Cummings v. State

Full title: STEVEN WAYNE CUMMINGS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Jul 26, 2006

No. 09-05-357 CR (Tex. App. Jul. 26, 2006)

Opinion

No. 09-05-357 CR

Submitted on March 30, 2006.

Opinion Delivered July 26, 2006. DO NOT PUBLISH.

On Appeal from the 217th District Court, Angelina County, Texas, Trial Cause No. CR-24,813. Affirmed.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted appellant Steven Wayne Cummings of theft, and the trial court assessed punishment at two years of confinement in a state jail facility. In this appeal, Cummings contends the trial court committed reversible error by failing to sustain his objection to the arresting officer's testimony regarding post-arrest statements made by Cummings and a co-defendant without Miranda warnings. We affirm.

Background

The complainant, R.W., testified that he owns a Honda Foreman four-wheeler, for which he paid $3,750.00. R.W. generally stored the four-wheeler in a shed in his backyard, and he described it as covered with pollen, dust, and cobwebs. On July 3, 2004, R.W. removed the four-wheeler from storage and used it to help his mother move. Upon returning home that evening, R.W. took the key and left the four-wheeler parked in his driveway. The next day, R.W. noticed that the four-wheeler was missing, and he called the police. R.W. denied knowing Cummings or Cummings's brother, Michael, and R.W. stated he had not given anyone permission to use the four-wheeler. Subsequently, while playing golf with a sheriff's deputy, R.W. mentioned that his four-wheeler had been stolen, and the deputy told him one had been found. R.W. then contacted the sheriff's department and recovered the four-wheeler. Sergeant Alan Hill, the patrol supervisor for the Angelina County Sheriff's Office, testified that on July 4, 2004, he was on patrol with Deputy Constable Butch Parrish. According to Sergeant Hill, "It was real moist, humid, . . . a lot of fog and dew in the air. Everything was damp." At approximately 2:15 a.m., Sergeant Hill and Deputy Parrish saw Cummings and his brother Michael pushing a four-wheeler down the road, so the officers decided to approach them. The officers followed the men and saw them push the four-wheeler thirty to fifty feet. Sergeant Hill felt it was odd that the men were pushing a four-wheeler at two o'clock in the morning. The officers walked up to the men, and Sergeant Hill saw there was no key in the ignition, and the four-wheeler was covered with dust and cobwebs. Sergeant Hill testified Cummings and Michael were sweaty, and they appeared to be nervous. When the officers questioned them, Cummings and Michael said they had found the four-wheeler "[i]n the ditch up the road[,]" and they pointed toward where they had found it. The officers walked to the area where the men indicated they had found the four-wheeler, but did not see tracks indicating that a four-wheeler had been there. Sergeant Hill continued searching, and he found "one spot just a little further up where a tire and footprint had got off in the grass." While Deputy Parrish stayed with Cummings and Michael, Sergeant Hill went to two houses in an attempt to find out where the four-wheeler came from, but none of the people with whom he spoke knew who owned it. Hill explained what happened as follows:

And I got back, and I asked them again. I asked them, "So, basically, if I leave my lawn mower on the side of the road, it's okay for you to come take it?" He said, "No, sir, it's not." I said, "So it's not all right for you to take this four-wheeler?" He said, "No, sir."

