Opinion issued March 19, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00622-CR ——————————— DONNELL V. PHILLIPS, JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1365648
MEMORANDUM OPINION
After the trial court denied his motion to suppress evidence, appellant,
Donnell V. Phillips Jr., with an agreed punishment recommendation from the State, pleaded guilty to the offense of unlawful possession of a firearm by a felon 1 and
true to the allegation in an enhancement paragraph that he had a prior felony
conviction. The trial court, in accordance with the plea agreement, assessed his
punishment at confinement for five years. In his sole issue, appellant contends that
the trial court erred in denying his motion to suppress.
We modify the trial court’s judgment and affirm as modified.
Background
At a pretrial hearing on appellant’s motion to suppress evidence, Houston
Police Department (“HPD”) Officer X. Flores testified that he, while providing
security at an apartment complex, which had had “problem[s] with trespassers,”
saw appellant trespassing at the complex. He explained that prior to October 23,
2012, although he had had no direct contact with appellant, he had seen him
around the complex almost every day.
On the 23rd, Officer Flores became aware that appellant was not a resident
of the apartment complex, was not on any lease agreement, and lived,
unauthorized, in an apartment with his wife. And appellant, who had received a
trespass warning about two days before, had been instructed not to return to the
property. Flores learned this from the complex’s security team’s log, which
reflected appellant’s name and noted that a trespass warning had been issued to
1 See TEX. PENAL CODE ANN. § 46.04 (Vernon 2011).
2 him. While Flores discussed appellant’s trespassing with the apartment-complex
manager, Jenny Rodriguez, on that day, they saw appellant drive a car onto the
property. A tow truck driver, who was doing a daily inspection of the property,
overheard Flores and Rodriguez’s conversation. And he drove his truck over to
appellant’s car to “block[] him from leaving” so Flores and Rodriguez “could just
go over there and talk to him and detain him for trespassing.”
Officer Flores then approached appellant, who began “walking back” to his
car. After he asked appellant for his name, Flores placed him in handcuffs, stating,
“You know you are not supposed to be back on the property,” to which appellant
replied, “Yes, I know.” After handcuffing appellant, Flores asked appellant, “Do
you have anything on you that you’re not supposed to have?” In response,
appellant stated “that he had marijuana and a pistol in the console of [his] vehicle.”
Officer Flores also “did a quick little pat on [appellant] to make sure he
didn’t have any weapons on him,” “sat [appellant] down on the curb,” and
“proceeded to his vehicle and recovered the marijuana and the gun.” The entire
incident, which included “the combination of detention, asking for officer safety
whether he ha[d] anything on him, and smelling the marijuana,” occurred within
“[t]wo or three seconds, five seconds” or “roughly all at the same time.”
Officer Flores explained that at the time he placed appellant in handcuffs, he
was not arresting him, but rather “only detaining him at th[at] moment” to verify
3 that he was the individual who had been trespassing on the property. “The
[apartment] manager and the assistant manager both came out to the scene and they
verified it was [appellant].”
Officer Flores noted that when he detains an individual, he asks “whether
they have anything on them” for safety purposes and because he has “been poked
by hypodermic needles” before. He placed appellant in handcuffs for his “safety”
because he “d[idn’t] know if [appellant was] armed or not.” Flores was concerned
because appellant had his shirt untucked and “[a] weapon could [have been]
concealed very easily.” And Flores detained appellant to verify that he was the
individual who had been trespassing on the property.
On cross-examination, Officer Flores admitted that as he approached
appellant, he knew he was going to arrest him. But he also clarified that when he
made contact with appellant, he only sought to detain him, and he did not give
appellant any “Miranda [w]arnings” 2 because “he was not under arrest.” Flores
explained that he only knew appellant’s face prior to October 23, 2012; he did not
know his name. And he had been shown a picture of appellant earlier that day.
The trial court denied appellant’s motion to suppress his oral statements and
the marijuana and firearm found in his car. After appellant filed this appeal, we
2 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
4 abated the case and remanded it to the trial court to issue findings of fact and
conclusions of law regarding the voluntariness of appellant’s statements. 3
The trial court found, in pertinent part, as follows:
7. On October 23, 2012, [appellant] was detained by Houston Police Officer . . . Flores for suspicion of the misdemeanor offense of criminal trespass at 12265 Fondren in Houston[,] Harris County, Texas.
