Donnie Ray Achan, Jr. v. State

Affirmed and Memorandum Opinion filed April 3, 2008 Affirmed and Memorandum Opinion filed April 3, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-07-00308-CR _______________ DONNIE RAY ACHAN, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1070784 M E M O R A N D U M   O P I N I O N A jury convicted appellant Donnie Ray Achan, Jr. of burglary of a habitation and, after finding two enhancement paragraphs true, sentenced him to 50 years confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends that the trial court erred by (a) admitting his oral confession in violation of his Miranda rights,[1] and (b) denying his requested jury charge regarding his arrest. We affirm. I. Factual and Procedural Background Appellant was indicted for the felony offense of burglary of a habitation on August 2, 2006. Immediately before the beginning of his trial on April 9, 2007, a hearing was held on appellant=s motion to suppress his oral statements. At this hearing, the Houston Police Department (AHPD@) arresting officer, Roger Mahoney, and appellant testified. At the outset of the hearing, the State stipulated that appellant=s arrest was made without a warrant. At the suppression hearing, Officer Mahoney, a 22-year veteran with HPD, testified that he was dispatched in response to a burglary in progress call to a home located at 3431 McIlhenny Street[2] in Houston. A witness to the burglary had called 911 and reported that two individuals had entered the residence and were still inside when the call was made. The witness described the suspects as two black males, one wearing a blue shirt and pants, the other wearing blue pants and a white shirt. When Mahoney arrived at the home, the suspects had left the scene, so Mahoney set up what he described as a Aperimeter@ and contacted the home owner. According to Mahoney, it appeared that the suspects had entered the house either through a pried-open window in front or through a window in back where an air conditioning unit had been removed. After receiving confirmation from the home owner that no one had been authorized to enter the home, he remained at the scene to complete his offense report in case the suspects returned to the scene. As Mahoney was completing his offense report, a neighbor approached his police car and informed Mahoney that he had called in the anonymous report on behalf of a witness. Mahoney testified that he knew this individual and believed him to be a reliable and credible person. According to Mahoney, he told this individual to contact him if he discovered any other information. Shortly thereafter, the neighbor contacted Mahoney on Mahoney=s cell phone and informed him that the suspects were walking back towards the burglarized residence on a cross-street, Canfield Street. Mahoney moved his vehicle to Canfield Street, keeping the McIlhenny residence in sight, and saw two black males, who matched the descriptions of the suspects given to him in the dispatch, approaching the McIlhenny house. When Mahoney saw these suspects, they Adiverted@ and went towards the rear of a vacant residence with a vacant apartment building behind it on Canfield Street. One of the suspects, however, made eye contact with Mahoney, so Mahoney motioned this suspect over to his vehicle to question him. This suspect, identified as James Judy, approached Mahoney=s vehicle. According to Mahoney, he asked Judy why he had been in the house on McIlhenny, and Judy replied that Athey@ had gone in the house to get some Atrinkets and whatnot@ and that it was a vacant residence. Mahoney asked him what he did with the Atrinkets and whatnot@; Judy pulled a velvet bag out of his pocket with a few small items in it.[3] While Judy was pulling the bag out of his pocket, he also indicated to Mahoney that the other male suspect, identified by Mahoney as appellant, had been inside the house with him. Mahoney testified that he performed an Aofficer safety pat down@ on Judy and put him in the back seat of his patrol car, and called appellant over so he could speak with him. Mahoney stated that he met appellant outside of his vehicle in the driveway of a vacant residence. Mahoney asked appellant why he had been in the house, pointing to the house on McIlhenny. Appellant said that Athey@ had taken some Awhatnots@ out of the vacant residence. According to Mahoney, appellant also stated that they had taken the articles down to ABremond Street@ and sold them for some crack cocaine. According to Mahoney, appellant was not in handcuffs, Mahoney had his weapon holstered while speaking with appellant, and he never indicated to appellant that appellant was under arrest. Sometime during his conversation with appellant another police unit arrived at the scene. Mahoney testified that he informed the other police unit that the two suspects, Judy and appellant, had admitted being in the house, but that Mahoney had not spoken to the witness. Mahoney stated that the other unit went to the witness=s residence and brought her back to the scene. The witness identified appellant and Judy as the men she had seen entering the house on McIlhenny. According to Mahoney, he then placed appellant in the back seat of his patrol car with Judy. On cross-examination, Mahoney testified that he would not have let appellant go until he Aat least got his name@ from him. He further stated, AI wasn=t going to let him leave until I knew that he was one of the persons in the house.@ Mahoney admitted that he did not read either appellant or Judy his Miranda rights before questioning them. Mahoney further stated, AIn fact they weren=t under arrest in my mind until the lady that owned the residence came and identified the bag and the rings and stated to me that they were kept in the center of the residence. At that point I figured there was enough probable cause to arrest them and contact the DA to see if charges would be appropriate.