Cameron J. Moore v. the State of Texas ( 2024 )

Opinion issued October 31, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00740-CR
———————————
CAMERON J. MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1711760
MEMORANDUM OPINION
Appellant Cameron J. Moore was found guilty by a jury of the offense of
felony murder. See TEX. PENAL CODE § 19.02(b)(3). The jury assessed Moore’s
punishment at life in prison. In three issues on appeal, Moore contends that the
evidence was insufficient to support his conviction because the State failed to
corroborate an accomplice witness’s testimony (issue one) and that the trial court
abused its discretion in denying his motion to suppress his oral statement and in
admitting the statement into evidence (issues two and three).
We affirm.
Background
In the early morning hours of June 9, 2019, eleven-year-old Kevin1 was asleep
in the front bedroom of his home on North Brentwood Street in Channelview, Texas.
Kevin and his family had moved into the house about two months earlier. Around
4:20 a.m., a car approached the home. Surveillance video from neighboring homes
captured what happened next. The car stopped in front of Kevin’s home. The car’s
passenger got out and fired what was later determined to be an assault rifle toward
the home. After the passenger got back in, the car went down the street and turned
around in a neighbor’s driveway. When the car drove by Kevin’s home the second
time, the passenger fired what was later determined to be a 9-millimeter pistol over
the roof of the car toward Kevin’s home. Bullets fired from the weapons hit a vehicle
parked in the driveway, breaking its back windshield, and hit the home.
One of the bullets pierced the bedroom wall where Kevin was sleeping. The
bullet struck Kevin in the chest, killing him. Assistant medical examiner Dr. Darshan
1
We use a pseudonym to refer to the minor complainant. See TEX. R. APP. P.
9.10(a)(3).
2
Phatak testified at trial that, from her autopsy, she determined that Kevin’s cause of
death was a “gunshot wound of the posterior torso through the chest” and that the
manner of his death was homicide. The amount of damage to Kevin’s body and the
size of the exit wound led Dr. Phatak to believe that Kevin was shot by a rifle. She
confirmed that nothing led her to believe that Kevin was shot at close range.
The Harris County Sheriff’s Department investigated the homicide and
obtained surveillance video from Kevin’s neighbors. From the video, investigators
determined that the car involved in the shooting was a blue Chevrolet Impala with
rear-end damage. But the occupants of the Impala could not be seen with sufficient
detail to be identified.
The day after the shooting, the Impala was found parked on a residential street
less than two miles from Kevin’s house. Nine-millimeter shell casings were found
on the roof of the vehicle and also at the bottom of the windshield. At Kevin’s home,
investigators collected 7.62-millimeter and 9-millimeter shell casings fired from two
firearms. Forensic testing showed that the 9-millimeter shell casings recovered from
the Impala were fired from the same unknown firearm as the shell casing recovered
from the home.
Investigators determined that the Impala was registered to Sonnie Reyes.
Detective A. Thompson with the Homicide Division of the Harris County Sheriff’s
3
Office interviewed Reyes a couple weeks later. Reyes admitted that he was involved
in the shooting at Kevin’s home. Reyes also implicated Moore in the shooting.
From Reyes, Detective Thompson learned that, a couple of hours before the
shooting, a drive-by shooting had occurred at Moore’s house where he lived with
his mother. No one had been injured in that shooting, but their house and car were
damaged.
Detective Thompson learned that Deputy A. Jimenez had been dispatched to
Moore’s house to investigate that shooting shortly after 2:00 a.m. on June 9. He
obtained the footage from Deputy Jimenez’s body-worn camera. In the video,
Deputy Jimenez asked Moore if he knew “anyone who would do something like
this.” Moore responded that he did. He said that he was “pretty sure [he knew]
exactly who it was.” He said that he “probably used to hang with them” but then
walked away. An eyewitness told Deputy Jimenez that she was sitting in her car
when she saw two male assailants in a white Pontiac shoot at Moore’s house with
pistols. When asked the assailants’ race, she said that they were Black. Moore
indicated that he saw the assailants from an upstairs window. He said that the
assailants were “Mexican,” not Black.
Moore’s mother indicated that Moore knew who the assailants were, and
Moore responded that he did. He stated that he “already got everybody researching.”
Throughout the video, Moore is shown looking at his cell phone. Deputy Jimenez
4
testified that Moore was “trying to process what [had] happened” and “trying to
figure out who had—who could have done this to his car.” Deputy Jimenez testified
that Moore was uncooperative and unwilling to share whatever information he had.
Moore never told Deputy Jimenez who he thought the assailants were other than to
say it was “someone around the area.”
When asked about Moore’s demeanor, Deputy Jimenez testified that Moore
“was angry.” He stated that “[i]t seemed like he knew who had done it and he was
thinking of his next—what he was going to do next.” At one point, Deputy Jimenez
muted the microphone on his body-worn camera. He testified that he was “trying to
reason” with Moore. Deputy Jimenez stated that he believed that Moore “knew more
than what he was telling [him].” He said that he was trying to tell Moore “that it
wasn’t worth it” and to convince Moore to talk to him, but he “wouldn’t talk.”
During the investigation of Kevin’s homicide, Detective Thompson obtained
a search warrant for an Instagram account associated with Moore. The Instagram
records showed that at 2:50 a.m., while Deputy Jimenez was still at Moore’s house,
an Instagram message was sent from Moore’s account to “Jackboy_marcos,” an
account associated with someone named Marcos.2 The message stated, “I’m a kill
you boy.” Another message, sent from Moore’s account to Marcos at 3:29 a.m.,
stated, “Come back.”
2
The record does not definitively reflect a surname for Marcos.
5
As part of his investigation, Detective Thompson determined who had resided
at Kevin’s home before Kevin and his family moved in two months before the
shooting. Detective Thompson determined that a mother and her son had lived there.
Detective Thompson spoke to the mother and learned from her that Marcos—who
Moore had threatened in a message to kill—“used to hang around the house.” She
said that Marcos sometimes stayed at the house “over the weekend.”
The Instagram records also showed that, around 7:00 p.m. on June 9, Moore
received a message from the account of htx.moore, who Moore testified at trial was
a relative. The relative asked Moore, “Yall [sic] went back to the house[?]” Moore
responded, “Yup.” Two days later on June 11, the relative messaged Moore, “They
still tal[king] bout what happen[e]d on the news.” The relative also said, “They said
they still don[’]t have a lead” and then sent two smiley emojis. Moore responded,
“God bless.” The relative added, “They don[’]t find out.” Moore then messaged,
“Unsend all these m[e]ssages.” The relative responded, “I did.”
