Opinion
NO. PD-0889-14
12-17-2014
JUAN ZAPATA, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
, filed a statement dissenting to the refusal of Appellant's petition for discretionary review.
STATEMENT
Appellant Juan Zapata was convicted of capital murder and sentenced by a jury to confinement for life. On appeal, appellant argued that the trial judge should have suppressed the statements he made to a police officer after he requested an attorney because he was in custody at the time he made the request. Holding that appellant was not in custody, and thus not entitled to counsel, the court of appeals affirmed. Appellant argues that the court of appeals incorrectly applied our holding in Dowthitt v. State, which, according to appellant, held that "an initial noncustodial interview became custodial when the defendant admitted to police that he had been present at the murders." I would grant appellant's petition for review to examine Dowthitt's "cat's out of the bag" theory and its application to this case.
Zapata v. State, No. 01-12-00666-CR, 2014 WL 2538553 (Tex. App.-Houston [1st Dist.] June 5, 2014) (mem. op., not designated for publication).
931 S.W.2d 244 (Tex. Crim. App. 1996).
Appellant's PDR at 9. Appellant's sole ground for review states, "The Court of Appeals erred when it held that Appellant was not in custody when he requested an attorney."
I.
Jose Ojeda was found dead in a vacant lot with a gunshot wound to the back of the head. Mr. Ojeda's phone records showed multiple calls between him and appellant on the night of his death. Based on these phone records, Harris County Sheriff's Office Detective Alanis called appellant and asked to speak with him about the night Mr. Ojeda died. Appellant agreed and, around 7:00 p.m. the following day, Det. Alanis picked up appellant at his home and drove him to the police station in a police car. Appellant rode in the front seat and was not handcuffed.
Once they arrived at the police station, Det. Alanis told appellant that he was free to leave. Appellant then took a polygraph examination, during which he told the examiner that he saw Mr. Ojeda on the night he died. Following the exam, Det. Alanis and another officer conducted a recorded interview with appellant. The detective offered appellant food, water, and a bathroom break, all of which appellant declined. Appellant asked to make a phone call, but Det. Alanis said, "We will do all of that shortly. Okay?" Det. Alanis questioned appellant for over an hour, during which appellant was not able to make his phone call: Det. Alanis: Okay, Juan. I know that, when you first saw here, you were scared and didn't want to give us all the information. A'right. Uh, what I'm going to give you now is an opportunity to say what happened and put everything . . . all the cards good. Okay? Appellant: Uh-huh. Det. Alanis: But before you do that I will tell you your rights. Okay. You have the right to maintain your silence and say absolutely nothing. Any statement you make could be used against you if you are accused. Any statement you make could be used as evidence in a co- uh, against in court. You have the right to have an attorney present, so he can advise you before and during the time you are being questioned. If you cannot hire an attorney, you have the right to have an attorney appointed, so he can advise you before and during the time you are questioned. You have the right to . . . to end this interview at any time you wish. Do you understand your rights? Appellant: [Nods head] Det. Alanis: Yes? Appellant: Uh-huh. Det. Alanis: Okay. Juan, tell me what happened. In your words. Appellant soon admitted to shooting Jose Ojeda: Appellant: And, um, this man pushed me and I took the gun from the other one . . . And, well . . . that's it. I popped [motions right hand] and I got him. After Det. Alanis asked several more accusatory questions, stating that he knew that appellant was lying, appellant first mentioned an attorney: Appellant: Okay. Then am I getting a lawyer or not or what's the deal, or am I gonna keep on talking, just with you all . . . [motions with both hands]. Det. Alanis: Well, . . . it's your chance to tell the truth.