Sergeant Hill then arrested Cummings and Michael. Sergeant Hill characterized the men's demeanor as apologetic. When asked whether "they" made any statements that were not in response to custodial interrogation, Sergeant Hill did not distinguish between the two brothers. Sergeant Hill testified that "[h]e told me he was sorry; they was [sic] thinking about taking it back when we pulled up on them." Sergeant Hill also testified that "they" stated they planned to take the four-wheeler to a friend's house and load it onto the friend's truck.¹ Hill testified he was not questioning Cummings, but was explaining to Cummings why he was under arrest.² Sergeant Hill later clarified that when Michael told him they planned to take the four-wheeler to a friend's house, Michael was responding to a direct question from Sergeant Hill. However, Cummings volunteered his apology for taking the four-wheeler. According to Sergeant Hill, Cummings and Michael never said they were merely moving the four-wheeler out of the road, and they did not deny their culpability. Sergeant Hill testified that his encounter with Cummings and Michael was recorded on videotape, but the tape was recycled before trial. Deputy Floyd W. "Butch" Parrish testified that in July of 2004, he was a volunteer deputy constable. At approximately 2:30 a.m. on July 4, 2004, Deputy Parrish was patrolling with Sergeant Alan Hill. Deputy Parrish described the weather as warm and foggy, with heavy dew. The officers observed Cummings and Michael pushing a four-wheeler. Deputy Parrish estimated that the officers saw the men push the four-wheeler approximately thirty feet before stopping them. Officer Hill then questioned the men. Deputy Parrish stated the four-wheeler was dusty, covered with spider webs, and had "granddaddy long-legs coming out of [the] tail pipes." The key was not in the ignition. According to Deputy Parrish, Cummings "stated they found the four-wheeler in the ditch, and they were just pushing it out of the ditch." Deputy Parrish testified that Cummings and Michael "were sweating very profusely." According to Deputy Parrish, Sergeant Hill walked up the road to see where the men might have pushed the four-wheeler out of the ditch, while Deputy Parrish remained with Cummings and Michael. Deputy Parrish testified Sergeant Hill did not find any indication that the four-wheeler had been in a ditch, and Sergeant Hill then arrested Cummings and Michael. Sergeant Hill knocked on the doors of two residences in an attempt to find the owner of the four-wheeler. Deputy Parrish testified that "[t]hey just kept telling me they found it in the ditch and they pushed it up there to put it in a truck and carry it somewhere." When Officer Hill returned and arrested Cummings and Michael, Deputy Parrish testified that "they" apologized for what they did.³ Cummings testified that when the officers arrived and asked questions, he told the officers, "we'd come around the corner and noticed this four-wheeler was here in the road here to see [sic] if anybody might be hurt or what was going on." Cummings denied telling the officers he had found the four-wheeler in a ditch. Cummings testified that he and Michael were not pushing the four-wheeler, and "[w]e never laid our hands on it." Cummings testified he told Officer Hill he was "sorry for ever coming down there." Cummings denied saying anything about taking the four-wheeler back or hearing Michael do so. Cummings also denied seeing dew that night. He indicated the officers were lying when they stated that he told them he was thinking about returning the four-wheeler.

Cummings's Issue

In his sole issue, Cummings contends the trial court committed reversible error by admitting the arresting officer's testimony regarding post-arrest statements made by Cummings and Michael⁴ without Miranda warnings. We review the trial court's decision to admit the evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). The post-arrest warnings required by Miranda come into play when the authorities subject an individual to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). For the Miranda safeguards to apply, Cummings must have been in custody and the police must have interrogated him, either by express questioning or its functional equivalent. See Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.-El Paso 1995, no pet.). An offhand remark by police personnel, not designed to elicit a response, does not constitute custodial interrogation. Innis, 446 U.S. at 302-03. "`Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Innis, 446 U.S. at 300. Likewise, article 38.22 of the Texas Code of Criminal Procedure applies only to statements made during custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2, 5 (Vernon 2005). Initially, we note that Cummings's issue overlooks a crucial point: the record on appeal is silent as to whether Cummings and Michael received Miranda warnings. Sergeant Hill described his arrest of Cummings and Michael, but he did not testify as to whether or not he gave them Miranda warnings. Deputy Parrish did not testify as to whether Sergeant Hill gave Miranda warnings to Cummings and Michael. Cummings did not testify regarding whether he received Miranda warnings. Cummings does not point us to any evidence in the record indicating that Miranda warnings were not given, and we find none. However, the State briefs the case as though no Miranda warnings were given. We will assume, arguendo, the truth of Cummings's assertion that neither he nor Michael received Miranda warnings. Cummings has the burden to establish that his statement was the product of custodial interrogation. See Wilkerson v. State, 173 S.W.3d 521, 532 (Tex.Crim.App. 2005). Sergeant Hill testified that Cummings's statement — that "he was sorry; they was [sic] thinking about taking it back when we pulled up on them" — was not made in response to interrogation. Rather, Cummings volunteered the statement in response to Sergeant Hill's statement explaining why Sergeant Hill was arresting Cummings. We find that Sergeant Hill's statement to Cummings was not intended to elicit a response. See Innis, 446 U.S. at 302-03. Therefore, it was not an abuse of discretion to allow that testimony into evidence. In addition, a defendant lacks standing to complain of the deprivation of his co-defendant's constitutional rights. See Bulington v. State, 179 S.W.3d 223, 232 (Tex.App.-Texarkana 2005, no pet.) (citing Busby v. State, 990 S.W.2d 263, 270 (Tex.Crim.App. 1999)). Accordingly, Cummings lacks standing to complain that Michael did not receive Miranda warnings before being questioned. See Bulington, 179 S.W.3d at 232. Furthermore, we have determined that the trial court properly admitted Sergeant Hill's testimony regarding Cummings's statement apologizing for taking the four-wheeler and indicating he intended to return it. See Innis, 446 U.S. at 302-03. Therefore, any error resulting from the admission of Sergeant Hill's testimony about Michael's statement was harmless. See Tex.R.App.P. 44.2(a), (b). We overrule Cummings's sole issue and affirm the trial court's judgment.