The investigation also revealed that, about two weeks before the shooting,
Reyes purchased an assault rifle. Reyes was arrested about one month after the
shooting. While he was in jail, Reyes instructed a friend, Ivan Ramirez, to get rid of
the rifle. A friend of Ramirez kept the rifle at his home. Detective Thompson learned
of the rifle’s location and retrieved it from Ramirez’s friend. Ballistic testing showed
that the weapon was the assault rifle used in the shooting at Kevin’s home. DNA
6
testing of the weapon revealed only the DNA of Ramirez and his friend. The 9-
millimeter pistol used in the shooting at Kevin’s home was never located.
Moore’s fingerprints were found on the outside of the driver’s-side door of
Reyes’s Impala. His fingerprints were not found anywhere else on the car.
After Kevin’s murder, Moore and his mother moved to Beaumont. Using
Moore’s Instagram posts, Detective Thompson located Moore there in November
2019.
Detective Thompson interviewed Moore twice—in November 2019 and again
in February 2021. The February 2021 interview was admitted into evidence at trial
but the November 2019 interview was not admitted. However, Detective Thompson
testified about both interviews.
When Moore was interviewed by Detective Thompson in November 2019,
Reyes had already been indicted for Kevin’s murder. Detective Thompson testified
that Moore spoke with him voluntarily. During the interview, Moore mentioned that
his house had been “shot up” and that Moore had “basically said” that Reyes had
taken “care of it for him.” Initially, Moore told Detective Thompson that he did not
know how Reyes found out about the shooting at his house. He then “changed his
story,” stating that he had called Reyes to tell him about the shooting. Detective
Thompson testified that Moore’s social media and cell phone records did not reflect
7
that Moore and Reyes communicated between the time of the shooting at Moore’s
house and the shooting at Kevin’s house.
In February 2021, Detective Thompson wanted to reconnect with Moore, so
he called Moore’s mother. Moore returned the call to Detective Thompson. Moore
had moved back to Houston, and he agreed to meet Detective Thompson for another
interview. Detective Thompson asked Moore to meet at the sheriff’s office. Moore
declined but texted that he would meet Detective Thompson in the parking lot of a
Walgreen’s drugstore and provided the address. Moore chose the time of the
interview, which occurred on February 22, 2021, between 9:00 p.m. and 10:00 p.m.
Moore drove his vehicle to the interview. Once at the Walgreen’s, Moore got into
the front seat of Detective Thompson’s county-owned, unmarked vehicle where the
interview took place. Another detective, Detective S. Silva, was in the backseat. The
interview was audio-recorded and lasted about an hour and fifteen minutes.
At the beginning of the interview, Detective Thompson conveyed that he
thought Moore and Reyes were responsible for the shooting at Kevin’s house. He
said that Reyes had told him a “wild story” implicating Moore in the murder, and he
had no reason to disbelieve Reyes, who had no motive to commit the offense and
had admitted to his own involvement. Detective Thompson told Moore, “[Y]ou
obviously [are] involved with this, your house just got shot up. You thought it was
Marco[s]. You thought Marco[s] still lived at that house on Brentwood. And it was
8
the wrong house.” Detective Thompson conveyed that Moore’s claim that Reyes had
committed the shooting as a favor to him was not credible. He told Moore that he
“need[ed] to know what happened, why it happened and who was ultimately
responsible.”
Moore denied going to Kevin’s house that night. He told Detective Thompson
that, after the shooting at his house, he called Reyes to confront him, believing that
Reyes was responsible for the drive-by shooting at his house. He explained that he
and Reyes were “feuding over a female.” He said that Reyes denied responsibility
for the shooting at Moore’s house, and he claimed that Reyes told him that he was
“gonna handle” it for him. Moore said that Reyes told him that knew “where to go.”
Detective Thompson asked Moore why Reyes was willing to do that for him. Moore
indicated that Reyes had his own motives for retaliating against Marcos. Moore said
that Marcos and his group had beaten up Reyes a year earlier and had given Reyes a
black eye. Moore also said that his mother had helped Reyes when Reyes’s mother
had kicked him out.
Detective Thompson told Moore that he “put [Ramirez] in jail . . . for hiding
[Reyes’s assault rifle]” and that Ramirez had stated that he saw Moore at Reyes’s
house on the night of shooting. Moore denied being at Reyes’s house that night.
Moore’s mother had told Detective Thompson that Moore was home when
the shooting at Kevin’s house occurred. Detective Thompson told Moore several
9
times during the interview that his mother could get “in trouble” if she had lied about
Moore being at home. Moore said that his mother had told the truth because he was
at home the entire night.
About eight minutes into the interview, Detective Thompson told Moore,
“[L]ook Cameron, I’m . . . trying to make you understand this[,] bro. It’s coming to
a close. Okay. Now eventually you going to get charged[.]” Moore asked Detective
Thompson, “What proof do you have on me to prove the link [to] me [on] this?”
Detective Thompson stated that he was “still waiting on the DNA” from the assault
rifle involved in the shooting. Moore then indicated for the first time that he may
have touched the rifle because Reyes brought it to his house to sell it to him one
month before the shooting. Detective Thompson told Moore that Reyes purchased
the assault rifle on May 28, so Reyes did not own it one month before the June 9
shooting as Moore claimed.
A few minutes later, Moore changed what he had told Detective Thompson.
Moore said that, after he called Reyes about the shooting at his house, Reyes drove
to his house and showed him the assault rifle. Moore said that “another Mexican
guy,” who he had never seen before, was also in the car with Reyes. Detective
Thompson asked Moore why he was “just now telling [him]” that Reyes had come
to his house with the assault rifle. Moore said he “was scared” and “didn’t want to
tell [Detective Thompson] that.” He also disclosed that he handled Reyes’s assault
10
rifle while standing outside the car, stating that he “played with” it and “racked the
slide.” Detective Thompson asked Moore to take a polygraph test. He indicated that,
if he was telling the truth, Moore could be eliminated as a suspect.
Moore said that Reyes stayed at his house for about 10 minutes. During that
10 minutes, he sat in the backseat of Reyes’s Impala and smoked “weed.” He said
that Reyes told him that he knew the location of Marcos’s “trap house” and that “he
was gonna shoot it up.” He said that Reyes asked him to go with him, but he declined
and stayed at home. Moore told Detective Thompson that he “specifically told
[Reyes] not to even shoot at the house” but “[to] shoot at the cars.” On further
questioning, Moore stressed that he “didn’t tell [Reyes] to kill anyone. . . . [He] just
told [Reyes] to shoot at the cars[.]” At the end of the interview, Moore got out of
Detective Thompson’s vehicle and left in his own car.
