Melton v. State, 790 S.W.2d 322

Melton v. State

790 S.W.2d 322

Tex. Crim. App.

1990

Check Treatment

*1 322 authorizing a

Finding provision no in law cases, we appeal in bond forfeiture

State’s appeals properly that the court of

conclude According- instant appeals.

dismissed appeals is of the court of

ly, judgment

affirmed.

WHITE, J., in the result. concurs MELTON, Appellant,

Madalyn Sue Texas, Appellee.

The STATE

No. 569-84. Texas, Criminal

Court of

En Banc.

May proceeding rendered the defendant." That State was entitled has been forfeiture eventually ordinary litigant, 40.02 of civil article became Article same remedies 40.02, trial, despite Although including Code. Article a motion for new 1965 contrary.” over into Rule 30 language in Routt to In Routt not carried verbatim Procedure, Appellate Sep- effective is authori- new Rules this Court observed that “[t]here 1, 1986, provides may ty proposition that Rule nevertheless that the State tember only “upon of an trial motion accused.” a new trial the final bond forfei- for new move for after event, nullity. Perry assuming attempt even the State is current- and that such is ture (1883); Tex.App. ly for new in a Robertson v. authorized sеek a motion 166 (1883).” pursuant to Article 22.10 Tex.App. S.W.2d at bond forfeiture matter Tex.R.Civ.P., upon question we Perry Rule 320—a need and Robertson had relied Both criminal, civil, not a now—it still a of the 1879 of Criminal Proce- not decide Article 776 Code dure, may appeal on proceeding. au- providing in no The State new trial can "[a] 51.012, judgment thority supra. granted of § where case be the verdict *2 Marsh,

body appeared of Terrell which shotgun. have shot A three- been inch, Magnum, shotgun fired shell was days A Mon- recovered. few later [on 29], day, October Detectives Woods and plant the Port Neches went to refinery, Texaco where employed, and asked her to them to the station in Port Arthur questioning concerning for the death of Terrell Marsh.

“The detectives testified station, freely went with them to the point, she was not a at that they wished to her because Buchanan, Carver, Paul N. Charles Beau- suggested appellant had information that mont, appellant. may the last to see the McGrath, Atty., James S. Dist. and John trial, deceased appel- alive. Later DeWitt, Beaumont, R. Asst. Atty., Dist. dispute lant took the stand did not Huttash, Robert Atty., State’s and Cath- plant freely. that she left the Texaco Riedel, Austin, leen R. Asst. Atty., State’s “The officers testified she was free to for the State. leave the station in Port Arthur point

until at a questioning when implicated killing. she herself OPINION ON APPELLANT’S PETITION officers said first denied

