody appellant admit- ing began when given during nearly were undifferentiat- murders). during At presence ted to his event, single taking place ed in the same point, conducting that the officer the inter- uninterrupted room as an and continuous view, Motard, clearly proba- Sergeant case, In process.” Id. at 775. “[t]he appellant, ble cause to arrest but he did ... literally written statement was a tran- interrupt the interview at that time to scription appellant’s unwarned oral [the] rights, nor did read her Miranda statements,” a]ppellant did not “[the Jones, he See discontinue interview. finally make a second statement after he 771-77; Dowthitt, S.W.3d warnings; simply received his Miranda he Nor he communicate did signed the written statement that he had knowledge probable his dictated to before he was

cause, [the officer] required he was to do. See as Here, Dowthitt, warned.” Id. Motard tes- Rather, 931 S.W.2d at 257. he appellant’s written state- tified second her that she was not ar- reassured under ment, in which he took at his workstation provided rest. then a written statement, explicit headquar- included an state- the homicide division at HPD which ters at 8:31 on June “almost resembles ment that she had been told she was not taped part,” headquarters under arrest. taken at day. the next He also I shortly after noon conclude that the officers appel- took that, lant into interrogated the Mirandized taking testified while deliberately withholding Miranda “I’m already recorded oral warnings part two-step “question as of a off the second statement. All I’m working later” interrogation plan. See first/warn on doing really that second statement Carter, 309 S.W.3d at 38-40. Because no confirming what she said in tape warnings given were before ei- first, in her typed written statement.” taken, ther statement was I would hold Taking foregoing into account all of the first and second written factors, evidence and the Dowthitt I would statements were taken in violation of both clearly conclude that the trial court erred Fifth Amendment to the United States finding testimony the basis 2(a) 38.22, Constitution article section suppression hearing the witnesses at the (b) and of the of Code Criminal Procedure of appellant’s ques- the circumstances and were inadmissible into evidence not have

tioning would led a reasonable against her. to assume that “that person [s]he [wa]s Accordingly, I would sustain under the degree restraint associated first and second issues. arrest,” i.e., with an in custody, ap- when Appellant’s C. Recorded Oral State- pellant her first gave and second written ment Carmouche, statements. See 10 S.W.3d at issue, In her third argues that 383; Dowthitt, 931 S.W.2d at 255. the deliberately withheld Miranda given the warnings to warnings prior to her first two statements which she was entitled under the Fifth and then attempted to cure this with a Amendment to the United States Constitu- Miranda warning prior to her third state- 2(a) 38.22, tion and article section that, ment. Appellant argues in doing, so Procedure, Code of Criminal once her in- intentionally the officers circumvented her terrogation became See Mi- custodial. rights constitutional against unreasonable randa, 478, 1630; 384 U.S. at 86 S.Ct. at search and seizure and self-incrimination 38.22, Crim. Proc. Ann. art. under the Fourth and Fifth Amendments. Tex.Code 2(a)-(b). Nevertheless, § her interroga- Appellant the contends Miranda interruption tion continued without until warnings administered before her third necessary all the information to indict her statement were “mid-stream Miranda” warnings capital by for murder had and were therefore ineffective been obtained officials, because the third statement was a mere law enforcement checked ac- for continuation of her first two statements. curacy and completeness against informa- being concurrently tion obtained from oth- give timely The failure to Miranda suspects er in custodial interrogations, warnings generally results the State’s officer, written by signed by down being required to forfeit the use of appellant. warnings The were adminis- during interroga statement obtained tered, instead, just before gave tion, including a Mirandized statement.

recorded oral statement on June which (Tex. Martinez, 272 S.W.3d at 619 n. 10 expressly solely solicited to correct Miranda, Crim.App.2008) (citing 384 U.S. discrepancies 1612). and to confirm facts previ- at 86 at a defen S.Ct. When ously solicited from her her unwarned dant claims that his under Mi protections Jones, interrogations. thwarted, at S.W.3d randa were the burden of show Cf.

