Kendra Anderson AKA Honesty Love Truth v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00211-CR
___________________________
KENDRA ANDERSON AKA HONESTY LOVE TRUTH, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR22-0248
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
A jury convicted Appellant Kendra Anderson aka Honesty Love Truth of
retaliation.1 See Tex. Penal Code Ann. § 36.06. The trial court assessed Anderson’s
punishment at eight years’ confinement. In two issues on appeal, Anderson argues
that (1) the trial court failed to ensure that she made a knowing and intelligent waiver
of her right to counsel and (2) the trial court erred by admitting into evidence certain
statements that she had made to police in violation of Miranda2 and Article 38.22 of
the Texas Code of Criminal Procedure. We will affirm.
II. BACKGROUND
A. Anderson’s Arrest
On December 30, 2021, three law enforcement officers with the Willow Park
Police Department—Daniel Franklin, Ryan Malwitz, and Quincy Hamilton3—were
dispatched to the Quality Inn in Willow Park. Officers were told that two occupants
1
While Appellant identifies herself as “Kendra Anderson a/k/a Honesty Love
Truth” in her appellant’s brief, the subject indictment, judgment, and notice of appeal
identify her as “Kendra Anderson aka Honesty Love Truth,” and we have styled the
case accordingly. We will simply refer to Appellant as “Anderson.”
2
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
3
At the time of Anderson’s arrest, Franklin was a captain, Malwitz was a
corporal, and Hamilton was an officer. At the time of Anderson’s trial, Franklin was
the chief of the Willow Park Police Department, Malwitz was an officer, and
Hamilton was a lieutenant. Malwitz testified that his demotion from corporal to
officer was unrelated to Anderson’s case.
2
of the motel were allegedly smoking marijuana and that employees wanted them to
leave the premises. When officers arrived, employees from the motel told them that
“[t]here was a black female and a white male inside one of the rooms that were
smoking marijuana.” While officers were speaking with one of the employees outside,
they observed a black woman—later identified as Anderson—run across the parking
lot toward a shed located in the parking lot. The employee told officers, “That’s her.”
Officers then observed Anderson drop something behind the shed and run back to
her room.
Malwitz and Hamilton followed Anderson to her room, while Franklin went to
the shed. While searching behind the shed, Franklin found an apple pie box with
marijuana inside. When Malwitz and Hamilton went to Anderson’s room,4 she started
yelling at them and accusing them of racism. Hamilton escorted Anderson from the
room while she continued yelling at him. Once outside the room, Franklin instructed
Hamilton to detain Anderson due to the marijuana found behind the shed. When
officers attempted to detain her, Anderson became “combative”5 with officers, but
they eventually handcuffed her and placed her inside of Malwitz’s patrol vehicle.
4
Anderson was alone in the room when Malwitz and Hamilton arrived.
5
At trial, Hamilton testified that Anderson “became combative” when officers
attempted to detain her, noting that she had “used her body weight to pull against”
the officers and that she had “kicked off the wall” of the motel in an attempt to resist
detention.
3
After she was inside of his vehicle, Malwitz told Anderson that she was “under arrest
at this point.”
Despite being handcuffed and placed under arrest, Anderson was not given any
Miranda warnings. Hamilton testified that Anderson was not given the warnings while
she was being detained because she was combative and the officers were not
concerned with asking Anderson any questions at that time. Malwitz testified that he
did not give Anderson any Miranda warnings after placing her in his patrol vehicle
because he was “not conducting a[n] interrogation” and that at no time did he
“conduct an interrogation.”
B. Anderson’s Statements to Police
After being placed in the patrol vehicle and told that she was under arrest,
Anderson denied that she had possessed any drugs. Malwitz then asked her, “What
about the stuff you threw behind the shed?” In response to Malwitz’s question,
Anderson continued denying any wrongdoing, and Malwitz asked, “Why didn’t we
just talk about it? Why did you start screaming at me and everything?” Anderson
continued denying wrongdoing, and Malwitz left his vehicle to go back to Anderson’s
room and confer with the other officers.