Moore was later arrested and indicted for the offense of felony murder.3 The
indictment alleged that, on June 9, 2019, Moore
intentionally and knowingly commit[ted] the felony offense of Deadly
Conduct by discharging a firearm at and in the direction of a habitation
[on North Brentwood Road] and was reckless as to whether the
habitation was occupied, and while in the course of and furtherance of
3
Under the Penal Code, a person commits felony murder when the person “commits
or attempts to commit a felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in the immediate flight from the
commission or attempt, the person commits or attempts to commit an act clearly
dangerous to human life that causes the death of an individual.” TEX. PENAL CODE
§ 19.02(b)(3).
11
the commission of said offense did commit an act clearly dangerous to
human life, to-wit: shooting [Kevin] . . .with a firearm and did thereby
cause [his] death.
Moore moved to suppress his February 2021 oral statement. In his written
motion, Moore asserted, inter alia, that his statement should be suppressed because
it “was taken without a knowing, intelligent and full and complete understanding of
[his] rights, as required by [Miranda4], and Article 38.22 of the Texas Code of
Criminal Procedure.” He also challenged the statement on the basis that it “was not
freely and voluntarily made” because “the officers to whom the statement was made
used misstatement, deception and trickery to get [Moore] to make the statement.”
Specifically, he claimed that the officers “told [him] that unless he talked to them at
that time and made a statement, . . . he would not be able to make a statement at all
after that.”
The trial court conducted a hearing on the motion at the start of trial before
the first witness was sworn. In his opening statement at the hearing, Moore asserted
that his statement should be suppressed because he was not informed of his Miranda
rights before he gave the statement, which he claimed resulted from a custodial
interrogation. He asserted that, at the time of his statement, it was “clear that he was
going to be charged with murder.” He argued that the recorded statement should be
suppressed because he “was in fear, scared, [and] intimidated” at the time he gave
4
See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966)
12
it. The State responded that Moore was not entitled to Miranda warnings because he
was not in custody when he made the statement and that he had given the statement
voluntarily.
A transcript of Moore’s February 2021 statement was admitted into evidence
at the suppression hearing, and the defense called Moore to testify. He stated that
Detective Thompson told him early in the interview that “eventually [he] would get
charged.” Moore testified that, if his rights had been read to him, he would have
exercised his right to remain silent. Moore acknowledged that, in the interview, he
said that he told Reyes to shoot up the cars. Moore testified that the statement was
not true because he never told Reyes to do that. When asked why he made the false
statement, Moore testified that he felt “scared” and “intimidated.” He explained that
he “felt [he] had to tell [Detective Thompson] something to get him to back off and
let [him] go about [his] day.” Moore stated that Detective Thompson did not believe
him when he said that he had “nothing to do with [the shooting]” and that Detective
Thompson “just kept grilling [him] relentlessly.” He agreed that he “told [Detective
Thompson] what he wanted to hear to get out of there.”
When questioned by the State, Moore acknowledged that he had initiated
contact with Detective Thompson after the detective called his mother. Moore
agreed that he had made the decision to call Detective Thompson and to meet with
him. He also agreed that he had declined Detective Thompson’s request to meet at
13
the sheriff’s office. Instead, Moore chose the location and the time for the interview.
Specifically, he chose to meet Detective Thompson in a Walgreen’s parking lot
between nine and ten o’clock at night. He affirmed that he drove to the location in
his own car. He acknowledged that he was never told that he could not get out of the
car during the interview, nor was he told that he was under arrest. Moore
acknowledged that, after the interview concluded, he got out of Detective
Thompson’s car and left in his own vehicle.
The State called Detective Thompson to testify at the suppression hearing.
Detective Thompson testified that, during the interview, Moore was not handcuffed
and the doors of the car were unlocked. He said that Moore had been free to leave.
Detective Thompson acknowledged that he was “part of the decision” to later charge
Moore with Kevin’s murder and that the decision to charge Moore was based in part
on the February 2021 interview as well as other evidence collected during the
investigation.
When questioned by the defense, Detective Thompson acknowledged that,
during the interview, he told Moore that “eventually [he was] going to get charged.”
He also acknowledged that Moore was the “focus” of his investigation.
In closing argument at the suppression hearing, Moore argued that he was
entitled to be informed of his Miranda rights because he was in custody when he
gave his statement. He pointed out that he was the focus of the investigation and
14
cited Detective Thompson’s remark that he was “eventually going to get charged.”
Moore asserted that he should have been informed of his Miranda rights as soon as
Detective Thompson made the remark. Moore also asserted that his statement was
not voluntary because he was “in fear, scared, [and] intimidated.”
At the end of the hearing, the trial court ruled that Moore’s February 2021
statement was admissible, thereby denying Moore’s motion to suppress. In support
of its ruling, the trial court orally found that the statement “was made freely and
voluntarily,” Moore “was not in custody,” and he “was free to leave.” The trial court
also found that there was “no threats,” and “[t]here was not any intimidation.” The
court further found that, “based on the [its] experience, that various tactics are used
with respect to interviewing targets and/or suspects, and that it appear[ed] . . . that
that was what transpired in this case.”
The State called Detective Thompson to testify at trial about the investigation
of Kevin’s murder. This included testimony about the statements Moore gave in
November 2019 and in February 2021. During his testimony, the State offered the
audio recording of the February 2021 statement into evidence. Other exhibits offered
by the State included the surveillance video from Kevin’s neighbors, Moore’s
Instagram and cell phone records, and the video from Deputy Jimenez’s body-worn
camera. Other witnesses include Deputy Jimenez and forensic experts.
15
The State also offered the accomplice-witness testimony of Reyes, who had
already pleaded guilty to Kevin’s murder. Reyes testified that the State had
subpoenaed him and that he was not receiving anything in return from the State for
testifying.
Reyes stated that, on the night of June 8, 2019, he went to a club with some
friends. He said that the club closed at 2:00 a.m., and he arrived home around 2:45
a.m. He and his friends had been hanging out at his house for “a little bit” when
Reyes saw Moore walking down the street “coming to see [him]” around 3:00 a.m.
Reyes confirmed that he and Moore had not previously communicated that night.