771-72. ing admissibility of the statements rests on Seibert, Martinez, (quoting at at 619-20 (citing Id. 542 U.S.

the State. 1). 1,124 2603). Seibert, 601, 124 at 2608 n. 609 n. S.Ct. U.S. S.Ct. Mirandize-after fession as rence nal ion in Supreme Court’s Criminal Court’s Miranda vidual] randa and paid tices fered and [W]hen In MaHinez, Appeals admissibility Martinez, the Texas Missouri plurality opinion, ... Justice from Appeals quoted a confession addressed likely challenged, attention must be analyzed the United States product making conflicting objects v. strategy. The Court of Kennedy. four-judge plurality opin of her Mirandized con ... Seibert question-first strategy. “interrogation prac- to disable a free and rational of a so obtained is of- which and the concur Court question-first- In stated: SeibeH, challenged of Crimi Supreme [an of Mi- indi- as which the 2612). first.” midstream’ the first and the the second round as continuous with the Se pleteness and detail of the reviewing courts to consider ty’s multi-factor “ ‘whether answers in the first round of statements, ^[2] quoted, police personnel, the over-lapping content of the two ibert, Martinez, Court interrogator’s questions could be ^[3] 542 U.S. at adopted, the timing second, 272 S.W.3d at 620 Criminal test effective,” warnings the SeibeH ^[5] 615, ^[4] questions Appeals interrogation, “[1] 124 determining setting continuity degree requiring delivered the com S.Ct. treated plurali (quoting then at at speaking, choice” 384 U.S. 464- about Appeals The Court of Criminal noted 465, 1602, 86 S.Ct. and held that a sus- Kennedy’s Justice observation in SeibeH pect “adequately must be and effective- prior that the controlling Supreme Court ly” advised of the choice the Constitu- case, Elstad, 298, “Oregon v. 470 U.S. 105 467, Id. at guarantees. tion 86 S.Ct. 1285, (1985), S.Ct. 84 L.Ed.2d 222 should however, Question-first’s object, be followed there proof unless is that the warnings is to render Miranda ineffec- officer interrogating knowingly and will by waiting give tive to them until after ingly two-stage technique, utilized the thus suspect already has confessed.... undermining warnings.” Miranda Mar measure, By any objective likely it is tinez, Seibert, 272 at (citing 620 warnings withheld until after inter- (Kenne 619, 542 at 124 U.S. S.Ct. at 2614 will rogation and confession be ineffec- J., dy, concurring)). Under the Elstad in preparing suspect tive for succes- standard, although an unwarned custodial interrogation, sive close in time and pre-Mmroda-warning statement is inad pur- similar in content. The manifest missible, subsequent warned statements pose question-first get of is to a confes- may against be introduced the accused suspect sion that the would not make if when, case, “given the facts of the ‘neither rights he understood his at the outset. general goal of deterring improper po are warnings When the inserted lice conduct nor the Fifth Amendment goal continuing midst of coordinated and in- assuring trustworthy of evidence would be terrogation, likely are to mislead ” by suppression.’ (quot served Id. at 621 “deprive knowledge defendant of Elstad, ing 470 at 105 at U.S. S.Ct. ability to essential to his understand the 1285); Carter, see also 309 S.W.3d at 41 rights nature of his and the conse- (finding pre-Miranda question unwarned quences abandoning them.” Moran Burbine, 412, 424, ing part v. inadmissible but not of deliberate 475 U.S. 106 S.Ct. (1986).

1135, 89 L.Ed.2d 410 two-step plan to undermine Miranda

237 necessary finding but it “still discuss the content of the rights, first state- ment. Id. at 626-27. appellant’s post-warning if determine made”). voluntarily were

