In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00427-CR
EARL WASHINGTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2009-422,738, Honorable William R. Eichman II, Presiding
October 10, 2018
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Earl Washington, appellant, appeals his murder conviction. The events underlying
the conviction suggest gang rivalry and retribution. The decedent, John Wilkerson, was
the victim of what some would consider a drive-by shooting. As he stood, a vehicle
containing appellant and two others approached him. Shots were fired. The approaching
vehicle left, and Wilkerson lay on the ground with fatal bullet wounds.
Three issues pend for our review. Through the first, appellant contends that the
trial court denied him his constitutional right of compulsory process. The second concerns the trial court’s decision to exclude the testimony of an inmate to whom Pat Davis
allegedly confessed as being the one who killed Wilkerson. Via the final issue, we are
asked to determine whether the trial court erred in refusing to suppress appellant’s
statements made over the course of several interviews with detectives. We affirm.
Issue One – Compulsory Process
We initially address appellant’s allegation that he was denied his constitutional
right to compulsory process. The record indicates that he had subpoenaed, three days
before trial began, a witness who lived in Dallas. Several days into trial and shortly before
the State completed its presentation of evidence, appellant asked the court to issue a writ
of attachment for the subpoenaed witness. The request was granted. Because the
witness lived in Dallas, appellant then attempted to have the Dallas County district clerk
issue the writ. They did not return his calls. By that time, the State had completed its
portion of the guilt phase, and appellant had begun presenting his defense.
Eventually, appellant “move[d] for a continuance to be able to compel this witness
to testify.” He explained that he undertook several unsuccessful attempts to contact the
witness and said: “So we ask - even if it is just for the morning to see if we can get that
writ . . . executed . . . then I’m asking for a continuance to get that witness here, because
. . . my client is guaranteed that right by the Constitution of the United States.” The trial
court granted appellant a continuance for “this morning only” to determine “if they’ve
served her with the writ, or if they can’t find her.” It then said that
I don’t know [if] she’s a necessary witness or not, number one. Number two . . . we’ve been trying this case for over a week, even if . . . the writ of attachment was served or sent to Dallas County on Friday . . . that’s a weekend of the trial. I mean, she was served on the 25th of August. So, I’m not going to
2 postpone it indefinitely. I will grant a continuance for the rest of the morning.
While the proceeding was recessed, appellant succeeded in contacting Dallas
County officials. They allegedly informed him that they had attempted to execute the writ,
found the witness’ residence, failed to find the witness, and would attempt to execute the
document later that evening. The situation led appellant to “move[] for additional time to
get that witness present.” He did not present any evidence suggesting that the Dallas
County officials would meet with success or that the witness would be found. In answer
to the request for further postponement of the trial, the court replied with: “I’m going to
deny that motion at this time.” After a brief exchange with defense counsel, the court
reiterated: “I’m denying your motion for continuance.”
Appellant purportedly needed the missing witness to rebut evidence presented by
the State. That evidence was used by the State to develop appellant’s alleged motive for
killing Wilkerson. According to appellant, the missing witness would testify that the
events from which such motive supposedly arose did not occur. He now argues that:
“[u]nder the Compulsory Process Clause, [appellant] had a constitutional right to present
this rebuttal eyewitness testimony. The trial court, however, refused to give [him] a short
continuance so as to allow [him] time to get his witness to Lubbock. In so ruling, the trial
court hamstringed [appellant’s] entire defense and violated his constitutional rights.”
(Emphasis added). We overrule the issue.
Though placed under the umbrella of a constitutional right to compulsory process,
appellant complains of the trial court’s refusal to grant him “a short continuance.” The
continuance in question was his second. Again, one had been granted for the morning,
as requested by appellant. Once it was determined that the witness was not found when
3 officials attempted to serve the writ, the trial court denied appellant’s second oral request
for postponement.
