Brad Aaron Gould v. State

• Court: Court of Appeals of Texas
• Decided: September 23, 2009
• Docket: 09-07-00499-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-07-00499-CR

BRAD AARON GOULD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 07-02-01292-CR

MEMORANDUM OPINION

The sole issue in this appeal centers on the trial court's denial of a pretrial motion to suppress a video-recorded statement of appellant, Brad Aaron Gould, in which he incriminates himself in the aggravated sexual assault and aggravated robbery of two female victims. The trial court conducted an evidentiary hearing and issued written findings of fact and conclusions of law in support of its denial of the motion. Subsequently, Gould pled guilty to three counts (one of aggravated sexual assault, and two of aggravated robbery) contained in a six-count indictment, and the State abandoned the remaining three counts (one aggravated sexual assault and two aggravated kidnapping). ⁽¹⁾ Punishment was assessed in each offense at twenty-five years of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, with the sentences to run concurrently.

Gould raises a single appellate issue complaining of the denial of his suppression motion but advances four separate areas of argument. We reproduce them as they appear in his brief:

1. Gould's statement should have been suppressed because Gould was interrogated while in custody without receiving Miranda warnings. After Gould confessed, he was informed [of] his Miranda rights, and interrogated again. Gould confessed again. Under Missouri v. Seibert, the Miranda warnings were ineffective, and Gould's statements should have been suppressed.

2. When a magistrate found that probable cause to arrest existed and signed an arrest warrant, and detectives arrested and interrogated Gould, his Sixth Amendment rights attached. Gould's Sixth Amendment right to an attorney was violated when detectives interrogated him without an attorney present.

3. When detectives interrogated Gould before an article 15.17 hearing was held, in violation of article 15.17's requirement that a suspect be taken before a magistrate without unnecessary delay to be informed of the charges against him and to be informed of his rights, Gould was deprived of his Sixth Amendment rights.

4. When Gould attempted to invoke his Fifth Amendment right to counsel, officers misled him about his right to an attorney and led him away from requesting an attorney. This violated Gould's Fifth Amendment right to an attorney.

In addition to the Fifth and Sixth Amendments, Gould's written suppression motion complained that the sheriff's office investigators also violated his rights under the Fourth Amendment to the United States Constitution, and violated his rights under article I, sections 9, 10, and 19 of the Texas Constitution, and under articles 38.22 and 38.23 of the Texas Code of Criminal Procedure. On appeal, however, Gould abandons his Fourth Amendment and Texas Constitution claims as he provides no argument or authority with respect to these provisions.

STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Thus, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). When application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, however, we review the trial court's ruling on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

Additionally, when reviewing a decision on a suppression motion, we must view all the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the ruling, supports those fact findings. Kelly, 204 S.W.3d at 818. We then review the trial court's legal conclusion de novo unless the explicit fact findings supported by the record are also dispositive of the legal conclusion. Id. Lastly, we must uphold the trial court's ruling if it is supported by the record and is correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

Argument 1: Missouri v. Seibert Controls

In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the police used an interrogation technique during custodial interrogation whereby they would withhold Miranda ⁽²⁾ warnings until the suspect confessed. Id. at 604. Then, the interrogating officer would provide Miranda warnings to the suspect, secure the suspect's waiver of counsel's presence during interrogation, and then proceed to "[lead] the suspect to cover the same ground a second time." Id. The Court then described the efficacy of this technique as viewed from the perspective of its proponents:

By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect's part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision.

Id. at 613 (footnote omitted). The Court further noted that this interrogation technique exhibited "a police strategy adapted to undermine the Miranda warnings[] . . . to the point that a reasonable person in the suspect's shoes would not have understood [the belated Miranda warnings] to convey a message that she retained a choice about continuing to talk." Id. at 616-17 (footnotes omitted). The Court concluded with the following holding: "Because the question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert's postwarning statements are inadmissible." Id. at 617.

In the instant case, a "question-first" claim by Gould was hotly contested during the suppression hearing, and continues here on appeal. Gould testified the Montgomery County Sheriff's detectives began the unwarned questioning the moment Gould was placed in their custody. During the subsequent drive from North Houston to the South County Annex building in Montgomery County, Gould stated the unwarned questioning continued with photos of other suspects being depicted on a laptop computer and further questioning by the detectives from their case file. Once at the County Annex, Gould was brought to a room, shown photographs of other suspects, and asked to identify the men depicted, with no preceding Miranda warnings given. Following this, Gould testified he was brought to another room where a video was made of him being given Miranda warnings, initialing the written warnings and acknowledging he understood each one, and then verbally agreeing to speak to the detectives about the crimes in question and the individuals involved.