statements Martinez, In Ap- Court Criminal peals held that the rights were two-step strategy When a deliberate is violated, taken, that no curative steps were used, have Kennedy Justice would held and that his statement taken “ without Mi- that, ‘postwarning Seibert statements warnings randa was inadmissible under pre- that are related to the substance of 622-23, foregoing standard. See id. at warning statements must be excluded un (holding statement inadmissible where less curative measures are taken before given defendant was not Miranda warn- ” is postwarning made.’ arrest; ings at time of questioned officers Martinez, (citing 272 S.W.3d at 626 Sei him about crime at station without bert, 542 U.S. S.Ct. giving required warnings; appellant was J., (Kennedy, concurring)). The Texas taken for polygraph examination without Appeals agreed Court Criminal being given warnings; mag- Miranda adopted this standard Martinez. istrate read warnings appel- Miranda Id. The also Justice Ken adopted Court only lant after both first round of interro- “ nedy’s conclusion ‘curative meas examination). gation polygraph ... designed ures to ensure that a rea stated, facts, court “Based on these we in the person suspect’s sonable situation have two-step determined that ‘the inter- import would understand the and effect of rogation technique was used in a calculat- warning the Miranda Miranda way ed to undermine the Miranda warn- ” waiver’ could render statements taken 623; Jones, ing. ...’” Id. at see also giving warnings without admissi second, (holding S.W.3d at 783 warned Seibert, ble. Id. (quoting 542 U.S. at repeated statement first unwarned J., (Kennedy, 124 S.Ct. at 2616 concur statement inadmissible because waiver of ring)). rights given in connection with second constitutionally statement was not valid in Appeals gave The Court of Criminal light of circumstances and entire course of examples appropriate in Martinez of cu- conduct, police finding but error in admis- gleaned rative measures from both the doubt). beyond sion harmless reasonable plurality opinion Seibert and Justice Ken- (1) nedy’s concurrence: a substantial Here, appellant’s interrogation satisfied break in time and circumstances between plurality’s each of the Seibert factors for the and unwarned statement the Mi- determining subsequent that a statement (2) warning; interrogating randa the offi- prior is inadmissible due to a statement explaining cers’ un- defendant the given' warnings. without Miranda With likely warned custodial statements are factors, respect to the first and second (3) admissible; the officers’ informing after first oral assuring during themselves suspect the he although previously questioning appellant of the answers gave incriminating information he is not appellant give Apa- would to both the (4) it; obligated repeat the murder, officers’ reee/Ngo murders and the Davis refraining referring from to the unwarned police the took two written statements. In unless the statement, statement defendant refers to criminally the first appellant (5) first; it telling the officers’ a de- implicated Aparece/Ngo herself in the fendant who does refer pre-Mi- by description his murders a detailed giving randa obligated participated statement that he is not the events in which she be-

238 615-16, all of fore, Viewing In 124 S.Ct. at 2614. and after the murders. during, evidence, the I would conclude that the similarly appellant the second was taken at Ser- first written statement herself in the Davis criminally implicated headquar- geant Motard’s desk at murder, sufficient information to providing appellant deprived after had been ters an indictment for the officers to sustain car, keys, phone. and her cell either written murder. Before capital by Sergeant was taken Motard as second taken, between the first and her statements from the first writ- soon as statements, during both writ- second compared with state- ten statement were officer, statements, interrogating ten being obtained from the male sus- ments Motard, checked the Sergeant repeatedly hall, pects down appellant gave against information infor- if in the had been asked she was driver concurrently in the being mation obtained case, had discussed Davis suspects of the male in custo- interrogation tell with Motard what she would he dy admittedly supplied information him; third, recorded, statement fol- interrogations learned from the other day place lowed the next the same and asked her to confirm it. officer after had been same addition, in taking In her oral recorded given sleep time to at home. administering statement after Finally, interrogator’s questions warnings, Sergeant ap Motard confronted of questioning treated the second round pellant with inconsistencies between entirely June 23 as continuous with the statement and her second written state round, immediately preceding first and the completeness and detail ment to assure interrogator’s questions treated the third of her statements the first and second June 24 round on as continuous with both Martinez, interrogation. rounds of See round, merely the first and second and as Seibert, 620; at see also confirming information supplied appel 615-16, 124 at S.Ct. at 2614. He then U.S. lant recorded in her unwarned second purpose testified that the of the oral re day. previous written statement See corded statement was to confirm the infor Martinez, 620; 272 S.W.3d at see also only mation in the second statement. Not Seibert, 615-16, U.S. S.Ct. was the of the statement for content which warnings received Miranda that, it was intended to be iden “over-lapping,” by any objective I would conclude tical, subsequent measure, and the content of the process appel used to obtain repeatedly against was checked statement knowing lant’s statements satisfies prior during content of the statement “two-step” “question intentional of process Martinez, the recorded interview. See 272 first, warn later” to be an unconstitu held Seibert, 620; S.W.3d at 542 see also U.S. tional rights violation of Fifth Amendment 615-16, 124 at at 2614. Martinez, S.Ct. in SeibeH Martinez. See 272 at (setting S.W.3d 619-26 out law and respect With to the third and fourth case); applying standard to facts of see factors, there was no difference in the Seibert, 615-16, 620-22, at also U.S. statements, setting of the three the time (same)). at 2614-16 S.Ct. except appel was continuous for the time home, lant sleep steps was allowed to None of the set out MaHinez complete continuity there was to cure of were used violations Miranda Martinez, personnel. repeated See 272 S.W.3d at in this case to cure the unconsti- 620, 626-27; Seibert, appellant’s rights. see also 542 U.S. tutional violations of First, at 626-27. there under See oath or swears to the truth of a false previously was no break in time and cir- substantial made and the state- ment required cumstances between the two unwarned is or authorized by law to be made under oath.” I would warning statements and the Miranda im- conclude that these third, clearly factors mediately ap- indicate that preceding warned pellant was gave when she her Second, statement. See id. at 627. first and second written statements and explain

