Garrett Wayne Murphrey v. the State of Texas ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00185-CR
NO. 09-23-00186-CR
________________
GARRETT WAYNE MURPHREY, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause Nos. 21-08-11688-CR and 22-10-14418-CR
________________________________________________________________________
MEMORANDUM OPINION
Garrett Wayne Murphrey appeals his convictions for injury to a child and
assault family violence impeding breath or circulation. See Tex. Penal Code Ann. §§
22.01(b)(2)(B), 22.04(f). In four issues, Murphrey complains about the admission of
his recorded interview, denial of his motion for a mistrial, consideration of matters
not in evidence, and comments the trial judge made to the jury during deliberations.
For the reasons discussed below, we affirm the trial court’s judgments.
1
BACKGROUND
In August 2021, Murphrey’s twelve-year-old son, T.M.,1 arrived at school via
the school bus when special education instructor Angelica Dawson noticed an injury
to T.M.’s right eye. Dawson reported T.M.’s injury to an administrator and filed a
report with Child Protective Services (CPS). T.M. was then escorted to the nurse,
who observed bruises on T.M.’s neck that appeared to be choke marks and bruises
on his right eye, back, and shoulder. T.M. initially stated he was injured when he fell
out of bed, but later stated that Murphrey caused his injuries.
Upon receiving the report from law enforcement, CPS investigator, Makayla
Vargas, testified that she went to the school to investigate T.M.’s injuries. Vargas
took photos of T.M.’s injuries and determined that a forensic interview was
necessary. Vargas called Murphrey and explained that CPS had received a report of
allegations of abuse after T.M. arrived at school with injuries. Vargas requested
permission to transport T.M. for the forensic interview, and Murphrey denied
Vargas’s request and explained that the injuries could have been the result of their
wrestling.
1
We use initials to refer to the victim to conceal his identity. See Tex. Const.
art. I, § 30 (a)(1) (granting crime victims “the right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process[.]”).
2
Vargas interviewed T.M. at school. T.M. stated that Murphrey got upset with
him when he messed up on his homework. T.M. explained that he was sitting in a
chair when Murphrey hit him in the face and neck with an open hand, and that the
chair fell, angering Murphrey and causing Murphrey to choke T.M. against the
ground. T.M. stated that Murphrey hit him about five times, including hitting him in
the middle of his back with his fist. T.M. could not explain the visible scratches on
his body.
After interviewing T.M., Vargas interviewed Murphrey at his home. Vargas
indicated that based on the abuse allegations and Murphrey’s hostility over the
phone, at her request Detective Prudencio Ochoa and two uniformed deputies
accompanied Vargas to Murphrey’s home. According to Vargas, she interviewed
Murphrey first, and Detective Ochoa followed up with additional questions. Vargas
acknowledged that when she left the school to go to Murphrey’s home, Detective
Ochoa indicated that Murphrey would get arrested.
After Vargas’s interview of T.M., T.M. was transported to Children’s Safe
Harbor for a forensic interview. Once the forensic interview was completed, T.M.
was transported to St. Luke’s Hospital and then to Texas Children’s Hospital for a
strangulation exam and pediatric trauma services.
Detective Ochoa testified that he accompanied Vargas to interview Murphrey
so that he could investigate a crime. Detective Ochoa testified that Murphrey
3
allowed him inside the home to answer questions, and Detective Ochoa recorded the
interview. Detective Ochoa stated that when he asked Murphrey about T.M.’s
bruises, Murphrey reported they were roughhousing. Detective Ochoa testified that
he decided to arrest Murphrey for causing T.M.’s injuries because he did not believe
Murphrey’s story. He added that he and Vargas were not working in tandem, and he
conducted his own investigation for his own purposes.
At the conclusion of Murphrey’s interview, Murphrey was arrested and later
charged with the offenses of injury to a child and assault family violence. A jury
found Murphrey guilty of injury to a child and assault family violence impeding
breath or circulation. The trial court sentenced Murphrey to five years imprisonment
in both cases and ordered the sentences to run concurrently.