Statute provides that a “criminal action may be continued on the written motion of
the State or of the defendant, upon sufficient cause shown.” TEX. CODE CRIM. PROC. ANN.
art. 29.03 (West 2006). Such a motion must also be “sworn to by a person having
personal knowledge of the facts relied upon for the continuance.” Id. art. 29.08. Appellant
filed no written motion for continuance sworn to by one having personal knowledge of the
facts. Thus, he did not preserve his complaint about being denied a “short continuance”
to secure a witness. See Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009)
(holding that “if a party makes an unsworn oral motion for a continuance and the trial
judge denies it, the party forfeits the right to complain about the judge’s ruling on appeal”);
accord Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (holding the
same). That he may couch his complaint in the vernacular of the Sixth Amendment right
to compulsory process is of no consequence. His request for a continuance to assure
enjoyment of that right still had to comply with the aforementioned statutes; that is, it still
had to be in writing and made under oath. Anderson, 301 S.W.3d at 280; Cerf v. State,
366 S.W.3d 778, 787 (Tex. App.—Amarillo 2012, no pet.). We overrule the issue.1
Issue Two – Exclusion of Evidence
Appellant next asserts that the trial court erred in excluding testimony that Pat
Davis confessed to a “fellow inmate” that he (Davis) not only boasted about how he hurt
people but also murdered John Wilkerson. We overrule the issue.
1Because preservation of error is a systemic requirement on appeal, a court of appeals should
review preservation of error regardless of whether the issue was raised by the parties. See Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014); see also Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)
4 Though appellant was denied opportunity to have Gordon Granberry reiterate
Davis’ comments about killing John Wilkerson, he succeeded in having like statements
admitted via at least one other witness. The individual testified to hearing Davis yell: “I’m
a killer. They can’t play me. Oh, yeah, I did it. I killed that nigger, John.” Once that was
said, appellant’s counsel then asked: “And did you also say that you never knew that Pat
Davis was involved in John-John’s murder until that night because it came out of his own
mouth?” To that, the witness answered: “Well, I actually didn’t know who all was involved,
but by me hearing that made - it confirmed that he was a part of them.” Assuming
arguendo that the trial court erred in excluding Granberry’s testimony reiterating another
instance about Davis admitting his complicity, the error was harmless given that
substantially identical evidence was admitted elsewhere without objection. See Womble
v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981) (observing that “[t]his
court has consistently held reversal is not required by exclusion of evidence where the
same testimony was later admitted without objection”); Pierce v. State, No. 05-12-00940-
CR, 2013 Tex. App. LEXIS 9876, at *10 (Tex. App.—Dallas Aug. 7, 2013, pet. ref’d) (not
designated for publication) (stating that “[i]t is well settled that an error in admission or
exclusion of evidence is cured where the same evidence comes in elsewhere without
objection”); Edwards v. State, No. 07-03-0221-CR, 2004 Tex. App. LEXIS 3736, at *3-4
(Tex. App.—Amarillo Apr. 28, 2004, no pet.) (mem. op., not designated for publication)
(stating that “[t]he standard on exclusion of cumulative evidence and harmless error
dictates that no harm results when evidence is excluded if other similar evidence is
admitted”).
Issue Three – Custodial Interrogation
5 We next address appellant’s last issue. Again, he asserts that the trial court erred
in denying his motion to suppress statements given to detectives investigating the murder.
The statements were made while appellant was within federal custody. Appellant had
invited the detectives to come talk with him about the occurrence. They did, but without
recording the interviews or mirandizing appellant. That purportedly rendered the
appellant’s statements inadmissible. We overrule the issue.
The decision of the trial court to deny a suppression motion is reviewed under the
standard of abused discretion. Applin v. State, No. 07-17-00214-CR, 2018 Tex. App.
LEXIS 6681, at *5 (Tex. App.—Amarillo Aug. 22, 2018, no pet.) (mem. op., not designated
for publication). Per that standard, we afford almost complete deference to its
determinations of historical facts but review de novo its application of those facts to the
law. Id. The standard also obligates us to recognize the trial court as the sole trier of
fact and judge of witness credibility. Id. at *5-6; accord Lerma v. State, 543 S.W.3d 184,
189-90 (Tex. Crim. App. 2018) (stating the same). So too does it require us to view the
evidence of record in a light most favorable to the trial court’s ruling. Lerma, 543 S.W.3d
at 189-90.
Next, inculpatory statements of one in custody normally are inadmissible unless
the declarant was informed of his Miranda2 rights, and the statements were taken in
conformity with article 38.22 of the Texas Code of Criminal Procedure. See Herrera v.