Malwitz returned to the vehicle ten minutes later and began driving Anderson
away from the motel toward the jail. Anderson began berating Malwitz immediately
after he returned to the vehicle. Approximately one minute after he returned to the
vehicle, Anderson asked for Malwitz’s name, he gave it to her, and she stated, “How
4
long you think you gonna live, Malwitz? Not that long, I bet you.” Malwitz then
asked if Anderson wanted to “add terroristic threat.” Anderson replied that she
“didn’t say that,” that “it’s a promise,” that Malwitz was “going to regret this little,
small shit,” and that his “family will, too.” Later during the ride, after Anderson again
said that she had done nothing wrong, Malwitz asked, “So why did you resist us?
Why didn’t you just talk to us?” Anderson then began recounting her version of what
transpired at the motel.
After arriving at the jail, Anderson told Malwitz—in an apparent reference to
Hamilton6—“that weak-ass n***** hate hisself and he gonna die too. That’s a
promise. Cause this shit ain’t about to happen without a motherf***er dying about
me. He’s gonna die.” She continued, “He can die for jeopardizing my freedom. He
gonna lose his life for not having his own people’s back. . . . He’s gonna die. That’s
what’s gonna happen.” She asked Malwitz, “What are y’all gonna do about it when
your officer is dead from a bullet to his head?” While other jail personnel were
attending to her, Anderson stated, “What’s your name . . . Malwitz? Gonna die.
Cause that ain’t no threat, you feel me? Everybody gonna die, you feel me?”
Anderson continued yelling as Malwitz walked away from her, concluding by saying
that she would “hold everybody accountable or people will die” and that “over [her]
freedom, people can lose their lives.”
6
Hamilton is black.
5
C. Procedural Background
Anderson was indicted for retaliation due to her threats made to Malwitz.7
Initially, Anderson had appointed counsel, but she later retained counsel. Her
retained counsel filed a motion to withdraw, and following a hearing, the trial court
granted the motion. At the conclusion of that hearing, Anderson told the trial court
that she did not want to get another court-appointed attorney but that she intended to
hire new counsel.
After almost two months passed and Anderson had not hired new counsel, the
trial court inquired as to whether Anderson still intended to hire counsel or if she
desired to proceed pro se. Anderson initially told the trial court that she was
“considering hybrid representation” but later told the court that she “would like to go
pro se with standby counsel.” The trial court then admonished Anderson about the
dangers of self-representation and tendered to her a written document titled “Judicial
Admonishments and Written Waiver of Right to Counsel.”8 The trial court found
that Anderson was competent to represent herself at trial and that she was knowingly
7
The indictment alleged that Anderson, on or about December 30, 2021, “did
then and their intentionally and knowingly threaten to harm another, namely Ryan
Malwitz, by an unlawful act, namely stating the said Ryan Malwitz was going to die, in
retaliation for or on account of the status of Ryan Malwitz as a public servant, namely
a police officer.”
Although the written document had a space for Anderson to sign it to
8
acknowledge that she was voluntarily and intelligently waiving her right to counsel,
Anderson did not sign the written document.
6
and voluntarily waiving her right to counsel. Later in the hearing, Anderson told the
trial court that she would be “moving forward with filing the necessary motions pro
se without waiving the right to counsel.”
That same day, the trial court sua sponte appointed standby counsel. Standby
counsel was available for Anderson throughout the remainder of her case.9 Anderson
consulted with her standby counsel on numerous occasions. Following the
appointment of standby counsel, the trial court inquired on several occasions whether
Anderson desired to proceed pro se or whether she desired for standby counsel to
represent her. Anderson confirmed on each occasion that she wished to represent
herself pro se.
In advance of trial, Anderson filed a motion to suppress her statements made
to Malwitz, arguing that the statements were made in violation of Article 38.22 of the
Texas Code of Criminal Procedure and that she had not been given “her Miranda
Admonishment.” Following a hearing in which Hamilton and Malwitz testified,10 the
trial court denied Anderson’s motion to suppress. The case proceeded to trial, where
9
Standby counsel was present throughout trial and at all hearings after he was
appointed save one—a short hearing where the trial court simply informed the parties
that they would not be going to trial that day due to a “specially set number one case”
that was going to trial.
