Howard Earl West, Jr. v. State ( 2000 )

NUMBER 13-98-654-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

HOWARD EARL WEST, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 370th District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

Appellant, Howard Earl West, Jr., was indicted for attempted capital murder. After the trial court denied appellant's motion to suppress his oral and written statements to police, appellant pleaded guilty, reserving his right to appeal the court's ruling on the motion to suppress. The trial court found him guilty and assessed his punishment at twenty-five years imprisonment. By five points of error, appellant contends the trial court erred in denying his motion to suppress because: (1) appellant's oral and written statements were obtained in violation of his Fifth Amendment right to counsel; (2) appellant's oral and written statements were obtained in violation of his Sixth Amendment right to counsel; (3) appellant's oral statement was obtained in violation of article 38.22, section 3, of the code of criminal procedure; (4) appellant's written statement was obtained in violation of article 38.22, section 2, of the code of criminal procedure; and (5) the trial court's finding of facts and conclusions of law "have no support in the record."

A. Facts

The trial court heard the following relevant testimony at the suppression hearing:

1. Reyes Ramirez

At about 1:30 a.m. on March 3, 1995, Edinburg Police Detective Reyes Ramirez ("Ramirez") was called to the scene of a stabbing. The victim was a topless dancer who worked at the Longhorn Saloon. The victim told Ramirez her attacker was an African-American male who had followed her from the saloon. While at the crime scene, Ramirez learned that a man's wallet had been found nearby. It contained a driver's license and a University of Texas -- Pan American student identification card belonging to Howard Earl West, Jr., an African-American male. Ramirez went to the Longhorn Saloon and spoke with a security guard. After examining the picture on the driver's license, the security guard stated that the man had been there that evening. Ramirez went to the hospital where the victim was being treated and spoke with one of her co-workers, who also identified appellant as having been at the saloon that night. The victim picked appellant out of a photographic line-up several days later.

Ramirez placed a telephone call to the West residence at approximately 9:10 p.m. on the evening of March 4. Carmen West ("Mrs. West"), appellant's mother, answered the telephone and asked Ramirez, unsolicited, if the police had found appellant's wallet. Ramirez replied that they had, but needed to talk to him about something else. When appellant came to the phone, Ramirez asked that appellant go to the Edinburg Police Station. Appellant appeared at the station approximately 50 minutes later at about 10:00 p.m.

At that time, appellant was placed under arrest for attempted capital murder. Ramirez read appellant the Miranda⁽¹⁾ warnings, and appellant executed a written waiver of those rights.

When Ramirez questioned him about the events of the previous evening, appellant claimed he could not remember anything because he had been very intoxicated. Ramirez terminated the interview and placed appellant in a holding cell by himself. At approximately 2:00 a.m. the next morning, Ramirez received word that appellant wanted to speak to him. He brought appellant to his office and asked him what he wanted. Appellant asked to be shown something that would refresh his memory about what had happened the previous evening. In response to this request, Ramirez took appellant out to the back of the police station and showed him the victim's car. At that point, appellant said, "Yes, I did it. I did something bad to that girl." Ramirez asked appellant if he wanted to give a statement, and he replied that he did. They returned to Ramirez's office, where appellant was once again advised of his rights. Appellant then gave a written statement in which he admitted to following and attacking the victim. At no time did appellant ask for an attorney or state that an attorney had been retained for him. At no time was appellant handcuffed.

2. Arnoldo Cantu

Attorney Arnoldo Cantu ("Cantu"), a longtime acquaintance of Mrs. West, received a telephone call at his office from Mrs. West sometime on Friday, May 3, 1995. He was not sure of the time, but he is generally at his office until about 6:00 p.m. on Fridays. Mrs. West told Cantu that she was worried because the police wanted appellant to go to the police station. He told her what he customarily tells all of his clients -- go to the station, but do not tell the police anything. He told her he was willing to help in any way he could. A fee was not discussed, but he considered himself retained. Cantu did not accompany appellant to the police station; he did not call the station to see if appellant had been arrested; he did not call appellant or Mrs. West later; he did not contact the investigator on the case; and he did not do anything regarding this case. He learned of appellant's arrest some time later when Mrs. West called him again. He never spoke with appellant.

3. Carmen West

Mrs. West received a telephone call on the morning of Friday, March 3, 1995, from a friend who worked at the sheriff's office. He asked if her son had his wallet, and told her appellant might be in trouble. She called Cantu at his office about 2:30 that afternoon and told him about the accusation. He agreed to represent appellant if necessary. That evening, at about 9:00 p.m., Ramirez called and wanted to speak to appellant because his wallet had been found. She and appellant agreed to go to the police station to pick up the wallet. She called Cantu at home, but he was not there. She left a message.

