Opinion
NO. 14-15-00772-CR
03-13-2018
DWAYNE DEDE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Cause No. 1377321
MEMORANDUM OPINION
Appellant Dwayne Dede appeals his conviction for capital murder. Appellant contends on appeal that there is legally insufficient evidence to support his capital murder conviction. Appellant argues that the trial court erred in denying his motion to suppress the video recording of his police interview because the interview was a coerced custodial interrogation that "should have been terminated when he asked to consult a lawyer." He also argues that he was egregiously harmed by the trial court's erroneous omission of an unrequested jury charge instruction pursuant to Texas Code of Criminal Procedure article 38.23.
We conclude that (1) the evidence is legally sufficient to support appellant's capital murder conviction; (2) the trial court did not err in denying appellant's motion to suppress because his police interview did not constitute a custodial interrogation; and (3) appellant was not entitled to an article 38.23 instruction. We affirm the trial court's judgment.
BACKGROUND
Appellant was indicted for the capital murder of complainant Donald Williams. A jury trial was held in August 2015. Several witnesses to the murder testified at trial along with one of appellant's friends who is a law enforcement informant. The murder occurred in front of The Royal Phoenician apartment complex in the Greenspoint area around 6:50 p.m. on December 24, 2012. Complainant's close friend, Donald Mills, lived at the complex.
A resident of The Royal Phoenician, Brandon Crouch, witnessed a confrontation involving the complainant. Crouch testified that he and his common-law wife, Jamilah Porter, were walking home to their apartment around 6:50 p.m. on Christmas Eve 2012. As they were walking in the apartment complex, Crouch saw three men coming from the back side of his apartment building. Crouch described the first man as a short, dark-skinned black man with dreadlocks. He described the second man as a tall, bald-headed, light-skinned black man. The third man was a skinny, tall, light-skinned black man "with a big afro." The three men "followed each other in a line" and stopped at the corner of the building. Crouch thought the men were up to "no good;" when Crouch saw the first man with a shotgun, he thought "somebody was fitting to get shot or robbed."
Crouch then observed the first two men come around the corner and run up to complainant, who was standing at the bottom of the staircase in front of Donald Mills's apartment building — building #10. Mills's neighbor Curtrina Williams was sitting on the bottom steps of the staircase, and Mills was standing on the second floor of the staircase. Crouch testified that the first man pointed a shotgun at complainant and said, "You know what this is . . . . Get your bitch-ass down on the ground right now and give me everything that you got." Crouch testified that the second man just stood with the first man and held his pants; and, based on his gestures, Crouch suspected the second man held a gun. The second man looked to the left and right, "making sure nobody ran up on them." The third man stayed at the corner as a lookout.
Crouch testified that complainant did not take the gunman's threat seriously and said, "Go on, on. Quit playing." This made the gunman angry and he stated, "You think I'm playing? Get your bitch-ass down on the ground. You know what this is." Crouch understood the gunman's statement to mean "Give me your stuff, it's a robbery." Complainant did not comply with the demand. The gunman realized that Crouch and his wife were standing close by and turned around and pointed the gun at them. Complainant told the gunman, "They have a family. Leave them alone. Quit playing." The gunman then pointed the gun back at complainant. Crouch and his wife ran away to their apartment. Crouch "heard the boom" and a few minutes later his wife's friend told him that complainant had been shot.
When the police arrived at the apartment complex, Crouch and his wife went outside to talk to the police. Later, Crouch was interviewed by homicide detectives and also was shown a photo lineup. Crouch testified that he was unable to identify anyone because he just looked at the barrel of the shotgun at the time. He explained that "if you have a long gun pointed in your face, you'll forget anything around you." Crouch also testified that he did not see complainant in possession of a gun that evening.
Porter confirmed her husband's account of what had occurred on Christmas Eve 2012. She testified that she and Crouch walked to their apartment around 6:45 p.m. when she saw three black men close to Mills's apartment building. She saw the first man carry a shotgun; a second man walked behind the first man, and a third man stayed by the apartment building as a lookout. Porter testified that she "only got a good look at the shooter," who was a dark-skinned black man with dreadlocks and a New Orleans accent.
Porter saw the gunman pointing a shotgun at complainant, and she heard complainant telling the gunman to "stop playing." The gunman noticed Porter and Crouch and pointed the gun at them. Porter heard complainant tell the gunman to "stop playing, we have a family. And that's what made the shooter turn his gun" away from Porter and point it back at complainant. Porter and Crouch ran away to their apartment. Porter heard one loud gunshot and was told a few minutes later by a friend that complainant had been murdered.
Porter and Crouch went outside to talk to the police. Porter testified that she never saw complainant in possession of a revolver that night. She testified that she could not identify the gunman, or the second and third man she saw that evening. She stated that she did not "notice anything that the second individual was doing" because she was "focused more on the gun that was in [her] face."
Complainant's close friend Mills testified that he lived in a second-floor apartment of building #10 at The Royal Phoenician apartment complex on December 24, 2012. Mills testified that he, his neighbor Curtrina Williams, and complainant were socializing in front of his apartment building by the staircase on Christmas Eve. At some point, Mills went up to his apartment to get a .357 revolver he had purchased earlier in the day. Mills showed it to complainant and they talked about the revolver for a few minutes. Mills then went up to his apartment to use the bathroom.
At about 6:45 p.m., Mills exited his apartment to go back downstairs and rejoin complainant and Williams. Mills was by the second floor stairs when he saw a dark shadow on the side and a man standing in front of complainant downstairs. Mills did not see complainant holding Mills's .357 revolver at the time and wondered if complainant may have put the revolver in his pocket. Mills went down the stairs and heard someone saying to complainant: "You think I'm playing? You think it's a game?" Mills saw the shadowy figure point something black at complainant, but he could not tell if it was a shotgun. Mills did not "hear this individual rack the shotgun;" he heard "just a pop[,] . . . started smelling the gunpowder, then the buck shots started bouncing off the wall and off the window." Mills saw complainant fall to the ground.
