Tristen Omar Addison v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 13, 2024
• Docket: 01-23-00294-CR
• Status: Published

Opinion

Opinion issued August 13, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00294-CR ——————————— TRISTEN OMAR ADDISON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 85966-CR

OPINION

A jury convicted Appellant Tristen Omar Addison of possession of a

controlled substance with intent to deliver and sentenced him to 25 years’

imprisonment.1 On appeal, Addison claims the trial court erred in two ways, by

1 See TEX. HEALTH & SAFETY CODE § 481.115(c). (1) denying his motion to suppress statements he made while in custody and

(2) ordering him to repay his court-appointed attorney’s fees and costs. Because

Addison’s spontaneous statements were not the product of interrogation, we affirm

the trial court’s denial of the motion to suppress. And because the trial court ordered

Addison to repay his court-appointed attorney’s fees without inquiry into his ability

to pay and without evidence that he could pay, we modify the judgment to delete the

attorney’s fees assessment.

Background

In 2018, the Lake Jackson Police Department narcotics team began

investigating Addison. One early morning, a Special Response Team broke the door

down, and police entered Addison’s apartment with a search warrant. Investigator

M. Christopoulos read Addison Miranda2 warnings. Addison acknowledged each

right and waived it. Christopoulos asked Addison if there was “anything in here [he]

need[ed] to know about,” and Addison responded, “No, sir.” Police searched the

one-bedroom apartment with Addison in handcuffs.

Although police did not question Addison further, he made comments

referring to his backpack as his “survival kit,” and blurted out that he was not “a big-

time dope dealer and that he’s just trying to make it in this world.” From the

2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 backpack, police recovered crack cocaine, powder cocaine, a razor blade, a jar of

marijuana, a marijuana blunt, and a large cellophane baggie with smaller baggies

containing marijuana. Police also discovered a scale and $2,179 in cash. After the

search, police arrested Addison.

A grand jury indicted Addison for possession with intent to deliver between

four and 200 grams of cocaine. Based on previous convictions, Addison was subject

to a higher sentence as a habitual offender if the jury found the enhancement

paragraphs true.

Addison moved to suppress his statements and any evidence seized. During

the hearing, Addison argued that the officer failed to record the waiver of rights as

required by Texas Code of Criminal Procedure article 32.28 and the United States

Constitution. The State responded that the statements were not made during any

custodial interrogation and were not subject to the recording requirements. The trial

court denied Addison’s motion to suppress.

The jury found Addison guilty of the lesser offense of possession of a

controlled substance between one and four grams and sentenced him as a habitual

offender to the minimum of 25 years’ imprisonment.

Motion to Suppress: Custodial Statements Made Not in Response to Questioning

Addison contends that his statements admitting the backpack was his and that

he was not a “big time drug dealer” were inadmissible because the police did not

3 record his receipt and waiver of Miranda warnings as required for custodial

interrogations under Texas Code Criminal Procedure article 38.22.

A. Standard of Review

We review a trial court’s denial of a motion to suppress for an abuse of

discretion under a bifurcated standard. See Wexler v. State, 625 S.W.3d 162, 167

(Tex. Crim. App. 2021). We give almost total deference to the trial court’s

determination of historical facts supported by the record and review de novo the

legal determination of whether the person was in custody. State v. Saenz, 411 S.W.3d

488, 494 (Tex. Crim. App. 2013).

When the trial court denies a motion to suppress without any findings of fact,

we view the evidence in the light most favorable to the ruling and assume the trial

court made implicit findings of fact that support its ruling if the record supports those

findings. Wexler, 625 S.W.3d at 167. We will uphold the trial court’s ruling if it is

supported by the record and correct under any theory of law applicable to the case.

State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008).

B. Custodial Interrogation

Under Miranda and article 38.22, statements elicited by custodial

interrogation are inadmissible unless the accused is first warned that they have the

right to remain silent, their statement may be used against them, and they have the

right to hire a lawyer or have a lawyer appointed. See Miranda v. Arizona, 384 U.S.

4 436, 478–79 (1966); TEX. CODE CRIM. PROC. art. 38.22. Article 38.22 also requires

warning the accused that they have the right to terminate the interview at any time.