The detective continued to ask questions, and appellant continued to talk. Eventually appellant gave a different version of Mr. Ojeda's death, blaming another man for the murder. He said that he and the other man planned to rob Mr. Ojeda, but the other guy "went too far" and shot him. The detective did not believe appellant's second version. Det. Alanis: This is your-your opportunity. Remember, you're talking about YOUR life. Appellant: But if-if. . . Right, but I know- I know that I'm- I'm -my life is in my hands, to save myself, but . . . I need somebody to-to advise me, and that's it. I'm not just gonna run my mouth and I don't have money to pro- provide myself with a lawyer. It's better that, if you all have one, because . . . and if I'm the one who messes up, I'm the one in trouble, right? Because I even know who has the gun and . . . and I know who has the magazines. Det. Alanis: Well, there it is, that's your salvation. If you didn't kill him, and you cooperate, finding who killed him, and the gun, is your salvation. But if you start saying 'I don't want to say anything' [unintelligible: overlapping voices]. A little later, appellant again said that he wanted to make a phone call. Appellant: Right, that's why I want to talk to her [appellant's girlfriend], to tell her what's going on. Det. Alanis: Shortly I will give you an opportunity to call, to use the telephone. Okay. Appellant was then permitted to use the restroom, apparently unaccompanied. He returned and answered several more questions before Detective Alanis ended the interview: Det. Alanis: Okay. I'm going to end the interview. Um, let me a few minutes and I'll be right back for you. Do you need water, restroom? Appellant: No, only- Det. Alanis: Food? Appellant: What I need is a telephone [unintelligible: overlapping voices]- Det. Alanis: Okay. Shortly I will let you call your . . . Don't you want a taco or something? Appellant: No.
Appellant did not leave the police station, and Detective Alanis arrested appellant after the district attorney accepted criminal charges around 3:00 a.m. Before trial, appellant moved to suppress the statements made after he said, "Am I getting a lawyer or not," arguing that he unambiguously invoked his right to counsel. At the hearing on the motion to suppress, Det. Alanis testified that, although he did not arrest appellant until after the interview, nor did he tell appellant that he was not free to leave, he would not have let appellant leave after appellant's initial confession that he "popped" and shot the victim.
The trial judge denied the motion to suppress and admitted the entire transcript of appellant's interview into evidence. A jury convicted appellant of capital murder and assessed punishment at confinement for life.
On appeal, appellant argued that the trial judge erred in denying his motion to suppress because he was in police custody when he unambiguously invoked his right to counsel. The court of appeals held that the trial judge did not abuse his discretion because appellant was not in custody. Relying on the Ervin factors, the court of appeals concluded that appellant was not in custody, and thus not entitled to an attorney, because 1) he came to the police station voluntarily; 2) he did not argue that the length of his interrogation showed that he was in custody; 3) he did not request to speak with or visit friends or family; and 4) he was offered food and water and was not physically restrained. The court of appeals also noted that, although Det. Alanis had probable cause to arrest appellant after his confession, he never communicated that to appellant. Therefore, appellant could not have reasonably believed that he was in custody.
Zapata, 2014 WL 2538553, at *1.
Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). In Ervin, the court of appeals used four factors to determine whether the defendant was in custody: (1) whether the defendant came to the interview voluntarily, (2) the length of the interrogation, (3) whether the defendant's requests to see friends or relatives were refused, and (4) the degree of control exercised over the defendant. Id. In this case, the court applied the Ervin factors as a four-factor test and determined that appellant was not in custody. We have never adopted this four-factor test, but we have considered these factors in multiple cases. See, e.g., Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010); Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009); Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996).
Zapata, 2014 WL 2538553, at *4-6. In fact, appellant did request to use a phone three times to call his girlfriend and was told he could use the phone "soon."
Id. at *7.
II.
A. In Custody: The Four Factors Approach
A person is in "custody," and thus entitled to Miranda protections, if a reasonable person under those circumstances would believe that his freedom of movement was restrained to the degree associated with a formal arrest. In Dowthitt, we set out the four factors that we traditionally used to determine if a defendant was in custody:
Stansbury v. California, 511 U.S. 318, 322 (1994).
(1) Probable cause to arrest,
(2) Subjective intent of the police,
(3) Focus of the investigation, and
(4) Subjective belief of the defendant.
Dowthitt, 931 S.W.2d at 254.
But after the United States Supreme Court's decision in Stansbury v. California, holding that the "in custody" determination is an objective standard, we stated that our traditional factors two and four are considered only when they are manifested to the defendant by words or actions of law enforcement. In Dowthitt, we outlined four situations that may indicate custody:
511 U.S. 318 (1994).
Dowthitt, 931 S.W.2d at 254.
(1) The defendant is physically deprived of freedom of action in any significant way,
(2) A police officer tells the defendant he cannot leave,
(3) Police officers create an environment that would cause a reasonable person to believe his freedom of movement has been significantly restrained, and
(4) There is probable cause to arrest, and officers do not tell the defendant that he
is free to leave.
Id. at 255; see Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985) (noting that a person may be deprived of his freedom in a "significant way" by being placed in a police vehicle and taken to the police station for questioning).