Mills and Williams ran to his apartment to make sure their children, who had been playing upstairs, were safe in his apartment. Mills told Williams to call 9-1-1 and he went downstairs to help complainant. Mills saw his .357 revolver laying next to complainant's body, picked it up, and ran to his apartment to hide the gun in a cooler on his balcony because the gun was "a hot gun" he had bought from a street peddler. Mills went back downstairs to help complainant, who died in Mills's arms. When the police arrived, Mills told them what happened and told them he hid his revolver in the cooler. After the murder, Mills was interviewed by detectives and was shown an array but could not identify complainant's shooter or the second person who was with the shooter.
Williams also testified at trial. She testified that she was sitting on the steps of the staircase to Mills's apartment building socializing with Mills and complainant in the evening of Christmas Eve 2012. Mills went upstairs to his apartment and she and complainant remained downstairs when three men came up to the apartment building. One of the men held a black, long shotgun when he approached Williams and complainant. He told them to put their hands down and pointed his shotgun at complainant. Williams did not know what the second man was doing because she had put her hands and head down as she was instructed to do and therefore "didn't see anything else after that."
Williams remembered hearing the gunman say, "You think this is a game, huh? And when he said that, a click went off." Williams "assumed that he actually shot the gun, but it wasn't any bullets in it. So I lifted up my head at that time and I said, You guys are playing." After that statement "the boom went off" and complainant fell on the floor. Williams ran upstairs to Mills's apartment to make sure the children were safe. Mills instructed Williams to call 9-1-1, and she went to her apartment to call the police. Mills went to be with complainant and held him until the police arrived. Williams was interviewed by the police. She described the shooter as a short, dark-skinned man who had dreadlocks and a New Orleans accent. She could not identify the shooter in a photo array "because of it being dark, it happened fast, I immediately put my head down."
Antoine Webb, who was appellant's friend and a paid informant for the Bureau of Alcohol, Tobacco, and Firearms ("ATF") at the time of the murder, testified at trial. Webb testified that he was originally from the New Orleans area. He testified that he met a young man named Kendall Allen about a year before the murder and met appellant, whom he identified in the courtroom, through Allen in mid-November 2012. According to Webb, Allen and appellant were partners and were both from New Orleans. Webb saw the two men on a daily basis — "[e]very time they needed some weed or every time [Webb] needed some weed."
Webb described Allen as a dark-skinned, slim, 5-foot 9-inch tall man with dreadlocks. The jury saw a photo of Allen fitting the description. Webb testified that Allen went by the street name "Cutter" because he always carried an "AK," which is an assault rifle, and "[t]hat's what we called AKs back where we was [sic] from, choppers, cutters." Webb and Allen called appellant "Red."
On Christmas Eve 2012, Allen came to Webb's house and told him that he had murdered someone "in Greenspoint." A few days later, Allen told him again about complainant's murder while they were sitting around "smoking weed" but did not provide any details. Webb learned the details of how complainant's murder occurred from appellant when appellant called Webb a few days after the murder and wanted to talk about the murder in person with him. Webb was instructed by his ATF handler to get information about complainant's murder, so Webb went to appellant's house to talk to him in person and get details.
Appellant told Webb that he, Allen, and a third person, whose name appellant did not know, "went to an apartment in Greenspoint" to rob a man because Allen had heard from a girl that this man was selling drugs and had a lot of money. Appellant told Webb that, when they arrived at the apartment, appellant carried a BB gun and Allen carried a shotgun. Appellant told Webb that, when "they peeped around the corner," they saw complainant taking a picture with a gun that "looked like a .357." Allen walked up to complainant, "pulled the gun on him, told him to put the gun down." Appellant told Webb that complainant asked Allen why he should put his gun down and Allen again told him to put the gun down. When complainant asked Allen again "why," Allen just shot complainant. Webb testified that appellant told him they fled the scene thereafter.
Appellant told Webb that he went to the apartment complex "with the intent of robbing someone." Webb testified that appellant was angry at Allen for shooting complainant and that appellant said "he wasn't taking a lick for it." Appellant also told Webb more details about the shooting. He told Webb that, when complainant did not put his gun down as Allen had instructed, Allen "pulled the trigger and the trigger didn't — the gun didn't shoot because [Allen] didn't pump it. So [appellant] said when [Allen] actually pumped it then shot it, then it shot [complainant]." Appellant told Webb that Allen did not pump the spent shotgun shell out so it stayed in the shotgun and the police would not be able to retrieve it.
After talking to appellant, Webb called his ATF handler and told him about the information he received from appellant. The ATF handler called Houston Police Department Investigator Joshua Horn to tell him the information Webb gathered from appellant. Webb later met with Investigator Horn to share the information Webb received from appellant. Webb collected a $5,000 reward from Crime Stoppers for providing this information.
Investigator Horn testified that he arrived at the murder scene at 8:30 p.m. on Christmas Eve 2012. He interviewed witnesses Crouch, Porter, Mills, and Williams. As he investigated the area around the murder scene, he found appellant's BB gun on the ground close to where the murder occurred. A few days after complainant's murder, Investigator Horn received a phone call from Webb's ATF handler telling him that appellant and Allen might be involved in the murder. After Investigator Horn showed photo spreads to witnesses, who were unable to identify appellant and Allen in the photo spreads, he decided to interview appellant on January 8, 2013.
Investigator Horn testified that he and Sergeant Ben Williams drove to appellant's apartment and asked him if he would come downtown to the station for a voluntary interview regarding "[s]omething that happened in the month of December." Appellant was not told that the interview would be about a capital murder until he arrived at the station. Both police officers were not in their uniform but wore a shirt and tie when they came to appellant's apartment. Investigator Horn testified they never held appellant at gunpoint. Investigator Horn drove appellant to the station and appellant sat in the front passenger seat of the police car. Investigator Horn testified that appellant was never told he was under arrest; appellant was never handcuffed; appellant was told the interview is a non-custodial interview and he was free to leave at any time; and appellant was never threatened or coerced.