State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (stating that “[u]nwarned statements
obtained as a result of custodial interrogation may not be used as evidence by the State
in a criminal proceeding during its case-in-chief”); TEX. CODE CRIM. PROC. ANN. art. 38.22,
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6 § 2(a) (West 2018) (stating that “[n]o written statement made by an accused as a result
of custodial interrogation is admissible as evidence against him in any criminal proceeding
unless . . . “). The former consists of telling the individual that he has the right to remain
silent, that any statement made may be used as evidence against him, that he has the
right to have an attorney present during questioning, and that, if he is unable to hire an
attorney, he has the right to have an attorney appointed if he cannot afford one. Lamper
v. State, No. 07-18-00035-CR, 2018 Tex. App. LEXIS 6788, at *7-8 (Tex. App.—Amarillo
Aug. 24, 2018, no pet. h.) (mem. op., not designated for publication). Article 38.22 also
requires that the declarant be told of those rights. Id.; see also TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 2(a)(1)-(5) (prohibiting the admission in a criminal proceeding of a
written statement made by an accused “as a result of custodial interrogation” unless the
face of the statement shows that the accused, prior to making the statement was told 1)
he had the right to remain silent and not make any statement at all and that any statement
he made may be used against him at his trial; 2) any statement he made may be used as
evidence against him in court; 3) he had the right to have a lawyer present to advise him
prior to and during any questioning; 4) if he were unable to employ a lawyer, he had the
right to have one appointed to advise him prior to and during any questioning; and 5) he
had the right to terminate the interview at any time). But, it adds another admonition; that
is, the person must also be told that the he has the right to terminate the questioning at
any time. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(5); Lamper, 2018 Tex. App.
LEXIS 6788, at *7-8.
Here, appellant was interviewed multiple times by detectives investigating the
murder of Wilkerson. The interviews apparently were conducted in a room or holding cell
7 monitored or controlled by federal authorities at the time given that he was in the custody
of federal authorities. None of those interviews were preceded with the detectives
mirandizing appellant or admonishing him that he could terminate the interview. And,
because appellant believed himself to be in custody at the time, he concludes that the
trial court was obligated to suppress the information he provided. The dispute, however,
centers on whether appellant was actually in custody as that term is construed for
purposes of Miranda and article 38.22. This is so because an individual’s Fifth
Amendment rights do not come into play if he is not in custody and any interrogation is
not yet custodial. Killebrew v. State, No. 01-17-00367-CR, 2018 Tex. App. LEXIS 6890,
at *10 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet.) (mem. op., not designated
for publication). The same is also true regarding compliance with Miranda and article
38.22; the interrogator need not abide by either if the interview is not custodial. Id.
Custody usually arises either when one is formally arrested or when the person’s
freedom of movement has been restrained to the degree associated with a formal arrest.
Nguyen v. State, 292 S.W.3d 671, 677 (Tex. Crim. App. 2009); see Herrera v. State, 241
S.W.3d at 525 (quoting Miranda, 384 U.S. at 444, and defining custodial interrogation for
purposes of Miranda as “‘questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way’”). And, whether one is in custody presents a mixed question of law and
fact. Herrera, 241 S.W.3d at 526. So too does the burden lie with the defendant or
person being questioned to establish that he was in custody. Id.; Carmona v. State, No.
07-17-00018-CR, 2018 Tex. App. LEXIS 6185, at *5 (Tex. App.—Amarillo Aug. 7, 2018,
pet. filed) (mem. op., not designated for publication).
8 Furthermore, analysis of the topic encompasses the examination of all the
objective circumstances surrounding the questioning. Herrera, 241 S.W.3d at 525. The
interrogator’s subjective belief that the individual being questioned is a “suspect” may be
one of those circumstances, but that is so only when the belief is somehow imparted to
the alleged suspect. Id. Otherwise, it is irrelevant. Id. That the interview occurred while
the person was jailed on unrelated charges may also form a component of the equation.