See TEX. CODE CRIM. PROC. art. 38.22, § 2(a)(5); Herrera v. State, 241 S.W.3d 520,

526 (Tex. Crim. App. 2007). The warnings, the accused’s voluntary waiver of their

rights, and the accused’s statement made during custodial interrogation must be

electronically recorded. TEX. CODE CRIM. PROC. art. 38.22, § 3.

“Custody” for purposes of article 38.22 is consistent with the meaning of

“custody” for purposes of Miranda. Herrera, 241 S.W.3d at 526. A custody

determination requires evaluating: (1) the circumstances of the interrogation and

(2) whether a reasonable person there would have felt that they were not free to

leave. Wexler, 625 S.W.3d at 167 (citing Thompson v. Keohane, 516 U.S. 99, 112

(1995)). The “reasonable person” standard presupposes an innocent person. Dowthitt

v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). To determine whether an

individual is in custody, we focus on the objective circumstances of the questioning,

not on the subjective views of either the interrogating officer or the suspect. See

Stansbury v. California, 511 U.S. 318, 322 (1994); In re D.J.C., 312 S.W.3d 704,

712 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

The Court of Criminal Appeals has outlined four general situations that may

be custodial. The first three situations are when (1) the suspect is physically deprived

of their freedom in any significant way; (2) law enforcement tells the suspect not to

5 leave; or (3) law enforcement creates a situation that would lead a reasonable person

to believe that their freedom of movement has been significantly restricted. Wexler,

625 S.W.3d at 167–68 (citing Dowthitt, 931 S.W.2d at 254). In these three situations,

the restriction on a suspect’s freedom must be “to the degree associated with an

arrest,” not just that of an investigative detention. Id. In the fourth situation, custody

is established when probable cause has been manifested to the suspect, law

enforcement did not tell the suspect they can leave, and, when considering the

surrounding circumstances, a reasonable person would believe they are restricted to

a degree associated with arrest. Id.

To be subject to the recording requirement, article 38.22 requires not just

custody, but interrogation during custody. TEX. CODE CRIM. PROC. art. 38.22, § 5

(“Nothing in this article precludes the admission of a statement . . . that is the res

gestae of the arrest or of the offense, or . . . does not stem from custodial

interrogation, or [ ] a voluntary statement, whether or not the result of custodial

interrogation, that has a bearing upon the credibility of the accused as a witness, or

of any other statement that may be admissible under law.”).

Statements that are integral to the charged offense or arrest are often called

res gestae. See United States v. Caldwell, 586 F.3d 338, 346 (5th Cir. 2009) (charged

offense); United States v. Navarro, 169 F.3d 228, 233 (5th Cir. 1999) (“Evidence

that is ‘inextricably intertwined’ with the evidence used to prove the crime

6 charged . . . is admissible so that the jury may evaluate all the circumstances under

which the defendant acted.” (internal quotations omitted)); Galloway v. State, 778

S.W.2d 110, 112–13 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (res gestae of

an arrest is a statement integral to the arrest itself). A res gestae statement is made

“in response to a startling event, spontaneously or impulsively, without time for

reflection or contrivance.” Davis v. State, 780 S.W.2d 945, 947 (Tex. App.—Fort

Worth, 1989, writ ref’d).

Article 38.22 also excludes other statements that are not the product of

interrogation. Voluntary statements made while in custody but not in response to

interrogation are admissible without a recording. Stevens v. State, 671 S.W.2d 517,

520 (Tex. Crim. App. 1984) (en banc); see TEX. CODE CRIM. PROC. art. 38.22, § 5.

1. Custody

The State does not dispute that Addison was in custody. A Special Response

Team had broken down his apartment door early in the morning and handcuffed him.

He was under arrest. There was no one other than police and Addison in the

apartment.

Applying the first Dowthitt situation, viewing the evidence in the light most

favorable to the ruling and examining the totality of the circumstances, we conclude

that Addison’s freedom of movement was restrained to the degree associated with a

formal arrest. Wexler, 625 S.W.3d at 167; Dowthitt, 931 S.W.2d at 255. Handcuffed

7 in his apartment, surrounded by law enforcement, and under arrest, Addison was in

custody when he said the backpack was his and he was just a small-time drug dealer.

Wexler, 625 S.W.3d at 167. That leaves whether Addison’s custodial statements

resulted from interrogation.