FOR DISCRETIONARY REVIEW death, knowledge of Marsh’s but after questioning, determined admitted that McCORMICK, Presiding Judge. having had been an affair with Appellant was convicted of the offense of Marsh, employеe, a fellow Texaco murder of her former lover. Punishment March, 1979; terminated in that she told years’ assessed at ten confinement and quite upset who became $5,000.00. a fine of point and at some stated Marsh had to be appeal, On Ap- Beaumont Court of killed. She and her husband drove to peals appellant’s found that oral statement University Lamar in Port Arthur on the properly admitted into evidence in that night fatal parked and found Marsh’s in custody at the time of husband, Mike, got car. The into the making of the statement. The Court of trunk of weapon. their car with the death also found that oral car, When Marsh came appel- out to his statement voluntarily was made after she her, did, lant him told to follow which he and knowingly privilege against waived her Mike, to the construction road. the hus- State, (Tex. self-incrimination. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Melton v. band, got trunk, out of the shot Marsh App.-Beaumont, CR, No. 09-83-057 deliv- times, several then took Marsh’s wallet 21, 1984). granted ered appel- March We appear to make it the motive was rob- petition discretionary lant’s review to bery. up The wallet was later cut examine these issues. disposed in a drainage ditch. correctly facts were summarized in questioning “After at the sta- Appeals’ opinion: Court tion, appellant signed a consent to have 26, 1979, [Friday] searched, “On October officers her home and went with the Department of the Port Arthur Police officers to her home where recov- responded to reporting body a call a dead weapon testimony ered the which latеr found on a construction road in Port Ar- shotgun identified as the which fired the arriving, thur. On the officers found the shell recovered at the scene. following con- The trial made the back to court was then taken clusions of law: gave called magistrate was who given by the warning and she was made “The statement de- another oral *3 fendant Detective Woods admissible charges against her. of murder aware jury under Article as the evidence before sign a state- was asked written She 38.22, proven 3(c). has The State Sec. talking refused after to some- ment but that the con- beyond a reasonable doubt telephone.” Slip opinion pp. on the one given freely voluntarily fession and was 2-3. brackets [material added] custody not in was while defendant to trial the сourt held a hear- Prior any police officers.” of of ing on the voluntariness appellant argues petition, her In the officers and made the statements to that was in that the facts show fact, following findings of inter alia: custody she was taken from from the time voluntarily accompa- “The defendant argues place employment. of She and Detective Woods nied by several “custody” this is demonstrated Department Arthur Police on Octo- Port facts: The not in defendant was ber (1) requested that she after the officers police free to custody and was leave police accompany them to the any any time. department at Prior she that she be allowed to requested defendant questioning, the was admon- to her payment take book hus- a loan warnings] ... ished of [Miranda refused; band and the officers understood all of her “The defendant (2) option of given she not driv- was warnings rights contained above station; car to own voluntarily freely gave and the offi- (3) into the station she was taken inculpatory oral con- cers an statement the detec- through a rear door which of cerning the homicide Terrell Marsh. unlock and which tives had to was made while the The oral statement it closed behind “clicked” when was her; custody any not imthe of defendant was and the statement was police officers (4) interroga- she into an was escorted being not made while the defendant was tion the door was closed room and her; The illegally restrained officers. behind was defendant (5) she infоrmed that was never suspect until after she made the not a free go. about offense.

oral statement trial court should not Findings by a given not a result statement was oral of discre be disturbed a clear abuse absent threats, any promises, psychological of (Tex. tion. Dancy v. coercion, undue influence exerted on or Cr.App.1987). of the record A review by any police officer. The defendant ample sup evidence shows that there is given by the de- oral statement the trial court. port findings of of or as a result threat fendant that Detective Woods record shows concerning charging promise or abst- interview they sought ap- testified that charging the hus- defendant’s inence suspect in the case but pellant, not as a murder. capital the offense band with revealed investigation because their threatened, The defendant probably the last anything prior to promised coerced further testified see the alive. He victim statement. giving the place they picked appellant at her up given by the de- oral statement “The 10:30 employment approximately a.m. find- police officers to the appellant requested fendant led the that she be al- When 2,# shotgun, payment State’s Exhibit union ing of the lowed to the credit take previously undis- he could make a secreted to her husband so which was book hour, Woods in- payment during with the lunch was the instrument covered and would be finished at formed that she was killed.” Terrell Marsh station noon and could take Dancy, so far as we went Shiflеt to her husband after the interview was to find that: completed. Woods testified that person voluntarily accompa “Where a did not have to them to the police officers, nies who are then police station. He further testified that process crime, investigating to a although he did not inform location, certain and he knows or should option she had the driving her own ve- know that he officers hicle to the station had she made such a may may impli have committed or request, he would have allowed her to do crime, cated in committing the we are During interview, so. did not unable to hold that under the circum *4 request anyone to talk with but if she had person stances such a is restrained of his request, made such a he also would have freedom of movеment. Under those cir allowed her to do so. Woods testified that cumstances, custody.” he is not in Dan up until she culpability admitted her State, cy p. v. (emphasis murder was free to leave. added)” person A need not be under formal ar- Clearly, interroga- there was no custodial in custody. rest order to be in In past the tion in the instant case where all the evi- this Court has types examined these of up dence appel- reflects that until the time light cases in of four factors: whether completed statement, lant her oral the offi- probable existed; cause to arrest cers did being implicated her of the defendant was the focus of the investi- in the crime at all. All of the evidence gation; subjective the police; intent of the shows they interviewing that were subjective and the belief of the defendant. because had reason to believe that she State, (Tex.Cr. Turner v. 685 S.W.2d 38 person had been the last to see the victim App.1985); State, Ruth v. 645 S.W.2d 432 above, alive. Given all of the we find that judge both the trial Ap- the Court of “We are any unaware of rule of law peals were correct in findings their lawfully forbids constituted offi- not in custody when she cers of the law requesting persons from State, made her oral Penry statement. v. accompany them, or providing of (Tex.Cr.App.1985); Turner transportation to station or State, supra; v. Clark v. 627 S.W.2d some other place relevant in furtherance 693 (Tex.Cr.App.1982) (opinion on rehear- of an investigation of a crime. Nor are ing). Appellant’s ground first for review is we any aware оf rule of prohib- law that overruled. its officers from voluntarily taking person station or some Appellant argues also that the trial court place