ANALYSIS
In his first issue, Murphrey argues that the trial court erred by denying his
motion to suppress and admitting his audio recorded interview with CPS and
Detective Ochoa. Murphrey argues that CPS and law enforcement were working in
tandem, and that during the interview, Vargas was acting as an agent of law
enforcement. Murphrey further argues that he was in custody during the interview
and Miranda warnings were required. According to Murphrey, because no Miranda
warnings were given before Vargas’s interview, the admission of the recorded
interview was reversible error.
4
We review a trial court’s ruling on a motion to suppress under an abuse of
discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.
1996); Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). At a
suppression hearing, the trial court is the exclusive trier of fact and judge of the
credibility of the witnesses. See Villarreal, 935 S.W.2d at 138. Appellate courts
afford almost total deference to a trial court’s determination of the historical facts
supported by the record, especially when the trial court’s findings are based on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997); Monjaras v. State, 664 S.W.3d 921, 926 (Tex. Crim. App. 2022).
The appellate court also affords the same amount of deference to a trial court’s ruling
on “application of law to fact questions,” also known as “mixed questions of law and
fact,” if the resolution of those questions turns on the evaluation of credibility and
demeanor. Guzman, 955 S.W.2d at 89. The court reviews de novo those questions
not turning on credibility and demeanor. Id. We will uphold the trial court’s ruling
if it is reasonably supported by the record. Runyon v. State, 674 S.W.3d 624, 632
(Tex. App.—Beaumont 2023, pet. ref’d). In determining whether a trial court’s
decision is supported by the record, we consider only the evidence adduced at the
suppression hearing. Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App.
2013).
5
Generally, the procedural safeguards to warn in compliance with Miranda
apply to custodial interrogations by law enforcement or their agents. Wilkerson v.
State, 173 S.W.3d 521, 526-27 (Tex. Crim. App. 2005); see Miranda v. Arizona, 384
U.S. 436 (1966). State employment alone does not, by itself, make a person a state
agent for purposes of defining a custodial interrogation. Wilkerson, 173 S.W.3d at
528. The role of law enforcement is to “ferret out crime, investigate its commission,
arrest the perpetrator, and gather evidence for a possible prosecution.” Coleman v.
State, No. AP-75,478, 2009 WL 4696064, at *7 (Tex. Crim. App. Dec. 9, 2009) (per
curiam) (not designated for publication) (citing Wilkerson, 173 S.W.3d at 528). The
duty of CPS workers is to protect the welfare and safety of children in the
community. Id. The paths of police officers and CPS workers are separate, but
parallel. Id.When investigating allegations of abuse, police conduct a criminal
investigation for an arrest, while CPS workers investigate to find a safe home and to
protect the involved children. Id. “When a state-agency employee is working on a
path parallel to, yet separate from, the police, Miranda warnings are not required.”
Id. That said, if the investigative paths of law enforcement and the state-agency
converge, and they are working in tandem to investigate a criminal offense, a
Miranda warning may be necessary. Id.6
When determining if a person is in custody for Miranda purposes, a
“reasonable person” standard is considered. Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322, 325
(1994)). In other words, “[a] person is in ‘custody’ only if, under the circumstances
a reasonable person would believe that his freedom of movement was restrained to
the degree associated with a formal arrest.” Id.; see Stansbury, 511 U.S. at 325. An
examination of all the objective circumstances surrounding the questioning is
required in the inquiry of “custody.” Stansbury, 511 U.S. at 322-23, 325; Dowthitt,
931 S.W.2d at 255.
The trial court conducted a suppression hearing outside the jury’s presence
prior to admitting the forty-four-minute audio recording of Murphrey’s interview
with CPS and law enforcement. Detective Ochoa testified about his investigation
and explained that he understood the District Attorney’s office would accept charges
against Murphrey instantly and that Murphrey could go to jail depending on the
outcome of the investigation.
Detective Ochoa denied bringing the two additional officers because
Murphrey would be arrested. According to Ochoa he brought the additional officers
because Murphrey was hostile when Vargas spoke with him over the phone.
Detective Ochoa indicated that he did not decide to arrest Murphrey before the
interview because he was interested in Murphrey’s explanation of T.M.’s injuries.