The jury saw the video of appellant's interview, which was approximately one hour long. The video shows Investigator Horn bringing appellant a meal. After appellant finished eating, Investigator Horn and Sergeant Williams entered the interview room. Sergeant Williams introduced himself and Investigator Horn and thanked appellant for coming. Investigator Horn then confirmed with appellant that he came to the station at their request voluntarily and was not under arrest. During the interview appellant denied being at the apartment complex where complainant was shot. When Investigator Horn showed appellant a photo of the BB gun found near the murder scene, appellant admitted that it was his gun but claimed that it had disappeared from his apartment six weeks earlier.
Appellant maintained for most of the interview with Investigator Horn that he was not at the murder scene and that he did not know who could have taken the BB gun from his apartment. Appellant identified several of his friends by their street names and insisted that they often came to his apartment and could have taken his BB gun. Among the friends appellant named was a friend named Cutter. At some point, Investigator Horn left the interview room and Sergeant Williams came in to talk to appellant alone.
Sergeant Williams asked appellant to explain why his cell phone would place him at the apartment complex where complainant was murdered at the time of the murder, but appellant had no explanation at first. Sergeant Williams encouraged appellant to tell him what he knew about the murder. Toward the end of the interview, appellant admitted to being at the apartment complex near the scene of the murder. Appellant claimed that he was at the apartment complex to buy weed when he heard a shot right next to him and ran away dropping his gun.
After the jury viewed the video of appellant's interview, Investigator Horn resumed his testimony. Investigator Horn acknowledged that the interview was "confrontational after [appellant] began to deny his involvement." He also acknowledged that, in order "to get the truth from" appellant and "see how he would react to that information," he told appellant during the interview that appellant's fingerprints were on the BB gun and that appellant's cell phone records placed him at the scene of the crime, even though the gun had not been tested for fingerprints and the cell phone records had not been obtained at the time.
Investigator Horn testified that he drove appellant home after the interview concluded. Appellant was not handcuffed or restrained and sat in the front passenger seat. Investigator Horn testified that, during the ride home, appellant started a conversation with Investigator Horn and asked the following hypothetical question: "[W]hat if he was with someone at the complex and the person who he was with shot someone because the other person had a gun." Investigator Horn testified that he was "shocked because only investigators knew that there was a gun recovered at the scene. We didn't release that information to the media." Investigator Horn answered appellant by asking him "some hypothetical questions," but appellant did not respond. According to Investigator Horn, appellant "did tell me that he wanted to tell me the truth, but he didn't want to do any jail time." Investigator Horn then dropped appellant off at his apartment.
Investigator Horn testified that he interviewed Webb a month after appellant's interview and found Webb to be credible because he provided information and details about the murder that were known only to the police. Webb knew that no shotgun shell casing was recovered at the scene because Allen did not re-rack or pump his shotgun after he fired a shot. Another detail not released to the public was that one of the suspects had a BB gun and that the gun was recovered at the scene; and Webb specifically mentioned appellant having a BB gun. Webb also knew that "complainant had [a] .357 at his side at one point," and the police did not release information that a .357 revolver had been found at the scene.
The State also introduced appellant's and Allen's cell phone records as well as a cell phone tower map that showed the movements of appellant's cell phone during the evening of the murder. According to the cell phone data, appellant's phone was near the cell tower by his residence at 6:00 p.m. Between 6:32-6:36 p.m. appellant's phone signal was picked up by the cell tower next to the murder scene, showing "his phone was next to the murder scene" at that time. There is no cell tower signal for appellant's phone between 6:36-6:55 p.m. because, as Investigator Horn explained, the records "only record data when calls are actually placed." The 9-1-1 call regarding complainant's murder was made around 6:50 p.m.; and at 6:55 p.m., the cell tower near appellant's residence picked up his phone signal again, showing "he's back home at 6:55." The cell tower by appellant's residence continued to pick up signals from appellant's cell phone between 6:55-10:32 p.m.
After hearing the evidence presented, the jury found appellant guilty of capital murder, and the trial court sentenced appellant to life imprisonment without the possibility of parole. Appellant filed a timely appeal. The trial court signed findings of fact and conclusions of law on October 31, 2016.
ANALYSIS
I. Sufficiency of the Evidence
Appellant argues in his third issue that the evidence is legally insufficient to support his conviction for capital murder because (1) the record contains no credible evidence that he intended to commit a robbery; and (2) the evidence establishes that he did not anticipate complainant's murder.
A. Standard of Review and Applicable Law
The legal sufficiency standard of review is the only standard we apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017).
The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Temple, 390 S.W.3d at 360. We defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Kolb v. State, 523 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd).
As applicable in this case, a person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. §§ 19.02(b) (Vernon 2011), 19.03(a) (Vernon Supp. 2017). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. See id. § 7.01(a) (Vernon 2011); Owolabi v. State, 448 S.W.3d 148, 150 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The trial court's instructions to the jury included an instruction on law of the parties under Penal Code section 7.02(a)(2) and the law of conspiracy under Penal Code section 7.02(b). See Tex. Penal Code Ann. § 7.02(a)(2), (b) (Vernon 2011). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. § 7.02(a)(2). "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." Id. § 7.02(b).
Because there is no dispute that the evidence offered at trial established that Allen shot complainant, the issue as presented by appellant is whether the evidence supports appellant's conviction as a co-conspirator. Accordingly, section 7.02(b) as quoted above frames our sufficiency inquiry as follows: Appellant is guilty of capital murder if (1) he was part of a conspiracy to rob complainant; (2) one of the conspirators murdered complainant; (3) the murder was in furtherance of the conspiracy; and (4) the murder should have been anticipated as a result of carrying out the conspiracy. See Hooper v. State, 214 S.W.3d 9, 14 n.4 (Tex. Crim. App. 2007); Johnson v. State, 421 S.W.3d 893, 897 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
B. Conviction as a Conspirator
Appellant contends that there is legally insufficient evidence to establish he intended to rob complainant and he anticipated complainant's murder. We will address each contention in turn.
