PD-0573-15 NO. _______________
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Cliff Douglas Parker, Appellant v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
FORT WORTH, TEXAS
NO. 02-14-00044-CR
TARRANT COUNTY TRIAL COURT NO. 1329800
May 12, 2015 R. Scott Walker STATE BAR # 24004972 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 478-9999 (817) 977-0163 FACSIMILE Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED 1 PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all counsel.
Appellant: CLIFF DOUGLAS PARKER
Trial Counsel: David C. Jones Attorney at Law 3001 W. 5th Street, Suite 200 Fort Worth, Texas 76107
Appellate Attorney R. Scott Walker for Appellant: Attorney at Law 222 W. Exchange Ave. Fort Worth, Texas 76164
Appellee: The State of Texas
Trial Attorney for D. Miles Brissette & Appellee: Betty Arvin Tarrant County Assistant District Attorneys 401 W. Belknap, Fort Worth, Texas 76196
Appellate Attorney for Sharen Wilson Appellee: Tarrant County District Attorney 401 W. Belknap, Fort Worth, Texas 76196
2 TABLE OF CONTENTS PAGE IDENTITY OF PARTIES AND COUNSEL . . . . . . . . 2 TABLE OF CONTENTS. . . . . . . . . . . . . . . . 3 INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4 STATEMENT DECLINING ORAL ARGUMENT. . . . . . . . 5 STATEMENT OF THE CASE . . . . . . . . . . . . . . 6 STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . . 7 QUESTIONS PRESENTED . . . . . . . . . . . . . . . 7 STANDARD OF REVIEW. . . . . . . . . . . . . . . . 8 ARGUMENT (Whether the trial judge erred in denying Defendant’s Motion to suppress the in-car video and all evidence obtained against the Defendant as a result of the illegal interrogation depicted on the video . . . . . . . . . . . . . . . . . . 8 PRAYER . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF SERVICE . . . . . . . . . . . . . 16 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 16
3 INDEX OF AUTHORITIES CASES
Dowthitt v. State, 931 S.W. 2d 244 (Tex.Crim.App. 1996) . . . . 11
Garcia v. State, 829 S.W.2d 796 (Tex.Crim.App. 1992). . . 14, 15
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). . . . . . 8
Morgan v. State, 688 s.W.2d 504 (Tex.Crim.App. 1985). . . . . . 7
Nix v. Williams, 467 U.S. 431 (1984) . . . . . . . . . . . . . 14
Rivera v. State, 808 S.W.2d 80 (Tex.Crim.App. 1991). . . . . . 8
Shiflet v. State, S.W.2d 622,629 (Tex.Crim.App. 1985) . . . 9, 11
Stansbury v. California, 511 U.S. 318 (1994). . . . . . . . . . . . . 10
State v. Daugherty, 931 S.W.2d 268 (Tex.Crim.App. 1996) . . . . . 12
STATUTES
Texas Code of Criminal Procedure, Art. 44.02 . . . . . . . . . . . . . . . . . . 7
Texas Code of Criminal Procedure, Art. 38.22 §2 (a). . . . . . . . . . . . . . 10
4 Texas Code of Criminal Procedure, Art. 38.22 §5 . . . . . . . . . . . . . . . 10
Texas Code of Criminal Procedure, Art. 38.23. . . . . . . . . . . . . . . . . 12
STATEMENT DECLINING ORAL ARGUMENT
Oral argument of this case is not requested on
behalf of Appellant, and is hereby waived.
5 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. CLIFF DOUGLAS PARKER, Appellant-Applying for Review
V.
THE STATE OF TEXAS, Appellee
************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:
STATEMENT OF THE CASE
This appeal has resulted from a criminal
prosecution for capital murder. A suppression
hearing was held that began on the 6th day of
January, 2014, and concluded on the 13th day of
January, 2014. (R.R., Vol. 3 p.87). The
suppression motion was partially granted and
partially denied. (R.R., Vol. 3, p. 81-82). On
the 14th day of January, 2014, a jury was selected.
(R.R., Vol. 4). On the 15th day of January, 2014,
6 after the ruling on the suppression motion, the
trial commenced. (R.R., Vol. 5). On the 18th day
of January, 2014, the jury found Appellant guilty
of the lesser included offense of manslaughter.
The next Wednesday, the jury set punishment at
imprisonment for life. (R.R., Vol. 8, p.119).
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written non-published memorandum
opinion on April 16, 2015. The deadline for filing
a Petition for Discretionary Review is May 16,
2015.
QUESTION PRESENTED FOR REVIEW
The trial judge erred in denying Defendant’s
Motion to suppress the i- car video and all
evidence obtained against the Defendant as a result
of the illegal interrogation depicted on the video.
STANDARD OF REVIEW
The Texas Court of Criminal Appeals set forth
the standard of review for a denial of a motion to
suppress under an abuse of discretion standard.