Detectives Kenneth Bivins and Tarrence Greenwood, ⁽³⁾ both testified that they had no knowledge of, or did not recall, any conversation taking place with Gould before the commencement of the video interview, at which time Gould was given Miranda warnings, waived his right to the presence of counsel during questioning, and agreed to talk to the detectives. As we noted above, at a suppression hearing, the trial court is the sole trier of fact, judge of the credibility of the witnesses and of the weight to be given to their testimony. Wiede, 214 S.W.3d at 24-25; Ross, 32 S.W.3d at 855. In its written findings, the trial court found, inter alia, Detective Bivins testified that other than pleasantries, no substantive matters were discussed with Gould except what appears on the video recording of Gould's confession, and that Gould was provided with Miranda warnings only once and that was depicted on the video when Gould was interviewed. The trial court also found that Gould freely and voluntarily waived his Miranda rights in writing and as depicted on the video recording. The trial court concluded that Gould's video-recorded statement was admissible at trial. As a reviewing court, we may not substitute our opinion for that of the trial court, and we are constrained from reaching a different result from that of the trial court so long as the trial court's ruling is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

Because the trial court's application of the law to the facts was heavily dependent on an evaluation of credibility and demeanor of the witnesses, we must give almost total deference to its ruling. Amador, 221 S.W.3d at 673; Montanez, 195 S.W.3d at 108-09. Affording the trial court the appropriate deference, we find the evidence, when taken in the light most favorable to the trial court's ruling, supports the trial court's fact findings pertinent to the Seibert issue, as set forth above. Kelly, 204 S.W.3d at 818. Additionally, as the detectives' testimony supports the trial court's finding that no conversations of any substance were engaged in with Gould prior to giving him his Miranda warnings at the beginning of the video interview, this finding is also dispositive of the legal conclusion that Gould's recorded statement was admissible at trial. See id. The trial court essentially believed the detectives and did not believe Gould in finding that, because Gould was not questioned before he was provided warnings and then voluntarily waived his Miranda rights, the holding in Seibert was not implicated. Such a determination is supported by the record. We must give almost total deference to such a decision. See Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000). Gould's first argument under issue one is overruled.

Argument 2: Sixth Amendment Attached Before Interview

Gould argues that his statement should have been suppressed because the detectives interviewed him without an attorney present after his Sixth Amendment right to an attorney had attached. Gould argues that because his Sixth Amendment rights had attached, he was entitled to the presence of appointed counsel during any "critical stage" of the subsequent prosecution. Among the authorities cited by Gould is Rothgery v. Gillespie County, Tex., 128 S.Ct. 2578, 171 L.Ed.2d 366, 76 U.S.L.W. 4520 (2008). Although a civil case, the issue in Rothgery was whether an article 15.17 ⁽⁴⁾ hearing marked the commencement of prosecution, for Sixth Amendment attachment-of-right-to-counsel purposes, "with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made." Id. 128 S.Ct. at 2583. In Rothgery, the Court held that it did. Id. at 2591-92. However, Gould concedes that at the time he was interviewed, he had not been taken before a magistrate for an article 15.17 hearing nor had he been confined by a court to jail or imprisonment. For us to find attachment in the absence of these factors would directly contradict the Supreme Court's explicit holding, viz:

We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

Id. at 2592. Under the facts presented, Gould's Sixth Amendment right to counsel had not yet attached at the time of his video interview with Detectives Bivins and Greenwood. Argument two is overruled.

Argument 3: Article 15.17 and Sixth Amendment Violations

Initially, Gould argues that because he was not immediately brought before a magistrate for an article 15.17 hearing, the State violated his Sixth Amendment right to counsel. Gould then asserts, "There is no evidence in the record when, if at all, Gould was taken before a magistrate to have his rights explained to him." This is not accurate. The record contains a document titled, "Probable Cause, Rights, Bail And Attorney Request Form," indicating that on September 21, 2006, two days after being taken into custody, Gould was brought before a magistrate, informed of the charges against him, provided with Miranda warnings, and had bail set. Additionally, the document reflects that when asked if he wanted counsel appointed to represent him, Gould answered in the affirmative. The record thus indicates that Gould was provided an article 15.17 hearing within forty-eight hours of his arrest. See Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2008).

Without citation to any authority, Gould then contends that "if a confession is obtained and introduced as a result of the failure to take an accused before a magistrate for an article 15.17 hearing, reversible error occurs." Taken at face value, this does not represent the current state of the law. We interpret the argument as complaining that an unreasonable delay in bringing Gould before a magistrate after his arrest rendered his confession inadmissible because the violation of article 15.17 resulted in the failure of his Sixth Amendment right to counsel to ever attach.