The fourth factor applies only when the officer's knowledge of probable cause is manifested to the defendant. No single factor is determinative, but a custody determination is made only after consideration of all of the surrounding circumstances. The mere fact that questioning took place at a police station does not make an interrogation custodial. Similarly, an interrogation is not custodial just because the defendant submitted to and failed a polygraph examination. A defendant may not be in custody even if the police give Miranda warnings. But, when all of the factors are considered, an interrogation that began as noncustodial may become custodial due to police conduct or the nature of the encounter.
Dowthitt, 931 S.W.2d at 255.
See Shiflet, 732 S.W.2d at 629.
Dancy v. State, 728 S.W.2d 772, 778 (Tex. Crim. App. 1987).
Stone v. State, 583 S.W.2d 410, 413 (Tex. Crim. App. 1979) (holding that the defendant was not in custody when he was informed that he failed a polygraph examination and would "probably be charged").
See Estrada v. State, 313 S.W.3d 274, 296 (Tex. Crim. App. 2010) ("Because the appellant was not in custody, law enforcement officials had no obligation under Miranda to scrupulously honor a request to terminate questioning. Although Miranda warnings were given (unnecessarily), that fact does not change the analysis.") (quoting Davis v. State, No. AP-74,393, 2007 WL 1704071, at *11 (Tex. Crim. App. June 13, 2007) (not designated for publication)).
See Ussery v. State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983).
B. A "Crucial Admission" May Convert a Noncustodial Interrogation into a Custodial One.
Appellant relies on Ruth v. State, in which we held that the defendant was in custody after the defendant confessed to shooting the victim. In Ruth, an officer approached the defendant in a hospital waiting room and asked what had happened to the victim, who was in surgery. The defendant admitted to shooting the victim and even re-enacted part of it. He then said that he did not want to answer any more questions, but the officer continued to press the defendant about where he got the gun and said that he would "have to go downtown" if he refused to continue to answer questions. This Court held that the defendant was in custody when he confessed because the officer stated that he would not let the defendant leave unless he continued to give details, the defendant was the focus of the investigation, and the officer had probable cause to arrest when the defendant admitted that he shot the victim. In other words, once the defendant "let the cat out of the bag" by admitting to the shooting and re-enacting portions of it, "he must have been in custody."
645 S.W.2d 432, 435 (Tex. Crim. App. 1979).
Id. at 434.
Id. at 436.
Id. at 435 ("It is impossible to believe that the officer did not have probable cause to arrest, or that the investigation had not focused on the appellant, after the appellant admitted that he shot the victim, explained his motive, and reenacted the offense. The appellant must have been in custody by that time, but the officer gave no Miranda warnings. Instead, he continued to question the appellant about where he got the gun.").
Following the Supreme Court's decision in Stansbury v. California, we held in Dowthitt v. State that the mere fact that police have probable cause to arrest does not establish that the suspect is in custody unless that fact is manifested to or by the defendant.
Dowthitt, 931 S.W.2d at 255. The Supreme Court did not actually use the term "probable cause" in Stansbury but focused on the officer's subjective view that the defendant was a suspect or the focus of the investigation, a factor that many courts had previously considered. Stansbury v. California, 511 U.S. 318, 324 (1994). The Court held that the officer's subjective view that the defendant is the "prime suspect" is relevant only when conveyed to the defendant. Id. at 325. However, this Court has recognized that the "focus of the investigation" factor is separate and distinct from the probable-cause factor. See Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990).
Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Moreover, given our emphasis on probable cause as a 'factor' in other cases, 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.In Dowthitt, we explained that the defendant's "crucial admission" to questioning officers was relevant to making a custody determination based on probable cause. We concluded that Dowthitt was in custody because the police ignored his two requests to see his wife; they accompanied him on restroom breaks; they subjected him to a lengthy interrogation; and he admitted that he was present during the murder. At that point-when the defendant admitted that he was at the murder scene-the "cat was out of the bag," the police had probable cause to arrest, and the defendant was in custody. A "crucial admission" may turn a noncustodial interrogation into a custodial interrogation because a reasonable person would recognize the "incriminating nature of the admission."
Dowthitt, 931 S.W.2d at 255.
See id. at 256.
Id. at 257.