officers did not interrogating officers intended to two unwarned written statements use her sworn statements in evidence likely were not to be admissible before against her and intended to warn her of third, warning taking her and record- possible perjury charges if her statements Third, ed oral statement. id. appel- See were false. that, lant although was not informed she previously given incriminating infor- I would hold that no curative steps were

mation, obligated repeat she was not it. taken and that appellant’s recorded state- Fourth, See id. the interrogating officer ment was product inadmissible as the of an intentional, did not refrain from referring to the un- knowing, and two-step uncured question warned statements unless appellant re- later interrogation firsVwarn Fifth, technique that ferred to them first. id. violated the Fifth See Amend- ment officers not tell United States did when she did Constitution and article 38.22 of the Texas pre-Miranda refer to her Code statements that Criminal Procedure. obligated was not to discuss the con- tent of her first or second statement. See I would sustain appellant’s third issue.

id. Therefore, I would turn to whether the admission of appellant’s redacted first un-

Instead, the officers’ conduct was exact- statement, warned written her entire sec- ly opposite of each of the curative ond unwarned written and her steps required. Appellant expressly third oral recorded statement was harmful. being informed that her answers were against cheeked her earlier statement and D. Harm Analysis suspects accuracy those of the male The admission into evidence of a state- completeness. She was told she could ment rights taken violation of Miranda police headquarters not leave until her an- is constitutional subject error to harmless against swers were checked theirs. She error review under Appel- Texas Rule of give asked to a second unwarned Tex.R.App. 44.2(a). late Procedure See P. purpose statement for the express pro- 44.2(a); Jones, 119 S.W.3d at 777. In such

viding information about the Davis case case, required reversal is we de- unless criminally implicated after she had herself beyond termine a reasonable doubt that in the Aparece/Ngo case and after the suppress the failure to the statement did record indicates she had been asked to jury’s contribute the verdict. Tex.

whether she was the driver in the Davis R.App. 44.2(a); Jones, P. 119 at S.W.3d case, a criminal act. And she was re- 777. If there is a reasonable likelihood the quired acknowledge to in her first written materially jurors’ error affected the delib- that she had been informed erations, Jones, the error is not harmless. that, under 37.02 of section the Texas Pe- 119 at conducting S.W.3d 777. In this Code, nal person a commits the offense of “calculate, analysis, required we are as perjury “if with the intent to deceive and nearly possible, probable impact as of knowledge of the statement’s mean- jury light the error on the in of the other ing, he or she a makes false statement evidence.” Id.