other relevant in an effort to exon- by abused its discretion finding as a matter person erate such complicity from in an of fact that the oral statements made alleged crime. Nor are we aware of appellant were made after a voluntary and rule of law reject which forbids one to knowing privilege against waiver of her ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍request. such If the circumstances show self-incrimination. contends that transportee acting only upon is the interrogation techniques used invitation, request, urging or even of officers were so coercive that police, threats, and there are no ex- was “forced” to confess. press implied, or that he will be taken

forcibly, the We find that we accompaniment voluntary, is need not address person such is merits of this issue. Both the custody. not then in state words, privilege In other and the against under those federal self-in circumstanc- es, person such preventing has not ‘been crimination are aimed taken into com custody pelled, deprived involuntary otherwise of his testimonial incrimina freedom of any significant action in way.’ person tion who has been taken into Arizona, supra." Miranda v. custody. Arizona, Miranda v. 384 U.S. Shiflet 732 S.W.2d 622 (Tex.Cr.App.1985). (1966); 86 S.Ct. 16 L.Ed.2d 694 (Tex.Cr. appel- Court of the Beaumont Thomas v. in lant contended that her confession Only instances when state- App.1986). interrogation weapon sup- murder should ment stems from custodiаl product in pressed the defen- were the demonstrate that must State in intelligently illegal waived his seizure of violation knowingly dant United against Mi- the Fourth Amendment privilege self-incrimination. Arizona, Indeed the Su- also contended supra. States Constitution. She randa voluntary did follow a preme Court wrote in Miranda: confession privilege not knowing of her waiver hamper “Our decision not intended Amend- incriminate herself under Fifth officers the traditional function held, The court ment. See investigating crime. Escobedo opinion designated publication but not Illinois, 478, 491, 378 U.S. State of neither yet reported, 1768, 1765 L.Ed.2d When S.Ct. [12 977]. purposes, Amendment “seized” Fourth probable is in an individual contemplation custody” nor “in cause, course, police may, of seek out Amendment, and that her confеssion Fifth in the field to be used evidence *5 search her residence were and consent to investigation may in- against him. Such legally obtained. Melton v. therefore persons of not under re- inquiry clude 09-83- (Tex.App. Beaumont, No. State question- straint. General on-the-scene — 057-CR, 21, 1984). March We delivered surrounding a crime or as to facts petition granted appellant’s for discretion general questioning in of citizens other holdings. ary review to examine these factfinding process affected not 302(c)(3), Tex.R.App. now Tex.Cr.App. Rule holding. responsible It act our is an of 200(c)(3). Pro., Rule give to citizenship for individuals whatev- may in have to aid er information illegally my view In such law enforcement. situations the Fourth Amendment. “seized” under compelling atmosphere inherent аppellant’s and her Because both statement interrogation is not process in-custody of gained by to were consent search home necessarily present.” v. Ari- Miranda seizure, of exploitation illegality of zona, 477-478, U.S. at 86 S.Ct. failing I court erred in to believe the trial 1629-1630.) grant suppress. to The Court her motion the Fifth Amendment is- need not address appellant made the statement When sue. yet shifted from investigation accusatory or investigatory to the cus such, there no stage. As com todial I. pulsion appellant’s Fifth Amendment and Briefly, light and in the most favorable play. rights had not come into Granviel verdict, jury’s of the of- to the the facts State, 723 S.W.2d 141 Appellant, follows. hus- fense are as make a deter Thus we need not and cannot deceased, Marsh, bаnd, all and Terrell of mination as to voluntariness plant Texaco at the Port Neches worked self-in right against of appellant’s waiver engaged Marsh Refinery. Appellant and crimination. Guerrero to affair came an extramarital (Tex.Cr.App.1980). This night On the end in March of 1979. ground for review is overruled. 25, 1979, appellant and hus- October of the Court of judgments Univ- parking drove lot of Lamar band to affirmed. the trial court are Arthur, where Marsh was ersity Port class. While enrolled auto mechanics CLINTON, Judge, dissenting. hid in the trunk of their car her husband near shotgun, appellant to waited party as a the with Appellant was convicted appel- emerged, car. punishment Marsh’s When Marsh was as- offense of murder then fol- briefly, him and he spoke lant to sessed the trial court cоnfinement $5,000.00. car remote construe- her in his to a lowed ten,years fine “[m]ay taken five min- have be gunned tion There he was down would [sic] road. According appellant, the detec- appellant’s Marsh’s wal- utes.” who took trial, her she At De- told