Reyes saw that Moore was holding onto a 9-millimeter handgun that he had in the
pocket of his basketball shorts. Moore told Reyes that his house had “just got shot
up.” He described Moore’s demeanor as “angry” and “distraught.”
Reyes testified that they drove to Moore’s home in his car to look at the
damage. Reyes was driving and Moore was in the passenger seat. No one else was
in the vehicle. Before they left, Reyes had retrieved his assault rifle from his house
and placed it in the backseat of his car. He said that it was already loaded.
Moore told Reyes that he thought that Marcos had shot up his house. Reyes
testified that he did not know where Marcos lived, but Moore indicated that he did.
While Reyes drove, Moore directed him to the house on North Brentwood where
Moore thought Marcos lived.
16
Reyes testified that, on the first pass by the house, Moore used the assault rifle
to shoot at the home. After they turned around and made a second pass, Moore used
the 9-millimeter handgun. Reyes said that he was driving the entire time and that
Moore had been in the passenger seat. Reyes denied that Moore told him “to go shoot
up the cars” or to “shoot up anything.”
Reyes said that, after the shooting, they went to Moore’s house, and then he
drove home. He learned about Kevin’s death the next day from Moore.
The defense called Moore to testify. Moore stated that, not long after the
drive-by shooting at his house, Reyes and Ramirez pulled into his driveway in
Reyes’s Impala. Moore acknowledged that he talked to Reyes and sat in the backseat
of the Impala. He said that his mother came out of the house and questioned why
Reyes was there. Moore testified that he did not leave with Reyes and that he stayed
home the remainder of the night.
Moore also testified about his February 2021 statement. He stated that, had
Detective Thompson informed him of his rights, he would have stopped the
interview and left.
Moore testified that Detective Thompson indicated during the interview that
his mother could “get in trouble” because “she witnessed that [he] did not leave the
house.” Moore acknowledged that he had admitted to Detective Thompson that he
told Reyes to shoot up the cars. But Moore testified that was a false admission. He
17
said that he never told Reyes to shoot up the cars. When asked why he made the false
admission, Moore testified, “Because I felt threatened. [Detective Thompson] was
threatening my mother. He wouldn’t—basically, like, he wouldn’t let me leave. I
felt like I had to tell him something so he would excuse me from the vehicle.”
Moore acknowledged that, after the shooting at his house, he sent a message
to Marcos threatening to kill him. He testified that he suspected Marcos was
responsible for shooting at his home and sent the message to bait Marcos into
returning to the scene to prove that Marcos was responsible for the shooting.
Moore’s mother also testified. She stated that, after the drive-by shooting at
her home, Reyes and another person pulled up to her house in Reyes’s car. She said
that Moore talked with Reyes outside for 15 to 20 minutes. She testified that Moore
then came inside the house and stayed with her for the rest of the night.
The charge permitted the jury to find Moore guilty of the offense of murder
as either the principal or as a party. See TEX. PENAL CODE § 7.01(a); id. § 7.02(a)(2)
(providing that “[a] person is criminally responsible for an offense committed by the
conduct of another if . . . acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense”). The jury was also given an accomplice-witness instruction
regarding Reyes’s testimony.
18
The jury found Moore guilty of the offense of murder as charged in the
indictment and assessed his punishment at life in prison. Moore appealed,
challenging the judgment of conviction in three issues.
Accomplice-Witness Corroboration
In his first issue, Moore asserts that “the evidence was insufficient to support
[his] conviction because the accomplice witness testimony of Sonnie Reyes was not
sufficiently corroborated.”
A. Standard of Review and Relevant Law
An accomplice is a person who participates with a defendant in the charged
offense before, during, or after its commission with the requisite mental state. Smith
v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). “A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence tending
to connect the defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.” TEX. CODE CRIM. PROC.
art. 38.14.
“When evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we ‘eliminate the accomplice testimony from
consideration and then examine the remaining portions of the record to see if there
is any evidence that tends to connect the accused with the commission of the crime.’”
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v.
19
State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). We view corroborating evidence
in the light most favorable to the jury’s verdict. Brown v. State, 270 S.W.3d 564, 567
(Tex. Crim. App. 2008). If there are conflicting views of the evidence, one tending
to connect the accused to the offense and the other not, we defer to the jury’s view.
Smith, 332 S.W.3d at 442. “[I]t is not appropriate for appellate courts to
independently construe the non-accomplice evidence.” Id.“[T]he corroborating evidence need not prove the defendant’s guilt beyond a
reasonable doubt by itself.” Malone, 253 S.W.3d at 257. Nor is it necessary “that the
corroborating evidence directly connect the defendant to the crime[.]” Cathey v.
State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Instead, the corroborating
evidence must only link the defendant in some way to the commission of the crime
and show that “rational jurors could conclude that this evidence sufficiently tended
to connect [the accused] to the offense.” Malone, 253 S.W.3d at 257 (quoting
Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). The
corroborating evidence need only “connect the defendant to the crime, not to every
element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App.
2007); see State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016) (“The
corroboration requirement in Article 38.14 does not apply separately to each element
of the offense charged or to each aspect of the accomplice’s testimony.”).
20
The corroborating evidence may be direct or circumstantial. See Smith, 332
S.W.3d at 442. “If the combined weight of the non-accomplice evidence tends to
connect the defendant to the offense, the requirement of Article 38.14 has been
fulfilled.” Cathey, 992 S.W.2d at 462.
B. Analysis
Here, the parties agree that Reyes was an accomplice witness. Thus, we
disregard Reyes’s testimony to determine if there was non-accomplice evidence
tending to connect Moore to Kevin’s murder.
Moore acknowledges that the non-accomplice evidence showed that he had a
motive to shoot at Marcos’s former residence, namely, the earlier shooting at his
own home, which he attributed to Marcos. Moore correctly points out that, while
motive may be considered in connection with other evidence which tends to connect
the accused with the crime, motive alone is insufficient to corroborate accomplice
witness testimony. See Reed v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988)
(concluding evidence of affair could be considered in connection with all other
evidence tending to connect appellant to wife’s murder). Here, the non-accomplice
evidence shows more than motive tending to connect Moore to Kevin’s murder.
Non-accomplice evidence was presented about Moore’s conduct before the
offense tending to connect him to the offense. The Instagram records showed that,
during the approximately two-hour period between the shootings at the two homes,
21
Moore sent Marcos a message threatening to kill him and then sent another message
telling him to “[c]ome back.”