Appellant argues that there is no "credible" evidence in the record that he intended to commit robbery because the witnesses at the scene "heard no demand for money or property and there was no evidence that anything was taken." Appellant complains that "the only evidence in the record of intent to commit robbery" was the testimony of appellant's friend Webb that appellant said appellant and Allen planned to rob complainant. According to appellant, Webb's testimony was not credible because Webb was an ATF informant and his testimony thus should not be considered without corroborating evidence.
There is no requirement that an informant's testimony must be corroborated by other evidence in order to be considered, and appellant admits as much in his brief. The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Temple, 390 S.W.3d at 360. The jury may choose to believe or disbelieve any portion of witnesses' testimony. Owolabi, 448 S.W.3d at 150. Here, Webb testified that appellant told him that appellant, Allen, and a third man planned to rob complainant because Allen had heard from a girl that complainant "was selling drugs and had a lot of money over there." Webb testified that appellant told him that, when the three men arrived at the apartment complex, they surveilled the location and were "scouting it out" together with the girl. Appellant told Webb that he and Allen "peeped around the corner" of a building and saw complainant taking a picture with a .357 revolver. Webb testified that, even though complainant was holding a revolver, this did not deter Allen and appellant from robbing complainant. Appellant carried a BB gun to the robbery, and Allen carried a shotgun.
Webb testified that appellant told him: "[T]hey went up to the dude, pulled the gun on him, told him to put the gun down. [Appellant] said the guy said, Why? And [Allen] was, like, Put the gun down. And [appellant] said the guy said why again, and [Allen] just shot." Webb testified that complainant was shot because he "didn't want to put the gun down." According to Webb, appellant said that "he went there with [Allen] with the intent of robbing."
This evidence is sufficient to establish that appellant intended to rob complainant together with Allen and a third man, and that complainant was shot in furtherance of the planned robbery. It was within the jury's province to believe Webb's testimony. See id. Further, and contrary to appellant's assertion that witnesses at the scene "heard no demand for money or property," Crouch testified that Allen pointed a shotgun at complainant and told complainant: "You know what this is . . . . Get your bitch-ass down on the ground right now and give me everything that you got."
We now turn to appellant's contention that there is legally insufficient evidence that he anticipated complainant's murder. First, we note that the State need not prove that appellant actually anticipated the murder; it only has to prove that the murder should have been anticipated. See Hooper, 214 S.W.3d at 14 n.4; Johnson, 421 S.W.3d at 897. Even if that were the required proof, appellant's assertion that Webb's testimony established that he did not anticipate complainant's murder because he "told Webb he was angry at Allen" is without merit. Webb testified that appellant was "pretty mad" that Allen shot complainant and appellant said "he wasn't taking a lick for it." This testimony establishes nothing more than that appellant was angry at Allen for shooting complainant; it does not establish that appellant in fact did not anticipate complainant's murder.
Additionally, the record contains legally sufficient evidence from which the jury could have concluded that appellant reasonably should have anticipated the possibility of a murder occurring in the course of the robbery.
Here, evidence shows that appellant carried a BB gun and knew that Allen carried a shotgun when they went to the apartment complex to rob complainant. In fact, Allen was known by the name "Cutter" because he always carried an "AK." Evidence also demonstrates that, when appellant saw Allen pull the trigger on his shotgun and the gun did not shoot, appellant did not try to prevent Allen from re-racking the shotgun to shoot complainant on his second try. Appellant made no attempt to render aid to complainant and never reported a crime.
"'Evidence that a defendant knew his co-conspirators might use guns in the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the course of the robbery.'" Johnson, 421 S.W.3d at 899 (quoting Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding evidence sufficient that appellant should have anticipated murder when he knew co-conspirator brought a gun to the robbery)); see also Nickerson v. State, 478 S.W.3d 744, 756-57 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (same); Turner v. State, 414 S.W.3d 791, 798-99 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (same); Whitmire v. State, 183 S.W.3d 522, 526-27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (same).
The cumulative effect of the evidence would permit a rational trier of fact to find beyond a reasonable doubt that, in an attempt to carry out a conspiracy to commit robbery, appellant's co-conspirator Allen committed murder in furtherance of the unlawful purpose, and that appellant should have anticipated the murder as a result of carrying out the conspiracy. We conclude that the evidence is legally sufficient to support appellant's capital murder conviction as a conspirator. We overrule appellant's third issue.
II. Motion to Suppress
Appellant contends in his first two issues that the trial court abused its discretion by denying his motion to suppress the video recording of his police interview because the interview was a coerced custodial interrogation that "should have been terminated when he asked to consult a lawyer."
A. Standard of Review
We review a trial court's ruling on a motion to suppress by applying a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)).
In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. Id. This deferential standard also applies when the trial court's determinations are based on a video recording admitted into evidence at a suppression hearing. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006); Williams v. State, 502 S.W.3d 262, 271-72 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).
When a trial court makes written findings of fact, as it did in this case, we examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. Baird, 398 S.W.3d at 226. We then proceed to a de novo determination of the legal significance of the facts as found by the trial court. Id. We will sustain the trial court's ruling if that ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Valtierra v. State, 310 S.W.3d 442, 448-49 (Tex. Crim. App. 2010).
B. Custodial Interrogation
In determining whether the trial court erroneously denied appellant's motion to suppress the video recording of his police interview because it allegedly constituted a custodial interrogation that "should have been terminated when he asked to consult a lawyer," we begin by addressing whether appellant's interview amounted to a custodial interrogation.
The United States Supreme Court has held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Court also has stated, "[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. The defendant bears the burden of proving that a statement was the product of a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
"A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 321-25 (1994) (per curiam)). The "reasonable person" standard presupposes an innocent person. Id. (citing Florida v. Bostick, 501 U.S. 429, 438 (1991)).