could not. appear robbery let tives to make this, early the Woods denied and claimed body tective motive.1 was found ^ie instead told her she would morning. next long, and have time to de- detained would pre- developed at the Evidence was both payment her husband liver book to suppress and hearing trial on the motion to Although he needed it at lunch. before appel- relating legality to the insisted was considered Woods Investigators quickly lant’s detention.2 time, suspect, not a a witness employeеs of learned from other Texaco convey her. He he did not this fact Marsh, from affair with appel- he would not “forced” testified at Lamar conversations with students lant them. they gathered he had last been University morning appellant. seen The detectives drove sta- alive with On 29, 1979, tion in their car. She did not ask take of October Detectives Woods vehicle; talk to did the plant went to the Texaco her own neither detectives her, option appellant. approaching present Before ever to her. Once at however, her su- Detective unlocked the the detectives informed Woods back pervisor gain taking [appellant] “were door to admittance. The door closed click, leading appellant tо talk to an audible station with her[.]” again called to the “Number Build- it locked them. One Office believe behind She ing” “they “an where the told her was taken to interview room or small detectives *6 going investigation” containing to continue were the office” a desk and four chairs. requested appellant and she them to the and The door was closed was Although appel- station “to make it easier for them ... directed to have a seat. it, paperwork.” Appellant their asked to denied testified he lant Detective Woods [f]or immediately upon entering to take “our for payment allowed book Mirandized Appellant questioned credit union” to the room.3 authorizing Appellant signed 1. raised defense of and affirmative ment consent form durеss, Code, 8.05, charge see V.T.C.A. in that detectives to search her home. In its at § Penal guilt/innocence phase shotgun point conclusion of her husband forced her to the trial, at jury not to the court instructed the consid- facilitate commission of trial the offense. The appellant's er oral statement unless it found she jury accordingly, court instructed but its it, then, prior giving warned and had been guilty jury rejected verdict of that scenario. jury knowingly, only if the should find she intel- Here, 130, Hardesty as in S.W.2d ligently voluntarily rights. those waived 133, (Tex.Cr.App.1984), appellant at n. 6 “made giving this instruction the trial court seems to reopen per- an election to at trial evidence” as that at have determined a matter of law least taining legality statement, to the issue of the of her deten- appellant the time as of made she sought questioning. Although appellant custody” pur- tion for “in Fifth Amendment issue, jury specific though findings on see n. poses no 3, instruction this in its of fact and —even 38.22, post, counsel for did elicit facts law conclusions of mandated Article V.A.C.C.P., legality during relevant of her arrest the trial court had determined that detectives, during voluntarily appellant’s oral statement "was crossexamination appellant’s testimony. freely given [appellant] trial At several while was not in the own custody any police (Appeal points during requested court officers." this appellant’s ruling cause is from second trial this its on her earlier motion to reconsider offense. conclusion of law suppress on this basis. this reason we need For custody” рur- not "in Amendment general for Fifth "the that we consider not follow rule ... poses considering is odder still that the trial hearing sup- adduced evidence at on [the granted appel- court a motion for new trial after pression] testimony and do motion not resort to prosecution ground it lant’s first on the had Hardesty, subsequently at su- elicited trial:...” erroneously jury during 263, failed to instruct pra. at See also Webb v. 760 S.W.2d question the first trial on the of "voluntariness” 273, n. 13 statement!) No instruction was Arizona, 436, S.Ct. Miranda v. 384 U.S. given asking jury to resolve a fact issue 1602, (1966). 16 L.Ed.2d 694 bearing on whether was either "in custody” ment, contemplated by maintained warned un- she was not the Fifth Amend- later, given state- til much after she had an oral or "seized” under the Fourth Amendment. unspecified length shotgun of time before admit- Both the statement and the were ting knowledge During of the offense. admitted at trial. her, period brought food was but 38.22, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Pursuant to Article V.A.C. § she did not eat. When she indicated a C.P., findings the trial court entered of fact cigarettes, brought desire for these were bearing and conclusions of law on the vol- her. She was escorted to and from the appellant’s statement, untariness both of explained they restroom. Detective Woods process, as a matter of due and of her her, “just being