Moore sent the first message to Marcos while Deputy Jimenez was at his home
investigating the drive-by shooting there. In the video from Deputy Jimenez’s body-
worn camera, Moore indicates to his mother that he knew who the assailants were
who shot their house. Deputy Jimenez testified that Moore was uncooperative and
unwilling to share whatever information he had about who committed the shooting.
When asked about Moore’s demeanor, Deputy Jimenez testified that Moore “was
angry.” He stated that “[i]t seemed like he knew who had done it and he was thinking
of his next—what he was going to do next.” At one point, Deputy Jimenez muted
the microphone on his body-worn camera. He testified that he was “trying to reason”
with Moore. Deputy Jimenez stated that he believed that Moore “knew more than
what he was telling [him].” Deputy Jimenez’s testimony indicated that he believed
that Moore was thinking about retaliating against the person that he believed had
shot his house. Deputy Jimenez testified that he was trying to tell Moore “that it
wasn’t worth it” and to convince Moore to talk to him, but he “wouldn’t talk.”
“Evidence that the accused was in the company of the accomplice at or near
the time or place of a crime—when coupled with evidence tending to connect the
accused to the commission of the crime—properly corroborates accomplice
testimony in support of a conviction.” Smith v. State, 436 S.W.3d 353, 370 (Tex.
22
App.—Houston [14th Dist.] 2014, pet. ref’d) (citing Hernandez v. State, 939 S.W.2d
at 178); see Custard v. State, 812 S.W.2d 82, 85 (Tex. App.—Houston [1st Dist.]
1991, pet. ref’d) (recognizing that appellant’s statements that he was with
accomplice at time of shooting, though he contended accomplice was shooter,
tended to connect him to murder). Moore and his mother each testified that Moore
was with Reyes during the period between the shooting at his house and the shooting
at Kevin’s house. They each testified that Reyes drove to their house and that Moore
talked with Reyes outside by Reyes’s car—the car used a short time later in Kevin’s
murder. The evidence also showed that Moore’s fingerprints were on the outside
driver’s side door of Reyes’s car.
In his November 2019 and February 2021 statements, Moore told Detective
Thompson that he contacted Reyes to discuss the shooting of his house. Detective
Thompson testified that, in the November 2019 statement, Moore “basically said
[that Reyes] took care of it for him.”
In his February 2021 statement, Moore revealed that he sat in the backseat of
Reyes’s car while Reyes was at his house. He also said that, at that time, he handled
Reyes’s assault rifle—one of the two firearm’s used in the shooting at Kevin’s home.
Moore testified that he “played with” the rifle and racked the slide. See Cockrum v.
State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988) (“Proof that connects an accused
to a weapon used in an offense is proper corroborative evidence.”).
23
Moore’s statement also reflects that he and Reyes discussed retaliating against
Marcos for the drive-by shooting at Moore’s residence. He said that Reyes told him
that he knew the location of Marcos’s “trap house” and that “he was gonna shoot it
up.” He stated that Reyes asked him to come with him, but he stayed home and did
not go. Moore told Detective Thompson that he “specifically told [Reyes] not to
even shoot at the house” but “[to] shoot at the cars.” On further questioning, Moore
stressed that he “didn’t tell [Reyes] to kill anyone. . . . [He] just told [Reyes] to shoot
at the cars[.]” See Joubert, 235 S.W.3d at 731 (holding defendant’s videotaped
statement in which he admitted involvement in offense, but denied shooting victim,
tended to connect him to offense; explaining that “appellant’s liability as a principal
or under a parties theory is of no relevance under an Article 38.14 analysis. The
question is whether some evidence ‘tends to connect’ him to the crime; the
connection need not establish the exact nature of his involvement (as a principal or
party”)).
Moore’s conduct after Kevin’s murder also tended to connect him to the
offense. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)
(recognizing that defendant’s conduct after crime indicating consciousness of guilt
is “one of the strongest kinds of evidence of guilt”). This includes messages between
Moore and a relative. The Instagram records showed that, around 7:00 p.m. on June
9—the same day as Kevin’s murder—Moore received a message from a relative.
24
The relative asked Moore, “Yall [sic] went back to the house[?]” Moore responded,
“Yup.” Two days later on June 11, the relative messaged Moore, “They still tal[king]
bout what happen[e]d on the news.” The relative also said, “They said they still
don[’]t have a lead” and then sent two smiley emojis. Moore responded, “God bless.”
The relative added, “They don[’]t find out.” From the exchange, the jury could have
reasonably inferred that they were communicating about the murder. After the
exchange, Moore then messaged the relative: “Unsend all these m[e]ssages.” The
relative responded, “I did.” Attempting to conceal incriminating evidence tends to
connect a defendant to an offense because it shows a consciousness of guilt. See
Lozano v. State, 359 S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref’d)
(noting that attempting to conceal incriminating evidence shows consciousness of
guilt); Simpson v. State, 181 S.W.3d 743, 754 (Tex. App.—Tyler 2005, pet. ref’d)
(indicating that evidence demonstrating consciousness of guilt can be used to
corroborate accomplice-witness testimony).
In addition, portions of Moore’s account of what occurred on the night of the
murder shifted and changed over time. For instance, Detective Thompson testified
that, during his November 2019 statement, Moore first said that he did not know
how Reyes found out about the shooting at Moore’s house but then said that he called
Reyes and told him about it. Detective Thompson testified that the Instagram and
cell phone records show no contact between Moore and Reyes before the murder.
25
As another instance, Moore told Detective Thompson that he had touched the
rifle one month before the offense when Reyes offered to sell it to him. Moore made
this statement after Detective Thompson told him that he was awaiting DNA test
results on the rifle. Detective Thompson informed Moore that he could not have
touched the rifle one month before the murder because Reyes did not own the rifle
at that time. Moore then told Detective Thompson that, on the night of the murder,
he had “played with” the assault rifle and “racked the slide” when Reyes brought it
to his home.
Further, during his February 2021 statement, Moore told Detective Thompson
statement that he saw “another Mexican guy,” who he had never seen before that
night, in Reyes car. However, at trial, Moore testified that the person he saw in the
car was Ivan Ramirez. Contrary to what he told Detective Thompson, Moore
testified that, although he did not know Ramirez well, he did know who he was
because they went to school together and he was Reyes’s friend.
From the non-accomplice evidence, the jury could have reasonably inferred
that Moore lied about some of the circumstances connecting him to Kevin’s murder.