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Detective Ochoa also explained that he made the decision to arrest Murphrey
because Murphrey could not provide a sufficient answer about how T.M. was
injured.
At the conclusion of the hearing, the trial judge noted that the interview
occurred in Murphrey’s home, Murphrey voluntarily allowed Vargas and law
enforcement inside, Murphrey did not ask to leave and was never told that he could
not leave, and that once probable cause was manifested, Murphrey was read his
Miranda warnings. The trial judge also noted that the interview lasted approximately
thirty-five minutes before the uniformed officers entered Murphrey’s home, and that
Murphrey was free to call his mother. The trial judge ruled that CPS and law
enforcement were working in tandem, but Murphrey was not in custody until
probable cause manifested, and then Miranda warnings were read. The trial judge
admitted the audio recording into evidence and denied Murphrey’s running
objection.
The audio recording shows that Murphrey invited Vargas and Detective
Ochoa inside his home to discuss T.M.’s injuries. Detective Ochoa introduced
himself and Vargas to Murphrey and explained that he and the two uniformed
officers outside were there for Vargas’s safety, which was standard protocol in
similar CPS investigations. Murphrey explained his CPS history, most of which
involved his substance abuse. Vargas provided Murphrey with information about
8
CPS’s involvement, and she questioned Murphrey about T.M.’s home life,
background information, and health history. Vargas then questioned Murphrey about
T.M.’s injuries, and Murphrey denied that T.M. had a meltdown that would have
required restraint and stated the injuries were from roughhousing. Vargas concluded
her interview and explained that she would speak with her supervisor about the next
steps.
The audio recording indicates that after Vargas completed her questioning,
Detective Ochoa began his interview by reading Murphrey his Miranda rights.
Murphrey then asked if he would be arrested, and Detective Ochoa responded that it
was a possibility. After reading Murphrey his Miranda rights, Detective Ochoa
questioned Murphrey about T.M.’s injuries and T.M.’s statement that Murphrey
punched and choked him out of frustration. Approximately thirty-five minutes into
the interview, the two uniformed officers came into the home, and Detective Ochoa
arrested Murphrey.
Based on the audio recording and viewing the evidence in the light most
favorable to the trial court’s ruling, and deferring to the trial court’s explicit and
implicit historical findings of fact, we conclude the trial court did not abuse its
discretion by finding that Murphrey was not in custody while being interviewed by
Vargas, who was carrying out her CPS duties, and that Miranda warnings were not
required during her interview. That said, the audio recording shows Murphrey was
9
in custody during his interview with Detective Ochoa and Miranda warnings were
properly read. See Stansbury, 511 U.S. at 325; Dowthitt, 931 S.W.2d at 254. Based
on the record, we also conclude the trial court did not abuse its discretion by denying
Murphrey’s motion to suppress. We overrule issue one.
In his second issue, Murphrey argues the prosecutor made incurable
statements during closing argument criticizing his decision not to testify, causing
severe harm. The State argues the trial court did not err by denying Murphrey’s
motion for mistrial because the prosecutor did not comment on Murphrey’s failure
to testify and was only discussing Murphrey’s explanation of T.M.’s injuries that
occurred during Detective Ochoa’s interview.
“To constitute reversible error, the argument must be manifestly improper or
inject new, harmful facts into the case.” Jackson v. State, 17 S.W.3d 664, 673 (Tex.
Crim. App. 2000). If a trial court sustains an objection to improper jury argument,
the complaining party must also request an instruction to disregard an
offending argument if such an instruction could cure the prejudice. See McGinn v.
State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice arising from an
erroneous jury argument is incurable, the complaining party must move for a
mistrial. Id. We review the trial court’s denial of a motion for mistrial for an abuse
of discretion, viewing the evidence in the light most favorable to the trial court’s
ruling, and considering only those arguments before the trial court at the time of the
10
ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold
the ruling if it was within the zone of reasonable disagreement. Id. In evaluating
whether a trial court abused its discretion by denying a defendant’s request for
a mistrial based on improper jury argument, appellate courts must balance several
factors, including “(1) the severity of the misconduct (the magnitude of the
prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge), and (3) the
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction).” Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.
2011).
