Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00516-CR
Kedreen Marque PUGH, Appellant
v.
The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6053 Honorable Stephanie R. Boyd, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice
Delivered and Filed: April 15, 2020
REVERSED AND REMANDED
Kedreen Marque Pugh was convicted by a jury of possession of a controlled substance with
intent to deliver. On appeal, Pugh challenges the trial court’s denial of his motion to suppress and
the admission of a firearm into evidence. Because we hold the trial court erred in denying the
motion to suppress Pugh’s statement, we sustain Pugh’s first issue, reverse the trial court’s
judgment, and remand the cause to the trial court for further proceedings consistent with this
opinion. 04-19-00516-CR
BACKGROUND
Pugh was arrested by a task force on an outstanding murder warrant while driving his
wife’s vehicle. After he was arrested and handcuffed, Pugh was placed in the back of a marked
patrol vehicle to be transported to police headquarters by uniformed officers Johnny Lopez and
Troy Thompson. The transporting officers were in contact with officers at the scene of the arrest
as Pugh provided information necessary for his wife to pick up her car. Detective Joe Rios, who
led the stop and arrest, drove the car from the highway access road to a gas station, but did not
undertake any search of the car. Instead, he intended to allow Pugh’s wife to pick up the car.
A few minutes after Pugh was driven from the scene of the arrest, the following exchange
occurred:
Pugh: Officer? Officer Lopez: Yes, sir. Pugh: I’m going to be honest, sir; I got stuff in the car, man. Officer Lopez: What do you got in the car? Pugh: I got drugs in the car, and I got a small handgun.
Officer Lopez radioed Detective Rios and informed him of Pugh’s statements. Prior to this
exchange, Pugh had not been read his Miranda warnings. Based on Pugh’s statements, Detective
Rios searched the car and found the drugs and handgun.
Pugh filed a motion to suppress claiming his statement regarding the drugs and handgun
being in the car was the result of custodial interrogation, and he had not been read his Miranda
warnings prior to making the statement. After a hearing, the trial court denied the motion.
STANDARD OF REVIEW
“We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review; fact findings are reviewed for an abuse of discretion, and applications of law are reviewed
de novo.” State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). In this case, the factual
circumstances under which Pugh made his statement are undisputed. The only evidence presented
-2- 04-19-00516-CR
at the hearing on the motion to suppress was the video recording of the exchange between Pugh
and Officer Lopez. No testimony was presented, and it was undisputed that Pugh was not read his
Miranda warnings before Officer Lopez asked him “What do you got in the car?” Accordingly,
“we are presented only with a legal issue.” Id.
DISCUSSION
“The Miranda rule generally prohibits the admission into evidence of statements made in
response to custodial interrogation when the suspect has not been advised of certain warnings
(including that the suspect has the right to remain silent and the right to counsel).” State v. Cruz,
461 S.W.3d 531, 536 (Tex. Crim. App. 2015). “Failure to administer Miranda warnings creates a
presumption of compulsion.” Oregon v. Elstad, 470 U.S. 298, 306 (1985). “Consequently,
unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment
must nevertheless be excluded from evidence under Miranda.” Id. at 307. “A Miranda violation
does not constitute coercion but rather affords a bright-line, legal presumption of coercion,
requiring suppression of all unwarned statements.” Id. at 306 n.1 (emphasis in original). “Thus,
in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant
who has suffered no identifiable constitutional harm.” Id. at 307.
“This is not to say, however, that all statements obtained by the police after a person has
been taken into custody are to be considered the product of interrogation.” Rhode Island v. Innis,
446 U.S. 291, 299 (1980). “In the Miranda context, ‘interrogation’ means ‘any words or actions
on the part of the police ... that the police should know are reasonably likely to elicit an
incriminating response from the suspect.’” Cruz, 461 S.W.3d 536 (quoting Innis, 446 U.S. at 300-
01). Thus, interrogation includes both “express questioning [and] its functional equivalents.” See
Innis, 446 U.S. at 300-01.
-3- 04-19-00516-CR
“A determination of whether or not an interrogation occurred focuses on the perceptions
of the suspect, not the intent of police.” Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San
Antonio 2005, no pet.) (citing Innis, 446 U.S. at 301). “However, the police cannot be held
responsible for the unforeseen results of their actions and words.” Id. (citing Innis, 446 U.S. at
301-02). “Thus, interrogation can only extend to words and actions of police officers that they
‘should have known’ would likely elicit an incriminating response.” Id.
