Opinion
No. 11-16-00136-CR
05-24-2018
PHILLIP DEVON DEEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court Taylor County, Texas
Trial Court Cause No. 11264-D
MEMORANDUM OPINION
The jury convicted Phillip Devon Deen of possession of a prohibited substance in a correctional facility. The trial court assessed his punishment at confinement for six years in the Institutional Division of the Texas Department of Criminal Justice. In a single issue on appeal, Appellant contends that the trial court erred in admitting his statement. We affirm.
Background Facts
On August 24, 2013, Appellant was incarcerated at the Taylor County Adult Detention Center in Abilene. Another inmate at the detention center informed Sergeant Scott Olson of the Taylor County Sheriff's Department that Appellant was in possession of marihuana. In response, Sergeant Olson ordered a walk-through inspection of the area where Appellant was housed, followed by a more thorough search of the housing area and a pat-down of all the inmates housed there. Deputy Bryce Channell and Corporal Christopher Rutledge performed the search.
As Deputy Channell performed a pat-down search of Appellant, he smelled marihuana "coming from [Appellant's] foot." Deputy Channell moved Appellant into a restroom, performed an "unclothed search" of Appellant, and found a small baggie of marihuana.
Appellant told Deputy Channell that he had been transferred from one area of housing to another. During his move, another inmate had given him a comb wrapped with paper and a trash bag and asked Appellant to give it to the "run cleaner." Appellant placed the comb in his sock and carried it with him to his new housing area. Appellant then looked at the contents of the package, noticed it was marihuana, and put it back in his sock so that he could give it to the run cleaner.
A run cleaner is an inmate who assists the detention center officers with tasks such as passing out meals and picking up trash.
Analysis
In his sole issue, Appellant contends that the trial court abused its discretion in admitting an inadmissible hearsay statement. Specifically, Appellant contends that his statement to Deputy Channell regarding how he obtained the marihuana was inadmissible hearsay and was not the result of an excited utterance under Texas Rule of Evidence 803(2). He contends that the admission of this evidence violated his constitutional rights to due process and equality under the law.
In order to preserve a complaint for appellate review, a party must present the trial court with a timely request, objection, or motion stating the specific grounds for the desired ruling, if those grounds are not apparent from the context, and must obtain a ruling. TEX. R. APP. P. 33.1(a); Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Preservation is a "systemic requirement" on appeal. Ford, 305 S.W.3d at 532. In order to preserve an issue for appeal, no specific words are necessary, so long as the parties and the trial court understand from the context what the objection is. Clark v. State, 365 S.W.3d 333, 337 (Tex. Crim. App. 2012); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
At trial, Appellant objected to the admission of his statement to Deputy Channell on the basis that it was made as a result of a custodial interrogation and that Deputy Channell did not comply with the requirements of Miranda. See Miranda v. Arizona, 384 U.S. 436 (1966). Specifically, Appellant objected as follows: "This is clearly a custodial interrogation, and my client was not Mirandized. Therefore, any statement he may or may not have made should not be held against him." The trial court had excused the jury from the courtroom prior to Appellant's objection. In response to the prosecutor's questions, Deputy Channell testified that Appellant made a statement to him and Corporal Rutledge that was not in response to any questions that they asked him. The trial court concluded that, although Appellant was in custody, he did not make his statement in response to an interrogation and overruled Appellant's objection.
As set out above, Appellant's statement to Deputy Channell detailed Appellant's account of how he obtained the marihuana and what he planned to do with it.
The objection that Appellant presented at trial was that his statement was the product of a custodial interrogation in violation of Miranda. Appellant did not assert at trial and he does not contend on appeal that his statement was admitted in violation of TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2018). See Leza v. State, 351 S.W.3d 344, 353 (Tex. Crim. App. 2011) (an alleged violation of Article 38.22 is not preserved for appellate review if it is not presented to the trial court). Instead, he is raising a hearsay objection on appeal under the excited utterance exception set out in Rule 803(2). However, Appellant did not present a hearsay objection to the trial court. Therefore, he has not preserved a hearsay complaint for appellate review as required by Rule 33.1(a) of the Texas Rules of Appellate Procedure. See Wooten v. State, 267 S.W.3d 289, 306 n.8 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (a trial objection on grounds of improper custodial interrogation under Miranda does not preserve a hearsay objection on appeal); see also Kimball v. State, 24 S.W.3d 555, 564 (Tex. App.—Waco 2000, no pet.).
Moreover, Appellant's statement to Deputy Channell was not hearsay by definition. A statement is not hearsay if it is offered against a party and is the party's own statement in either an individual or representative capacity. TEX. R. EVID. 801(e)(2)(A); see Ballard v. State, 110 S.W.3d 538, 542 (Tex. App.—Eastland 2003, pet. dism'd, untimely filed). "Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay." Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999).
Appellant also contends on appeal that his statement to Deputy Channell was inadmissible because it was made in violation of Miranda. We review a trial court's ruling on admissibility of evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).
An individual's right to counsel is "recognized in the Fifth Amendment, which protects a person from governmental compulsion to be a witness against himself." Griffith v. State, 55 S.W.3d 598, 602 (Tex. Crim. App. 2001); see Miranda, 384 U.S. at 470. "[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Custodial interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself" and generally encompasses express questioning by police or words or actions that the police should know are likely to elicit an incriminating response. Id. at 300-01. Therefore, the Fifth Amendment right to counsel does not extend when there is no interrogation. Griffith, 55 S.W.3d at 603. "Volunteered statements of any kind are not barred by the Fifth Amendment" and are admissible as evidence at trial. Miranda, 384 U.S. at 478.
Deputy Channell testified outside the presence of the jury regarding the circumstances leading up to Appellant's statement. He stated that, after he discovered the marihuana, he and Corporal Rutledge spoke to Appellant and informed him that he had violated a jail rule. Deputy Channell testified that neither he nor Corporal Rutledge asked Appellant any questions. Rather, after Deputy Channell found the marihuana, Appellant "openly spoke to [the correctional officers] and was telling [them] how he came into contact with the marijuana."
The question of whether Appellant's statement was the product of a custodial interrogation turned upon an evaluation of Deputy Channell's credibility. In reviewing a trial court's ruling on a Miranda-violation claim, we afford almost total deference to the trial court's rulings that turn upon credibility. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). Based upon Deputy Channell's testimony, we conclude that the trial court did not abuse its discretion by determining that Appellant's statement to Deputy Channell was not the product of a custodial interrogation. We overrule Appellant's sole issue on appeal.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE May 24, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.