Opinion
No. 10-06-00197-CR
Opinion delivered and filed August 8, 2007. DO NOT PUBLISH.
Appeal from the 66th District Court Hill County, Texas, Trial Court No. 33,423. Affirmed
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Following a bench trial, the court convicted Lonnie Dale Mason of criminal solicitation of a minor and sentenced him to four years' imprisonment. Mason contends in his sole issue that the court erred by denying his motion to suppress in which he challenged the voluntariness of a recorded statement he made to two sheriff's deputies. We will affirm. We review a suppression ruling under an abuse-of-discretion standard. Montanez v. State, 195 S.W.3d 101, 108 (Tex.Crim.App. 2006). We afford almost total deference to the court's determination of historical facts but review de novo the court's ruling on mixed questions of law and fact which do not turn on the credibility and demeanor of witnesses. Montanez, 195 S.W.3d at 106. The voluntariness of a statement given to law enforcement is determined from the totality of the circumstances. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000); Kearney v. State, 181 S.W.3d 438, 444 (Tex.App.-Waco 2005, pet. ref'd). Here, Deputy Kent Head was investigating an allegation that Mason had solicited the complainant to engage in sexual acts. Mason went to the sheriff's department to report that the complainant's family had been making harassing phone calls to him. Deputy Head first took Mason's complaint then confronted him with the allegation against him. The deputy read Mason his Miranda rights, and Mason signed a waiver of those rights. After some discussion, Mason agreed to provide a statement. The deputy suggested that Mason provide a videotaped statement so that he would not have to write out his statement. At the beginning of the recording, Mason was again read his rights and signed a waiver of them. During the course of the statement, Mason made inculpatory statements which would later be used at his trial. After finishing his statement, Mason was allowed to leave. He was at the sheriff's department for at least two and one-half hours. He was not arrested until nearly six months later. Mason contends that the videotaped statement should have been suppressed because it was not made voluntarily. His complaint has two primary components: (1) the circumstances of the encounter at the sheriff's department rendered the encounter the "functional equivalent of custodial interrogation"; and (2) his mental health status rendered the statement involuntary. A suspect's statement may be found involuntary for: (1) failure to comply with the requirements of article 38.22 of the Code of Criminal Procedure; (2) failure to comply with Miranda; or (3) "violation of due process or due course of law because it was not freely given ( e.g., coercion, improper influences, incompetency)." Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App. 1996); accord Miller v. State, 196 S.W.3d 256, 266 (Tex.App.-Fort Worth 2006, pet. ref'd); Dawson v. State, 75 S.W.3d 533, 535 (Tex.App.-Texarkana 2002, no pet.). Article 38.22 and Miranda apply to statements made by a person in custody in response to interrogation or the functional equivalent of interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005); Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980); Moran v. State, 213 S.W.3d 917, 922-23 (Tex.Crim.App. 2007). Conversely, "due process involuntariness claims do not necessarily require that the interrogation be custodial. But in the absence of custody, due process is violated only by confessions that are not in fact freely given rather than by mere noncompliance with prophylactic rules." Wolfe, 917 S.W.2d at 282 (citation omitted). Mason's contention that his interview was "the functional equivalent of custodial interrogation" conflates two related issues. Article 38.22 and Miranda apply only to custodial settings. They apply when a law enforcement officer is engaged in the actual interrogation of a person in custody or uses words or conduct which constitute "the functional equivalent of interrogation." See Innis, 446 U.S. at 300-301, 100 S. Ct. at 1689-90; Moran, 213 S.W.3d at 922-23. An officer engages in "the functional equivalent of interrogation" when he uses words or conduct which he should know are reasonably likely to elicit an incriminating response. See Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90; Moran, 213 S.W.3d at 922-23. There is no comparable legal status known as "the functional equivalent of custody." Here, the State does not argue that Deputy Head was not interrogating Mason. Rather, the State argues that Mason was not in custody. The Court of Criminal Appeals has identified at least four scenarios in which a person may be considered to be in custody for purposes of the Fifth Amendment:
(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.Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996) (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985)); accord Miller, 196 S.W.3d at 264-65; Rodriguez v. State, 191 S.W.3d 428, 441 (Tex.App.-Corpus Christi 2006, pet. ref'd). Regarding the first three scenarios, "the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention." Dowthitt, 931 S.W.2d at 255 (citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293 (1994)); accord Miller, 196 S.W.3d at 265; Rodriguez, 191 S.W.3d at 441. Mason argues that four circumstances of the encounter collectively demonstrate that a reasonable person would have believed that his freedom of movement was significantly restricted (the third Dowthitt scenario): (1) the length of the encounter; (2) the fact that the video interrogation room was in the middle of the jail and not generally accessible to the public; (3) that he was a suspect before the interrogation began; and (4) that a deputy testified that he probably would not have allowed Mason to call a psychiatrist during the interrogation if Mason had asked to. The trial court found that the statement was "non-custodial." The only disputed factual issue concerning Mason's interrogation is whether he told the officers that he wanted to speak to his psychologist before waiving his rights and making a recorded statement. This dispute comes from the following portion of Mason's interview, which occurred right after he was read his Miranda warnings: Mason: I have a question for ya'll. Deputy Aiken: Yes, sir. Mason: Is there some kind of — is there — um — the psychologist that I went and saw the other day, I'd like to be able to see him again. Deputy Aiken: Well, I don't have any control over that. DeputyHead: You probably need to. The trial court did not make an express finding concerning whether in this instance Mason was asking to contact his psychologist before proceeding with the interview. Nevertheless, because the court found that Mason voluntarily waived his rights, we will imply a finding that Mason's comment regarding his psychologist was not such a request. See Moran, 213 S.W.3d at 922 ("findings that support the trial court's ruling will be implied"). Deputy Aiken's testimony that he probably would not have allowed Mason to call his psychologist reflects on the deputy's subjective intent, which has no bearing on the issue of whether Mason was in custody because the deputy did not convey this information to Mason. See Stansbury, 511 U.S. at 323-24, 114 S. Ct. at 1529-30; Dowthitt, 931 S.W.2d at 254; Miller, 196 S.W.3d at 264; Rodriguez, 191 S.W.3d at 440-41. The evidence concerning the other three circumstances cited by Mason is uncontroverted. The length of detention did not convert his encounter with the deputies to a custodial setting. See Meek v. State, 790 S.W.2d 618, 620-22 (Tex.Crim.App. 1990); Mason v. State, 116 S.W.3d 248, 265 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Garza v. State, 34 S.W.3d 591, 596-98 (Tex.App.-San Antonio 2000, pet. ref'd). The location of the interrogation room did not either. See Garza, 34 S.W.3d at 596-98 (suspect "interviewed in a small room with the door closed for over five hours"). Nor did the fact that Mason was the focus of the investigation make the encounter custodial. See Meek, 790 S.W.2d at 621; Miller, 196 S.W.3d at 264; Garza, 34 S.W.3d at 597-98. Looking at the totality of the circumstances, Mason came to the sheriff's department of his own accord. The deputies advised Mason more than once of his Miranda rights. Mason indicated that he understood those rights and expressly waived them. At the conclusion of the interview, Mason was permitted to leave, and he was not arrested until several months later. Under these circumstances, we cannot say that the court abused its discretion by finding that Mason was not in custody during this encounter. See Garza, 34 S.W.3d at 597-98. Mason also contends that, even if he was not in custody, his statement was involuntary under the Due Process Clause because it was not freely given as a result of coercion, improper influences, or incompetency. See Wolfe, 917 S.W.2d at 282; Miller, 196 S.W.3d at 266; Dawson, 75 S.W.3d at 535. However, "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." Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473 (1986). Thus, evidence of intoxication is irrelevant to the voluntariness inquiry absent evidence of "police coercion or other official over-reaching." Perry v. State, 158 S.W.3d 438, 446 (Tex.Crim.App. 2004). In the same way, evidence of Mason's mental health status is irrelevant without evidence of coercion or over-reaching on the part of the deputies. Here, even assuming Mason presented evidence that he was experiencing adverse mental health symptoms when he gave the statement to the deputies, the record contains no evidence of coercion or over-reaching. See id. Thus, his statement was not involuntary under the Due Process Clause. Accordingly, we overrule Mason's sole issue and affirm the judgment.
Mason had been arrested several months earlier for criminal trespass on the property of the complainant's family. Deputy Head was investigating the solicitation complaint then as well. At that time, Mason denied soliciting the complainant.