@ Finally, Mahoney stated, AI wouldn=t have let [appellant] go until he was either identified or not identified by the complainant.@ Appellant then testified at the hearing on the motion to suppress. According to appellant, he was on his way to perform his job as a groundskeeper at the apartment building on Canfield Street on the morning of his arrest. Appellant stated that the building was not vacant, and he worked for the owner cleaning up and taking care of the apartments. According to appellant, Mahoney appeared Aout of nowhere@ with Judy in the back of his car. Appellant testified that Mahoney approached the building and asked AMs. Carolyn@ if AD Ray@[4] was there. Appellant stated that Mahoney asked him to identify the man in the back of his car, but when appellant approached his car, Mahoney grabbed him and Aput [him] on top of the car.@ According to appellant, Mahoney said he was arresting him for burglary of a house. Appellant stated that Mahoney pulled Judy out of the car and searched him, discovering a little bag. While Mahoney was searching Judy, he put appellant in the back seat. Appellant testified that Mahoney then put Judy back in the car and pulled appellant back out and searched him. Appellant denied telling Mahoney that he had taken some trinkets from inside the McIlhenny house and testified that he did not believe he could leave once Mahoney put him in the back of Mahoney=s patrol car. He also stated that Mahoney never read him his Miranda rights. According to appellant, once Mahoney put him and Judy in the back seat of his patrol car, Mahoney drove over to the McIlhenny house and sat outside talking on his cell phone for Aabout an hour or two.@ After sitting in the car with Mahoney for this roughly two-hour period, appellant stated that another patrol car pulled up. Appellant testified that the complaining witness arrived at the scene, and Mahoney gave her the property taken from Judy. Then the complaining witness Astuck it in her purse[,] jumped in her van and got up on top of the freeway.@ After hearing the testimony of Mahoney and appellant, the trial court denied the motion to suppress, without making any findings. Appellant=s trial began immediately thereafter. Officer Mahoney testified to substantially the same information as he provided during the hearing on the motion to suppress. In addition, the complainant in this case testified regarding the items that were stolen and the state of her home when she arrived after the burglary. The defense offered no witnesses, and both sides rested and closed. Appellant requested an instruction under Texas Code of Criminal Procedure article 38.23. The trial court denied appellant=s request. After both the State and defense presented closing argument, the case was submitted to the jury. The jury found appellant guilty as charged in the indictment and, after a punishment hearing, sentenced him to 50 years confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal timely followed. II. Issues Presented In his first issue, appellant asserts that the trial court erred by admitting his alleged oral confession taken in violation of his Miranda rights because he was effectively under arrest when the officer elicited his statement. In issue two, appellant contends that the trial court erred by refusing to submit a charge that would have required the jury to determine whether appellant was under arrest or restraint at the time of the alleged confession. III. Analysis A. Motion to Suppress Appellant filed a motion to suppress oral statements in which he argued that he was in custody at the time he made oral statements to Officer Mahoney at the scene.[5] He asserted that Ahe was the focus of the investigation by the officer; he was undergoing custodial interrogation; [and] he was not afforded his Miranda rights.@[6] He requested a hearing on his motion to suppress, which the trial court conducted immediately before his trial began. The trial court is the sole finder of fact at a suppression hearing, and is therefore responsible for evaluating witness testimony and credibility. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (en banc). Accordingly, we afford great deference to a trial court=s determination of historical facts. Id. Where, as here, no written findings are stated or requested, we must uphold the ruling on any applicable theory of law that is supported by the evidence when viewed in the light most favorable to the trial court=s ruling. State v. Kelly, 204 S.W.3d 808, 818B19 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000) (en banc). An accused must generally be in custody before he is entitled to Miranda warnings. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Article 38.22 of the Texas Code of Criminal Procedure precludes the use of statements resulting from custodial interrogation absent compliance with its procedural safeguards. Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (Vernon 2005). If a statement is not the result of a custodial interrogation, neither Miranda nor article 38.22 requires its suppression. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Dowthitt v. State, 931 S.W.2d 244, 254B55 (Tex. Crim. App. 1996). A person is in custody when, A>under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.=@ Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (quoting Dowthitt, 931 S.W.2d at 254). This inquiry includes an examination of all the objective circumstances surrounding the questioning. Id. The Areasonable person@ standard presupposes an innocent person, and the subjective intent of a police officer is irrelevant unless communicated or manifested to the suspect. Dowthitt, 931 S.W.2d at 254. The Court of Criminal appeals has identified four general situations that 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. Id. at 255. In the first three situations, the restriction on freedom must be to the degree associated with an arrest, rather than that involved in an investigative detention. Id. As to the fourth situation, the officer=s knowledge of probable cause must be manifested to the suspect. Id. AMoreover, given our emphasis on probable cause as a >factor= in other cases, situation four does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.