A mistrial is the appropriate remedy when the objected-to events are so
emotionally inflammatory that curative instructions are not likely to prevent the jury
from being unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d
65, 71 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances
when the prejudice is incurable because it “is of such character as to suggest the
impossibility of withdrawing the impression produced on the minds of the
jurors.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Because a mistrial
is an extreme remedy, “a mistrial should be granted ‘only when residual prejudice
remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884-
85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).
11
It is improper for the prosecutor to comment on the failure of an accused to
testify. See Griffin v. California, 380 U.S. 609, 613 (1965); Bustamante v. State, 48
S.W.3d 761, 764 (Tex. Crim. App. 2001). A comment regarding an accused’s failure
to testify “violates the privilege against self-incrimination and the freedom from
being compelled to testify contained in the Fifth Amendment of the United States
Constitution and Article 1, § 10, of the Texas Constitution.” Bustamante, 48 S.W.3d
at 764.
To violate the right against self-incrimination, the offending language
must be viewed from the jury’s standpoint and the implication that the
comment referred to the defendant’s failure to testify must be clear. It
is not sufficient that the language might be construed as an implied or
indirect allusion. The test is whether the language used was manifestly
intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify. In
applying this standard, the context in which the comment was made
must be analyzed to determine whether the language used was of such
character.
Id. at 765 (internal citations omitted).
The record shows that during closing argument, the prosecutor argued:
. . . the defendant put himself in such a terrible box, we need something.
We were roughhousing. Yeah, I see those injuries. Yep. Oh, I guess we
probably got too rough. That is what he said. And don’t you know if
the truth was, I had to hold [T.M.] down because he had a meltdown
and maybe I accidentally hurt him, he would have said that.
Murphrey objected that the prosecutor’s improper comment violated his
constitutional right not to testify, and he requested an instruction.
12
The trial court sustained Murphrey’s objection, allowed the prosecutor to
clarify, and instructed the jury not to consider “any reference to what Mr. Murphrey
would have said, [] could have said, [and] should have said. . . . He has an absolute
right not to testify, not to say anything. So, anything that you hear in closing about
that should be stricken.” Based on the instruction that Murphrey believed was
insufficient, Murphrey requested a mistrial, which the trial court denied. The
prosecutor then clarified to the jury that it should not consider that Murphrey did not
testify or find it as any evidence of his guilt. The prosecutor explained to the jury
that during Detective Ochoa’s interview, Murphrey stated that he and T.M. were
roughhousing and never stated that he had to restrain T.M. from hurting himself.
We presume the jury followed the trial court’s instruction to disregard the
complained-of argument. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App.
2005). Here, the prejudicial effect of the prosecutor’s argument did not likely cause
the jury to ignore the trial court’s instruction. See Archie, 340 S.W.3d at 739.
Additionally, the trial court allowed the prosecutor to clarify her comment to the
jury, and the prosecutor’s clarification showed that she was not referring to
Murphrey’s failure to testify but to his responses during Detective Ochoa’s
interview. Having considered the entire record, we conclude the trial court’s denial
of Murphy’s motion for mistrial did not constitute an abuse of discretion. See Ocon,
284 S.W.3d at 884. We overrule issue two.
13
In his third issue, Murphrey argues that during punishment, the trial court
considered factors not in evidence and that he is entitled to a new punishment
hearing. Specifically, Murphrey argues the trial court considered allegations of drug
treatment and tax dollars or other money expended on Murphrey through
rehabilitation programs or drug classes even though his Pre/Post Sentence
Investigation Report did not include evidence of prior drug treatment. According to
Murphrey, the only reference to tax dollars was by a witness who testified during
punishment about being a taxpayer paying for his trial and how there was no benefit
to putting him in jail. The State argues that Murphrey failed to preserve his complaint
for our review. We agree.