were keeping courteous to rights prior waiver of Fifth Amendment getting building.” her from lost in the giving that statement. See Griffin explanation ap- This was never offered to 428-29, n. 11 & however, pellant, who knew where the rest- (Tex.Cr.App.1989). To the extent the trial they passed room was because when findings court’s fact also have some bear- arriving first station. on the Fourth Amendment Up implicated until the time she “seized,” herself are offense, according Woods, “had as follows: leave,” expressed she a desire to and had “The voluntarily accompa- defendant it, “adamant” about she would Hughes nied Detective Woods and go. have been free to Neither detective Port Arthur Department Police on Octo- ever told her so. Detective testi- ber 1979. The defendant was not in fied on crossexamination: and was free to leave the “Q Now, right. you All [ap- never told department any any time. Prior to pellant] go, you? that she was free to did questioning, the defendant was admon- sir, A No I did not. warnings] ished of the ... [Miranda fact, Q And as a matter of that would “The defendant understood аll of her very poor interviewing have been tech- rights warnings contained in the above nique to inform the interviewee that freely voluntarily gave the offi- time, go were free to would it inculpatory cers an oral statement con- not? cerning the homicide of Terrell Marsh. *7 Yes, A sir. The oral statement was made while the custody any defendant was not Q purpose getting Your her down police officers and the statement was there was to make her understand the being made while the defendant was not gravity of the and to situation make her illegally restrained the officers. The maybe feel certainly not under arrest but defendant was not in and was somewhat confined? not a until after she made the Yes, A sir.” oral statement about this offense.” Although appellant did not consider herself appellant That was in fact Mirandized be- arrested, formally neither did she believe questioning began clearly fore supported is liberty get up she “was at and leave[.]” detectives, testimony of the and we The tenor of the that “interview” was rightly accept that as an established fact the detectives appellant believed had likewise, analysis; for our that knowledge offense, of the had that was, not, whether she knew it or free to contradicting information her denials of an any leave the station at time. How- Marsh, robbery affair with and that if was ever, “voluntarily” accompanied that she killing, not the true motive for it had station, the detectives to the and “was not appear, been made to she should reveal being illegally restrained the officers” thereby that fact and save are more in the nature of conclusions of they suspected, whom capital from a mur- ambigu- disputed law than resolution of charge. Eventually appellant der suc- ous facts. importunes to the detec- cumbed of the tives, giving signing appeals a statement The court of invoked a mixture defining consent form to search her house. That of state and federal decisions both search weapon. purposes, uncovered the murder “seizure” for Fourth Amendment