240 violation, in committing attempt- of a Miranda al the course of or

In the context robbery. ing to commit magnitude ‘“judge we must Penal Tex. Code (Vernon 19.02(b)(1) 2003), § a Ann. in of the evidence as whole to light error (Vernon 2009). 19.03(a)(2) Supp. per- § A degree prejudice of to the determine ” if, robbery “in son commits the offense of resulting from the error.’ Id. defendant committing theft ... he in- the course of Polanco, States v. 93 F.3d (quoting United tentionally, recklessly knowingly, or causes (9th Cir.1996) 555, (analyzing Mi 562-63 bodily injury “intentionally to another” or error)). Therefore, we must randa-Elstad knowingly places or threatens or another juror likely a would weight assess the bodily injury in fear of imminent or death.” improperly admitted state place upon 29.02(a)(l)-(2) 2003). (Vernon §Id. A per- Jones, 119 at To ments. S.W.3d aggravated son commits the offense of rob- case, inquiry conduct this this we must if, bery committing in the course of a proof of independent assess the robbery, deadly he uses or exhibits a Jones, in the crime. See 119 participation 29.03(a)(2) (Vernon 2003). § weapon. Id. However, at 778. we must be S.W.3d presence mere at the scene of an While mindful that defendant’s “[a] party offense does not make one a implicating her in especially a statement offense, flight circum- from scene is offense, the charged the commission of is guilt. Eguia stantial evidence of See v. unlike other evidence that can be ad State, 1, (Tex.App.-Hous- 6-7 against McCarthy mitted the defendant.” 2008, pet.) (citing ton no [1st Dist.] Hams 47, (Tex.Crim. State, 55-56 v. 65 S.W.3d (Tex.Crim. State, 447, v. Arizona v.

App.2001); see also Fulmi App.1983)). nante, 279, 296, 499 U.S. 111 S.Ct. jury charge allowed to be (1991). 1257, 113 L.Ed.2d 302 As the guilty found of capital murder either as a Appeals Court Criminal observed principal, party, participant or a in a McCarthy, likely “A confession is to leave conspiracy that resulted in the death of impact jury.” an indelible 65 S.W.3d Brady Specifically, jury Davis. charge noted, Indeed, at 56. the court jury appellant guilty allowed the to find capital if proba- proved, defendant’s own confession is murder the evidence be-

[A] (1) doubt, yond a reasonable “that on the bly probative most and damaging question [appellant] occasion in was in the against evidence that can be admitted committing attempting course of or him.... admissions of a defendant [T]he felony robbery commit the offense of himself, come the actor from most ... Brady [appellant] Davis but also that knowledgeable unimpeachable specifically intended to cause the death of past source of information about his con- Davis, Brady by shooting deadly with a Certainly duct. confessions have pro- (2) weapon”; [appellant] or “that with the impact jury, found on the so much so promote intent to or assist the commis- may justifiably ability that we doubt its solicited, ... robbery sion of the offense of put them out of mind even if told to directed, aided, encouraged, attempted or do so. to aid Dexter Johnson Keithron and/or Fulminante, (quoting Id. U.S. Davis, did, shooting Brady Fields in if she 1257). S.Ct. thereby killing Brady with the intention of indicted, tried, Appellant was and con- (3) Davis”; or “entered into capital victed of murder. A person com- agreement an with Dexter Johnson and/or capital intentionally mits murder if he or felony Keithron commit the Fields to of- knowingly robbery Brady causes the death of an individu- fense of of Davis ... and

241-253 agreement they carry to that did pursuant CONCLUSION while in the conspiracy, out their I judgment would reverse the said Dex- trial committing conspiracy, course of court and remand the cause for a new trial. ter Johnson Keithron Fields inten- and/or

tionally Brady caused the death of Davis shooting deadly weapon, namely jury firearm.” found

guilty capital specifying murder without grounds.

its Virtually no evidence was admitted at placed appellant trial that at the scene than Davis murder other her three Moreover, illegally obtained confessions. if even there had been more evidence was, against appellant than there under the circumstances of this case—in which

three improperly pro- admitted statements necessary all the details to convict vided capital murder —I would still agree with the Appeals’ Court of Criminal that, McCarthy, “[rjegardless was, apart appel-

of whether there from lant’s sufficient evidence to con- clude outcome of the trial was proper, impossible say we find it there

is no reasonable that the likelihood State’s appellant’s materially

use of statement[s] the jury’s affected deliberations.” S.W.3d at 56.

I conclude it cannot be determined be- yond a reasonable doubt that

confession did not contribute to her convic- tion, and therefore I would hold re- Tex.R.App. required. versal is See P. 44.2(a).7 foregoing disposi- sufficiency sup-

7. Because the are matters and factual of the evidence to case, appellant's tive of this I would not reach port appellant’s conviction. issues, through arguing legal fourth seventh

Case Details

Case Name: Ervin v. State

Court Name: Court of Appeals of Texas

Date Published: Dec 15, 2010

Citation: 333 S.W.3d 187

Docket Number: 01-08-00121-CR

Court Abbreviation: Tex. App.