But, as said in Herrera, “incarceration does not always constitute ‘custody’ for Miranda
purposes when an inmate is questioned by law enforcement officials ‘regarding an
offense separate and distinct from the offense for which he was incarcerated.’” Id. at 531
(quoting United States v. Menzer, 29 F.3d 1223, 1231 (7th Cir. 1994)). In such situations,
we still apply the “traditional ‘custody’ analytical framework’”. Id. at 532. And, the focus
remains on two discrete inquiries into 1) the circumstances surrounding the interview and
2) given those circumstances, whether a reasonable person could have felt he was not
at liberty to end the interview and leave. Id. Yet, some differing indicia should be
considered in making those inquires. Though not exclusive, they are 1) the language
used to summon the prisoner or detainee, 2) the physical surroundings of the interview,
3) the extent to which the detainee is confronted with evidence of his guilt during the
interview, 4) the pressure, if any, exerted on the person being questioned, 5) a change in
the person’s surroundings which result in added restriction upon the detainee’s freedom,
6) the detainee’s ability to leave the interview when he chooses, and 7) the purpose,
place, and length of questioning. Id.; Carrasco v. State, No. 07-14-00001-CR, 2015 Tex.
App. LEXIS 10790, at *12 (Tex. App.—Amarillo Oct. 20, 2015, pet. ref’d) (mem. op., not
designated for publication).
9 In analyzing the issue at bar, appellant spent little time discussing the factors
alluded to in Herrera. Instead, he began by accusing the State of engaging in “shallow
analysis” below. Yet, the burden lay with him to prove custody, not the State to disprove
it. And, here his effort focused on 1) whether or not the detectives had basis to believe
and actually believed he was a suspect in their murder investigation, 2) the detectives
appeared at the investigation for the purpose of gaining evidence while suspecting him of
Wilkerson’s murder, 3) the detectives’ concession that appellant was in custody, and 4)
his purported belief that he had been granted immunity.
As for the matter of appellant being considered a suspect, he fails to cite us to
evidence that either detective revealed to him (in some form or fashion) during the
interviews that he was a suspect. So, whether or not they actually viewed him as a
suspect at the time is irrelevant per Herrera.
Next, it is true that the detectives testified that appellant was in “custody” when the
interviews occurred. Nonetheless, the trial court obviously viewed those statements as
meaning something other than custody for the purposes of the interrogation being
conducted by the detectives. If this were not so, then its decision, most likely, would have
differed.
Obviously, appellant was in custody at the time of the interviews. He was being
held by the United States. He apparently had been arrested and detained pending some
federal criminal prosecution. So, he was not free to leave the facility within which the
federal government was housing him and the interviews were transpiring. Yet, as held in
Herrera, being incarcerated does not ipso facto equate custody for purposes of affording
the inmate his Miranda warnings or otherwise complying with article 38.22 of the Texas
10 Code of Criminal Procedure. So, merely asking a detective whether appellant was “in
custody” under these circumstances is hardly the concession that appellant suggests it
to be. It is hardly the concession that appellant was in custody for purposes of
admonishing him per Miranda and complying with article 38.22.
Furthermore, one detective would eventually clarify that appellant was in custody
“in Midland” where federal authorities were holding appellant. That suggests the detective
was referring to federal custody when acknowledging appellant’s status as being in
custody, not custody for purposes of the interviews. The same is true of the other
detective. He said appellant was “in custody” when appellant initially made contact from
Midland after being arrested by federal authorities and as part of a “federal proffer.” The
initial contact from Midland happened before the detectives interviewed appellant there.
So, this detective referring to appellant being in custody also can be viewed as reference
to appellant being in federal custody as opposed to custody relative to Miranda and article
38.22, or so the trial court could have reasonably construed the testimony.
Indeed, it would have behooved the litigants to have created a relevant framework
for the detectives before the latter were asked vague questions of law and fact like “was
appellant in custody.” While one can see why a defendant may want to leave the term
“custody” vague in situations akin to that at bar, pivotal witnesses should be provided
definitions of legal terms before being asked questions and applying them to various facts.
Luckily the context within which the detectives spoke here was enough to indicate that
they did not favor appellant with the concession he wants us to believe they gave him.
As for the purported belief that he had immunity, that may or may not be indicia in
the custody equation. After all, Herrera did not purport to itemize an exclusive list of
11 circumstances. Nevertheless, evidence appears of record indicating that while in federal
custody, appellant sought to cooperate in the Wilkerson investigation. He apparently
opted to do so as a means of minimizing a potential federal prison sentence. So,
appellant initiated contact with the detectives, and they drove to Midland (and later Ector)
County where he was being held.3 Four law enforcement officials, appellant, and
appellant’s attorney were present when the first interview occurred. At that time, one of
the detectives may have told appellant that if he provided useful information which did not
inculpate him in a violent crime, the information would not be used against him.4 Given
this, a detective may have said things that led appellant to believe he had some type of
immunity.