2. Interrogation

“Custodial interrogation” is questioning by police after a person has been

“taken into custody or otherwise deprived of his freedom of action in any significant

way.” Miranda, 384 U.S. at 444. Not limited to actual questions, “interrogation” can

encompass police speech or conduct which “the police should know are reasonably

likely to elicit an incriminating response from the suspect.” Alford v. State, 358

S.W.3d 647, 653 (Tex. Crim. App. 2012) (quoting Rhode Island v. Innis, 446 U.S.

291, 301 (1980)). Questioning that is a normal incident of arrest and custody is not

interrogation. See id.; McCambridge v. State, 712 S.W.2d 499, 505–06 (Tex. Crim.

App. 1986). Not all statements from a suspect in custody, therefore, result from

interrogation.

After Investigator Christopoulos read Addison Miranda warnings and

Addison waived his rights, Christopoulos asked Addison if there was “anything in

here [he] need[ed] to know about,” and Addison responded, “No, sir.” Then Addison

made the incriminating statements.

8 The record does not reflect how much time passed between the arrest and

Addison’s statements referring to his backpack as his “survival kit,” and claiming

that he was not “a big-time dope dealer and that he’s just trying to make it in this

world.” Nor does the record reflect how much time passed between Addison’s

response to Christopoulos’s question and Addison’s subsequent statements. There

was no testimony that Addison was under the sway of excitement from police

intrusion into the apartment or his arrest. Nor were there any findings about timing

or Addison’s condition. Without support in the record about the timing or Addison’s

state, we cannot conclude that Addison’s incriminating statements were res gestae

to the arrest.

But res gestae statements are not the only statements excluded from the

recording requirement in article 38.22. Volunteered statements of any kind are not

covered by the Fifth Amendment. See Miranda, 384 U.S. at 478. In Stevens v. State,

the Court of Criminal Appeals concluded that a suspect’s statement, “Where did you

come from? Why couldn’t I have gotten away with it?” in response to an arresting

officer’s instruction to get on the ground, was a voluntary one, made while in custody

but not in response to interrogation. 671 S.W.2d at 520. Similarly, our sister court

concluded that a suspect’s statement that he “killed [his] wife, the mother of [his]

kids” and request to be taken in, which he repeated and detailed in the back of a

9 patrol car, were spontaneous. Ruth v. State, 167 S.W.3d 560, 570 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d).

Relatedly, general and routine questions are not interrogation either. Jones v.

State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990) (questions by officer conducting

a field sobriety test, including asking name and date of birth, were not interrogation);

Ruth, 167 S.W.3d at 571 (questions attendant to arrest such as name, address, place

of employment, date of birth, or physical disabilities do not constitute interrogation

under the Fifth Amendment). Christopoulos’s post-Miranda question about whether

there was anything in the apartment he needed to know about was presumably for

safety reasons. Thus, Addison’s spontaneous statement after he had answered the

question in the negative was not the product of interrogation. Stevens, 671 S.W.2d

at 520.

We overrule Addison’s first issue.

An Indigent Defendant Need Not Repay Court-Appointed Attorney’s Fees

Second, Addison contends that the trial court erred in assessing him $6,750 in

attorney’s fees and $95 in “reimbursement fees.”3 The State argues that Addison

3 Although Addison challenges the assessment of both attorney’s fees and reimbursement fees, these are separate items in separate statutory provisions. His brief contains no argument about the reimbursement fees. See TEX. R. APP. PROC. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and the record.”). An appellant waives an issue on appeal if he does not brief that issue. Chaves v. State, 630 S.W.3d 541, 555 (Tex. App.—Houston [1st Dist.] 2021, no pet.). Accordingly, Addison’s challenge to the reimbursement fees is waived. 10 testified at punishment that he worked as a welder after making bond, so his

indigency status had changed since the trial court appointed counsel based on his

inability to pay for an attorney. The State does not address the trial court’s

appointment of appellate counsel to Addison after trial, which requires a finding of

indigency.

We review a trial court’s sentencing order under an abuse of discretion

standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)

B. Sufficiency of the Evidence on Changed Financial Circumstances

A trial court’s determination that a defendant has the financial ability to repay

court-appointed attorney’s fees must be supported by evidence. See Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010); see also TEX. CODE CRIM. PROC. art.