She accompanied appellant to the police station to retrieve the wallet. After about thirty minutes, Ramirez emerged and told her appellant had been arrested. She went to his office where he told her why her son had been arrested. "After a lengthy conversation," she told Ramirez she needed to call her attorney and asked to use his telephone. He told her that she had to use the telephone outside. She called Cantu again and left a message for him to call her at the police station. Ramirez asked her for appellant's truck and the jogging suit he had worn the previous night, and she agreed. She called her brother, and he brought the truck to the police station. Her daughter brought the jogging suit later that evening. She did not speak to Cantu before turning over this evidence.

4. Appellant

Appellant graduated from high school and attended the University of Texas -- Pan American for one and one-half years as a criminal justice major. At the time of his arrest, he was familiar with Miranda and the rights it concerned. His mother spoke to Cantu on Friday, March 3. She told appellant that "we" had an attorney. Appellant did not talk to Cantu, but "it was understood that he was our attorney." After he was arrested, he told Ramirez he had an attorney. Ramirez stopped the interview and placed him in a holding cell. At 2:00 a.m., Ramirez called him out of the holding cell because he wanted to talk to him about the case. Appellant said he would if his attorney was present. Ramirez did not say anything except to ask if appellant wanted a Coke. He handcuffed appellant in front. He was handcuffed while he was in Ramirez's office.

Appellant does not recall signing the waiver of rights at 10:00 p.m. He believes he did not receive it until after 2:00 a.m. Appellant does not dispute signing the waiver while in custody. His written statement has been changed. He did not give a confession, even though he signed the document. As a criminal justice major, he would not have signed a blank document, and he knew he had a right to an attorney. Appellant testified that Ramirez had said "he was going to put in a word for me and it would go a lot easier for me."

B. Factual Sufficiency

By his fifth point of error, appellant contends the trial court's finding of facts and conclusions of law "have no support in the record." Because appellant has prayed for a reversal and remand of his case, we interpret this point of error as a challenge to the factual sufficiency of the evidence supporting the trial court's findings of fact and conclusions of law. See Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996) (Appellate courts should vacate a conviction based on factually insufficient evidence and remand the cause for a new trial); see also Tibbs v. Florida, 457 U.S. 31, 42 (1982); Clewis, 922 S.W.2d at 133 (If a reviewing court determines that the evidence is legally insufficient, it must render a judgment of acquittal).

In reviewing the factual sufficiency of the evidence, the reviewing court views all the evidence in a neutral light, and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 2000 Tex. Crim. App. LEXIS 12, at *12 (Tex. Crim. App. Feb. 9, 2000) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)). We consider all of the evidence in the record related to the appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). In conducting its factual sufficiency review, an appellate court reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination. Johnson, 2000 Tex. Crim. App. LEXIS at *13; Clewis, 922 S.W.2d at 133. However, this review must employ appropriate deference to prevent the appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of the evidence. Johnson, 2000 Tex. Crim. App. LEXIS at *13; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

There is no abuse of discretion merely because the finder of fact believes one version of the facts over another. See, e.g., Nonn v. State, 13 S.W.2d 434, 441-42 (Tex. App.--Corpus Christi 2000, pet. filed) (At hearing on motion to suppress, the trial court was free to disbelieve appellant and believe law enforcement officials' testimony that appellant did not invoke his right to counsel).

After reviewing all the evidence, we conclude that the trial court's findings of fact and conclusions of law are not so against the overwhelming weight of the evidence that they are manifestly unjust and clearly wrong. We hold the evidence is factually sufficient to support the trial court's findings of fact and conclusions of law. Appellant's fifth point of error is overruled.

C. Motion to Suppress

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Maddox v. State, 682 S.W.2d 653, 564 (Tex. Crim. App. 1985). The trial court is the sole trier of fact and judge of the weight and credibility of the evidence. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim App. 1999). The reviewing court may not disturb supported findings of fact absent an abuse of discretion. Id. A review of a trial court's ruling on a motion to suppress presents an application of law to fact question. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999). We must afford almost total deference to a trial court's determination of facts supported by the record and its rulings on application of law to fact questions of law, when those fact findings involve an evaluation of the credibility and demeanor of witnesses. Maestas, 987 S.W.2d at 62; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, we review de novo questions of law and mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Oles, 993 S.W.2d at 106; Maestas, 987 S.W.2d at 62; Guzman, 955 S.W.2d at 89.