A video taken from Hamilton’s bodycam was admitted at the suppression
10
hearing, as was a video taken from the dashcam of Malwitz’s patrol vehicle.
7
Hamilton and Malwitz again testified.11 The jury returned a guilty verdict, and the trial
court assessed Anderson’s punishment at eight years’ confinement. This appeal
followed.
III. DISCUSSION
A. Anderson’s Complaint Regarding the Waiver of Her Right to Counsel
In her first issue, Anderson complains that the trial court failed to ensure that
she made a knowing and intelligent waiver of her right to counsel.
1. Standard of Review
While we review a trial court’s decision to allow for self-representation for an
abuse of discretion, see McCain v. State, No. 02-17-00210-CR, 2018 WL 3059964, at *5
(Tex. App.—Fort Worth June 21, 2018, no pet.) (mem. op., not designated for
publication), we review de novo the issue of whether the trial court ensured that the
defendant made a knowing and intelligent waiver of her right to counsel. See Meek v.
State, No. 06-23-00035-CR, 2023 WL 5520839, at *4 (Tex. App.—Texarkana Aug. 28,
2023, no pet.) (mem. op., not designated for publication) (reviewing de novo
appellant’s complaint that he did not intelligently, knowingly, and voluntarily waive his
right to counsel); Hernandez v. State, No. 03-19-00202-CR, 2020 WL 3526355, at *5
(Tex. App.—Austin June 30, 2020, no pet.) (mem. op., not designated for publication)
11
The video from Hamilton’s bodycam was admitted at trial, as was the video
taken from the dashcam of Malwitz’s patrol vehicle. A video taken from Malwitz’s
bodycam—which had not been offered at the suppression hearing—was also
admitted at trial.
8
(reviewing de novo appellant’s complaints that he did not knowingly and voluntarily
waive his right to counsel and that the trial court did not give him adequate
admonishments about the dangers and disadvantages of self-representation); see also
Webb v. State, No. 03-22-00203-CR, 2023 WL 4828389, at *4 (Tex. App.—Austin
July 28, 2023, no pet.) (mem. op., not designated for publication) (“Appellate courts
review de novo issues challenging the propriety of a waiver of the right to counsel on
the basis that the trial court did not properly warn a defendant about the dangers and
disadvantages of self-representation.”).
2. Applicable Law
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.
Const. amend. VI; see Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008).
The Sixth Amendment also “implies a right of self-representation.” Faretta v.
California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534 (1975); see Williams, 252 S.W.3d
at 356. The right of self-representation must be timely, clearly, and unequivocally
asserted. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. “When the plain, ordinary, and
generally accepted meaning of an accused’s statements signify a desire to proceed pro
se, the right is clearly and unequivocally asserted.” Cochnauer v. State, No. 02-19-
00165-CR, 2021 WL 3931914, at *5 (Tex. App.—Fort Worth Sept. 2, 2021, no pet.)
(mem. op., not designated for publication) (citing Lathem v. State, 514 S.W.3d 796, 808
(Tex. App.—Fort Worth 2017, no pet.)).
9
To be effective, a defendant’s waiver of her right to self-representation must be
made voluntarily, knowingly, and intelligently. Id. at *5. To assess an effective waiver,
a court must consider the totality of the circumstances. Id. (citing Williams,
252 S.W.3d at 356). A trial court does not need to follow any formulaic questioning
or particular script in ascertaining the effectiveness of the waiver. Cofer v. State,
No. 02-16-00101-CR, 2017 WL 3821885, at *2 (Tex. App.—Fort Worth Aug. 31,
2017, no pet.) (mem. op., not designated for publication). “However, if such factors
are not otherwise apparent from the record, a trial court’s inquiry regarding the
defendant’s waiver of counsel should center on [her] background, age, experience, and
education.” Id.; cf. Cochnauer, 2021 WL 3931914, at *5 (“Faretta does not mandate
questioning on the accused’s age, education, background, or previous mental history,
but the record must contain proper admonishments about pro se representation.”).