8. As part of the aforementioned detention, Officer Flores placed [appellant] in handcuffs.
9. During the detention of [appellant], Officer Flores asked [him], “Do you have anything on you that you’re not supposed to have?”
10. In response to the aforementioned question, [appellant] indicated to Officer Flores, that [he] had a pistol and marijuana in his vehicle at the aforementioned location.
11. After being informed of the items in [appellant’s] vehicle, Officer Flores searched the . . . vehicle and recovered marijuana and a gun.
The trial court made the following conclusions of law:
2. The investigative detention of [appellant] was lawful and reasonable under the totality of the circumstances in order to ensure officer safety, maintain the status quo, and ensure the continued presence of [appellant] during the course of a brief investigation. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008); Chambers v. State, 397 S.W.3d 777, 781 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
3 See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon Supp. 2014); Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004).
5 ...
6. The statements of [appellant] regarding the gun and marijuana being in his vehicle were made during an investigative detention that had not evolved into custodial interrogation.
7. Inasmuch as the statements by [appellant] were not the product of custodial interrogation, the requirements of Tex. Code Crim. Proc. Art. 38.22 § 3 are inapplicable.
8. The non-custodial statements of [appellant] are admissible in their entirety pursuant to Tex. Code Crim. Proc. Art. 38.22.
Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for an abuse of discretion and
its application of the law to the facts de novo. Id. At a suppression hearing, the
trial court is the sole and exclusive trier of fact and judge of the witnesses’
credibility, and it may choose to believe or disbelieve all or any part of the
witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here,
the trial court makes findings of fact, we determine whether the evidence, when
viewed in the light most favorable to the trial court’s ruling, supports those
findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Unless a
trial court abuses its discretion in making a finding not supported by the record, we
6 will defer to the trial court’s fact findings and not disturb the findings on appeal.
Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
Motion to Suppress
In his sole issue, appellant argues that the trial court erred in denying his
motion to suppress his statements and the marijuana and firearm found in his car
because he “was not read his Miranda warnings before being questioned by the
officer.”
The United States Constitution prohibits the use of statements made by a
criminal defendant against himself if they are obtained through custodial
interrogation without the necessary procedural safeguards to secure the Fifth
Amendment right against self-incrimination. Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 1612 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim.
App. 2003). Similarly, the Texas Code of Criminal Procedure precludes the
State’s use of the statements of a criminal defendant against himself obtained
through a custodial interrogation without compliance with procedural safeguards.
TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2014). Notably, however,
an individual’s Fifth Amendment rights do not come into play if the person is not
in custody and any investigation is not yet custodial, and neither Miranda nor
article 38.22 warnings are required before questioning. Herrera v. State, 241
S.W.3d 520, 526 (Tex. Crim. App. 2007); Melton v. State, 790 S.W.2d 322, 326
7 (Tex. Crim. App. 1990); White v. State, 395 S.W.3d 828, 834 (Tex. App.—Fort
Worth 2013, no pet.).
“Custody” for purposes of article 38.22 is consistent with the meaning of
“custody” for purposes of Miranda. Gardner v. State, 433 S.W.3d 93, 98 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Herrera, 241 S.W.3d at 526).
The appropriate inquiry as to whether a person is in “custody,” for purposes of
their right to receive legal warnings, is “whether there is a ‘formal arrest or
restraint on freedom of movement’ of the degree associated with a formal arrest.”
California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)); see also
Gardner v. State, 306 S.W.3d 274, 293–94 (Tex. Crim. App. 2009). A “custodial
interrogation” is “‘questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of [his] freedom . . . in any
significant way.’” See Herrera, 241 S.W.3d at 525 (quoting Miranda, 384 U.S. at
444, 86 S. Ct. at 1612). The determination of custody is made on a case-by-case
basis considering all the surrounding circumstances. Dowthitt v. State, 931 S.W.2d
244, 255 (Tex. Crim. App. 1996). A person is in custody only if, under the
circumstances, an objectively reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest. Id. at 254.