At the hearing on appellant's motion to suppress, the evidence concerning appellant's possible invocation of his right to counsel was conflicting, requiring the trial court to evaluate the witnesses' credibility and demeanor. Thus, we must review appellant's points of error regarding suppression of his oral and written statements under an abuse of discretion standard, and defer to the trial court's findings as long as they are supported by the record. See Maestas, 987 S.W.2d at 62.

D. Fifth Amendment Rights

By his first point of error, appellant contends the trial court erred in denying his motion to suppress on the grounds that his written and oral statements were taken in violation of his Fifth Amendment right to counsel.

The Fifth Amendment to the United States Constitution guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. V. The importance of this right is emphasized by its inclusion in the Miranda warnings. See Maestas, 987 S.W.2d at 61. However, invocation of an individual's Fifth Amendment right to counsel "requires, at a minimum, some statement that can be reasonably construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." Guidry v. State, 9 S.W.2d 133, 143 (Tex. Crim. App. 1999) (citing McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) and Green v. State, 934 S.W.2d 92, 97 (Tex. Crim. App. 1996)). The question of whether the accused has actually invoked the right to counsel is an objective inquiry, requiring some statement that can reasonably be construed as an expression of a desire for an attorney's assistance. Davis v. United States, 512 U.S. 452, 459 (1994).

Based on the above evidence, the trial court found that appellant never informed Ramirez or any other law enforcement official that he had retained counsel to represent him on the attempted capital murder charge, and that he did not invoke his right to counsel prior to giving his statement. The testimony of Detective Ramirez supports the trial court's findings. See Maestas, 987 S.W.2d at 62. Therefore, appellant never invoked his Fifth Amendment right to counsel.

Even if appellant had invoked his right to counsel, the trial court found that appellant voluntarily, knowingly and intelligently waived his constitutional rights before giving both the oral and the written statement. This finding is also supported by the record. See id. Appellant's contention that his statements were obtained in violation of his Fifth Amendment right to counsel must fail because he never invoked his right to counsel, and despite having been advised of his constitutional rights, he signed a written waiver of those rights. In addition, appellant never indicated to the police that he had retained an attorney or wished to consult one.

Accordingly, we hold appellant's written and oral statements were not taken in violation of his Fifth Amendment right to counsel. Appellant's first point of error is overruled.

E. Sixth Amendment Rights

By his second point of error, appellant contends the trial court erred in denying his motion to suppress on the grounds that his written and oral statements were taken in violation of his Sixth Amendment right to counsel.

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Texas Court of Criminal Appeals has recently revisited the Sixth Amendment right to counsel:

The purpose of the [Sixth Amendment] right to counsel is to protect the unaided layman after the adverse positions of government and defendant have solidified with respect to a particular alleged crime. McNeil v. Wisconsin, 501 U.S. 171, 111 S Ct. 2204, 2209, 115 L. Ed. 2d 158 (1991). The right thus attaches at the initiation of adversarial proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, and no request for counsel need be made by the accused. Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 (1977). Once the Sixth Amendment right to counsel attaches, government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the right to counsel applies. Michigan v. Jackson, 106 S. Ct. [1404, 1407-08 (1986)].

Cobb v. State, No. 72,807, 2000 Tex. Crim. App. LEXIS 32, *9-10 (Tex. Crim. App., March 15, 2000, cert. granted, 120 S. Ct. 2716 (2000)). A fundamental safeguard provided by the Sixth Amendment is the "general prohibition of state initiated questioning of an accused who is represented by counsel during all critical stages of criminal proceedings once formal adversarial proceedings have begun, except where counsel is present or is informed of the interrogation." State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995).

The United States Supreme Court has not established a "bright line" rule to mark when an adversarial proceeding has begun, but has instead left this determination to the state courts to answer. United States v. Gouveia, 467 U.S. 180, 187-89 (1984); Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). The court of criminal appeals has also declined to declare such a rule. Hidalgo, 983 S.W.2d at 752; Frye, 897 S.W.2d at 327-28; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). Instead, the court has recognized that determining whether a particular event is a critical stage -- thus triggering a Sixth Amendment right to counsel -- depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. Hidalgo, 983 S.W.2d at 752; Frye, 897 S.W.2d at 327-28; Green, 872 S.W.2d at 720-22.