329 that have believed person would under Fifth Amendment. reasonable “custody” not free to leave.” United States that he was Believing the trial court’s conclusion Mendenhall, 544, 554, v. at 100 de- 446 U.S. voluntarily accompanied the 1877, 497, 1870, 64 at 509 not L.Ed.2d tectives to the station was S.Ct. at Stewart, J., discretion, appeals joined by (1980) (Opinion court of abuse of prior to J., announcing judgment was not ‘seized’ of the “appellant Rehnquist, ruled Mel- Royer, v. 491, 103 Florida making Court); oral confession.” 460 U.S. State, Slip op. ton v. 1319, (1983) at 7.4 (plurality L.Ed.2d 229 S.Ct. 75 Chesternut, 486 U.S. opinion); Michigan v. 567, 1975, (1988); 108 100 L.Ed.2d 565 S.Ct. II. v. (Tex.Cr. Daniels 702 718 S.W.2d The us is whether issue before necessarily impre App.1986). “The test is indeed “seized” under the Fourth was cise, designed to assess the coercive ... contend, The does Amendment. State whole, conduct, as a effect of taken reflect, nor does the record Woods particular details of rather than to focus ap- probable had cause to believe Michigan v. in isolation.” that conduct pellant involved in the murder Chesternut, 573, 108 at 486 U.S. at S.Ct. they quеstioned Marsh when 1979, 100 It is determina L.Ed.2d her, station. If the detectives “seized” neither fact free tive that seizure therefore violated the Fourth time, that she in fact to leave at nor York, 442 Dunaway v. New Amendment. believed, erroneously, albeit she 200, 2248, U.S. 99 S.Ct. 60 L.Ed.2d 824 is “ob not. Florida, Hayes (1979); 811, 470 105 U.S. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍free jective reason” to believe she 1643, (1985). S.Ct. 84 L.Ed.2d 705 to leave. See United Menden States initial is on appellant burden to show a hall, 1878, 446 U.S. at 100 S.Ct. occurred. Russell seizure L.Ed.2d 510.5 The trial volun- Under the Fourth seizure court concluded Amendment a “only if, tarily accompanied has the detectives occurred in view of all the incident, surrounding circumstances and that conclusion “should finding poses 4. The court of did not what at A that offi- discuss seizure lawful. pronouncement effectively probable that time was the most rеcent cers had cause moots the hand, Supreme finding question. of the United States Court on the sub- On the other seizure "seizure," ject of probable says Fourth Amendment Flor- cause noth- viz: did not Royer, ida v. U.S. 103 S.Ct. about whether the circumstances surround- (1983). *8 coercive, L.Ed.2d 229 ing appear the interview would viewed Moreover, objectively. although subjective the subjective so, police intent of and the belief of acknowledging doing it is ma- 5. Without relevant, suspect may certainly both be nei- jority analysis imports a have four-factor courts regarded ques- dispositive can as of the frequently case-by-case ther used to make determina- suspect "objective suspect to "custody” tion whether a had reason” tions a is in such that whether prophylactiс protec- he free believe to leave. Fifth Amendment Miranda Op. majority investigation upon par- at tions Thus the Whether has focused attach. existed; way asking probable person cause to seems asks: whether arrest ticular another motive, subjective police intent of the was have a discernible less whether the whether officers arrest; cause, suspect subjectively probable to whether the be- from to hold than different custody; say in- person. lieved was in and whether the he Suffice to that the officers’ vestigation suspect. investigation clearly alighted had on the focused in this cause had Supreme They may United Court has never invoked upon appellant States not husband. determining these in the context of culpability factors shared believed "seizure,” however, murder, and it Fourth Amendment interroga- it is but clear from seems to me that at least three of the four they good suspected, tion itself that reason, and with meaningfully to to that factors fail contribute something she would know about inquiry. They every expect reason the offense. and, evasive, to be Detective probable Once it is established that cause to admitted, exists, Hughes practically every motivation arrest has whether a to create an environment in which her evasive- been "seized” under the Fourth Amendment be- academic; purely pur- comes ness could be overborne. constitutional 330 longer company agent a clear an an office no be disturbed absent abuse of State, wоuld feel

