Jerry Eugene Miller, II v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-458-CR
2-08-459-CR
2-08-460-CR
2-08-461-CR
JERRY EUGENE MILLER, II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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OPINION
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I. Introduction
Appellant Jerry Eugene Miller, II argues the trial court should have granted his
motions to suppress evidence. In two points, Appellant argues that the arrest and
search warrants were not supported by probable cause and that his videotaped
statement was taken after his illegal arrest and was not voluntarily given. W e will
affirm.
II. Procedural Background
Appellant was charged in four separate indictments with felony theft offenses:
two indictments alleged theft over $20,000 but less than $100,000, and two
indictments alleged theft over $1,500 but less than $20,000. See Tex. Penal Code
Ann. § 31.03(e)(4)–(5) (Vernon Supp. 2009). By filing motions to suppress in each
of the four cases, Appellant sought to suppress “all evidence seized” by challenging
the probable cause supporting his arrest and search warrants and the voluntariness
of his videotaped statement. The trial court denied each of Appellant’s motions to
suppress after conducting two evidentiary hearings. Appellant thereafter entered a
plea of nolo contendere to each of the charged offenses. Pursuant to the plea
agreement, the trial court deferred an adjudication of Appellant’s guilt and placed
him on ten years’ community supervision in two cases and five years’ community
supervision in the other two cases. These appeals followed.
III. Standard of Review
W e review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 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). W e 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. Amador, 221 S.W .3d at 673; Estrada v. State, 154
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S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53
(Tex. Crim. App. 2002). W e 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. 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).
IV. Appellant’s Arrest
Appellant contends in part of his first point that the trial court should have
granted his motion to suppress because the arrest warrant affidavit did not establish
probable cause. The State counters that, even if the arrest warrant is invalid, the
arresting officers witnessed Appellant commit an offense in their presence and could
have validly arrested Appellant without a warrant.
“A peace officer may arrest an offender without a warrant for any offense
committed in his presence or within his view.” Tex. Code Crim. Proc. Ann. art.
14.01(b) (Vernon 2005); State v. Steelman, 93 S.W .3d 102, 107 (Tex. Crim. App.
2002). The test for probable cause for a warrantless arrest under article 14.01(b) is
“whether at that moment the facts and circumstances within the officer’s knowledge
and of which he had reasonably trustworthy information were sufficient to warrant a
prudent man in believing that the arrested person had committed or was committing
an offense.” Steelman, 93 S.W .3d at 107 (quoting Beverly v. State, 792 S.W .2d
103, 105 (Tex. Crim. App. 1990)).
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Here, the officers could have validly arrested Appellant because the truck he
was driving at the time of his arrest was stolen. Investigator James Peel testified at
the suppression hearing that he knew the truck Appellant was driving at the time of
his arrest was stolen because Investigator Kevin Hilliard had described the truck as
stolen and two or three named informants in custody had described the stolen truck
to investigators. Investigator Hilliard similarly testified that the officers on the scene
knew the vehicle Appellant was driving had been stolen; Michael Brooks had
previously informed Investigator Hilliard that Appellant was currently driving a stolen
Dodge truck and that Appellant had taken the VIN plate from a Dodge truck he
owned and placed it onto the stolen Dodge truck he was driving. And Investigator
Hilliard had previously seen a Dodge truck on Appellant’s property with a missing
VIN plate. This reasonably trustworthy information gave the officers probable cause
to arrest Appellant without a warrant for committing the offenses of theft,
unauthorized use of a motor vehicle, or tampering with vehicle identification
numbers. See Tex. Penal Code §§ 31.03, .07(a) (Vernon 2003), .11(a) (Vernon
Supp. 2009); Brown v. State, 986 S.W .2d 50, 52 (Tex. App.—Dallas 1999, no pet.)
(holding computer database report indicating vehicle was stolen provided officers
with probable cause to make warrantless arrest of driver).
Because the arresting officers witnessed Appellant commit at least one
offense in their presence, the officers could have validly arrested Appellant without
a warrant. See Tex. Code Crim. Proc. Ann. art. 14.01(b); Tex. Penal Code §§ 31.03,
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.07(a), .11(a). Therefore, we need not decide whether Appellant’s arrest warrant
provided the magistrate with sufficient information to support an independent
judgment that probable cause existed for the warrant. See Tex. R. App. P. 47.1.
W e overrule this portion of Appellant’s first point.