Lying to police is conduct showing a consciousness of guilt and may be considered
as circumstantial evidence of guilt tending to connect a defendant to the offense. See
King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (recognizing that making
false statements to hide crime is evidence indicating consciousness of guilt and
26
attempt to cover up crime); Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App.
1984) (holding accomplice-witness testimony sufficiently corroborated where,
among other suspicious circumstances, defendant lied to police about being with
accomplice at time of offense).
Finally, Detective Thompson testified that, after the murder, Moore and his
mother moved to Beaumont. He stated that, by using Moore’s Instagram posts, he
was able to find Moore there in November 2019. By February 2021, Moore and his
mother had returned to Houston. The jury could have reasonably inferred that Moore
left Houston after the murder to distance himself from the investigation. Evidence
of flight can serve to corroborate accomplice testimony. See Cockrum, 758 S.W.2d
at 582.
We conclude that the non-accomplice evidence supported the jury’s
determination that the combined weight of this evidence tended to connect Moore to
the charged offense of murder. See Smith, 332 S.W.3d at 442; Malone, 253 S.W.3d
at 257; Cathey, 992 S.W.2d at 462. We hold that, because a rational jury could have
concluded that the combined force of the non-accomplice evidence tended to
connect Moore to the offense, the State presented sufficient evidence to corroborate
Reyes’s accomplice testimony. See Malone, 253 S.W.3d at 257; see also Smith, 436
S.W.3d at 370 (holding sufficient corroboration shown by evidence of flight,
27
connection to weapon, and presence in accomplice’s company at or near place of
offense).
We overrule Moore’s first issue.
Motion to Suppress
In his second and third issues, Moore challenges the trial court’s denial of his
motion to suppress his February 2021 statement.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App.
2018). We review the trial court’s factual findings for an abuse of discretion but
review the trial court’s application of the law to the facts de novo. Turrubiate v.
State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give deference to the trial
court’s factual determinations because the trial court is the sole trier of fact and judge
of witness credibility and the weight to be given their testimony. Lerma, 543 S.W.3d
at 190; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Our
deferential review also applies to the trial court’s conclusions regarding mixed
questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382
S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo mixed questions of
law and fact that do not turn on credibility and demeanor, as well as purely legal
questions. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
28
If the trial court makes express factual findings, we view the evidence in the
light most favorable to the ruling and determine whether the evidence supports the
findings. Valtierra, 310 S.W.3d at 447; see State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006) (recognizing that findings and conclusions may be “stated
on the record at the hearing”). “The evidence and all reasonable inferences are
viewed in the light most favorable to the trial court’s ruling, and the trial court’s
ruling must be upheld if it is reasonably supported by the record and is correct under
a theory of law applicable to the case.” State v. Espinosa, 666 S.W.3d 659, 667 (Tex.
Crim. App. 2023).
B. Custodial Interrogation
In his second issue, Moore contends that the trial court abused its discretion
when it denied his motion to suppress his February 2021 statement because he did
not receive his Miranda or statutory warnings while in custody. See Miranda v.
Arizona, 384 U.S. 436, 478–79 (1966); TEX. CODE CRIM. PROC. art. 38.22.
1. Applicable Law
Under Miranda and Code of Criminal Procedure article 38.22, statements
elicited by custodial interrogation are inadmissible unless the accused is first warned
that he has the right to remain silent, his statement may be used against him, and he
has the right to hire a lawyer or have a lawyer appointed. See Miranda, 384 U.S. at
478–79; TEX. CODE CRIM. PROC. art. 38.22. Article 38.22 also requires warning the
29
accused that he has the right to terminate the interview at any time. See TEX. CODE
CRIM. PROC. art. 38.22, § 2(a)(5). “Custody” for purposes of article 38.22 is
consistent with the meaning of “custody” for purposes of Miranda. Herrera v. State,
241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
“It is the defendant’s initial burden to establish that [his] statement was the
product of custodial interrogation.” Wexler v. State, 625 S.W.3d 162, 168 (Tex.
Crim. App. 2021). A custody determination requires a court to evaluate (1) the
circumstances of the interrogation and (2) whether a reasonable person would have
felt that they were not free to leave. Id. at 167. “Once the scene is set and the players’
lines and actions are reconstructed, the court must apply an objective test” to
determine whether there was restraint on freedom of movement of a degree
associated with arrest. Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).
“The ultimate inquiry is whether, under the circumstances, a reasonable person
would have believed that [his] freedom of movement was restricted to the degree
associated with a formal arrest.” Id.The “reasonable person” standard presupposes an innocent person. Id. A
“determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323
(1994); see Wexler, 625 S.W.3d at 168.
30
In Dowthitt v. State, the Court of Criminal Appeals outlined four general
situations that may be custodial. 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). The
first three situations occur when (1) the suspect is physically deprived of his freedom
of action in any significant way; (2) a law enforcement officer tells the suspect that
he cannot leave; or (3) law enforcement officers create a situation that would lead a
reasonable person to believe his freedom of movement has been significantly
restricted. Wexler, 625 S.W.3d at 167–68 (citing Dowthitt, 931 S.W.2d at 255). For
the first three situations, a suspect’s freedom must be restricted “to the degree
associated with an arrest,” not just that of an investigative detention. Id. at 168. The
fourth situation occurs when probable cause has been manifested to the suspect, law
enforcement did not tell the suspect he can leave, and, considering the surrounding
circumstances, a reasonable person would believe he is restricted to a degree
associated with arrest. See id. To make that determination, courts must examine “the
totality of the circumstances to determine whether a reasonable person would have
believed that he was under restraint to the degree associated with a formal arrest.”
State v. Saenz, 411 S.W.3d 488, 497 (Tex. Crim. App. 2013) (citing Dowthitt, 931
S.W.2d at 255).
2. Analysis
On appeal, Moore disagrees with the trial court’s oral finding that he was “not
in custody” when he gave the February 2021 statement. Moore acknowledges that
31
he voluntarily met with Detective Thompson but asserts that, under the fourth
Dowthitt situation, Detective Thompson’s manifestation of probable cause, plus
other circumstances, turned a noncustodial interview into a custodial one. See
Wexler, 625 S.W.3d at 168.
As he did at the suppression hearing, Moore asserts that he was in custody
when he gave his statement because Detective Thompson told him that “eventually
[he was] going to get charged.” Moore also points to statements by Detective
Thompson conveying that he thought Moore, along with Reyes, was responsible for
Kevin’s murder. Detective Thompson explained to Moore that Reyes had told him
a “wild story” implicating Moore in Kevin’s murder and said that he had no reason
not to believe Reyes, who had no motive and had admitted to his own involvement
in the offense. Detective Thompson told Moore, “[Y]ou obviously [are] involved
with this, your house just got shot up. You thought it was Marco[s]. You thought
Marco[s] still lived at that house on Brentwood. And it was the wrong house.” He
indicated that Moore’s claim that Reyes had committed the shooting as a favor to
him was not credible.