3. Analysis
Anderson argues that the trial court failed to ensure that she made a knowing
and intelligent waiver of her right to counsel, contending that “the trial court failed to
inquire into her background, experience with the legal system, education, or any other
factors necessary to ensure that she understood the significance and consequences of
such a waiver.” The State counters that because Anderson was appointed standby
counsel, it was unnecessary for the trial court to provide her with any admonishments,
and thus, any defect in the trial court’s admonishments was not error. We agree with
the State.
10
We have held, on multiple occasions, that Faretta admonishments are not
required when a defendant has been appointed standby counsel. See Cochnauer,
2021 WL 3931914, at *5 (“Faretta admonishments are not required when standby
counsel is appointed and utilized.”); Glasspoole v. State, No. 02-16-00066-CR, 2016 WL
4045087, at *2 (Tex. App.—Fort Worth July 28, 2016, no pet.) (mem. op., not
designated for publication) (holding that “‘no question of waiver of counsel is
involved’ in cases of hybrid representation or cases when a defendant has access to
standby counsel”); Anderson v. State, No. 2-02-060-CR, 2003 WL 21101519, at *2 (Tex.
App.—Fort Worth May 15, 2003, pet. ref’d) (per curiam) (not designated for
publication) (“[B]ecause the record reflects appellant had been appointed standby
counsel before the time the earliest motions were heard, there was no Faretta error.”).
Other Texas courts have held similarly. See, e.g., Anthony v. State, No. 01-21-
00552-CR, 2023 WL 5616203, at *11 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023,
pet. ref’d) (mem. op., not designated for publication) (“[W]hen a trial court appoints
standby counsel, it is not required to admonish the defendant of the dangers of self-
representation.”); King v. State, No. 05-18-01116-CR, 2020 WL 1452046, at *2 (Tex.
App.—Dallas Mar. 25, 2020, pet. ref’d) (mem. op., not designated for publication)
(holding that Faretta admonishments are not required when a trial court appoints
standby counsel and that no question of waiver is involved when standby counsel is
appointed); Jones v. State, No. 14-04-00950-CR, 2005 WL 2787306, at *1 (Tex. App.—
Houston [14th Dist.] Oct. 27, 2005, no pet.) (per curiam) (mem. op., not designated
11
for publication) (“A judge need not admonish an accused of the dangers and
disadvantages of self-representation when he allows the accused to present his own
defense but, at the same time, appoints standby counsel to advise the accused as
necessary.”); but see Grant v. State, 255 S.W.3d 642, 647 (Tex. App.—Beaumont 2007,
no pet.) (“[W]e do not regard appointment of standby counsel as relieving the trial
court of the responsibility to admonish a defendant of the dangers of self-
representation.”).
Anderson candidly acknowledges the authority contrary to her position. She
asks us, however, to disregard this authority. She says that we should instead look to
the Fifth Circuit’s decision in United States v. Davis and the Beaumont Court of
Appeals’ decision in Grant, both of which suggest that the appointment of standby
counsel does not satisfy the Sixth Amendment right to counsel. See United States v.
Davis, 269 F.3d 514, 520 (5th Cir. 2001) (“Standby assistance of counsel, however,
does not satisfy the Sixth Amendment right to counsel.”); Grant, 255 S.W.3d at 647(stating that Faretta admonishments “should be given regardless of the appointment of
standby counsel”). We are not bound by those authorities, and we see no reason to
revisit our prior holdings that have squarely spoken on this issue. See Ex parte Thomas,
623 S.W.3d 370, 381 (Tex. Crim. App. 2021) (noting that “there is a strong
presumption in favor of established law”); Tiller v. State, No. 05-21-00653-CR,
2022 WL 2093008, at *2 (Tex. App.—Dallas June 10, 2022, no pet.) (mem. op., not
designated for publication) (holding that intermediate courts of appeals are “bound to
12
follow [their] own precedent unless it conflicts with an opinion of the Court of
Criminal Appeals”); Johnson v. Nat’l Oilwell Varco, LP, 574 S.W.3d 1, 10 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (“As an intermediate Texas court of appeals, we
are not bound to follow precedent from the Fifth Circuit even on matters of federal
law.”).