V. The Three Search Warrants
Appellant argues in the remainder of his first point that the three search
warrants were not based on probable cause. In deciding whether to address the
merits of an appeal from the denial of a motion to suppress, we must first identify the
fruits that the trial court declined to suppress. Gonzales v. State, 966 S.W .2d 521,
524 (Tex. Crim. App. 1998). If it is not clear from the testimony and exhibits what the
“fruits” are, then we need not address the merits of the claim. Id.
In this case, Appellant’s motions sought to suppress “certain items [that] were
allegedly seized” and “any evidence obtained pursuant to the warrants.” Appellant’s
brief in this court similarly states that he sought to suppress “all evidence seized” in
his four cases. Nowhere, though, has Appellant identified the specific items of
evidence or categories of evidence he sought to exclude by challenging the three
search warrants. Appellant has therefore presented nothing for our review. See
Brennan v. State, 140 S.W .3d 779, 781 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d) (holding global request to suppress “all evidence seized or obtained” from
alleged illegal searches and failure “to identify what, if any, evidence was ruled upon
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by the denial” presented nothing for appellate review). W e overrule the remainder
of Appellant’s first point.
VI. Appellant’s Videotaped Statement
Appellant argues in his second point that the trial court erred by denying his
motion to suppress his oral and written statements. Specifically, Appellant contends
that his videotaped statement should have been suppressed because it was taken
after his illegal arrest and was not freely and voluntarily given.
A. Legality of Appellant’s Arrest
Appellant first contends his videotaped statement should be suppressed
because it was taken after his illegal arrest. W e held above, however, that
Appellant’s arrest was not illegal because Appellant committed an offense in the
officers’ presence. W e therefore overrule this portion of Appellant’s second point.
B. Voluntariness of Appellant’s Statement
Appellant also argues that his videotaped statement should have been
suppressed because it was not voluntarily given. Specifically, Appellant contends
his statement was involuntary because he was held in “a solitary, brutally cold cell
for several hours” without food and water and because investigators allegedly made
promises to him during the interrogation. The trial court found that the “[s]tatements
made by [Appellant] were voluntary and not the result of coercive police activity nor
were they given as a result of improper promises made by police officers.”
1. Applicable Law
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An accused’s statement is admissible evidence if the accused made it freely
and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann.
art. 38.21 (Vernon 2005). W hen deciding whether a statement was voluntary, we
consider the totality of the circumstances in which the statement was obtained.
Creager v. State, 952 S.W .2d 852, 855 (Tex. Crim. App. 1997); Reed v. State, 59
S.W .3d 278, 281 (Tex. App.—Fort W orth 2001, pet. ref’d). A confession is
involuntary if circumstances show that the defendant’s will was “overborne” by police
coercion. Creager, 952 S.W .2d at 856. The defendant’s will may be “overborne” if
the record shows that there was “official, coercive conduct of such a nature” that a
statement from the defendant was “unlikely to have been the product of an
essentially free and unconstrained choice by its maker.” Alvarado v. State, 912
S.W .2d 199, 211 (Tex. Crim. App. 1995); Frank v. State, 183 S.W .3d 63, 75 (Tex.
App.—Fort W orth 2005, pet. ref’d).
If a promise made by a person in authority induced a confession, then that
confession is inadmissible. Penry v. State, 903 S.W .2d 715, 748 (Tex. Crim. App.),
cert. denied, 516 U.S. 977 (1995); Alvarez v. State, 649 S.W .2d 613, 620 (Tex. Crim.
App. 1982), cert. denied, 464 U.S. 849 (1983). But before a promise will render a
confession inadmissible, the promise must be shown to have induced the confession
because it was positive for the defendant, made or sanctioned by someone in
authority, and of such an influential nature that the appellant might speak untruthfully
in response. Muniz v. State, 851 S.W .2d 238, 254 (Tex. Crim. App.), cert. denied,
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510 U.S. 837 (1993). In our review, we look to whether the circumstances of the
promise would reasonably induce a defendant to admit to a crime he did not commit.
Sossamon v. State, 816 S.W .2d 340, 345 (Tex. Crim. App. 1991), abrogated on
other grounds by Graham v. State, 994 S.W .2d 651 (Tex. Crim. App. 1999).