In determining whether a person was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010). A police officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the person being questioned, may be one among many factors that bear upon the assessment whether that person was in custody — but only if the officer's views or beliefs were somehow manifested to the person under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave. Id.
There are four general situations that may constitute custody for purposes of Miranda: "(1) The suspect is physically deprived of his freedom of action in any significant way; (2) A law enforcement officer tells the suspect he is not free to leave; (3) Law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) There is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave." Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009).
The restriction upon freedom of movement in the first through third situations must amount to the degree associated with an arrest as opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. The fourth situation exists only when an officer's "knowledge of probable cause [was] manifested to the suspect" or the suspect concedes the existence of probable cause to the officer. Id; Nickerson, 478 S.W.3d at 753. And situation four does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Dowthitt, 931 S.W.2d at 255; Nickerson, 478 S.W.3d at 753.
Additional circumstances to consider for determining whether a person is in custody include whether the suspect arrived at the interrogation place voluntarily, the length of the interrogation, any requests by the suspect to see relatives or friends, and the degree of control exercised over the suspect. Nickerson, 478 S.W.3d at 753. "Stationhouse questioning does not, in and of itself, constitute custody." Dowthitt, 931 S.W.2d at 255. Nor does being the "focus" of an investigation necessarily mean that a person is "in custody." Gardner, 306 S.W.3d at 293; Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990). "However, the mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation." Dowthitt, 931 S.W.2d at 255.
Here, the trial court held a hearing on appellant's motion to suppress. Investigator Horn testified at the hearing that, after an ATF agent informed him that appellant might be involved in complainant's murder, he and Sergeant Williams drove to appellant's apartment to talk to appellant. They did not have their uniforms on but were dressed in a shirt and tie and carried their badges and guns. When appellant came to the door, Investigator Horn asked appellant "if we could speak with him about an incident that we were investigating downtown." He did not mention the murder to appellant at the time and just said he wanted to talk to appellant about an incident that occurred in December 2012.
Appellant agreed and rode with the two officers to the police station downtown. Investigator Horn testified that appellant was never handcuffed or coerced into going to the police station and sat in the front passenger seat during the drive. When they arrived at the station, appellant was taken to an interview room and given a meal. At the beginning of the interview, appellant was told he was not under arrest, and he was never handcuffed during the interview. Investigator Horn testified that appellant was interviewed for about an hour — first by Horn and Sergeant Williams, and then by either Horn or Sergeant Williams alone. The State introduced the video of appellant's interview into evidence.
Investigator Horn testified that he never did "anything to coerce" appellant during the interview. He admitted to lying to appellant that the police had found his fingerprints on his BB gun that was recovered at the murder scene because he wanted to see how appellant would react to that information. For the same reason, appellant also was told that his cell phone records placed him at the scene even though no cell phone records had been obtained yet. Investigator Horn acknowledged that, at some point during the interview, appellant said he wanted to go home and "want[ed] a lawyer." Investigator Horn testified that the interview did not terminate at that time because appellant was not in custody and the interview was not a custodial interrogation. According to Investigator Horn, appellant ultimately changed "his story and put[] himself at the scene" towards the end of the interview.
After the interview concluded, Investigator Horn drove appellant back home. Appellant again sat in the front passenger seat and was not handcuffed. Investigator Horn testified that, during the ride home, appellant asked "how could he tell me the truth about what had happened and not be incarcerated for it" to which Investigator Horn replied: "[T]hat's up to a judge, jury; I don't make those decisions."
On cross-examination, Investigator Horn denied that either he or Sergeant Williams had their guns drawn when they came to appellant's apartment. Investigator Horn admitted to becoming frustrated with appellant's answers during the interview. He also acknowledged that he was "upset that [appellant] showed no compassion for what had occurred," and that his demeanor and tone of voice "may have" reflected that he was upset. Investigator Horn stated, "I compare the conversation that I had with [appellant] as one with my kids when they're constantly lying to me and I know that they're not telling me the truth."
Appellant also testified at the suppression hearing, contradicting Investigator Horn's account. Appellant testified that Investigator Horn and Sergeant Williams came to his apartment with five other police officers. Two officers were with Investigator Horn and Sergeant Williams at his apartment door on the second floor while three more officers stood on the ground floor with their weapons drawn. Appellant testified that, when he came to the door, Investigator Horn told him: "I have reason to believe that you have some kind of — partaken in a murder that happened at Greenspoint, but right now you're not a suspect. You may be a witness, but we believe that you need to come down to talk with us." Appellant testified that he told Investigator Horn he did not want to go downtown and talk but changed his mind because Investigator Horn told him: "[W]ell, if I don't come down there, I will just simply get a warrant issued for my arrest and he would come and get me any way."
Appellant claimed that Investigator Horn and Sergeant Williams rode in one car to the station and that he rode handcuffed in the backseat of a patrol unit to the station. Appellant claimed his handcuffs were taken off at the station and he was taken to an interview room. Appellant testified that Investigator Horn "was completely giving me all guilt. He was just pointing out to me all guilt before he even heard my story." According to appellant, Investigator Horn argued with him during the interview and told appellant to "tell the truth because right now you're going to get capital — you're going to get charged with capital murder. You're going to get life without parole." Appellant testified: "[Investigator Horn] also told me about thinking of my life, if I was to actually testify, I would — I can get life instead of the death penalty. And if I continue to go on like I was going on, do I understand what the severity is of getting a needle put in my arm, laying on a gurney and dying." Appellant testified that he admitted to being in the Greenspoint area only because he thought he could go home if he told the police what they wanted to hear.
On cross-examination, appellant testified that he believed he was under arrest during his interview. The State then played appellant excerpts of his recorded interview, showing that he agreed during the interview that he was not under arrest. Appellant also admitted that in the video he looked relaxed and was not restrained. Appellant claimed that Investigator Horn was mean and that is why he admitted being at the murder scene. Appellant testified that Investigator Horn drove him to his apartment after the interview. He admitted that he was not handcuffed and sat in the front passenger seat during the ride home; he did not believe he was under arrest at that time.