Here, Anderson told the trial court that she “would like to go pro se with
standby counsel.” The trial court admonished Anderson about the dangers of self-
representation and gave her a written document containing admonishments titled
“Judicial Admonishments and Written Waiver of Right to Counsel.”12 The trial court
appointed standby counsel, and Anderson represented herself at trial after confirming
on multiple occasions that she wished to proceed pro se.13 As acknowledged by
Anderson in her brief, “[s]tandby counsel was present . . . throughout the entirety of
her case” following the appointment, and the record makes clear that Anderson
consulted with her standby counsel on numerous occasions. Because Anderson had
standby counsel at her disposal, the trial court was not required to make Faretta
admonishments, and there is no question of waiver regarding her right to counsel. See
In her brief, Anderson acknowledges that the trial court “provide[d] a series
12
of thorough admonishments to [her] regarding the dangers of self-representation.”
While Anderson did not sign the written waiver of her right to counsel and at
13
one point stated that she desired to proceed “pro se without waiving the right to
counsel,” she later confirmed to the trial court on several occasions that she wished to
represent herself with standby counsel.
13
Cochnauer, 2021 WL 3931914, at *5; Glasspoole, 2016 WL 4045087, at *2; Anderson,
2003 WL 21101519, at *2; see also King, 2020 WL 1452046, at *3 (“We cannot conclude
the trial court did not adequately . . . assess whether appellant voluntarily, knowingly,
and intelligently waived his right to counsel because appellant had standby counsel at
his disposal and, as a result, the trial court was not required to admonish appellant.”).
We overrule Anderson’s first issue.
B. Anderson’s Complaint Regarding the Admission of Her Statements to
Police
In her second issue, Anderson complains that the trial court should have
suppressed the statements that she made to police while she was under arrest,
contending that the trial court improperly admitted those statements in violation of
Miranda and Article 38.22.
1. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).
Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility
and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007), we defer almost totally to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on evaluating
credibility and demeanor, but we review de novo application-of-law-to-fact questions
that do not turn on credibility and demeanor, Martinez, 570 S.W.3d at 281. We use
14
that same standard in reviewing claims concerning Miranda violations and the
admission of statements made as the result of a custodial interrogation. Pecina v. State,
361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012).
2. Applicable Law
The Fifth Amendment protects a criminal defendant from being forced to bear
witness against herself. U.S. Const. amend V. In Miranda, the United States Supreme
Court crafted safeguards to protect the Fifth Amendment privilege against self-
incrimination in the atmosphere of custodial interrogations. Pecina, 361 S.W.3d at 75;
see Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Specifically, Miranda requires that,
before any questioning occurs, a suspect in custody must be advised that: (1) she has
the right to remain silent; (2) anything she says can be used against her in a court of
law; (3) she has the right to the presence of an attorney; and (4) if she cannot afford
an attorney, one will be appointed for her prior to any questioning if she so desires.
Florida v. Powell, 559 U.S. 50, 59–60, 130 S. Ct. 1195, 1203 (2010) (citing Miranda,
384 U.S. at 479, 86 S. Ct. at 1630). The warnings set forth in Article 38.22 are
“virtually identical” to Miranda, except that they also require the warning that an
accused may terminate an interview at any time. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann. art. 38.22, § 2. Miranda and
Article 38.22 are applicable only when a defendant has been subjected to a custodial
interrogation. State v. Radke, No. 10-19-00263-CR, 2022 WL 1105602, at *4 (Tex.
App.—Waco Apr. 13, 2022, pet. ref’d) (mem. op., not designated for publication).
15
The defendant bears the burden of proving that a statement was the product of
a custodial interrogation. Herrera, 241 S.W.3d at 526. “Interrogation means express
questioning that the police should know is likely to elicit an incriminating response or
any words or actions by the police that the police should know will do so.” Farris v.