The Texas Court of Criminal Appeals has held that violations of article 15.17 do not automatically invalidate a confession because the statutory provision relates to the duties of the arresting officer and the magistrate. Williams v. State, 692 S.W.2d 671, 675 (Tex. Crim. App. 1984). "Absent a showing of a causal connection between an accused's confession and the failure to take the accused promptly before a magistrate, the validity of the confession is not affected." Id. at 675-76 (citations omitted). See also Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992) (holding the defendant failed to show causal connection between State's failure to present him to magistrate and the statements he gave to police; thus, statements were admissible at trial); Ex parte Stansbery, 702 S.W.2d 643, 647 (Tex. Crim. App. 1986) (finding that because the record did not reflect a causal connection between the failure to take the defendant before a magistrate and his confession, the defendant's complaint that his oral statement was inadmissible was overruled). Moreover, a confession obtained prior to the accused being promptly taken to a magistrate is nevertheless admissible as long as his Miranda warnings had been read to him before the confession was taken. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).

In the instant case, the trial court found Gould was provided his Miranda warnings prior to his statement, and this finding is supported by the record. We must defer almost totally to this finding. See Kelly, 204 S.W.3d at 818. Accordingly, argument three is overruled.

Argument 4: Fifth Amendment Violation

Lastly, Gould contends the detectives "led him away from requesting an attorney" during their explanation of his Miranda rights prior to his recorded statement. Gould further contends that these actions by the detectives deprived him of his Fifth Amendment right to assistance of counsel prior to and during the interview. Relying on Russell v. State, 727 S.W.2d 573, 576 (Tex. Crim. App. 1987), Gould narrows this argument by asserting that when a suspect's request for counsel is ambiguous or equivocal, the interrogation must cease until the invocation issue is clarified. However, an accused's comments may amount to no invocation of his right to counsel at all. In such cases, the interrogation may continue. Id. at 576 n.2.

In the instant case, the trial court found that Gould's request for an attorney was not done clearly and unambiguously as required in Russell v. State, 727 S.W.2d 573 (Tex. Crim. App. 1987). The record indicates that, prior to the interview, Detective Bivins presented Gould with a sheet of paper setting out the Miranda warnings. Bivins verbally explained each warning to Gould and Gould initialed each warning indicating he understood it. The paper also contained language permitting the person being warned to knowingly and voluntarily waive his rights. Gould signed the waiver and agreed to speak to the detectives. As he was executing the waiver, Gould asked Bivins the following: "I will get an attorney eventually, right?" ⁽⁵⁾ Detective Bivins replies: "Yes." Apparently attempting to clarify the question, Bivins then asks Gould, "Are you talking about later on for court?" Gould then replies, "Yes." Gould contends that while his question may not have been clear and unambiguous, it was improper for Bivins to "lead Gould away from his attempt to request an attorney."

As authority for this particular argument, Gould cites to cases holding that if a suspect makes an equivocal or ambiguous reference to an attorney, cessation of questioning is not required, and that police are not required to question a suspect to decipher an ambiguous request. See Davis v. United States, 512 U.S. 452, 459, 461-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Gould, however, provides no authority for his argument that Detective Bivins improperly led Gould away from making a proper request for assistance of counsel by simply asking Gould if he was referring to an attorney for future court proceedings.

The Supreme Court in Davis held that the test as to whether a suspect invoked his right to counsel is an objective one, that being,

"at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.

Davis, 512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)) (citations omitted). The Court further noted that

[a]lthough a suspect need not "speak with the discrimination of an Oxford don," post, at 2364 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards ⁽⁶⁾ does not require that the officers stop questioning the suspect.

Id.. In the instant case, we find no abuse of discretion by the trial court in concluding that Gould's question regarding his getting an attorney "eventually" was not a clear and unambiguous request for assistance of counsel at the impending interrogation, and that no reasonable police officer in the circumstances presented would have understood Gould's question as such a request. See Davis, 512 U.S. at 459; see generally In the Matter of H.V., 252 S.W.3d 319, 325-26 (Tex. 2008). We therefore overrule Gould's fourth argument, overrule Gould's sole issue, and affirm the judgment of the trial court.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on February 12, 2009

Opinion Delivered September 23, 2009

Do not publish

Before Gaultney, Kreger, and Horton, JJ.

1. In addition to Gould, the indictment charged six other individuals with the six named offenses.

2. We refer here to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3. Detective Greenwood was the lead detective in the case and Detective Bivins was assigned to work on the case with Greenwood.

4. Art. 15.17. Duties of arresting officer and magistrate

(a) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in any other county of this state. . . . The magistrate shall inform in clear language the person arrested . . . of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel. . . . The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time.

Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2008).

5. The State's brief quotes Gould as saying, "Eventually am I going to get a lawyer?" Gould's brief sets out two different quotes, "Will I eventually be able to get an attorney?", and "I will get an attorney eventually, right?"

6. Edwards v. Arizona, 451 U.S. 447, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that once an accused invokes his right to have counsel present during custodial interrogation, he is not subject to further interrogation by the authorities until counsel has been made available, unless the accused himself initiates the contact with authorities).