Opinion
No. 2-02-343-CR.
DELIVERED: July 17, 2003 DO NOT PUBLISH, Tex.R.App.P. 47.2(b)
From the 211th District Court of Denton County.
PANEL B: DAY, LIVINGSTON, and WALKER, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
Appellant Andrew Michael Cotterill appeals from his conviction of possession of five pounds or less, but more than four ounces of marijuana. In two points, appellant alleges that the trial court erred in denying his motion to suppress alleged oral statements in violation of Texas Code of Criminal Procedure article 38.22 and article 1, section 10, of the Texas Constitution and in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We affirm.
Factual Background
On December 8, 2000, an investigator with the North Texas Narcotics Task Force and ten to twelve other officers served a search warrant on a residence in The Colony. Joseph Garrison was the only person home at the time. The officers found approximately fifty-three marijuana plants, which Garrison admitted were his and appellant's. The evidence is conflicting as to whether the officers then merely called appellant and asked him to come to the home or if they threatened to involve his wife and children if he did not cooperate. After appellant arrived and allegedly admitted involvement in the offense, the officers agreed to release him if he would cooperate and "work off" the offense. The police did not contact appellant again until eight months later when he was arrested. When the court denied appellant's motion to suppress his oral statements, he subsequently pled guilty to the offense and was sentenced by the court.Oral Statements
In his first point, appellant contends that the trial court erred in denying his motion to suppress alleged oral statements in violation of Texas Code of Criminal Procedure article 38.22 and article 1, section 10, of the Texas Constitution. Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon Supp. 2003). The State responds that the statements were not obtained in violation of article 38.22 because appellant was not under custodial arrest at the time of the statements. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.), cert. denied, 123 S.Ct. 603 (2002). The appropriate standard for reviewing a trial court's ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Id. If the trial court did not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Id. Generally, oral statements made by an accused as a result of a custodial interrogation are not admissible against an accused. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a); Leal v. State, 82 S.W.3d 84, 89 (Tex.App.-San Antonio 2002, pet. ref'd). This rule is strictly construed. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(e). However, the Texas Code of Criminal Procedure provides exceptions to the general rule. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3, 8 (Vernon Supp. 2003), § 5 (Vernon 1979). We must first determine whether appellant's statements were the product of custodial interrogation. If not, then no warnings needed to be given, and the trial court did not err in overruling his motion to suppress the statements. Miranda and article 38.22 of the Texas Code of Criminal Procedure apply only to statements made as a result of custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630 (1966); Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996); Rodriguez v. State, 939 S.W.2d 211, 215 (Tex.App.-Austin 1997, no pet.) (op. on reh'g). They are not applicable to statements resulting from noncustodial interrogation. Rodriguez, 939 S.W.2d at 215. Thus, if appellant's statements did not stem from custodial interrogation, neither Miranda nor article 38.22 requires its suppression. See id. In determining whether an individual was in custody, a court must examine all of the circumstances, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983); Dowthitt, 931 S.W.2d at 254. The relevant question is not the officer's subjective intent, but rather how a reasonable person in the suspect's position would have understood the situation. Dowthitt, 931 S.W.2d at 254. The "reasonable person" standard assumes an innocent person. Id. at 254. The Texas Court of Criminal Appeals has outlined at least four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when 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) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. at 255. The first three situations require a restriction upon freedom of movement that amounts to the degree associated with an arrest as opposed to an investigative detention. Id. Concerning the fourth situation, the officers' knowledge of probable cause must be manifested to the suspect. Id. Here, the trial court made explicit findings on the record that prior to making the statements, appellant was given all the warnings required under the Constitution; appellant intelligently and with full knowledge and understanding of his rights waived his right to remain silent; and appellant made the oral statements at such time that "he was not under arrest and under such circumstances a reasonable person, innocent of a crime, would not have considered himself under arrest." Accordingly, we must give almost total deference to these determinations of historical facts. Maxwell, 73 S.W.3d at 281. The trial court also found the following facts by implication:• Officer Cain asked appellant to come to the house because he had some questions concerning the marijuana at the residence.
• Officer Cain did not threaten appellant's family or use any intimidating factors to coerce appellant to come to the house or to admit his involvement in the operation.
• When appellant arrived at the residence, the officers introduced themselves, gave him his Miranda warnings, and told him why they were there. Officer Cain stated that appellant was not placed under arrest or put in handcuffs, but was lawfully detained.
• The officers did not take appellant to the back room or say anything about getting handcuffs.
• Appellant agreed to work off his charge.
• The officers questioned appellant for approximately twenty minutes.Such evidence is reviewed in the light most favorable to the trial court's ruling. See id. (holding that if the trial court did not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling). Furthermore, the judge in this case was entitled to believe Officer Cain's testimony over Mr. Garrison's testimony. Id.; Stahle v. State, 970 S.W.2d 682, 691 n. 6 (Tex.App.-Dallas 1998, pet. ref'd). With these facts in mind, we now review de novo the trial court's application of the law to determine if appellant was under custodial interrogation. Maxwell, 73 S.W.3d at 281. Here, Officer Cain did not force or threaten appellant to come to the residence, but merely asked appellant to come over so he could answer a few questions concerning the marijuana operation. When a person follows such a request, his presence is deemed voluntary, and courts have held that he has not been taken into custody. See Shiflet v. State, 732 S.W.2d 622, 628 (Tex.Crim.App. 1985); Cagle v. State, 23 S.W.3d 590, 592 (Tex.App.-Fort Worth 2000, pet. ref'd) (op. on reh'g); Lewis v. State, 15 S.W.3d 250, 255 (Tex.App.-Texarkana 2000, no pet.); Bates v. State, 15 S.W.3d 155, 160 (Tex.App.-Texarkana, pet. ref'd), cert. denied, 531 U.S. 1013 (2000). Officer Cain informed appellant he was not under arrest but was merely being lawfully detained. The fact that appellant knew he was a suspect did not establish custody under these circumstances because he was told he was not under arrest. See Gregory v. State, 56 S.W.3d 164, 175 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd), cert. denied, 123 S.Ct. 1787 (2003). While at the residence, appellant was never handcuffed or threatened. Furthermore, the officers only questioned him for twenty minutes and then left. Appellant's voluntary presence at the residence, "where there were no threats or physical force used, no handcuffs, and no weapons drawn, hardly constitutes an arrest." Lewis, 15 S.W.3d at 255. Although Officer Cain gave appellant Miranda warnings, he testified that the warnings were merely standard procedure. See Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App. 1987) (holding that recitation of Miranda warnings was more indicative of proper cautiousness than of an intention to arrest), cert. denied, 484 U.S. 975. Under all of these circumstances, an innocent, reasonable person would not have felt that he was under arrest. Thus, appellant's statements were not the product of custodial interrogation, and no warnings needed to be given. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630; Dowthitt, 931 S.W.2d at 263; Rodriguez, 939 S.W.2d at 215. Accordingly, the trial court did not err in overruling appellant's motion to suppress because neither Miranda nor article 38.22 required the suppression of his statements. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630; Dowthitt, 931 S.W.2d at 263; Rodriguez, 939 S.W.2d at 215. Appellant's first point is overruled.