Based on the evidence presented at the suppression hearing and the video recording of appellant's interview, the trial court signed the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Officer Joshua Horn and Sergeant Ben Williams drove to the defendant's apartment on January 8, 2013 in an attempt to speak to the defendant about an incident they were investigating (RR IV 6-7) (State's Ex. 69 12:38:04). No other officers were present when they made contact with the defendant and the officers did not have their guns drawn (RR IV 15, 17). The defendant voluntarily accepted a ride from the officers to go to the station to discuss the investigation (RR IV 7).
2. Officer Horn drove the defendant to the station (RR IV 7-8). The defendant sat in the front passenger seat and was not handcuffed during the drive (RR IV 8). After taking the defendant to the station, Officer Horn picked up food from McDonald's for him (RR IV 8-9). The defendant waited in the interview room while Officer Horn picked up the food (State's Ex. 69 12:26:00). The defendant ate the food before starting the interview (RR IV 8-9).
3. The defendant was not handcuffed when he was in the interview room (RR IV 9). Officer William thanked him for coming down to the station and the defendant replied "no problem" (RR IV 42). Officer Horn then explained to the defendant that he was not under arrest and the defendant said that he understood he was not under arrest (RR IV 42).
4. During the interview, the defendant admitted that he had come to the police station voluntarily (State's Ex. 69 12:51:15-52:30).
5. Near the end of the interview, the defendant requested a lawyer and stated that he wanted to go home (RR IV 11). Sergeant Williams explained to the defendant that he was free to leave and then continued talking with him (RR IV 11) (State's Ex. 69 13:32:00-30).
6. After the interview, Officer Horn drove the defendant back to his apartment (RR IV 12). The defendant rode in the front passenger seat and was not handcuffed (RR IV 13).
7. The defendant was never threatened, coerced, or promised anything during his interview.
8. The defendant's statement was voluntarily made.
9. The testimony of Officer Horn was true and is found to be credible.Appellant does not challenge the trial court's findings that he (1) voluntarily accepted a ride from Investigator Horn and Sergeant Williams and came to the police station to discuss the crime the officers were investigating; and (2) sat in the front passenger seat and was not handcuffed during the ride.
10. The testimony of the defendant was not true and is not found to be credible.
CONCLUSIONS OF LAW
1. The defendant was not under arrest or substantially deprived of his freedom at the time he made his statement.
2. The defendant provided a voluntary statement that was not the result of undue influence, threats, coercion or promises.
3. The defendant's recorded statement was freely and voluntarily given; therefore, it was admissible.
4. The defendant was not deprived of his Miranda right to counsel following his request for a lawyer. He was not in custody at the time of his statement and thus his Miranda rights were not triggered.
5. The police officers were free to continue to question the defendant after he told them he wanted to go home. Appellant was free to leave at any point during the interview and voluntarily choose to continue speaking with the police. Because the defendant was not in custody, appellant's statement did not trigger his rights under Miranda.
6. The defendant's constitutional rights were not violated in anyway during the interview.
7. The defendant was not in custody at the time he made his statement and thus Article 38.22 of the Code of Criminal Procedure was not implicated.
8. The defendant's rights under Article 38.23 of the Texas Code of Criminal Procedure were not violated during the course of the interview. The defendant's statement was not taken in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America.
9. Because the defendant's statement was freely and voluntarily given, the admission of the defendant's statement in no way violates the defendant's constitutional or statutory rights.
Appellant contends that the trial court should have suppressed the video of his station interview because it shows Investigator Horn's conduct escalated the interview into a custodial interrogation when Investigator Horn (1) conducted the interview in an "aggressively confrontational manner;" (2) lied to appellant about his fingerprints being on the recovered BB gun; (3) conveyed the belief that appellant was a suspect and that there was probable cause to arrest appellant for complainant's murder; and (4) threatened appellant with execution for complainant's murder so that appellant reasonably concluded he was in custody and not free to leave. Appellant also contends that he reasonably could have concluded he was in custody when he asked for an attorney but the interview continued and he then made the "crucial admission" that he had been at the murder scene and had dropped his BB gun there.
The video shows that appellant was sitting in the interview room when Investigator Horn brought him a McDonald's meal. Appellant never was handcuffed during the interview. After appellant finished eating, Investigator Horn and Sergeant Williams entered the interview room. Sergeant Williams thanked appellant for coming to the station to talk to them, to which appellant replied: "[N]o problem." Investigator Horn then twice "clarified" and confirmed with appellant that he came to the station at their request voluntarily and was not under arrest; and appellant replied: "[R]ight."
Investigator Horn started questioning appellant about his whereabouts on Christmas Eve 2012 and his knowledge of complainant's murder. Appellant continually denied knowing anything about a robbery or murder and denied being at the apartment complex where complainant was shot. When Investigator Horn showed appellant a photo of the BB gun found near the murder scene, appellant admitted that it was his gun but claimed that it had disappeared from his apartment six weeks earlier.
Investigator Horn asked appellant several times to tell the truth. He told appellant that he was not implicating appellant in complainant's murder but that the BB gun "put" appellant at the scene of the crime. Appellant insisted for most of the interview with Investigator Horn that he was not at the murder scene and that he did not know who could have taken the BB gun from his apartment. Investigator Horn also showed appellant a photo of complainant but appellant denied ever seeing complainant. Investigator Horn told appellant that he believed appellant and "some guys" intended to rob complainant but that the robbery went bad and that complainant was shot.
Investigator Horn at times became agitated and confrontational during the interview as appellant continued to deny knowing who shot complainant and denied any involvement in complainant's murder. Toward the end of the interview, Investigator Horn left the room and Sergeant Williams came to talk to appellant alone. Sergeant Williams was more soft-spoken while questioning appellant. Sergeant Williams asked appellant to explain why his cell phone would place him at the apartment complex where complainant was murdered at the time of the murder, but appellant provided no explanation at first. Sergeant Williams encouraged appellant to tell him what he knew about the murder.
