Creeks v. State

542 S.W.2d 849

Opinions

OPINION

BROWN, Commissioner.

On November 30, 1973, appellant was convicted of the offense of felony theft upon his plea of guilty before the court. Punishment was assessed at five years probated. One of the conditions of probation was that during the term of probation appellant would commit no offense against the laws of this or any other state or the United States. On June 23, 1975, a motion to revoke probation was filed by appellant’s probation officer alleging that appellant had committed the offense of theft on June 19, 1975. This appeal is from the order revoking probation.

At the hearing on the motion to revoke probation the prosecution called three witnesses. The first witness, H. E. Beavers, appellant’s employer, testified that he was the supervisor of several service stations, one of which was operated by appellant. Beavers’ testimony was, to say the least, most confusing. In fact, at one point the court broke into the testimony of Beavers and stated: “Just a minute, the Court is getting a little confused.” At one point Beavers testified that there was a shortage of $600.00. At another time he testified that the shortage was more than Sixty Dollars — it was over a Hundred Dollars. On cross-examination, Beavers testified as follows:

“Q. You knew there were shortages, didn’t you?

“A. Yes, sir.

“Q. And you all had had conversations, you and Mr. Creeks had had conversations about the shortages?

“A. He took care of the shortages, yes, sir. He paid them. They came out of his check. That was the understanding when he came on and was hired, that if there were shortages, that he paid them.

“Q. In other words, by way of example, if I were working for you as one of your Managers and on, say, June 18th of this year, I was short a Hundred Dollars for one reason or another, I would have to pay the Company back that Hundred Bucks, right?

“A. Yes.

“Q. Right?

“A. Uh-huh.

“Q. And you’re saying that he paid back his shortages?

“A. Yes, he had prior to that.

“Q. All right. Why is it on June the 19th — What’s the difference between that shortage of Sixty Dollars and all the other shortages?

“A. Well, sir, personally, it’s really not up to me. If there is a big shortage, I have got to call the man over me. I’ve got to tell him about it. This was what I would consider to be a big shortage, more than his check would be, so I called my boss and my boss talked to him on the phone, and they made an agreement, Richard agreed with him, as far as I know, to work the shortage out.” (Emphasis added.)

Beavers further testified that when he went to the station on June 19th appellant was not there. Appellant’s brother was operating the station and advised Beavers that appellant was ill and unable to come to work. Beavers had the brother call appellant at home and advise him to come to the station, which appellant did. Beavers had gone to the station on June 19th in response to a call from appellant’s brother that he had just been a victim of a robbery at the station in which over a hundred dollars was reported to have been taken.

The next witness, R. D. Lewis, a Dallas police officer, testified that he was assigned as a polygraph examiner on June 21st when Investigator Crumm of the Dallas Police Department brought appellant to him for an examination to see if appellant had anything to do with a theft at a service station. He had appellant sign the polygraph consent form which stated that appellant knew he was not under arrest and' voluntarily agreed to take a polygraph examination. Over appellant’s objection, Lewis was then permitted to testify that prior to the examination appellant was questioned and verbally admitted the theft of Sixty Dollars from the service station on the 19th of June. Lewis admitted that he did not give appellant any warning of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, nor was appellant’s statement reduced to writing. The only other witness for the prosecution was probation officer Reggie Storey, who testified that when he learned that appellant had been arrested and charged with theft and was subsequently released (apparently on bond) he filed a motion to revoke probation and caused a warrant to issue for appellant’s arrest. When appellant came to the probation office on June 24th, the witness notified the police to come pick up appellant and while waiting for the police he and appellant had a conversation. Over appellant’s objection, the witness was permitted to testify that appellant, who had not been warned of his rights, orally confessed that he had stolen the Sixty Dollars from the filling station.

V.A.C.C.P. Art. 38.22 provides that a confession by a defendant in custody must be in writing after he has been duly warned of his rights. Under said Article, an oral confession is admissible only when it (1) leads to the fruits of the crime, or (2) is res gestae of the offense, neither of which exception is here present.

The State relies upon the form signed by appellant in the polygraph office stating that he was not under arrest. The testimony, however, reflects that the investigation of the theft had focused upon the appellant at the time he was brought to the polygraph office by Officer Crumm and that he was taken in custody from the polygraph office to the jail, where he was booked for theft. One of the most significant factors to determine whether or not the accused was in custody was whether or not the focus of the investigation had centered upon the accused at the time he was interrogated. U. S. v. Phelps, 443 F.2d 246 (5th Cir. 1971). Under these circumstances, appellant’s objection to the oral confession made in the polygraph office should have been sustained.

As regards the oral confession made to the probation officer, the State relies upon Cunningham v. State, Tex.Cr.App., 488 S.W.2d 117, wherein this Court held admissible a confession made to a probation officer so long as the probationer was not under arrest or in custody at the time that the confession was made. It is undisputed that when appellant reported to his probation officer such officer had already filed a motion to revoke probation, had caused a warrant to issue for the arrest of appellant, and had notified the police to come to the probation office to make the arrest of appellant. Under these circumstances, Cunningham, supra, was not applicable and appellant’s objection to the oral confession given to his probation officer should have been sustained.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.