But, appellant’s believing he had immunity impacts the inquiry in a manner that he
may have not expected. It would suggest that 1) he did not think he was subject to
prosecution for the murder investigation and 2) his own guilt for the murder was not a
matter of discussion by either appellant or the detectives. Again, one of the indicia to
peruse is the extent to which the detainee was confronted with evidence of his guilt during
the interview. Being told his comments would not be used against him tends to weigh
against the possibility that the detectives were mining for evidence with which to
prosecute appellant or otherwise accusing appellant of the murder during the interviews.
3 Evidence indicates that this was not the first time appellant initiated contact with those investigating the murder. He apparently did so shortly after the killing. After appellant made contact, a detective went to his house and transported him to the police station. The detective returned him to his house once appellant gave a statement. Other evidence suggests that appellant had a pre-existing relationship with one of the detectives wherein he would provide information regarding other investigations. 4 We say “may have told” because the detective was somewhat unclear on this at the suppression hearing, and neither the State nor appellant sought to clarify his testimony.
12 We next note that the transcript memorializing the suppression hearing says little
about what was asked and answered. It says little about the physical surroundings in
which the interviews were conducted (other than it being a facility in the control of federal
authorities) or the tenor of the questions being asked. Whether they were aggressive or
accusatory is unknown, though one detective likened the exchanges to a “free flow.” Nor
is anything said about the length of the interviews or the effect, if any, the interviews had
upon the nature of appellant’s continued confinement by the federal authorities. On the
other hand, it does reveal a general willingness on the part of appellant to talk. Not only
did he initiate the interrogations, he also asked if there was anything else he could help
with as the detectives stood to leave the first interview. At that time, his attorney also
invited the detectives to speak with his client in the future at their pleasure. During the
second interview instigated by appellant, he apparently began the exchange by handing
the detectives a letter he had written prior to their arrival.
Reading the evidence of record in a light most favorable to the trial court’s ruling,
we conclude that it would have permitted the trial court to reasonably infer that appellant
was quite comfortable with the environment in which the questioning occurred and felt
little to no pressure from the detectives to interact with them. It could even have led the
trial court to infer that appellant felt somewhat in control. This seems supported by his
instigation of the meeting. To that we add evidence of his telling others that 1) “I am going
to do what is right. Every move I make is going to be beneficial;” 2) “Blondie [Detective
Koontz] . . . has been on my ass . . . trying to catch me slipping but I always made wise
decisions;” 3) “I know a lot [sic] of real homies that make deals when the feds make threats
so that’s where I step in at because I need a deal;” and 4) “[m]y every move is a great
13 move.” These comments appeared in letters written at the time he was meeting with the
detectives.5 In their totality, the circumstances evince a bit of manipulation on appellant’s
part to utilize the interviews as a means of helping himself via proceedings he was free
to begin and end. They did not compel the trial court to find that appellant was in custody
when they occurred, despite his being incarcerated. That, in turn, obligates us to deem
the trial court’s refusal to grant appellant’s motion to suppress as a legitimate exercise of
discretion.
We overrule appellant’s issues and affirm the trial court’s judgment.
Brian Quinn Chief Justice
Do not publish.
5 These letters may not have been before the trial court at the suppression hearing, and normally our review is limited to the record developed at the hearing. Black v. State, 362 S.W.3d 626, 631 (Tex. Crim. App. 2012) (quoting Hardesty v. State, 667 S.W.2d 130 (Tex. Crim. App. 1984). Yet, appellant said he renewed at trial his objections to the use of his interview statements. So, the matter was reopened. That would authorize us to consider evidence presented at trial to assess whether the trial court should have suppressed the statements. Id. at 635-36. Additionally, appellant himself referred to correspondence with others when arguing that he was led to believe he was the beneficiary of immunity. That correspondence was not part of the suppression hearing. So, to the extent that appellant opened the door to extraneous evidence touching upon matters of suppression, we see little problem in walking through it and perusing other correspondence from him written during the same period.