Appellant then asked: "Can I go home?" Sergeant Williams replied: "Well, why don't you talk to me for a minute?" But appellant said: "No, I want to go home and get me a lawyer because you're coming at me with all that and I don't know what's going on, I want to go home." Sergeant Williams replied: "Alright, if you want to go home, you can go home, but I want you to think about all this stuff." Appellant then asked Sergeant Williams for his card to "give you guys a call." Sergeant Williams told appellant that he would give appellant his card but asked appellant to think about everything because this might be the only time appellant talked to the police.
Appellant and Sergeant Williams continued talking for a few more minutes, and appellant asked: "How am I getting home?" Sergeant Williams answered: "Alright, do me a favor, think about this while we organize a ride for you to get home." Appellant again continued talking to Sergeant Williams until appellant asked: "You all wanna [sic] know what really went on over there?" Appellant then admitted to being at the apartment complex near the scene of the murder. He explained that he was at the apartment complex to buy weed from "the weed man" who lived there. As he walked in the complex, he heard a shot right next to him and ran away dropping his BB gun. He stated he did not want to put himself at the scene because he was not part of a robbery or murder and did not want to be implicated. The interview concluded.
Considering all the circumstances surrounding the interview, as we are required to do, we conclude that the evidence supports the trial court's determination that appellant was not in custody during his videotaped interview. See Estrada, 313 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255. Appellant acknowledged voluntarily coming to the station to talk to Investigator Horn and Sergeant Williams. He was told he was not under arrest and was never handcuffed or otherwise restrained.
Although the video shows Investigator Horn at times getting agitated and frustrated with appellant's lack of cooperation, the "aggressive" or "confrontational" behavior appellant complains occurred in this case would not cause a reasonable person to believe he was in custody and not free to leave. See Estrada, 313 S.W.3d at 295 ("That the interrogation may have taken place in what appellant characterizes as a "coercive environment" does not require a [finding that a reasonable person would believe he not was free to leave]."). Additionally, the video shows that appellant at times was as agitated and argumentative as Investigator Horn and spoke with an equally loud voice.
Contrary to appellant's assertion, the video does not show that Investigator Horn threatened appellant with execution or "the needle" for complainant's murder. At most, the video shows that Investigator Horn hypothetically told appellant that, if he showed photo arrays to the public and someone identified appellant as the shooter, appellant would be charged with capital murder. Investigator Horn stated repeatedly that he did not believe appellant killed complainant, even though appellant's recovered BB gun placed him at the murder scene. He encouraged appellant to tell police who the shooter was so he would not be charged with capital murder for "what somebody else did" because that would not be "fair to [appellant's] life."
Appellant also argues that he was in custody because Investigator Horn lied to him about the police having recovered his fingerprints on the BB gun found at the murder scene. But a police officer's false statements about what evidence was discovered are immaterial to the determination of custody. See Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (per curiam) ("The officer's false statement about having discovered Mathiason's fingerprints at the scene . . . has nothing to do with whether respondent was in custody for purposes of the Miranda rule.").
Equally unpersuasive is appellant's contention that he was in custody because Investigator Horn's behavior indicated he believed appellant was a suspect and was the focus of the murder investigation. Being the focus of an investigation does not necessarily render a person in custody for Miranda purposes. Gardner, 306 S.W.3d at 293; Meek, 790 S.W.2d at 621.
Further, appellant argues that he was in custody because, "[b]y subjecting him to heated questioning that presupposed his guilt, the officers conveyed that probable cause existed for his arrest." Both officers repeatedly stated that they (1) did not believe appellant was implicated in the murder or was the shooter; (2) had not yet started showing any photos or lineups to witnesses; and (3) had evidence that placed appellant near the murder scene because his BB gun was found there. Sergeant Williams also implied while questioning appellant alone near the end of the interview that cell phone records placed appellant at the murder scene.
Assuming that the officers' questioning and their statements that appellant's BB gun and cell phone records placed appellant at the murder scene conveyed to appellant that probable cause for his arrest existed, probable cause is only one factor and does not automatically establish custody; "rather, custody is established if the manifestation of probable cause, combined with other circumstances lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." See Dowthitt, 931 S.W.3d at 255. The video confirms that appellant was told he was not under arrest. Appellant told Investigator Horn during the interview: "I want to help you." Appellant stated that (1) he would not have come to the station if he had something to hide; (2) he wanted to come to the station to make sure the police knew he was innocent; and (3) if he knew who shot complainant, he would tell the police. And appellant was told several times he was free to leave when he asked to go home but he continued speaking to Sergeant Williams even after he was told he was free to leave. The circumstances in this case do not support appellant's claim that he was in custody.
Finally, appellant contends that a reasonable person would have believed to be in custody after admitting he was at the murder scene when complainant was shot. We disagree with appellant that his acknowledgment was such an "incriminating" and "crucial admission" as to "turn a noncustodial interrogation into a custodial interrogation" — especially considering appellant was allowed to leave the station after making the admission and was not arrested until much later.
The circumstances here parallel those in Mathiason and Estrada.
In Mathiason, the Court held that the defendant was not in custody at the time he gave an incriminating statement to the police during questioning at the police station when (1) the defendant voluntarily came to the station in response to a request from a police officer; (2) the officer immediately informed the defendant that he was not under arrest; (3) the officer told the defendant "he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge;" (4) the officer advised the defendant that the police believed he was involved in the burglary; (5) the officer falsely stated that the defendant's fingerprints were found at the scene; (6) the defendant gave an incriminating statement admitting he had stolen the property after a 30-minute interview; and (7) after he gave the incriminating statement, the defendant was allowed to leave the station. See Mathiason, 429 U.S. at 493-95.