2. Analysis
Appellant argues that the condition of his detention rendered his videotaped
statement involuntary. Appellant testified at the suppression hearing that he was
kept in a cold cell for ten hours without a blanket, food, or water. However,
Investigator Jody Johnson testified that he did not recall Appellant complaining on
the day of the interview about the conditions of the jail or saying that he was cold or
hungry. And Investigator Hilliard testified that he interviewed Appellant
approximately four hours after he was arrested. Given this conflicting testimony, the
voluntariness of Appellant’s videotaped statement involved the trial court’s evaluation
of credibility and demeanor. See Stewart v. State, No. 04-08-00274-CR, 2009 W L
2183397, at *6 (Tex. App.—San Antonio July 21, 2009, pet. ref’d) (mem. op., not
designated for publication) (holding trial court did not err by finding oral statements
voluntarily given when trial court heard conflicting evidence concerning the
appellant’s alleged deprivation of food, water, medication, or bathroom access over
the course of twelve hours). Deferring as we must to the trial court’s determination
of credibility and demeanor, we hold the trial court did not abuse its discretion by
finding the conditions of Appellant’s detention did not render his videotaped
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statement involuntary. See Bell v. State, 169 S.W .3d 384, 391–92 (Tex. App.—Fort
W orth 2005, pet. ref’d) (holding eight hours of questioning while in handcuffs and leg
shackles did not render confession involuntary where appellant never indicated he
did not want to answer any more questions or wanted to speak to attorney and never
requested food, water, or bathroom breaks).
Appellant also argues that his oral statements were involuntary because
investigators made the following “promises” to him during the interview: (1) telling
Appellant he was arrested because he “blew off” investigators after they asked him
to help recover the stolen property; (2) offering to make Appellant’s arrests on other
charges more convenient by allowing him to turn himself in or be arrested for several
charges at one time; (3) offering to not mention Appellant’s girlfriend (his alibi
witness) to his wife when they questioned her about Appellant’s crimes; (4) telling
Appellant that telling the truth is “a start” for how to get out of trouble but
simultaneously saying they were not making any promises to Appellant; (5) offering
to ask the district attorney to drop the charges for a motorcycle theft but also stating
the investigator could not promise the district attorney would agree to drop the
charges; and (6) telling Appellant they would not arrest him on other charges
immediately but instead would give him time to gather other stolen property before
they arrested him again. W e do not believe any of these alleged promises rendered
Appellant’s videotaped statement involuntary.
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Appellant testified at the suppression hearing that he did not initiate the
interview with the investigators and that he understood the investigators told him
during the interview that the other cases they might file against him would “go away”
if he “worked with” the investigators. On the other hand, Investigator Johnson
testified that Appellant initiated the interview by asking to speak with him. Consistent
with Investigator Johnson’s testimony, the videotape shows that Investigator
Johnson stepped into the room at the beginning of the interview and stated, “They
said you wanted to talk to me.” The videotape also shows that investigators read
Appellant his Miranda rights and that Appellant acknowledged he understood his
rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Appellant also testified that officers promised to dismiss charges against him
if he cooperated with them, but the videotaped interview does not corroborate
Appellant’s testimony. Investigator Ricky Montgomery did tell Appellant during the
interview that he would ask the district attorney to dismiss the charges against
Appellant on the stolen motorcycle case if he helped them recover the stolen
generator and other stolen property, but Investigator Montgomery simultaneously
told Appellant that he could not promise Appellant anything, that the district attorney
would decide whether to dismiss any charges, and that it was not Investigator
Montgomery’s decision to make. Moreover, the videotaped interview shows that the
investigators repeatedly told Appellant he would in fact be charged in several cases
but that they would make the process as convenient for him as they could if he would
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help them recover the stolen property. For example, Investigator Hilliard offered to
call Appellant once the cases were filed so Appellant could arrange for bond before
he was arrested and possibly spend little to no time in jail before bonding out. But
Investigator Hilliard also told Appellant that he did not have the authority to dismiss
cases.
Given the explicit representations of lack of authority to dismiss charges, we
do not believe the investigators’ statements or offers were of such a nature that
Appellant might speak untruthfully in response. See Johnson, 68 S.W .3d at 654–55
(holding defendant’s confession voluntary where defendant initiated discussion of
a deal to avoid death penalty, detective told defendant the police could make no
guarantees, and detective indicated “police were without authority to make deals but
instead could only relay information to the court and prosecutor”). After viewing the
record in the light most favorable to the trial court’s ruling and deferring as we must
to the trial court’s credibility determinations, we cannot say the trial court erred by
finding that Appellant’s oral statements were voluntarily given. See Sossamon, 816
S.W .2d at 345 (stating a promise must, among other things, be “of such character
as would be likely to influence the defendant to speak untruthfully” before it will
render a confession involuntary). W e overrule the remainder of Appellant’s second
point.
VII. Conclusion
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Having overruled each of Appellant’s two points, we affirm the trial court’s
judgments.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
PUBLISH
DELIVERED: April 15, 2010
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