discretion.” v. 728 free to leave.” Dancy S.W.2d 772, (Tex.Cr.App.1987); Livingston 777 583, Berry, United States v. 670 F.2d 311, (Tex.Cr. v. at 328 597, (CA5 1982). 598 Both the trial court App.1987). appeals here The court and the seem to have court of However, in found no such decid abuse. exclusively upon appellant’s apparent relied supports whether the record a trial concluding consent in she was not seized. court’s that an determination accused vol it, however, As I see what the record re untarily investiga consented to submit to veals of “the effect of con coercive detention, appellate tive court should duct, whole,” Michigan taken as a acquiescence simple not consider to a Chesterut, 573, 108 S.Ct. at U.S. dispositive. request Apparent alone to be 1979, 572, 100 L.Ed.2d at bеlies the notion in the totality consent is but one factor voluntarily.6 consented circumstances, and one to be viewed they Whether or not would have guardedly. context the en banc go, “forced” her to that Detectives Woods Fifth Circuit has observed: questioning were intent “ closely ... a court should scrutinize at the station is evident totality circumstances [the of] supervisor from the fact that told her presence reveal the coercion. If categorical so terms. was present, such coercion court office, company then summoned to person must hold reasonable likely experience pres- where she was would his freedom believe that had been police, only sure not from the but also from * * * limited. more intrusive to аn employer, cooperate. The detectives complying individual’s freedom with a re- “they going indicated to continue the were quest be, greater would should be investigation,” informing appellant without skepticism which a court with treats she had a choice in the matter.7 Even assertions that an individual consented to viewing light, they in the best evidence * * * request. We do not wish to discouraged at least from deliver- police absolutely rigid shackle to a and ing the payment credit union book to her requiring awkward rule them to inform plant, who also at the worked individuals that are free to not ac- only away. minutes Under these cir- office, company “request” but we do be said the cumstances it cannot exceptionally believe that clear еvi- detectives pre- falling just overcome a an intrusion short of formal dence of consent should purged requested arrest, pre- custodial of its sumption that a to ac- Borrowing no seizure Fifth Amendment “custo- that his conclusion that occurred was from the respondent dy” "not that the analysis affected the fact found in Shiflet agents expressly by the (Tex.Cr.App.1985), that she was told S.W.2d the Court cooperate free to decline with their in- Dancy remarked: quiry[.]" 446 100 S.Ct. at U.S. at transpor- "If the show that the circumstances *9 Nevertheless, plurality L.Ed.2d at 510. in invitation, acting only request, upon tee is Royer, supra, Florida v. considered it a relevant urging police, or even the and there are of requested Royer circumstance that officers to threats, implied, exprеss no that he will be or interrogation them to room accompaniment forcibly, taken is volun- any way indicating "without in he was free tary, person custody.” and such is not then in 501, 1326, depart.” 103 S.Ct. at to 460 U.S. at 75 is 728 S.W.2d at 778. What should noted relevant, although L.Ed.2d at is a 239. This surrounding circumstances dictate determinative, again by circum- once itself compliance truly upon no more than with all others in one to be considered stance: invitation, urging request, "the or of the ... assessing person whether a reasonable would police,” Berry, sans coercion. United States v. State, See Clark v. 627 have felt free to leave. asked, infra. and a That an officer 693, (Tex.Cr.App.1982) (Opinion S.W.2d at 700 complied, witness is not alone determinative. rehearing); on State’s motion for Eisenhauer v. State, 947, Mendenhall, (Tex.Cr.App.1984); supra, 955 7. In 678 S.W.2d at United States v. Justice Stewart, Berry, joined 670 F.2d at by Rehnquist, also United States v. 598. Justice observed United, caution, no exercising and that abundant sumptively imperative aspect.8 Dancy See v. restraint was intended. according- supra. v. I Berry, would States 783, (Clinton, J., State, n. 2 dis- supra, at the trial court’s conclusion that ly discount explanation such was offered senting). No voluntarily to be trans- appellant consented appellant to here. subjected to to ported station and interrogation. v. custodial See Florida Finally, though appellant may been have 501-502, at at Royer, 460 U.S. S.Ct. leave, in free to that Woods testified fact 1326, 75 at L.Ed.2d in to “adamant” would have have been yet her desire to do so is another indication at was ush- Once the station she was not as if was free “treated [she] small, interrogation into ered a closed 636, State, at Penry leave.” 691 S.W.2d room, She was alone two detectives. with (Emphasis sup- seat, subjected a then directed and plied.) appeals court of characterized to what the questioning,” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as well as By appellant gave as “determined her time statement lying up cause, to cover accusations she was in this her circumstances were much like knowledge Royer’s: affair Marsh and own with guilt her husband’s the murder. While begun a in- “What had as consensual Hughes may in his own mind have fetched quiry public place in a had escalated into cigarettes food escorted investigatory procedure room, from the as a matter interrogation police, both rеstroom where the un- “courtesy,” objective explanations, as an previous matter satisfied with sought suspicions. as to confirm their appeared would have a form of restraint * * * moment, any At least as of that person to a in appellant’s reasonable shoes. aspects Indeed, consensual of the encounter had it had been his admitted evaporated....” purpose to make feel “confined.” 503, Royer, at 103 S.Ct. Florida v. 460 U.S. significant It is also that Woods adminis- 1327, 75 L.Ed.2d at warnings tered soon as Miranda whole, justify facts no interrogation Taken as a entered the room. That been conclusion but Woods should demonstrate caution exer- purposes “seized” for Fourth Amendment cising procedural safeguards those Mi- statement; gave when she аnd that randa dictates secure the Fifth Amend- degree that time the of intrusiveness was privilege against ment self-incrim- custodial require showing of probable such as to surely ination objec- must be considered an York, Dunaway cause arrest. v. New tive reason for to believe she had Florida, supra. both Both Hayes v. “taken into custody or otherwise de- appeals the trial court and the court of prived of his freedom of action [some] Moreover, holding I erred in otherwise. significant way.” 384 U.S. at S.Ct. compelled hold that would be 16 L.Ed.2d at 706. Given this ob- statement and consent to search were “custody,” indicium of Fifth Amendment by exploitation illegality tained of the reasonable would be well warranted York, su- Dunaway seizure.9 v. New liberty belief that he pra. go an explanation by least absent —at administering recipient Accordingly, judg- officer to I would reverse the warning time of the ment the court and remand simply that he was Dancy ated See 8. Unlike the defendants in the time evidence obtained. Ussery (Tex.Cr.App. (Tex. e.g., 651 Brick v. at 681 1983), appellant way in no [herself] "thrust *10 Cr.App.1987). Because the instant case has upon scrutiny investigating of the offi pending on this Court’s docket since cers[.]" however, and because I believe resolution of the taint, non, question by vel is controlled Duna Ordinarily predisposed 9. I would be to remand York, way supra, dispose New I would posture a case in this the court of for summarily here. it to address the first time the illegal whether taint of the had attenu- detention the cause to the trial court for a new trial.10 DISSENTING OPINION DENYING not, Because the Court does I respectfully APPELLANT’S MOTION FOR dissent. REHEARING CLINTON, Justice. TEAGUE, CAMPBELL, MILLER and This presents cause one of those “un JJ., join opinion. this usual noticed this Court in situation[s]” Arnold, et al. v. 385-387 The facts of the case and an adumbrative account of evidence of the offenses are set out in Hartley v. (Tex.App. 1989), Arnold, —Dallas supra, as well as n. 19 accompanying text reviewing matters, After including those Kenneth Emmanuel appellant pleaded that guilty by reason HARTLEY, Appellant, of insanity expressed remorse for his actions, noting parole law was not during mentioned excerpting voir dire but Texas, Appellee. STATE prosecutor “one brief mention” jury argument, pointing out that the trial 484-89, 485-89, Nos. 486-89 and 487-89. gave instruction,” court a Rose “curative contrasting punishments the maximum Texas, Court of Criminal assеssed, available actually with those En Banc. beyond Dallas Court held “that a reason- May able parole doubt the submission of the law