In Estrada, the Court of Criminal Appeals held that the defendant was not in custody at the time he gave an incriminating statement to the police during an interview at the police station when (1) the defendant voluntarily came to the station in response to a request from the police; (2) the defendant made "some references to a lawyer" when he was taken to an interview room, and he was advised of his Miranda rights; (3) during the interview, the defendant acknowledged that he came voluntarily to the station, he expressed several times that he wanted to leave, and he was told by the police that he was free to leave but continued to talk to the police; (4) the defendant was interviewed for approximately five hours; (5) the police aggressively questioned the defendant about the complainant's murder; (6) the police accused the defendant of lying about his involvement in the complainant's murder and informed the defendant that he was the "central figure" in the murder investigation; (7) the defendant admitted killing the complainant and told the police where he discarded the murder weapon and other evidence; (8) the police took the defendant home after he made the incriminating statement; and (9) the defendant was arrested three hours later. See Estrada, 313 S.W.3d at 289-95.
Having examined all the circumstances surrounding appellant's interview, we hold that the record before us supports the trial court's finding that appellant was not in custody during his police interview. See Mathiason, 429 U.S. at 493-95; Estrada, 313 S.W.3d at 289-95; Meeks, 790 S.W.2d at 621-23 (holding that appellant was not in custody when he made incriminating statements about an arson during questioning at the police station when he voluntarily came to the station; was the sole focus of the investigation; was allowed to leave after making the incriminating statements; and was arrested weeks later).
Because appellant's interview was not a custodial interrogation, appellant's statement "I want to go home and get me a lawyer" was not a request for an attorney that police had to "promptly honor" and stop the interview. See Estrada, 313 S.W.3d at 296 ("The need to scrupulously honor a defendant's invocation of Miranda rights does not arise until created by the pressures of custodial interrogation."). We therefore hold that the trial court did not err when it denied appellant's motion to suppress his video-recorded interview.
Appellant makes a cursory statement in his brief that he argued in his motion to suppress before the trial court that any statements he made during his police interview were involuntary if the interview "was conducted in a way that was inherently coercive." He then states: "Because Horn was argumentative to him and assumed he was guilty, Appellant believed he was in custody and was not free to leave. Hence whatever he said at the interview was coerced and not voluntary."
To the extent appellant attempts to argue that the trial court should have suppressed the video of his interview because the statements he made during the interview were coerced and thus involuntary, appellant's argument is without merit. The record before us supports a finding that appellant's interview was not "conducted in a way that was inherently coercive" and that the statements appellant made during the interview were not coerced but were freely and voluntarily made. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("We hold that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."). Sergeant Williams was soft-spoken and calm during his questioning of appellant. And although Investigator Horn was at times agitated and frustrated during his questioning of appellant, he did not conduct the interview "in a way that was inherently coercive" as appellant claims. The evidence does not support appellant's contention that "the interview was coerced and not voluntary."
Having concluded that the trial court did not err in denying appellant's motion to suppress the video recording of his interview, we overrule appellant's first and second issues.
III. Jury Instruction
Appellant contends in his fourth issue that he was egregiously harmed by the trial court's erroneous omission of a jury charge instruction pursuant to Texas Code of Criminal Procedure article 38.23. Appellant contends that the trial court should have included an article 38.23 instruction, even though he did not request one, because the video recording of his police interview played for the jury at trial "amounted to affirmative evidence material to the issues raised in Appellant's motion to suppress, i.e., whether Appellant's interview was custodial."
Article 38.23(a) provides that evidence obtained in violation of the Constitution or laws of the United States or Texas may not be admitted in a criminal case. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2017); Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). When evidence presented before the jury raises a question of whether the fruits of a police-initiated search or arrest were illegally obtained, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." See Tex. Code Crim. Proc. Ann. art. 38.23(a); Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).
To be entitled to an article 38.23(a) instruction, the defendant must show that (1) an issue of historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible. Robinson, 377 S.W.3d at 719; Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). When a disputed, material issue of fact is successfully raised, the terms of the statute are mandatory, and the jury must be instructed accordingly. Robinson, 377 S.W.3d at 719.
Evidence to justify an article 38.23(a) instruction can derive "'from any source,'" no matter whether "'strong, weak, contradicted, unimpeached, or unbelievable.'" Id. (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). But it must raise a "'factual dispute about how the evidence was obtained.'" Id. (quoting Garza, 126 S.W.3d at 85). When the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court. Id.
To support his argument that the trial court was required to include an article 38.23 instruction in the jury charge, appellant states as follows: "State's Exhibit 69 was shown to the jury and thus amounted to affirmative evidence material to the issues raised in Appellant's motion to suppress, i.e., whether Appellant's interview was custodial. Hence Appellant should have been entitled to a §38.23 instruction."
Appellant does not point to any disputed, material issue of fact raised by the video of his interview that the jury could resolve as the trier of facts. And there is no dispute in the testimony at trial or otherwise about what the video depicts or what appellant, Investigator Horn, and Sergeant Williams stated or did during the interview. We have reviewed the video and the trial testimony. We find no conflict in the evidence that called for a jury instruction.
Additionally, appellant's statements indicate that he is not complaining about the lack of an article 38.23 instruction because he actually wants the jury to decide disputed facts; instead, appellant wants the jury to decide "whether Appellant's interview was custodial" based on the facts as shown in the video recording, which is a is a question of law for the trial court to decide. See Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012) ("whether a set of historical facts constitutes custodial interrogation . . . is subject to de novo review because that is an issue of law: it requires application of legal principles to a specific set of facts").
Having reviewed the video and the trial testimony, we conclude that an article 38.23 instruction was not required in this case because there was no disputed, material fact issue for the jury to resolve. See Hamal, 390 S.W.3d at 307 (holding that an article 38.23 instruction was not required when there was no dispute in the testimony about what the video played for the jury depicted); Estrada v. State, 30 S.W.3d 599, 605 (Tex. App.—Austin 2000, pet. ref'd) (holding no article 38.23 instruction was required because the video and trial testimony showed no conflict in the evidence). We overrule appellant's fourth issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ William J. Boyce
Justice Panel consists of Chief Justice Frost and Justices Boyce and Jewell.
Do Not Publish — Tex. R. App. 47.2(b).