The record shows that during the punishment phase before the trial court
sentenced Murphrey, he failed to object when the trial court explained it did not
consider probation because “the VA has given you ample opportunities to break all
of your addictions, and we[] have spent multiple hundreds of thousands of dollars
for you. Yet, you have not been able to fix it.” To preserve a complaint for appellate
review, a party must present a timely objection to the trial court, state the specific
grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); see Medina
v. State, No. 14-17-00638-CR, 2018 WL 4869504, at *2 (Tex. App.—Houston [14th
Dist.] Oct. 9, 2018, no pet.) (mem. op., not designated for publication) (stating
defendant was required to preserve error on his complaint that the trial court
14
considered evidence outside the record when imposing his sentence); Elizondo v.
State, 541 S.W.3d 271, 274-75 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(same); Waldrep v. State, Nos. 09-12-00299-CR, 09-12-00300-CR, 2013 WL
589008, at *1 (Tex. App.—Beaumont Feb. 13, 2013, no pet.) (mem. op., not
designated for publication) (same). Since Murphrey failed to object to the trial
court’s consideration of evidence outside the record, we conclude Murphrey failed
to preserve his complaint for our review. See Medina, 2018 WL 4869504, at *2;
Elizondo, 541 S.W.3d at 274-75. We overrule issue three.
In his fourth issue, Murphrey argues that the trial court made comments to the
jury during deliberations that constitute a comment on the weight of the evidence
which is prohibited by Article 38.05 of the Texas Code of Criminal Procedure.
Murphrey argues that he was denied his right to a fair and impartial jury due to the
trial court’s comments which conveyed the opinion of the judge as to Murphrey’s
guilt.
Article 38.05 prohibits a trial judge, prior to return of the verdict, from making
“any remark calculated to convey to the jury his opinion of the case[]” at any stage
of the proceeding. Tex. Code Crim. Proc. Ann. art. 38.05. Trial court judges have
been cautioned not to comment on the weight of the evidence and not to imply to the
jury the court’s opinion of any fact issues before the jury. See id.; see also Jones v.
State, 788 S.W.2d 834, 835 (Tex. App.—Dallas 1990, no pet.). To constitute
15
reversible error, a comment by the court in violation of article 38.05 must be
reasonably calculated to prejudice the defendant’s rights or to benefit the State. See
Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017); Valladarez-
Martinez v. State, No. 09-23-00049-CR, 2024 WL 953230, at *2 (Tex. App.—
Beaumont Mar. 6, 2024, no pet.) (mem. op., not designated for publication).
The record shows that during deliberations, the jury informed the trial court
that they had reached a verdict on one case but were deadlocked on the other case.
The trial court conferred with all counsel to discuss how the trial court should
address the jury’s concern about the deadlocked case, and defense counsel agreed to
instructing the jury that “[s]ufficient time has not elapsed. Keep working.” While
instructing the jury to continue with deliberations, the trial court commented: “Based
on the severity of the crime, based on the level of the offense, based on all those
factors that I have to look at, I am now -- do not want to reveal and do not reveal
who the foreperson is to me. I am going to give you a verbal order that I’m going to
ask that you continue to work on the deadlock case at this time.” Defense counsel
did not object to the trial court’s comment.
Although defense counsel failed to object to the trial court’s comment while
instructing the jury, his complaint can be made for the first time on appeal. See
Anderson v. State, No. 09-19-00206-CR, 2020 WL 6749940, at *5 (Tex. App.—
16
Beaumont Nov. 18, 2020, no pet.) (mem. op.) (not designated for publication) (citing
Proenza, 541 S.W.3d at 801).
We reject Murphrey’s argument that the comment of the trial court deprived
Murphrey of a fair trial or a substantial or fundamental right. In the context in which
it was given, in order to instruct the jury to continue deliberations, there was nothing
said that was prejudicial to the defense nor beneficial to the state. We conclude there
is no reversible error because the comment was not reasonably calculated to benefit
the State or prejudice the defendant’s rights. See Proenza, 541 at 791; Valladarez-
Martinez, 2024 WL 953230, at *2; see also Robinson v. State, 971 S.W.2d 96, 98-
99 (Tex. App.—Beaumont 1998, pet. ref’d). Accordingly, we overrule issue four.
Having overruled all of Murphrey’s issues, we affirm the trial court’s
judgments.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on August 20, 2024
Opinion Delivered September 18, 2024
Do Not Publish
Before Johnson, Wright and Chambers, JJ.
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