Id. at 257; see also Fiedler v. State, 991 S.W.2d 70, 83 (Tex. App.-San Antonio 1998, no pet.) ("As soon as appellant made the statement, 'It happened just the way you said, Sergeant Stakes,' the police had probable cause to arrest appellant. A reasonable person would have realized the incriminating nature of such an admission. This admission, at least from the time it was made, turned what was arguably a non-custodial encounter into a custodial encounter.").
III.
In this case, the court of appeals focused on its own Ervin factors: (1) whether the suspect arrived voluntarily for the interview, (2) the length of the interrogation, (3) whether the suspect's requests to see relatives and friends were refused, and (4) the degree of control exercised over the suspect. Appellant arrived voluntarily after he agreed to ride with Det. Alanis to the police station. Appellant did not argue that the length of his interrogation, from the time he was picked up at 7:00 p.m. until he was formally arrested at 3:00 a.m. the next morning, was a factor indicating "custody." However, the court of appeals mistakenly stated that appellant did not request to speak to friends or family, when, in fact, he asked to call his girlfriend three times, but was put off with promises that he could make the call "soon." The court of appeals also held that appellant was not under the control of the officers because he was offered food and water and the opportunity to use the restroom. He was never handcuffed or told that he could not leave.
Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).
These are valid considerations, but the court of appeals then rejected appellant's argument that he was in custody when the police had probable cause to arrest him following his confession because Det. Alanis did not tell appellant that he had probable cause to arrest appellant. The court held that the probable-cause inquiry focuses on "whether there was a manifestation by the officers that they had probable cause." The court explained that, although he had probable cause to arrest once appellant admitted to shooting Mr. Ojeda, Det. Alanis never communicated this to appellant. Furthermore, the court stated that the detective's testimony that he would not have let appellant leave was irrelevant because this too was never communicated to appellant.
Zapata, 2014 WL 2538553, at *7.
Id. (citing Dowthitt, 931 S.W.2d at 255); see also Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) ("Furthermore, appellant said nothing to Det. Cundiff that furnished probable cause, and Det. Cundiff never told appellant that he was a 'prime suspect.'").
See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (holding that the defendant was not in custody even though the officer intended to arrest him because that intent was not relayed to the defendant).
But the court of appeals failed to address "the cat's out of the bag" theory of whether appellant's confession was a crucial admission. While Dowthitt does hold that probable cause must be manifested to the defendant, it also held that a person could reasonably believe himself to be in custody after making a crucial admission, such as a confession.
Compare Zapata, 2014 WL 2538553, at *7 (holding that probable cause must be manifested by the officer to the defendant) with Fiedler, 991 S.W.2d at 83 (holding that the defendant was in custody when he confessed, giving the police probable cause to arrest) and State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.-El Paso 1999, pet. ref'd) ("Regarding the fourth situation, which is most at issue in this case, the officers' knowledge of probable cause must be manifested to the suspect. This manifestation could occur if some information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers.").
Given the totality of the circumstances, I think that appellant's "crucial admission" should at least be factored into the "custody" determination. Appellant went to the police station voluntarily and was told he could leave. He then agreed to take a polygraph examination and during the exam he admitted he saw Mr. Ojeda the night he was killed. Soon after, he was given Miranda warnings and aggressively questioned. His requests to make a phone call were rebuffed, and he quickly confessed to shooting Mr. Ojeda. When he asked for an attorney, appellant was told he needed to tell the truth to save his life.
Cf. Dowthitt, 931 S.W.2d at 257 ("While appellant did not admit to committing the offenses, his admission that he was present during the murders was incriminating, and a reasonable person would have realized the incriminating nature of the admission.").
Cf. Rathbun v. State, 96 S.W.3d 563, 566 (Tex. App.-Texarkana 2002, no pet.) (holding that the defendant was not in custody when he was told that he was not under arrest at least twice during the interview).
See State v. Moore, Nos. 04-11-00636-CR, 04-11-00637-CR, 2013 WL 520047, at *5 (Tex. App.-San Antonio Feb. 13, 2013, pet. refd) (mem. op., not designated for publication) (holding that the defendant was in custody when he made an inculpatory statement after less than two hours of interrogation).
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The issue is whether appellant was in custody once he admitted to shooting Mr. Ojeda. I think that this is an important legal question that deserves our consideration. I respectfully dissent to the Court's refusal of appellant's petition for discretionary review. Filed: December 17, 2014
Do Not Publish