Appellant cites Miffleton v. State, 777 S.W.2d 76 (Tex. Crim. App. 1989), Forte v. State, 759 S.W.2d 128 (Tex. Crim. App. 1988) and Bonhail v. State, 657 S.W.2d 131 (Tex. Crim. App. 1983), for the proposition that the Sixth Amendment right to counsel attaches at the time the complaint (the probable cause affidavit) is filed with a judge in order to obtain an arrest warrant.⁽²⁾ However, the court has since held, in a case where indictment came after a complaint was filed but before arraignment or any other legal proceeding, that the Sixth Amendment right to counsel does not attach before indictment. DeBlanc v. State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); see also Cobb, 2000 Tex. Crim. App. LEXIS at *11 ("Once appellant was indicted for the Owings burglary, his Sixth Amendment right to counsel attached to that offense.").

When appellant gave his statements, he had not yet been arraigned or indicted, and no formal charges or adversarial proceeding had begun against him. Thus, we conclude appellant's Sixth Amendment right to counsel had not yet attached when appellant gave his statement. We hold appellant's written and oral statements were not taken in violation of his Sixth Amendment right to counsel. Appellant's second point of error is overruled.

F. Article 38.22, Section 2

By his fourth point of error, appellant contends the trial court erred in failing to suppress his written statement because the statement was obtained in violation of article 38.22, section 2 of the code of criminal procedure. Article 38.22, section 2 sets out the requirements for the admissibility of an accused's written statement and provides as follows:

No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has a right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 1979).

Appellant asserts the trial court erred in failing to suppress his written statement because he was not read these rights, and he did not waive them until after he had given the statement. However, the trial court found that appellant had been advised of his Miranda rights three times before giving his written statement, and had knowingly, intelligently and voluntarily waived these rights before giving this statement. The testimony of Detective Ramirez supports the trial court's finding.

Appellant also asserts the statement should have been suppressed because the warnings on the face of the statement do not comport exactly with the statutory requirements of article 38.22, section 2. The warnings on the face of the statement read as follows:

Statement of Accused

Date: 3-4-95

Statement of HOWARD EARL WEST JR.

On this the 4th day of March, 1995, at 2:00 o'clock a.m. at Edinburg, Texas, I Howard Earl West Jr. have been warned by Det. Sgt. Rey Ramirez Sr. the person to whom I am making this statement, prior to and the making thereof:

(1) You have the right to remain silent and not make any statement at all and that any statement you make may be used against you at your trial;

(2) Any statement you make may be used as evidence against you in court;

(3) You have the right to have lawyer present to advise you prior to and during any questioning;

(4) if you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning; and

(5) You have a right to terminate the interview at any time.

I understand my rights as set out above. I knowingly and voluntarily waive such rights and freely and voluntarily make the following statement without compulsion or persuasion.

Appellant's handwritten initials appear over the "5" of "the 4th day of March, 1995" and alongside each of the enumerated warnings. His signature, witnessed by two persons, appears at the end of his statement.

Appellant contends that, since the warnings on the face of his written statement read "I knowingly and voluntarily waive such rights" instead of "I knowingly, intelligently and voluntarily waive such rights" as required by section 2(b), the statement was erroneously admitted. However, the court of criminal appeals has made clear that the exact language of article 38.22, section 2(b) need not be included on the face of an accused's written statement in order for it to be admissible. In Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994), the defendant's statement contained the language of the required section 2(a) warnings but did not contain the exact "knowingly, intelligently and voluntarily" language of section 2(b). After finding the defendant unquestionably had received his section 2(a) warnings, the court noted:

We agree that appellant's statement, while sufficient to comply with Article 38.22, Section 2(b), is by no means a model of clarity on this point. The clearly preferable practice is for a written statement, to meet unambiguously the requirements of Section 2(b), to contain the following language, near or adjacent to the signature of the individual giving the statement: "I knowingly, voluntarily and intelligently waived the rights described above before and during the making of this statement." See Penry v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985) and Cannon v. State, 691 S.W.2d 664, 674 (Tex. Crim. App. 1985). We are persuaded, however, that, though a close call, appellant did on the face of his voluntary statement, knowingly, voluntarily and intelligently waive his Section 2(a) rights in a manner sufficient to comply with the legislature's intent when it enacted Section 2(b).

Garcia, 919 S.W.2d at 387. The court further noted that the trial court had found that the defendant evidenced his understanding of his rights and his waiver of them by placing his initials by each warning, and that he orally waived his rights after being informed of his Miranda rights and prior to giving his written statement. Id.