In this case, Pugh told the officer he “was going to be honest with” him and that he had
“stuff in the car.” Based on this statement, Officer Lopez should have known Pugh was going to
make some type of incriminating statement, since he “was going to be honest with him” about the
“stuff” he had in the car. As a result, Officer Lopez should have known asking Pugh what he had
in the car would likely elicit an incriminating response. Therefore, because Pugh’s statement was
the result of custodial interrogation, the trial court erred in denying the motion to suppress the
statement. 1
“Because the alleged error is constitutional in magnitude, we conduct our assessment of
harm using the standard set forth in Rule 44.2(a) of the Rules of Appellate Procedure.” Lopez v.
State, 582 S.W.3d 377, 389 (Tex. App.—San Antonio 2018, pet. ref’d). Rule 44.2(a) provides that
an appellate court “must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” TEX. R. APP. P. 44.2(a). In conducting a harm analysis of an error involving a
constitutional protection, “the question for the reviewing court is not whether the jury verdict was
1 In its brief, the only case cited by the State in analyzing Pugh’s statement was England v. State, No. 12-01-00057- CR, 2002 WL 220861 (Tex. App.—Tyler Feb. 13, 2002, no pet.) (not designated for publication). In England, however, the appellant invoked his right to an attorney. 2002 WL 220861, at *1. The issue presented on appeal was whether the State established the appellant waived the right to counsel he previously invoked by initiating further conversation with the police. Id.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00516-CR
Kedreen Marque PUGH, Appellant
v.
The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6053 Honorable Stephanie R. Boyd, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice
Delivered and Filed: April 15, 2020
REVERSED AND REMANDED
Kedreen Marque Pugh was convicted by a jury of possession of a controlled substance with
intent to deliver. On appeal, Pugh challenges the trial court’s denial of his motion to suppress and
the admission of a firearm into evidence. Because we hold the trial court erred in denying the
motion to suppress Pugh’s statement, we sustain Pugh’s first issue, reverse the trial court’s
judgment, and remand the cause to the trial court for further proceedings consistent with this
opinion. 04-19-00516-CR
BACKGROUND
Pugh was arrested by a task force on an outstanding murder warrant while driving his
wife’s vehicle. After he was arrested and handcuffed, Pugh was placed in the back of a marked
patrol vehicle to be transported to police headquarters by uniformed officers Johnny Lopez and
Troy Thompson. The transporting officers were in contact with officers at the scene of the arrest
as Pugh provided information necessary for his wife to pick up her car. Detective Joe Rios, who
led the stop and arrest, drove the car from the highway access road to a gas station, but did not
undertake any search of the car. Instead, he intended to allow Pugh’s wife to pick up the car.
A few minutes after Pugh was driven from the scene of the arrest, the following exchange
occurred:
Pugh: Officer? Officer Lopez: Yes, sir. Pugh: I’m going to be honest, sir; I got stuff in the car, man. Officer Lopez: What do you got in the car? Pugh: I got drugs in the car, and I got a small handgun.
Officer Lopez radioed Detective Rios and informed him of Pugh’s statements. Prior to this
exchange, Pugh had not been read his Miranda warnings. Based on Pugh’s statements, Detective
Rios searched the car and found the drugs and handgun.
Pugh filed a motion to suppress claiming his statement regarding the drugs and handgun
being in the car was the result of custodial interrogation, and he had not been read his Miranda
warnings prior to making the statement. After a hearing, the trial court denied the motion.
STANDARD OF REVIEW
“We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review; fact findings are reviewed for an abuse of discretion, and applications of law are reviewed
de novo.” State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). In this case, the factual
circumstances under which Pugh made his statement are undisputed. The only evidence presented
-2- 04-19-00516-CR
at the hearing on the motion to suppress was the video recording of the exchange between Pugh
and Officer Lopez. No testimony was presented, and it was undisputed that Pugh was not read his
Miranda warnings before Officer Lopez asked him “What do you got in the car?” Accordingly,
“we are presented only with a legal issue.” Id.