7 Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.
1991). The evidence is viewed in the light most
favorable to the trial court’s findings. Almost
total deference is given to findings of fact that
have support in the record. However, when a
determination of a fact issue cannot be determined
by looking to the credibility or demeanor of the
witness, the trial court’s determination of the law
and the application of the law to the facts are
reviewed de novo. Guzman v. State, 955 S.W.2d 85,
89 (Tex.Crim.App. 1997).
ARGUMENT
The Court of Appeals held that Cliff Parker’s
statements, which were made while he was in the
back seat of a police cruiser in what is commonly
referred to as ‘the cage,’ were admissible because
Mr. Parker was free to leave at any time. However,
as the opinion states, a person is in custody when
law enforcement officers create a situation that
would lead a reasonable person to believe that his
freedom of movement has been significantly
restricted. Court of Appeals Opinion, p. 5., 8 Shiflet v. State, S.W.2d 622,629 (Tex.Crim.App.
1985). Cliff Parker was placed in ‘the cage’ for
one hour and sixteen minutes. The majority of that
time, a police officer had the door open, was
kneeling in front of the door, and was
interrogating Mr. Parker. The officer certainly
did not tell Cliff Parker that he could leave. Any
reasonable person in that situation would believe
that his freedom of movement had been significantly
restricted.
Motion to suppress the in-car video and all
The trial judge made it clear that she did believe
statements depicted on the video were in response
to police interrogation. (R.R. Vol. 3, p. 79).
Therefore, her only reason for denying the motion
was her belief that Cliff Parker was not in custody
while placed in the backseat of a police car with
no means of escape for one hour and sixteen
minutes. She specifically stated that she was 9 denying the motion to supress the video because
Cliff was not in custody at the time of the
statement. (R.R. V. 3, p. 81).
Article 38.22 of the Texas Code of Criminal
Procedure provides that no statement of an accused
made as a result of custodial interrogation shall
be admissible against the accused in a criminal
proceeding unless the accused is warned of his
rights during the recording but before making the
statement, and the accused knowingly, intelli-
gently, and voluntarily waives any rights set out
in the warning. Crim. Proc. Art. 38.22, §2(a).
Article 38.22 does not preclude admitting
statements that do not stem from custodial inter-
rogation. Crim. Proc. Art. 38.22 § 5.
A person is in custody for purposes of Article
38.22 if there is restraint of freedom of movement
to the degree associated with a formal arrest.
Stansbury v. California, 511 U.S.318, 322 (1994)
(per curiam). As stated earlier, a person is in
custody when law enforcement officers create a
situation that would lead a reasonable person to 10 believe that his freedom of movement has been
significantly restricted. Court of Appeals
Opinion, p. 5., Shiflet v. State, S.W.2d 622,629
(Tex.Crim.App. 1985). The determination of custody
is made on an ad hoc basis after considering all of
the objective circumstances. Dowthitt v. State, 931
S.W.2d 244, 255 (Tex.Crim.App. 1996).
Cliff Parker was placed in a police car for one
hour and 16 minutes, believing that he was not free
to leave. (R.R. Vol. 3, 78). The doors on the
police car do not open from the inside, and there
is a plexi-glass wall between the front and back
seat. (R.R. V. 5, p. 253 and 255). When any
reasonable person is in a situtation where it is
impossible to leave, that person would certainly
not believe he can just walk away at any minute he
chooses. Officer Minter patted Cliff down prior to
putting him in the car. (R.R. Vol. 5, p. 251).
The officer then reached up and pointed the in-car
camera toward Cliff Parker. (R.R. Vol. 5, p. 253).
Under these circumstances, there was certainly
restraint of freedom of movement to the degree 11 associated with a formal arrest. Cliff Parker was
in custody for purposes of 38.22.
Causation and the Exclusionary Rule
The common law exclusionary rule has been
codified in Texas. The applicable portion of the
statute reads:
No evidence obtained by an officer or other
person in violation of any provisions of the
Constitution or laws of the State of Texas,
or of the Constitution or laws of the United
States of America, shall be admitted in evi-
dence against the accused on the trial of any
criminal case. Tex. Code Crim. Proc. Ann.
Art. 38.23.
“Once the illegality and its causal connection to
the evidence have been established, the evidence
must be excluded.” State v. Daugherty, 931 S.W.2d
268, 270 (Tex.Crim.App. 1996). Therefore, all
evidence in the instant case obtained due to police
illegally interrogating Cliff in the back of the
police car without reading Miranda warnings should
have been suppressed. 12 There is a direct causal connection between the
illegal interrogation depicted on the in-car video
and the subsequent interrogations, one of which
contains a partial confession. After talking to
officers at the scene which had talked to Cliff
while he was in the backseat of the police car,
Dectective Boetcher decided to immediately
interrogate Cliff at the station (R.R. Vol.6, p.