Moore asserts that the foregoing statements combined with other statements
by Detective Thompson—including his statements that Ramirez said that Moore was
at Reyes’s house on the night of the shooting and that Detective Thompson believed
Moore was the passenger in the vehicle who fired the shots—“were sufficient to
32
manifest that Det. Thompson had probable cause to believe [he] committed the
offense of felony murder.” Even if we agree, the manifestation of probable cause
“will not automatically establish custody; rather, custody is established if the
manifestation of probable cause, combined with other circumstances, would lead a
reasonable person to believe that he is under restraint to the degree associated with
an arrest.” McCulley v. State, 352 S.W.3d 107, 116 (Tex. App.—Fort Worth 2011,
pet. ref’d) (citing Dowthitt, 931 S.W.2d at 255); see Wilson v. State, 442 S.W.3d
779, 786 (Tex. App.—Fort Worth 2014, pet. ref’d) (“[P]robable cause alone does
not automatically establish custody; other circumstances must also combine to lead
a reasonable person to believe that he is not free to leave and is under arrest.”).
We note that courts have held that a suspect was not subject to custodial
interrogation even when the police made statements to a suspect similar to those
cited here. See Wilson, 442 S.W.3d at 785–86 (holding that suspect was not in
custody despite police’s statement to him that he was “going to get charged with it;
there’s no doubt about that” where police had not suggested suspect was under arrest
but had instead suggested that “they were still building their case against him); see
also Estrada v. State, 313 S.W.3d 274, 290, 293–95 (Tex. Crim. App. 2010) (holding
defendant was not subject to custodial interrogation even though detective accused
defendant of killing complainant during interview); Houston v. State, 185 S.W.3d
917, 921 (Tex. App.—Austin 2006, pet. ref’d) (holding defendant had not been in
33
custody during interview where officer “conveyed the strength of the State’s case”
to suspect and told him not to commit any more robberies).
As “other circumstances” demonstrating custody, Moore points out that he
was the focus of the murder investigation, the doors to Detective Thompson’s
vehicle were closed, and Detective Silva was in the back seat. However, “being the
‘focus’ of an investigation does not necessarily render a person ‘in custody.’”
Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009). And courts have
determined that circumstances analogous to those cited by Moore do not rise to the
level associated with a formal arrest. See Wilson, 442 S.W.3d at 785 (concluding
that conducting interview “in a room with no windows, with the door shut, and in
close quarters to two police officers [did] not rise to the degree associated with a
formal arrest”); Garza v. State, 34 S.W.3d 591, 596–97 (Tex. App.—San Antonio
2000, pet. ref’d) (concluding that interview was non-custodial even though suspect
“was interviewed in a small room with the door closed”).
When considering the totality of the circumstances surrounding the
interrogation, numerous objective facts support the trial court’s finding that Moore
was not in custody: (1) Moore initiated contact with Detective Thompson in response
to a call placed to his mother; (2) Moore agreed to meet Detective Thompson;
(3) Moore rejected Detective Thompson’s request to meet at the sheriff’s office but
offered to meet at a different location; (4) Moore selected the time and place of the
34
meeting; (5) Moore texted Detective Thompson the address of a drugstore where he
wanted to meet; (6) Moore drove his own vehicle to the drugstore; (7) Detective
Thompson met Moore in the drugstore parking lot in his unmarked, county-owned
car; (8) Moore got out of his vehicle and into the front seat of Detective Thompson’s
car; (9) the interview occurred in a public parking lot; (10) the car’s doors remained
unlocked; (11) Moore was never handcuffed; (12) Moore was never told that he was
not free to leave; and (13) at the end of the interview, Moore left in his own vehicle.
In addition, neither Detective Thompson nor Detective Silva told Moore that
he was under arrest or that arrest was imminent. To the contrary, Detective
Thompson made statements indicating that he was still in the process of investigating
Moore. He told Moore that he needed to know what happened on the night of the
shooting. He urged Moore to tell the truth and said that he was “try[ing] to get [his]
side of the story.” He asked Moore to take a polygraph test to eliminate himself as a
suspect. Even Detective Thompson’s statement that Moore would “eventually” be
charged suggested a future arrest at an undetermined time rather than a present state
of formal arrest. See Wilson, 442 S.W.3d at 785.
Finally, a review of the entire audio-recorded interview reveals that both
Moore and the detectives made statements reflecting their beliefs that Moore was
free to leave when the interview concluded. See id. at 786 (recognizing that both
appellant and police made statements during interview reflecting that both sides
35
believed appellant was free to leave after interview); see also Estrada, 313 S.W.3d
at 295 (noting that appellant stated several times during five-hour interview that he
wanted to go home and citing State v. Carroll, 645 A.2d 82, 88 (N.H. 1994) for
proposition that “defendant’s statement that he ‘want[ed] to go home’ suggests ‘that
the defendant himself believed that he could have left if he so chose’”).
During the interview, Detective Thompson told Moore, “I need to know
everything before you leave.” (Emphasis added.) When discussing the polygraph,
Detective Thompson told Moore that, if he passed the test, he “could go on about
[his] business.” Moore refused to take the polygraph, stating, “I got better stuff to do
tonight.” Moore also said that he could not take the polygraph because he had been
to a clinic and needed to take some medicine. Toward the end of the interview,
Detective Thompson asked Moore if he was done: “Okay. All right, man. All right.
Anything else you’d like to add? You’re done?” And Detective Silva asked Moore
if, when he got home, he could look on social media to find the person that he claimed
he saw in the car with Reyes on the night of the murder. (Emphasis added.)
After considering the totality of the circumstances surrounding Moore’s
statements and viewing the evidence and all reasonable inferences in the light most
favorable to the trial court’s ruling, we conclude that the trial court reasonably
determined that a person in Moore’s situation would not have considered himself
under restraint to the degree associated with an arrest. The evidence supports the
36
trial court’s finding that Moore was not in custody when he gave the February 2021
statement. As a result, neither Moore’s Miranda nor statutory rights were triggered.
We hold that the trial court did not abuse its discretion by denying Moore’s request
to suppress his statement on the ground that he was in custody and not informed of
his rights.