DISCUSSION
“The Miranda rule generally prohibits the admission into evidence of statements made in
response to custodial interrogation when the suspect has not been advised of certain warnings
(including that the suspect has the right to remain silent and the right to counsel).” State v. Cruz,
461 S.W.3d 531, 536 (Tex. Crim. App. 2015). “Failure to administer Miranda warnings creates a
presumption of compulsion.” Oregon v. Elstad, 470 U.S. 298, 306 (1985). “Consequently,
unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment
must nevertheless be excluded from evidence under Miranda.” Id. at 307. “A Miranda violation
does not constitute coercion but rather affords a bright-line, legal presumption of coercion,
requiring suppression of all unwarned statements.” Id. at 306 n.1 (emphasis in original). “Thus,
in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant
who has suffered no identifiable constitutional harm.” Id. at 307.
“This is not to say, however, that all statements obtained by the police after a person has
been taken into custody are to be considered the product of interrogation.” Rhode Island v. Innis,
446 U.S. 291, 299 (1980). “In the Miranda context, ‘interrogation’ means ‘any words or actions
on the part of the police ... that the police should know are reasonably likely to elicit an
incriminating response from the suspect.’” Cruz, 461 S.W.3d 536 (quoting Innis, 446 U.S. at 300-
01). Thus, interrogation includes both “express questioning [and] its functional equivalents.” See
Innis, 446 U.S. at 300-01.
-3- 04-19-00516-CR
“A determination of whether or not an interrogation occurred focuses on the perceptions
of the suspect, not the intent of police.” Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San
Antonio 2005, no pet.) (citing Innis, 446 U.S. at 301). “However, the police cannot be held
responsible for the unforeseen results of their actions and words.” Id. (citing Innis, 446 U.S. at
301-02). “Thus, interrogation can only extend to words and actions of police officers that they
‘should have known’ would likely elicit an incriminating response.” Id.
In this case, Pugh told the officer he “was going to be honest with” him and that he had
“stuff in the car.” Based on this statement, Officer Lopez should have known Pugh was going to
make some type of incriminating statement, since he “was going to be honest with him” about the
“stuff” he had in the car. As a result, Officer Lopez should have known asking Pugh what he had
in the car would likely elicit an incriminating response. Therefore, because Pugh’s statement was
the result of custodial interrogation, the trial court erred in denying the motion to suppress the
statement. 1
“Because the alleged error is constitutional in magnitude, we conduct our assessment of
harm using the standard set forth in Rule 44.2(a) of the Rules of Appellate Procedure.” Lopez v.
State, 582 S.W.3d 377, 389 (Tex. App.—San Antonio 2018, pet. ref’d). Rule 44.2(a) provides that
an appellate court “must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” TEX. R. APP. P. 44.2(a). In conducting a harm analysis of an error involving a
constitutional protection, “the question for the reviewing court is not whether the jury verdict was
1 In its brief, the only case cited by the State in analyzing Pugh’s statement was England v. State, No. 12-01-00057- CR, 2002 WL 220861 (Tex. App.—Tyler Feb. 13, 2002, no pet.) (not designated for publication). In England, however, the appellant invoked his right to an attorney. 2002 WL 220861, at *1. The issue presented on appeal was whether the State established the appellant waived the right to counsel he previously invoked by initiating further conversation with the police. Id. Accordingly, the issue presented in England is readily distinguishable from the issue presented in the instant case.
-4- 04-19-00516-CR
supported by the evidence. Instead, the question is the likelihood that the constitutional error was
actually a contributing factor in the jury’s deliberations in arriving at that verdict.” Scott v. State,
227 S.W.3d 670, 690 (Tex. Crim. App. 2007); see also Snowden v. State, 353 S.W.3d 815, 822
(Tex. Crim. App. 2011) (noting considerations in deciding whether constitutional error resulted in
harm include “the nature of the error (e.g., erroneous admission or exclusion of evidence,
objectionable jury argument, etc.), whether it was emphasized by the State, the probable
implications of the error, and the weight the jury would likely have assigned to it in the course of
its deliberations”).
In this case, Pugh’s statement to Officer Lopez that he had drugs and a handgun in his
wife’s car led to the search of the car. Other than the expert’s testimony identifying the drug
recovered as heroin, the only witnesses to testify were Detective Rios and Officer Lopez, and both
witnesses testified regarding the statement. Finally, during closing argument, the State repeatedly
referred to the statement as evidence establishing Pugh’s possession of the heroin. Accordingly,
we hold the erroneous admission of Pugh’s statement likely was a contributing factor in the jury’s
deliberations in arriving at a guilty verdict and, therefore, resulted in harm.
CONCLUSION
The trial court’s judgment is reversed, and the cause is remanded to the trial court for
further proceedings consistent with this opinion.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
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