8 Generally, a suspect’s detention may constitute custody for purposes of
Miranda and article 38.22: (1) when an individual is physically deprived of his
freedom of action in any significant way; (2) when a law enforcement officer tells
the person that he is not free to leave; (3) when a law enforcement officer creates a
situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted; and (4) there is probable cause to
arrest the person and law enforcement officers do not tell the person that he is free
to leave. Id. at 255. In the first three situations, the restriction upon freedom of
movement must amount to the degree associated with an arrest rather than an
investigative detention. Id. Under the fourth situation, the existence of probable
cause must be manifested to the suspect. Id. Simply because an interrogation
begins as “noncustodial” does not preclude custody from arising later if the
conduct of law enforcement officers causes “a consensual inquiry to escalate into
[a] custodial interrogation.” Id. A defendant bears the burden at trial of proving
that his statements were the product of a custodial interrogation. Herrera, 241
S.W.3d at 526.
In regard to appellant’s assertion that the trial court erred in not suppressing
the marijuana and firearm found in his car, we note that, although an individual’s
statements made during a custodial interrogation must be suppressed if he was not
informed of his legal rights, the same is not true of evidence obtained as a result of
9 his statements. See Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997)
(citing Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 1296 (1985);
Michigan v. Tucker, 417 U.S. 433, 452, 94 S. Ct. 2357, 2368 (1974)) (“[M]ere
noncompliance with Miranda does not result in a carryover taint beyond the
statement itself.”). Instead, suppression of “the fruits of a defendant’s statement”
must only occur if “the statement was obtained through actual coercion.” Baker,
956 S.W.2d at 22–23. Here, appellant does not argue that he was coerced, and the
record does not reflect any suggestion of coercion. See, e.g., Robinson v. State,
No. 01-12-01083-CR, 2013 WL 6047612, at *4 (Tex. App.—Houston [1st Dist.]
Nov. 14, 2013, no pet.) (mem. op., not designated for publication).
Accordingly, even if we were to assume a violation of appellant’s legal
rights in this case, we hold that the trial court did not err in denying his motion to
suppress insofar as it pertained to the marijuana and firearm found in appellant’s
car. Cf. Juarez v. State, No. 04-09-00411-CR, 2010 WL 374399, at *4 (Tex.
App.—San Antonio Feb. 3, 2010, pet. ref’d) (mem. op., not designated for
publication) (no suppression of marijuana discovered in vehicle’s console after
defendant’s statement).
In regard to the statements that appellant made to Officer Flores, appellant
argues that he was “clearly under arrest” because “he had been handcuffed and
10 questioned,” “[h]is car had been blocked by a tow truck working in concert with
the police,” and Flores intended to arrest appellant “at the time he saw [him].”
Officer Flores testified that he handcuffed appellant for “safety” purposes
because, as he approached, appellant retreated to his vehicle. Flores was the only
law enforcement officer present at the scene and was concerned because appellant
had his shirt untucked and “[a] weapon could [have been] concealed very easily.”
We have previously held that “[t]he reasonable use of handcuffs . . . does not
convert an investigative detention to an arrest.” Hilla v. State, 832 S.W.2d 773,
778 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d); see also Rhodes v. State,
945 S.W.2d 115, 118 (Tex. Crim. App. 1997) (mere handcuffing not always
equivalent to arrest); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (handcuffing alone does not necessarily convert
temporary detention into arrest). This is especially true when, as here, a law
enforcement officer handcuffs a suspect out of concern for his own safety. See
Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (concluding
detention, not arrest, had occurred where suspect escorted to patrol car and
handcuffed because officer feared for his safety); Rhodes, 945 S.W.2d at 117–18
(same); Mays v. State, 726 S.W.2d 937, 943–44 (Tex. Crim. App. 1986) (not arrest
where lone officer handcuffed two suspects for his protection). The fact that
11 Flores handcuffed appellant because of his safety concerns does not indicate that
appellant was in “custody” for purposes of Miranda and article 38.22.4
In regard to the actions of the tow truck driver, Officer Flores testified that
he did “daily inspections of the property” and overheard Flores and the apartment
manager’s conversation about appellant’s previous trespassing. When appellant
then drove onto the property, the tow truck driver “drove up to [appellant’s]
vehicle and blocked him from leaving.” Flores, however, did not testify that he
requested that the tow truck driver block appellant’s car or he worked in
conjunction with the tow truck driver to prevent appellant from leaving. Thus, the
record reveals that it was not a law enforcement officer that blocked appellant’s
car, but a third party who acted before Flores could get to appellant. See Dowthitt,
931 S.W.2d at 255 (custody may arise “when law enforcement officers create a
situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted”) (emphasis added). Further, there is
4 Although appellant argues that he was “clearly under arrest” because “he had been handcuffed and questioned,” he does not specify which of Officer Flores’s questions indicate that he was in “custody.” Based on Flores’s testimony, he asked appellant for his name, whether he knew he was “not supposed to be back on the property,” and whether he “ha[d] anything on [him] that [he] wasn’t supposed to have.” Such routine questions concerning identification and safety do not constitute an interrogation and do not trigger the required warnings. See Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1990); Ruth v. State, 167 S.W.3d 560, 571 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Further, as a general matter, questioning “does not by itself constitute custody.” Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.—El Paso 1999, pet. ref’d).