113). Then, after the custodial interrogation at
the police station, the detectives tried to
interview Cliff on a daily basis. They could not
do so due to the fact that Cliff was in the
hospital. After about two weeks, the interrogation
took place in which Cliff gave a partial
confession. (R.R. V. 6, p. 136). It is likely
that the partial confession would have never
happened absent the illegal interrogation depicted
in the in-car video.
The State would like to argue that even had the
officers not interrogated Cliff in the police car,
they would have possibly decided to legally
interrogate Cliff at some later date and the 13 partial confession would have happened then,
bringing about the inevitable discovery of the
evidence through legal means, and that the evidence
would, therefore, not be subject to the
exclusionary rule. However, the Texas Court of
Criminal Appeals has foreclosed the fruitfulness of
that argument. Garcia v. State, 829 S.W.2d 796,
800 (Tex.Crim.App. 1992). Under the federal
exclusionary rule, such an argument would prevail.
The doctrine is called the inevitable discovery
doctrine. The doctrine would require that when
evidence has been obtained by illegal means, and
the evidence would have been legally obtained had
the illegality not occurred, then the evidence is
not subject to the exclusionary rule. Nix v.
Williams, 467 U.S. 431, 444 (1984).
However, the inevitable discovery doctrine is
not applicable to the statutory exclusionary rule
in Texas. Garcia v. State, 829 S.W.2d 796, 800
(Tex.Crim.App. 1992). The holding was based on
statutory construction principles. The Court
stated, “Because article 38.23 is an enactment of 14 our legislature, it represents the democratic will
of Texans, not merely an evidentiary adjustment
made by the courts to remedy violations of the
law.” Garcia v. State, 829 S.W.2d 796, 798
(Tex.Crim.App. 1992). The legislature has met
several times since the Garcia case was decided,
and has not amended the statute to include an
inevitable discovery exception. Therefore, it can
be reasonably inferred that the democratic will of
the people is to not allow evidence to be admitted
in criminal prosecutions in Texas under the
inevitable discovery doctrine, regardless of any
possible repugnant effects of such an application
of law. All the evidence obtained after the
illegal acts of police in the instant case has a
direct causal connection to illegal acts of the
police and must be excluded as a matter of law.
PRAYER
WHEREFORE, PREMISES CONSIDERED, CLIFF DOUGLAS
PARKER, Appellant, prays that this Petition for
Discretionary Review be granted; that this case be
submitted to the Court; that the Court of Appeals 15 decision be reversed and for such other relief for
which he shows himself entitled.
Respectfully Submitted,
/s/ R. Scott Walker By: R. SCOTT WALKER 222 W. Exchange Ave. Fort Worth, Texas 76164 (817) 478-9999 (817) 977-0163 Fax Attorney for Appellant
CERTIFICATE OF SERVICE A copy of this petition was served by first class mail to the Office of Criminal District Attorney, Tarrant County Courthouse, 401 W. Belknap, Fort Worth, Texas 76196 and to the State Prosecuting Attorney at P.O. Box 12405, Austin, Texas 78711 on the 12th day of May, 2015.
/s/ R. Scott Walker R. SCOTT WALKER CERTIFICATE OF COMPLIANCE I certify that this document complies with the length requirements as set forth by the Texas Rules of Appellate Procedure in that this document contains 2400 words, and that the document is in 14 point type.
/s/ R. Scott Walker R. SCOTT WALKER
16 APPENDIX
17 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
CLIFF DOUGLAS PARKER APPELLANT
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1329800R
MEMORANDUM OPINION 1
Appellant Cliff Douglas Parker was charged by indictment with capital
murder. The jury convicted him of the lesser included offense of manslaughter
and assessed his punishment at life imprisonment. The trial court sentenced him
accordingly. In a single issue, Appellant contends that the trial court reversibly
erred by denying his motion to suppress his interview with a lieutenant of the fire
1 See Tex. R. App. P. 47.4. department and all evidence stemming from the interview. Because the trial
court did not err in denying Appellant’s motion to suppress, we affirm the trial
court’s judgment.
Brief Facts
Officers Lindsey Stewart and Carson Bell were dispatched to a house fire.
The officers could see the flames “all the way down the block.” They arrived
before any other officers or firefighters. When they arrived at the scene, a
woman screamed that someone was still inside the burning house. Stewart and
Bell ran to the house. They saw Appellant standing on the porch, “nonchalantly”
smoking a cigarette. The officers ignored Appellant and kicked the door open.
As the officers entered the house, they saw an unconscious woman (Betty
Roberts) lying face down on the floor.