State, No. 02-17-00013-CR, 2018 WL 1865932, at *4 (Tex. App.—Fort Worth
Apr. 19, 2018, no pet.) (mem. op., not designated for publication). To qualify as an
interrogation, “there must be a measure of compulsion.” Edwards v. State, No. 02-22-
00022-CR, 2023 WL 5115745, at *10 (Tex. App.—Fort Worth Aug. 10, 2023, pet.
ref’d) (mem. op., not designated for publication). “Thus, even when the accused is in
custody, volunteered statements are not barred by Miranda.” Id. (citing Pugh v. State,
624 S.W.3d 565, 568 (Tex. Crim. App. 2021)).
“Furthermore, an officer’s response to a question from someone in custody
does not amount to an interrogation.” Id. (citing United States v. Crisolis-Gonzalez,
742 F.3d 830, 837 (8th Cir. 2014)). Indeed, “[w]hen a defendant initiates a
conversation about the facts of an offense, generally no interrogation occurs.” Id.(citing Vasquez v. State, No. 14-01-01018-CR, 2003 WL 60518, at *2 (Tex. App.—
Houston [14th Dist.] Jan. 9, 2003, pet. ref’d) (mem. op., not designated for
publication)). Further, “[w]hen an accused in custody spontaneously volunteers
information that is not in response to earlier interrogation by authorities, the
statement is admissible . . . because it is not the product of custodial interrogation.”
16
Carter v. State, No. 01-17-00159-CR, 2018 WL 5259895, at *2 (Tex. App.—Houston
[1st Dist.] Oct. 23, 2018, no pet.) (mem. op., not designated for publication).
3. Analysis
Here, it is undisputed that Anderson was in custody when she made the
statements to Malwitz that form the basis of the underlying retaliation offense. Thus,
our analysis hinges on whether Anderson’s statements were made as a result of an
interrogation.
While Malwitz did ask Anderson questions pertaining to the marijuana found
behind the shed without first giving her the warnings required by Miranda and
Article 38.22—“What about the stuff you threw behind the shed?” and “Why didn’t
we just talk about it? Why did you start screaming at me and everything?”—those
questions were asked well before Anderson made the threatening statements toward
Malwitz.14 Indeed, after asking those questions and after Anderson continued denying
14
In her brief, Anderson argues that we should consider not only the evidence
admitted at the suppression hearing but also the evidence admitted at trial because the
parties “consensually broached” the suppression issue at trial. When parties
consensually broach a suppression issue again at trial, the reviewing court should also
consider the evidence adduced at trial in gauging the propriety of the trial court’s
ruling on the motion to suppress. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim.
App. 2012). Here, the parties both consensually broached the suppression issue at
trial by referencing the Miranda issue in opening statements, direct- and cross-
examination, and closing arguments. We thus agree with Anderson on this point, and
we have considered the evidence admitted at both the suppression hearing and at trial
in our analysis of this issue. In its brief, the State does not argue that we should not
consider the evidence admitted at trial in our analysis; indeed, the State cites heavily to
the video from Malwitz’s bodycam, which was admitted at Anderson’s trial but was
not admitted at the suppression hearing.
17
wrongdoing, Malwitz left Anderson alone in his patrol vehicle for approximately ten
minutes. Approximately one minute after he returned, Anderson asked for his name,
he gave it, and she said, “How long you think you gonna live, Malwitz? Not that long,
I bet you.”