12 no evidence that the tow truck driver and Flores worked “in concert.” And
appellant has not directed us to any case law indicating that the actions of an
independent third party may render a suspect in “custody” for purposes of Miranda
and article 38.22.
Moreover, even if we were to assume that Officer Flores had the tow truck
driver block appellant’s car, the mere blocking of a car, even by a law enforcement
officer does not necessarily indicate that the driver of the car was under arrest or in
“custody.” See Rhodes, 945 S.W.2d at 117 (noting officer’s boxing in of suspect’s
car and drawing weapon did not automatically convert detention into arrest);
Gardner, 433 S.W.3d at 98–99 (no reasonable belief suspect under arrest even
though “patrol cars blocked [his] driveway during search and subsequent
interviews”); see also Simmons v. State, No. 14-07-00301-CR, 2008 WL 2580380,
at *5 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op., not
designated for publication) (“[T]he means by which Officers Villanueva and
Jensen initially confronted [the defendant] in the Jack-in-the-Box parking lot, by
activating their emergency equipment and blocking [the defendant’s] vehicle in the
drive-through line, did not in and of itself render the interaction an arrest.”); Mount
v. State, 217 S.W.3d 716, 725–27 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(detention, not arrest, occurred where “officers blocked in [suspect’s] vehicle and
asked him to throw his keys out the car window and exit the vehicle”). This is
13 especially true when a law enforcement officer blocks a suspect’s car while he is
conducting an investigation. See, e.g., Simmons, 2008 WL 2580380, at *5 (“The
officers’ decision to block [the defendant’s] vehicle was reasonably necessary to
effect the goal of the detention: to safely investigate . . . .”); Mount, 217 S.W.3d at
726–27 (detention, not arrest, occurred where, after blocking suspect’s car, officers
conducted investigation upon detaining suspect); Bui v. State, No. 01-05-00456-
CR, 2006 WL 2974188, at *2 (Tex. App.—Houston [1st Dist.] Oct. 19, 2006, no
pet.) (mem. op., not designated for publication) (suspect’s admission not result of
custodial interrogation where officer entered back room of store, blocked door, and
told suspect that he was conducting investigation); cf. Amores v. State, 816 S.W.2d
407, 413 (Tex. Crim. App. 1991) (holding suspect under arrest where officer
blocked suspect’s vehicle, drew weapon and pointed it at suspect, ordered suspect
out of vehicle, made suspect lay on the ground, told suspect he would shoot if
suspect did not follow directions, and did not conduct any investigation).
Here, while appellant’s car was blocked, Flores proceeded to determine
appellant’s identity and sought confirmation from the apartment manager that
appellant was indeed the individual who had been trespassing on the property. The
fact that appellant’s car was blocked by the tow truck while Flores conducted his
investigation does not indicate that appellant was in “custody” for purposes of
Miranda and article 38.22.
14 Finally, in regard to appellant’s argument that he was in “custody” because
Officer Flores had formed the intent to arrest him, appellant relies on the following
testimony:
[Appellant’s counsel]: So when you were approaching [appellant], you knew right then and there that you were going to arrest him?
[Officer Flores]: That is correct, sir.