As the officers attempted to remove Roberts from the burning house,
Appellant came inside and put his hands on Stewart’s back, blocking her
progress and causing her to drop Roberts. Stewart pushed Appellant and
resumed her attempt to remove Roberts from the burning building. Again,
Appellant blocked Stewart, causing her to drop Roberts a second time. Out of
concern for Bell’s, Roberts’s, and her own safety, Stewart pushed Appellant as
hard as she could. He fell outside onto the porch. The officers were then able
to remove Roberts from the house.
Once outside, the officers tried to move Roberts to a safer location.
Appellant straddled Roberts and held her against the ground, blocking the
2 officers’ efforts. The officers grabbed him by the shoulders and pulled him off of
Roberts, and eventually they were able to move Roberts to the yard.
Stewart asked Appellant if anyone else remained in the house. He did not
answer. Stewart demanded that Appellant tell her if anybody was still in the
house. Finally, Appellant told her that someone was still in the back bedroom.
As the officers prepared to re-enter the house, the fire department arrived.
Stewart told them that someone was still in the house. The firemen entered the
house and retrieved the second person.
Another officer brought Appellant to Officer James Minter. Because of the
chaos of the still-active fire scene, Minter asked Appellant to wait in the back of
his police cruiser, and Appellant complied. Minter testified that he did not place
Appellant under arrest. He did not handcuff Appellant; he did not tell Appellant
that he was under arrest; he did not tell Appellant that he could not leave; and he
would have allowed Appellant to leave had Appellant asked to do so.
About twenty-three minutes after Minter directed Appellant to wait in the
police cruiser, Lieutenant Steve Larison of the Fort Worth Fire Department
interviewed Appellant. In an attempt to learn details that might help his
investigation and identify residents of the burning house, Larison talked to
Appellant for about twenty minutes. At this point, Larison had yet to determine
the cause of the fire. The cruiser’s video camera recorded the interview. After
more investigation, Appellant was charged with arson.
3 Roberts later died from injuries she suffered during the fire. Appellant was
then re-indicted for arson-based capital murder. The trial court determined that
Appellant was not in custody when the interview occurred and that the video of
the interview was therefore admissible as a matter of law.
Admissibility of the Statement
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 2 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. 3
Appellant argues that Miranda warnings were required because he was
subjected to custodial interrogation. 4 Additionally, code of criminal procedure
article 38.22 generally precludes the use of statements resulting from custodial
interrogation absent compliance with its procedural safeguards. 5
2 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 3 Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). 4 See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). 5 Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West Supp. 2014).
4 As the State points out, the Texas Court of Criminal Appeals has outlined
four general situations which may constitute custody: (1) when the suspect is
physically deprived of his freedom of action in any significant way, (2) when a
law enforcement officer tells the suspect that he cannot leave, (3) when law
enforcement officers create a situation that would lead a reasonable person to
believe that his freedom of movement has been significantly restricted, and (4)
when there is probable cause to arrest and law enforcement officers do not tell
the suspect that he is free to leave. 6
The State argues that the questioning of Appellant was not custodial
interrogation because, although Appellant was sitting in the back of Minter’s
police cruiser in what is commonly referred to as “the cage,” no one had
suggested that he was not free to leave; he was not handcuffed; if he had asked
to leave, he would have been allowed to leave; and police and firefighters were
trying to protect people and keep them safe in a chaotic, active fire scene. As
Judge Cochran has explained in describing the community caretaking function,
“[A police officer] is . . . expected to aid individuals who are in danger of physical
harm, to assist those who cannot care for themselves, and to provide other
services on an emergency basis.” 7
6 Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985). 7 Corbin v. State, 85 S.W.3d 272, 280 (Tex. Crim. App. 2002) (Cochran, J., concurring) (internal quotation marks and citations omitted).
5 Twenty-three minutes after Appellant entered the cruiser, Larison opened
its back door, knelt in front of the cruiser’s open door, and interviewed Appellant
as a witness to the fire. Larison inquired about Appellant’s description of the
events and facts known to him that might lead to additional information about the
cause of the blaze and about the identification of the residents of the burning
house. At that time, Appellant was not an arson suspect, and, as far as Larison
knew, Appellant was free to go when Larison left the interview. Indeed, at the
time of the interview, no arson investigation had begun.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
the wrong reason for its ruling. 8 The trial court’s determination that Appellant was
not in custody when he made his oral statements to Larison is supported by the
record. 9 We therefore hold that the trial court did not err by denying Appellant’s
motion to suppress, overrule his sole issue, and affirm the trial court’s judgment.
8 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), cert. denied, 541 U.S. 974 (2004). 9 See Dowthitt v. State, 931 S.W.2d 244, 254–56 (Tex. Crim. App. 1996).
6 /s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 16, 2015
7 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Cliff Douglas Parker § From Criminal District Court No. 2
§ of Tarrant County (1329800R)
v. § April 16, 2015
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Lee Ann Dauphinot______________ Justice Lee Ann Dauphinot