We hold that that threat toward Malwitz was not made in response to any
interrogation; rather, it was a statement volunteered by Anderson. See Edwards,
2023 WL 5115745, at *10; Carter, 2018 WL 5259895, at *2; Valentine v. State, No. 05-
03-00656-CR, 2004 WL 886264, at *1 (Tex. App.—Dallas Apr. 27, 2004, no pet.) (not
designated for publication) (holding that defendant’s statement to police was not the
result of custodial interrogation because the statement was volunteered while the
officer was asking him “routine book-in questions unrelated to the offense”). To that
end, the statement was not made in response to any question propounded by Malwitz,
occurred after Malwitz had been apart from Anderson for ten minutes, and was
elicited freely from Anderson without any prompting from Malwitz other than him
telling Anderson his name when she had asked for it. Thus, because it was not made
in response to an interrogation, we hold that the trial court did not err by admitting
evidence of that threat. See Carter, 2018 WL 5259895, at *3 (holding that trial court
did not abuse its discretion by denying motion to suppress “[b]ecause the evidence
demonstrate[d] that appellant made the statements voluntarily, and not in response to
18
questioning by any officer or any words or actions they should have known were
reasonably likely to elicit an incriminating response”).15
As to the other threats made by Anderson—threats to Malwitz, Hamilton, and
the public at large—only one of them was arguably made in response to police
questioning. To that end, after Anderson initially threatened Malwitz, Malwitz asked
if Anderson wanted to “add terroristic threat.” Anderson replied that she “didn’t say
that”; she then stated, “it’s a promise,” telling Malwitz that he was “going to regret
this little, small shit” and that his “family will, too.” Even if we assumed that the trial
court erred by not suppressing evidence of that threat, we hold that Anderson has not
been harmed.
15
Anderson cites Mason v. State, No. 12-16-00266-CR, 2018 WL 345714 (Tex.
App.—Tyler Jan. 10, 2018, no pet.) (mem. op., not designated for publication), a case
that she claims involves a “parallel . . . situation” to her case. We find Mason
distinguishable. In Mason, an intoxicated defendant asked whether a police officer had
a “good boxing game” and stated that he had “a real good boxing game.” Id. at *1.
The officer responded, “[A]re you threatening to assault me?” Id. The defendant
then told the officer that he would “take [the officer’s] life away.” Id. The defendant
later said, “[I]f I ever see you again friend, you better have a good life.” Id. at *2. The
officer responded, “Why’s that, sir?” Id. The defendant then told the officer to “shut
up” and stated that he would “make [the officer] stop breathing.” Id. The officer
asked, “[H]ow do you propose to do that?” and the defendant again told the officer to
“shut up” and said, “I’m going to end your breathing.” Id. The Tyler Court of
Appeals overturned the defendant’s conviction for retaliation, noting that given the
defendant’s behavior and intoxicated condition, the officer should have known that
his questions were likely to elicit an incriminating response. Id. at *4. Here, in
contrast, there is no evidence that Anderson was intoxicated. Moreover, Anderson’s
statement of “How long you think you gonna live, Malwitz? Not that long, I bet
you,” was not prompted by any questioning from Malwitz, while the threats made in
Mason were prompted by the officer’s questions, “[A]re you threatening to assault
me?”; “Why’s that, sir?”; and “[H]ow do you propose to do that?” Id. at *1–2.
19
The erroneous denial of a motion to suppress a statement taken in violation of
Miranda is constitutional error subject to review under the standard set forth in Texas
Rule of Appellate Procedure 44.2(a).16 Coffey v. State, 435 S.W.3d 834, 843 (Tex.
App.—Texarkana 2014, pet. ref’d); In re J.T.M., 441 S.W.3d 455, 464 (Tex. App.—El
Paso 2014, no pet.); see Tex. R. App. P. 44.2(a). Rule 44.2(a) requires us to reverse the
conviction unless we determine beyond a reasonable doubt that the trial court’s
refusal to suppress the statements did not contribute to the conviction. See Tex. R.
App. P. 44.2(a); Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020). “If there
is a reasonable likelihood that the error materially affected the jury’s deliberations,
then the error was not harmless beyond a reasonable doubt.” Wesbrook v. State,
29 S.W.3d 103, 119 (Tex. Crim. App. 2000); see also Neal v. State, 256 S.W.3d 264, 284
(Tex. Crim. App. 2008).
Our harmless-error analysis should not focus on the propriety of the trial’s
outcome but rather should focus on whether the constitutional error adversely
16
The harm analysis for errors based on Article 38.22 is governed by
Rule 44.2(b). Flores v. State, No. 01-14-00579-CR, 2018 WL 5070054, at *1 (Tex.