instruction did not contribute to punishment.” Hartley, at 884-885. brief, analysis Its is also viz: Although appellant “... prior had no fel- ony convictions, appellant’s crime was heinous. The statement of facts con- 1,213 pages. sists of six volumes and Dallas, Jagmin, Keith E. appellant. quoted only We have reference to the parole jury, law heard aside from Wade, Henry former Atty., Dist. John reading of the instruction itself. Re- Vance, Atty., Dist. William Randell John- garding assault, the one count sexual son, Jerri Sims and Marshall Gandy, Asst. which the received the Dallas, Attys., Huttash, Dist. Robert sentence, although maximum the com- Austin, Atty., State’s for the State. plainant did being not see a knife while

raped, complainant knew he had a knife at other times ... Under these circumstances, although appellant re- sentence, ceived the maximum ... sub- majority today super-appellate 10. Instead the "finds" that the Court acts as a factfinder. Ordi- findings narily, lower courts “were correct in their rather than decide factual correctness of ruling, appellate was not in properly when she made a lower court courts assuming her oral ruling statement.” Even I believed determine whether that has a ration- Indeed, supported finding the record al foundation in the record. as I under- “seized,” it, proper question appellate which is the Amendment, stand that is what an court means 5, ante, under opines the Fourth see n. I when it that a trial court has not abused language indicating Dancy supra. would eschew its discretion.