Garcia is directly on point with this case. Here, the trial court found that appellant was informed of his Miranda rights prior to the giving of the written statement. The warnings on the written statement obviously comport with the requirements of section 2(a). Therefore, we hold the fact that one word was dropped out of the section 2(b) language does not render this statement inadmissible under article 38.22, section 2. Appellant's fourth point of error is overruled.

G. Article 38.22, Section 3

By his third point of error, appellant contends the trial court erred in failing to suppress his oral statement -- "Yes, I did it. I did something bad to that girl." -- because it does not comply with the requirements for admissibility of oral statements set out in article 38.22, section 3 of the code of criminal procedure. Article 38.22, section 3 provides:

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

* * * * *

Sec. 5. Nothing in this article precludes the admission of a statement made by the accused . . . that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation. . . .

Tex. Code Crim. Proc. Ann. art. 38.22, §§ 3, 5 (Vernon Supp. 2000).

It is undisputed that no recording was made of appellant's oral statement. The State, however, argues that the exemption from the necessity of recording the oral statement set forth in section 5 applies, and that the oral statement was properly found to be admissible because: (1) the statement was not the result of a custodial interrogation, and (2) it was res gestae of the offense and, therefore, exempt from the prohibitions of section 3. Appellant was unquestionably in custody when he made the oral statement. Therefore, the issue presented is whether the statement resulted from interrogation.

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way, see Miranda, 384 U.S. at 444, or speech or conduct that the police should know is reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Janecka v. State, 739 S.W.2d 813, 828 (Tex. Crim. App. 1987); McCrory v. State, 643 S.W.2d 725, 734 (Tex. Crim. App. 1982).

Our research has found no case directly on point with the exact circumstances of this case. However, the facts in Wiley v. State, 699 S.W.2d 637 (Tex. App.--San Antonio 1985, pet. ref'd), are very similar to this case. In Wiley, the defendant passed two police officers he knew and spoke to them. Shortly thereafter, the officers received a radio dispatch about an assault that had just occurred nearby. The description of the suspect matched Wiley, so the officers went to his residence to question him. After Wiley was given his Miranda warnings, he denied any knowledge of the assault and gave the officers permission to search his room. After noticing a fresh bloodstain on the white wall against which Wiley was leaning, the officers handcuffed him and proceeded to search the room. They found bloodied clothing and a knife with fresh blood on it. When they showed these items to Wiley without further questioning, he stated, "Okay, I did it." The San Antonio Court of Appeals held that:

appellant's statement was not the product of interrogation. The police merely showed the evidence to appellant, who, although advised of his right to remain silent, admitted his involvement in the assault. Consequently, the statement was not inadmissible under article 38.22.

Id. at 639.

The San Antonio Court has revisited this issue in a very recent opinion. In Lam v. State, 2000 Tex. App. LEXIS 2536 (Tex. App.--San Antonio, April 19, 2000), the defendant was arrested for the murder of his father and attempted murder of his stepmother. While being driven by a police officer to a hospital for a blood sample pursuant to a search warrant, Lam began to question the officer asking: (1) what they were doing; (2) what was going to happen to him; and (3) what was the medical status of his stepmother. Id. at *14-15. At that point, the officer reminded Lam that he had requested an attorney, that the officer was not questioning Lam, and that if Lam wished to continue talking, he should wait until they got back to the police department so the conversation could be recorded. Id. Lam responded that he had many problems with his stepmother and that she hated him. Id. Thus, tending to establish a motive for the attempted murder of the stepmother. In upholding the admission of the oral statement at trial, the court noted that, from the record, the trial court could have believed Lam initiated the conversation with the officer, that Lam had blurted out the statement, and that the officer's conduct was not the functional equivalent of custodial interrogation. Id. at *16-17.

We find the reasoning of these cases persuasive. We hold that appellant's oral statement was not the product of custodial interrogation, and was not inadmissible under article 38.22, section 3. Appellant's third point of error is overruled.

In light of our disposition of appellant's third point of error, it is not necessary to address the State's contention that the oral statement was res gestae of the crime. Tex. R. App. P. 47.1.

We hold the trial court did not err in denying appellant's motion to suppress.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 17th day of August, 2000.

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. Appellant asserts this procedure was followed here. Although the arrest warrant and its probable cause affidavit do not appear in the record, we will assume this procedure for arrest was followed because there is no evidence that appellant was arrested without a warrant, and no record of appellant having been "magistrated" after a warrantless arrest. Tex. Code Crim. Proc. Ann. art. 14.06 (Vernon Supp. 2000).