App.—Houston [1st Dist.] Oct. 18, 2018, no pet.) (mem. op., not designated for
publication). But because Anderson has also alleged that her statements should have
been suppressed due to Miranda, we will analyze harm under Rule 44.2(a). See
Campbell v. State, 325 S.W.3d 223, 238–39 (Tex. App.—Fort Worth 2010, no pet.)
(applying the constitutional harm standard of Rule 44.2(a) to decide that there was no
harm stemming from appellant’s Miranda complaint and declining to conduct a
separate analysis of harm under Rule 44.2(b) pertaining to appellant’s Article 38.22
complaint); see also Funes v. State, 630 S.W.3d 175, 182–83 (Tex. App.—El Paso 2020,
no pet.) (assessing harm under Rule 44.2(a) because appellant raised both a Miranda
complaint and an Article 38.22 complaint).
20
affected the integrity of the process leading to the conviction. See Wells, 611 S.W.3d at
410; see also Wesbrook, 29 S.W.3d at 119 (“[T]he appellate court should calculate as
much as possible the probable impact of the error on the jury in light of the existence
of other evidence.”). To that end, we “should take into account any and every
circumstance apparent in the record that logically informs an appellate determination
whether ‘beyond a reasonable doubt [that particular] error did not contribute to the
conviction or punishment.’” Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App.
2011) (quoting Tex. R. App. P. 44.2(a)). While the most significant concern must be
the error and its effects, the presence of overwhelming evidence supporting the
finding in question can be a factor in the evaluation of harmless error. Wells,
611 S.W.3d at 410. We evaluate the entire record in a neutral manner and not in the
light most favorable to the prosecution. Id. at 410–11.
Here, Anderson made threats to Malwitz that were not in response to police
questioning. While she was in his patrol vehicle, Anderson told Malwitz, unprompted
by any questioning, “How long you think you gonna live, Malwitz? Not that long, I
bet you.” Later at the jail, Anderson told Malwitz, again unprompted by any
questioning, “What’s your name . . . Malwitz? Gonna die. Cause that ain’t no threat,
you feel me? Everybody gonna die, you feel me?” Thus, even if the trial court erred
by admitting Anderson’s statements made in response to Malwitz’s question of
whether Anderson wanted to “add terroristic threat”—that “it’s a promise,” that he
was “going to regret this little, small shit,” and that his family would also regret it—
21
the record contains evidence of other threats made by Anderson to Malwitz that were
properly admitted. See Funes, 630 S.W.3d at 183 (holding that, even if trial court erred
by failing to give Miranda warnings and failed to comply with Article 38.22, appellant
was not harmed by admission of allegedly-improper evidence because other similar
evidence was properly admitted establishing appellant’s guilt); Sandone v. State,
394 S.W.3d 788, 794 (Tex. App.—Fort Worth 2013, no pet.) (similar).
Thus, after carefully reviewing the record and performing Rule 44.2(a)’s
required harm analysis, we hold beyond a reasonable doubt that even if the trial court
erred by not suppressing Anderson’s response to Malwitz’s question of whether she
wanted to “add terroristic threat,” such an error did not contribute to Anderson’s
conviction. See Tex. R. App. P. 44.2(a). We overrule Anderson’s second issue.17
IV. CONCLUSION
Having overruled Anderson’s two issues, we affirm the trial court’s judgment.
17
Anderson also argues that the State conceded error regarding the trial court’s
admission of her statements to Malwitz. Anderson points to a remark made by a
prosecutor during closing argument, in which the prosecutor told the jury, “[I]f you
want to believe that Officer Malwitz should have Mirandized the Defendant . . . then
your remedy for that would be only to not consider the statements she said in
response to questions he asked. . . . You could only exclude the statements in
response to what . . . he asked.” Anderson also points to a later statement made by a
prosecutor during closing argument, in which the prosecutor told the jury, “[I]f you
find that Officer Malwitz should have given the Miranda warnings, then disregard the
statements that [Anderson] made in response to any of his questions.” But neither of
those remarks are concessions of error; both simply tell the jury what the remedy
would be “if” the jury believed that Anderson did not receive proper warnings under
Miranda. We reject Anderson’s contention that the State conceded error.
22
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 25, 2024
23