We overrule Moore’s second issue.
C. Voluntariness Challenge
In his third issue, Moore challenges the trial court’s admission of his February
2021 statement on the ground that he involuntarily made the statement as a result of
Detective Thompson’s “threats” that Moore’s mother “would get into trouble” if she
had lied about Moore staying at home on the night of the shooting. The State asserts
that Moore did not preserve the issue because he never objected to the admission of
his statement on this ground in the motion-to-suppress proceedings, nor did he
separately object on this ground before the statement was admitted into evidence
during trial. We agree with the State.
1. Relevant Background Facts
In his motion to suppress, Moore challenged the voluntariness of his statement
on the ground that the officers “used misstatement, deception and trickery to get
[him] to make the statement, in that they told [him] that unless he talked to them at
that time and made a statement, that he would not be able to make a statement at all
37
after that[.]” At the suppression hearing, Moore testified that he falsely stated to
Detective Thompson that he told Reyes to shoot up the cars. He testified that he
made the false statement because he felt “scared” and “intimidated.” He explained
that he “felt [he] had to tell [Detective Thompson] something to get him to back off
and let [him] go about [his] day.” Moore said that Detective Thompson did not
believe him when he said that he had “nothing to do with [the shooting]” and that
Detective Thompson “just kept grilling [him] relentlessly.” Moore agreed that he
“told [Detective Thompson] what he wanted to hear to get out of there.” In his
closing argument at the suppression hearing, Moore argued that his statement had
not been voluntary because “he was in fear, scared, [and] intimidated.” Detective
Thompson’s remarks during the interview that Moore’s mother might “get in
trouble” were not mentioned during the suppression hearing.
Ruling the that the statement was admissible, the trial court denied the motion
to suppress. The court found that “the statement was made freely and voluntarily,”
“that there were no threats,” and that “[t]here was not any intimidation, nor were any
promises made.”
Moore also did not object during trial to the admission of his statement based
on involuntariness due to threats against his mother. Instead, when the State offered
Moore’s recorded statement during Detective Thompson’s testimony, Moore
indicated that he “renew[ed] [the] same objections” that he made had “outside the
38
presence of the jury.” The trial court confirmed that its “rulings [were] still the
same.”
After the audio-recorded statement was admitted into evidence, Moore asked
Detective Thompson on cross-examination if he remembered “mention[ing] . . .
statements about his mother getting in trouble.” Detective Thompson answered
affirmatively. But nothing more was mentioned about the remarks during Detective
Thompson’s testimony.
After Detective Thompson’s testimony concluded, the State asked that a
transcript of Moore’s oral statement—which had been offered as a demonstrative
exhibit—be included in the record for appellate purposes.5 Moore did not object to
the demonstrative exhibit’s inclusion in the record but stated that he “[did] not want
to waive [his] objections to what we had outside the presence of the jury,” thereby
seeking to preserve the objections that he raised to the admission of the statement in
the suppression proceedings. The State then rested its case-in-chief.
The defense called Moore to testify. He stated that Detective Thompson told
him that his mother could “get in trouble” related to providing an alibi for him. He
also testified that his admission to Detective Thompson that he had told Reyes to
shoot up the cars was false. When asked why he made the false admission, Moore
testified, “Because I felt threatened. [Detective Thompson] was threatening my
5
The record reflects that the trial court later admitted the transcript into evidence.
39
mother. He wouldn’t—basically, like, he wouldn’t let me leave. I felt like I had to
tell him something so he would excuse me from the vehicle.” The defense did not
attempt to re-raise its prior objections to the admissibility of Moore’s statement to
add this new, additional ground.
The jury charge included an instruction pursuant to Code of Criminal
Procedure article 38.23. See TEX. CODE OF CRIM. PROC. art. 38.23 (providing that no
evidence obtained in violation of constitution shall be admitted against accused and
that,“[i]n any case where the legal evidence raises an issue hereunder, the jury shall
be instructed that if it believes, or has a reasonable doubt, that the evidence was
obtained in violation of the provisions of this Article, then and in such event, the jury
shall disregard any such evidence so obtained”). In closing arguments to the jury,
each side mentioned the alleged threats to Moore’s mother in conjunction with
applying the article 38.23 instruction. As the State points out in its brief, “The first
and only time the parties litigated any mention of threats to [Moore’s] mother was
on the merits in closing argument to the jury for Article 38.23 purposes.”
2. Preservation of Involuntariness Complaint
To preserve a complaint about the admission of evidence for appellate review,
a party must first present to the trial court a timely request, objection, or motion
stating the specific grounds for the desired ruling. TEX. R. APP. P. 33.1(a)(1)(A).
40
Here, Moore challenged the admissibility of his oral statement by filing a motion to
suppress.
An appellant’s assertion of grounds for suppression raised in an appellate
court must comport with his articulated grounds for suppression presented in the trial
court, or the grounds are not preserved. See TEX. R. APP. P. 33.1(a)(1); Swain v.
State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Moore’s theory on appeal—
that his statement was involuntary because Detective Thompson threatened his
mother—does not comport with the involuntariness grounds that he asserted in his
written motion to suppress, at the suppression hearing, or in any other objections
advanced in the trial court. Nonetheless, Moore asserts that we can consider his trial
testimony—in which he stated that he made a false admission due to threats against
his mother—to conclude that the trial court abused its discretion in denying his
motion to suppress and in admitting his statement. To support his argument, Moore
points out that, although an appellate review of a trial court’s suppression ruling is
ordinarily limited to the evidence adduced at the suppression hearing, an appellate
court may consider evidence adduced at trial when the parties consensually
relitigated the suppression issues during trial on the merits. See Rachal v. State, 917
S.W.2d 799, 809 (Tex. Crim. App. 1996). Moore’s reliance on that principal is
misplaced here. Moore’s appellate issue was not an issue raised in the suppression
proceedings. Accordingly, we cannot consider Moore’s testimony as a basis to hold
41
that the trial court erred in denying his motion to suppress. We hold that Moore’s
appellate issue regarding the involuntariness of his statement was not preserved. See
TEX. R. APP. P. 33.1(a)(1)(A); Swain, 181 S.W.3d at 365; see also Smith v. State,
532 S.W.3d 839, 841 (Tex. App.—Amarillo 2017, no pet.) (“[T]he grounds [for
suppression] urged below do not comport with those urged on appeal, and that
effectively waives the latter as basis for reversal.”).
We overrule Moore’s third issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
42