@ Id. In this case, the record supports the trial court=s implicit finding that appellant was subject to an investigative detention rather than subject to a custodial interrogation. See, e.g., Baldwin v. State, 237 S.W.3d 808, 812 (Tex. App.CHouston [14th Dist.] 2007, pet. granted) (noting that an investigative detention is justified when the detaining officer Ahas specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude the person detained is, has been, or soon will be engaged in criminal activity@ (citing Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (en banc)); see also Mays v. State, 726 S.W.2d 937, 944 (Tex. Crim. App. 1986) (en banc) (holding that an officer=s conduct in handcuffing two men found at the location of a robbery was reasonable under circumstances as investigative detention). The trial court apparently believed Mahoney=s testimony that he briefly detained appellant in the driveway of the vacant apartment to investigate the burglary complaint. While Mahoney was investigating the burglary complaint, he did not physically deprive appellant of his freedom in any significant way. According to testimony at trial, at the time the alleged oral confession was made, appellant was neither handcuffed, told he was not free to leave, nor sitting in the back of the patrol car. Appellant contends that (a) Mahoney had probable cause for an arrest and (b) he was effectively under arrest when the officer began to question him. But Mahoney did not in any way indicate to appellant that he had probable cause to arrest appellant; in fact, Mahoney did not believe probable cause existed until the witness identified appellant as one of the individuals seen entering the house and the complainant identified the items Mahoney discovered in the possession of Judy as stolen from her house. Although appellant may have felt restricted in the presence of Mahoney, under the circumstances his freedom of movement was not restrained to the degree associated with a formal arrest. In light of this evidence, we conclude that appellant=s statements made to Mahoney near the scene of the burglary were not the product of a custodial interrogation. Rather, the statements were obtained as a result of an investigative detention. Thus, these statements were admissible in the absence of a Miranda warning, and the trial court did not err in denying appellant=s motion to suppress. We overrule appellant=s first issue. B. Requested Jury Instruction Here, appellant sought to have the following instruction included in the jury charge: A person is arrested when he has been actually put under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant. No evidence obtained by an officer or other person in violation of any provisions of the Constitution or the laws of the State of Texas or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. Therefore, if you believe, or have a reasonable doubt, that the Defendant, Donnie Ray Achan, was under arrest, as defined above, and that he was not admonished of his constitutional rights, then you shall disregard any statements he may have made to Officer R. L. Mahoney, and not take such statements as evidence of his guilt in this case. Article 38.23 of the Texas Code of Criminal Procedure provides in part: ANo evidence obtained . . . in violation of . . . [the] laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case.@ Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). This statute further provides: In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. Id. The question is whether, under the facts of a particular case, the evidence raises an issue requiring a jury instruction. Graham v. State, 201 S.W.3d 323, 331 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982) (en banc)). When the evidence raises no such issue, the trial court acts properly in refusing a request to charge the jury with this instruction. Id. (citing Murphy, 640 S.W.2d at 299). Thus, in the absence of conflicting testimony or evidence, there is no requirement that the jury charge include an instruction pursuant to article 38.23. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005) (en banc). Here, the jury heard no evidence during the guilt-innocence phase of trial that conflicted with Mahoney=s version of events. Mahoney testified that he detained appellant while he investigated the burglary to determine if appellant was involved in the burglary. Mahoney stated that he did not arrest appellant until after the witness identified appellant and the complaining witness identified objects in the other suspect=s possession. The defense offered no controverting evidence, but instead rested immediately after the State rested its case. Thus, appellant did not introduce any conflicting evidence during his trial regarding the circumstances surrounding his detention and arrest. Under these circumstances, the trial court properly refused appellant=s request for an article 38.23 instruction. Accordingly, we overrule appellant=s second issue. IV. Conclusion Having overruled each of appellant=s issues, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed April 3, 2008. Panel consists of Justices Yates, Guzman, and Lee.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). [2] This street name is spelled AMclihenny@ in the reporter=s record. [3] According to Mahoney, the complaining witness later identified the bag and the items in it as her property. [4] According to appellant, AD Ray@ is his nickname. [5] In this motion, appellant also sought to suppress statements he later made at the police station, but these statements were neither discussed nor admitted during the suppression hearing or appellant=s trial. [6] See Miranda, 384 U.S. at 444, 86 S. Ct. at 1212. * Senior Justice Norman Lee sitting by assignment.