However, in making a custody determination, “[t]he subjective intent of law
enforcement officials to arrest is irrelevant, unless that intent is somehow
communicated or otherwise manifested to the suspect.” Ervin v. State, 333 S.W.3d
187, 205 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see also Dowthitt, 931
S.W.2d at 254. Here, even if Flores had formed the intent to arrest appellant as he
approached him, appellant does not assert that Flores communicated his intention
to appellant. And the evidence does not show that such a manifestation of Flores’s
intent occurred. Thus, Flores’s subjective and undisclosed intent to arrest appellant
has no bearing on whether appellant was in “custody” for purposes of Miranda or
article 38.22. See Berkemer v. McCarty, 468 U.S. 420, 441–42, 104 S. Ct. 3138,
3151 (1984) (“Although [officer] apparently decided as soon as respondent stepped
out of his car that respondent would be taken into custody and charged . . . [he]
never communicated his intention to respondent. A[n] [officer’s] unarticulated plan
has no bearing on the question of whether a suspect was ‘in custody’ at a particular
15 time . . . .”); see also Smith v. State, No. 01-12-00901-CR, 2014 WL 459001, at *2
(Tex. App.—Houston [1st Dist.] Feb. 4, 2014, pet. ref’d) (mem. op., not designated
for publication) (“In evaluating a custody determination, we examine the objective
factors surrounding a detention; we do not examine the undisclosed, subjective
beliefs of the detaining officer or the accused.”).
Having examined the totality of the circumstances, we conclude that there is
nothing in the record to suggest a restraint of appellant’s freedom of movement of
the degree associated with a formal arrest. Accordingly, we hold that the trial
court did not err in denying appellant’s motion to suppress insofar as it pertained to
his oral statements made prior to being advised of his legal rights.
We overrule appellant’s sole issue.
Modification of Judgment
The written judgment of the trial court, under the heading of “special
findings or orders,” states “APPEAL WAIVED. NO PERMISSION TO APPEAL
GRANTED.” However, the trial court’s “Certification of Defendant’s Right to
Appeal” states that this “is a plea-bargain case, but matters were raised by written
motion filed and ruled on before trial, and not withdrawn or waived, and the
defendant has the right of appeal.” See TEX. R. APP. P. 25.2(d) (requiring trial
court to certify defendant’s right of appeal). Further, the trial court stated, on the
record at the plea hearing, that because the court followed the plea agreement,
16 appellant “ha[s] a very limited right to appeal [the trial court’s] ruling for the
motion to suppress. . . . That is the only issue [appellant is] allowed to appeal.”
A plea-bargaining defendant may appeal matters raised by written motion
filed and ruled upon before trial. TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon
2006); TEX. R. APP. P. 25.2(a)(2)(A); see also Shankle v. State, 119 S.W.3d 808,
811–12 (Tex. Crim. App. 2003) (analyzing Texas Code of Criminal Procedure
article 44.02 and Texas Rule of Appellate Procedure 25.2(b)). When there is a
conflict between a trial court’s “Certification of Defendant’s Right to Appeal” and
a judgment concerning a defendant’s right to appeal, the certification controls,
especially when the remainder of the record supports the statement in the
certification. See Grice v. State, 162 S.W.3d 641, 645 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d). We further note that the State has not argued to this Court
that appellant has waived his right of appeal. See Willis v. State, 121 S.W.3d 400,
403 (Tex. Crim. App. 2003) (concluding record demonstrated defendant’s
intention to appeal, despite boilerplate waiver in plea agreement, when State did
not assert waiver in court of appeals); see also Tran v. State, No. 01-11-00141-CR,
2012 WL 3133925, at *10 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, pet.
ref’d) (mem. op., not designated for publication) (removing waiver language from
judgment where certification reflected defendant’s right to appeal and State did not
argue waiver).
17 Although the parties have not addressed the propriety of the trial court
judgment’s “special finding[] or order[]” regarding appellant’s right of appeal,
based on our review, we conclude that this portion of the judgment does not
accurately comport with the record. See Asberry v. State, 813 S.W.2d 526, 529–30
(Tex. App.—Dallas 1991, pet. ref’d) (authority to correct incorrect judgment not
dependent upon request of any party). “[A]n appellate court has authority to
reform a judgment to include an affirmative finding to make the record speak the
truth when the matter has been called to its attention by any source.” French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see also TEX. R. APP. P.
43.2(b). Because the code of criminal procedure and rules of appellate procedure
permit plea-bargaining defendants to appeal rulings on pre-trial motions, the trial
court certified appellant’s right of appeal, and the State does not argue that
appellant has waived his right of appeal, the record in this case supports
modification of the judgment. Cf. Tran, 2012 WL 3133925, at *10. Accordingly,
we modify the trial court’s judgment to strike the special finding or order of
“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”
18 Conclusion
We affirm the judgment of the trial court as modified.
Terry Jennings Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).