26.05(g). A “defendant who is determined by the court to be indigent is presumed to

remain indigent for the remainder of the proceedings in the case unless a material

change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC.

art. 26.04(p).

The trial court did not conduct a hearing to inquire about Addison’s ability to

pay or make any findings about it.4 The record reflects that the trial court appointed

4 In the future, sentencing courts will be required to inquire on the record whether a defendant has sufficient resources or income to immediately pay all or part of a fine and costs. If the defendant does not have the ability to pay, the court is directed to 11 trial counsel for Addison based on his indigency. Per his testimony during

punishment, at the time of the offense, Addison worked for Whataburger doing

maintenance. While he was out on bond pending trial, he worked as a welder,

building trailers. There was no testimony about how much each job paid or how

much, if anything, Addison had in savings. There was no information about who

paid the bond or how much was paid. Addison also testified that he had a wife and

two children, ages two and four. He was sentenced to 25 years in prison. After the

verdict, trial counsel moved to withdraw and requested that the trial court appoint

appellate counsel based on Addison’s indigency.

We review the record for evidentiary sufficiency of the inquiry into Addison’s

finances. Mayer, 309 S.W.3d at 555. There was none. What we do have is a record

bookended by implicit findings of indigency before and after trial. During trial, there

was a suggestion that Addison had some income from a job before trial, with no

information about how much that job paid or about his financial responsibilities. But

this elliptical suggestion based on employment, without more, is not much. Addison

was found indigent while having a job before trial. Without more details about why

Addison’s new job was substantially more remunerative than the last job, it cannot

be said the record supports a conclusion that Addison could pay then or in the future,

consider whether the costs should be paid later, discharged by performing community service, waived, or satisfied using a combination of these methods. See TEX. CODE CRIM. PROC. art. 42.15(a-1) (effective Jan. 1, 2025). 12 especially with a looming 25-year sentence. There is insufficient information to

support a conclusion that Addison experienced a “material change in [his] financial

circumstances” based on being employed. TEX. CODE CRIM. PROC. art. 26.04(p).

The State has it backward. Rather than conducting a sufficiency analysis, the

State urges that no presumption of indigency is created by the appointment of

appellate counsel. In the State’s view, the presumption of indigency for trial

proceedings is “statutorily separated” from post-conviction proceedings. And once

a defendant has a job for some time, he is under an onus to prove a prima facie case,

when the trial court made no inquiry, that he cannot repay attorney’s fees. Such an

approach poses a due process problem.

The State’s proposal would allow the imposition of attorney’s fees where the

trial court finds the defendant indigent before and after trial but there was some trial

testimony that the defendant complied with pretrial release conditions by being

gainfully employed before being incarcerated for 25 years. Such a result would

insulate harmful fees practices from review. This is in considerable tension with the

future fees and costs scheme that permits waiver of costs, not imposition of costs on

indigent defendants without due process. See TEX. CODE CRIM. PROC. art. 42.15(a-1)

(effective Jan. 1, 2025); see generally STATE BAR OF TEXAS STANDING COMMITTEE

ON LEGAL SERVICES TO THE POOR IN CRIMINAL MATTERS, Ability to Pay Guidance

for Texas Courts and Practitioners, adopted Jun. 21, 2023,

13 https://www.texasbar.com/AM/Template.cfm?Section=Consider_a_State_Bar_Co

mmittee&Template=/CM/ContentDisplay.cfm&ContentID=62299. The State has

offered no precedential authority for requiring indigent people sentenced to lengthy

prison terms to repay attorney’s fees without an opportunity to be heard. And we

find none.

Because no evidence shows that Addison’s financial resources were sufficient

to pay all or part of the assessment, the trial court erred in ordering the repayment of

attorney’s fees. See Mayer, 309 S.W.3d at 556–57 (trial court judgment modified to

delete unauthorized attorney’s fees and affirmed as modified). Accordingly, the

judgment of the trial court is modified to delete any obligation to pay attorney’s fees.

We sustain Addison’s second issue as to repayment of attorney’s fees.

Conclusion

Accordingly, we affirm the trial court’s judgment as modified.

Sarah Beth Landau Justice

Panel consists of Justices Goodman, Landau, and Hightower.

Publish. TEX. R. APP. P. 47.2(b).