Darryl Oneal Randall v. State

Affirmed and Majority and Concurring Memorandum Opinions filed December 18, 2008

Affirmed and Majority and Concurring Memorandum Opinions filed December 18, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00468-CR

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DARRYL ONEAL RANDALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1000233

M A J OR I T Y  M E M O R A N D U M  O P I N I O N

Darryl Oneal Randall appeals his conviction for aggravated robbery.  In three issues, appellant contends (1) the trial court abused its discretion by denying appellant=s motion to suppress his statement to police officers, (2) the trial court erred by refusing to submit a requested jury instruction, and (3) appellant received ineffective assistance of counsel.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

According to the State=s evidence, on July 19, 2004, appellant and two accomplices  robbed a Goodwill store in Houston.  Appellant, a store employee, was working at the time of the robbery, which occurred shortly after the store closed.  Gill Lee, the store manager, and Teresa Rivera, a cashier, were in an office counting money, consistent with their typical closing routine.  During this time, appellant entered and exited the office several times.  At one point, in response to his inquiry, appellant was told the store Amade budget@ for the day.  The last time appellant entered the office, a man wearing a ski mask and holding a handgun was behind him.  Appellant put his hands up and then got down on the floor, although no one instructed him to do so.  Lee told the men to quit Aplaying.@  The masked man replied that they were not Aplaying.@  He ordered Lee and Rivera to get on the floor and forced Lee to place money in a bag and her purse.  During the robbery, the masked man also communicated with another person via Awalkie-talkie.@  Appellant exited the office after the robbers left.^[1]  Lee and Rivera ran to another office where an employee called the police.

Subsequently, Barkley Wedemeyer, a vice-president with Goodwill Industries of Houston, and Lori Roberts, a Houston police officer, viewed a surveillance tape of the store=s interior, recorded the day of the robbery.  The tape indicated appellant was a participant in the robbery, rather than a victim.  Apparently, the tape showed that appellant allowed the two accomplices to enter through a back door and willingly accompanied them to the office where the robbery occurred.^[2]

Three days after the robbery, Officer Roberts and Officer John Bonnette went to the store and interviewed appellant.  Because appellant challenges admission of his statement, we will discuss the interview in more detail below.  However, in essence, appellant implicated himself in the robbery to some extent.  The officers arrested appellant approximately two months after the interview.

Before trial, appellant filed a motion to suppress his statement, asserting, among other grounds, the officers failed to give Miranda warnings.  During trial, after conducting a hearing outside the jury=s presence, the court overruled the motion.  Subsequently, the jury heard, in addition to other evidence, an audiotape of appellant=s interview and Officer Roberts=s testimony regarding the statement. The jury found appellant guilty of aggravated robbery of Gill Lee.  The trial court sentenced appellant to fifty-five years= confinement.

II.  Motion to Suppress

In his first issue, appellant contends the trial court abused its discretion by denying appellant=s motion to suppress his statement because it was obtained by officers in violation of Miranda v. Arizona and Texas Code of Criminal Procedure article 38.22.^[3]

A.        Standard of Review and Applicable Law

We apply a bifurcated standard to review a trial court=s ruling on a motion to suppress evidence.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We afford almost total deference to a trial court=s determination of historical facts and its ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor.  Id.  We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor.  Id.

In Miranda v. Arizona, the United States Supreme Court held, A[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.@ 384 U.S. 436, 444 (1966).  The Texas Legislature has codified these procedural safeguards in the Code of Criminal Procedure.  See Tex. Code Crim. Pro. Ann. art. 38.22 (Vernon 2005).  Specifically, article 38.22, section 3 prohibits admission of an accused=s oral statement made as a result of custodial interrogation unless, among other requisites, the Miranda warnings and one additional warning prescribed in article 38.22 were given, and the accused knowingly, intelligently, and voluntarily waived any rights set out in the warnings.  Id. ' 3(a).

In this case, it is undisputed the officers did not give appellant these warnings during his interview.  Thus, we must decide whether the statement resulted from Acustodial interrogation.@  ACustodial interrogation@ means Aquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.@  Miranda, 384 U.S. at  444.  AA person is in >custody= only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.@  Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)).

The Acustody@ determination must be made on a case by case basis considering all objective circumstances of the interrogation.  Stansbury, 511 U.S. at 323;  Dowthitt, 931 S.W.2d at 255.  Subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect.  Id. at 254 (citing Stansbury, 511 U.S. at 324B25).  Further, the mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation.  Id. at 255.

The Texas Court of Criminal Appeals has outlined at least four general situations that may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect he cannot leave; (3) when law enforcement officials create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave.  Id.

Appellant argues only that the fourth situation is applicable in this case.  Concerning the fourth situation, Stansbury dictates that the officers= knowledge of probable cause be manifested to the suspect.  Id.  Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers.  Id.  Further, because probable cause is a Afactor@ in the custody determination, Asituation four does 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.@  Id.

B.        The Interview

At the motion-to-suppress hearing, the circumstances of appellant=s interview were established by the audiotape of the interview and Officer Roberts=s undisputed testimony.^[4] Officer Roberts testified that, at the time of the interview, appellant was not under arrest and no warrant had been issued for his arrest.  At the outset of the interview, Officer Roberts informed appellant he was not under arrest. Appellant agreed to speak with the officers and never requested an attorney. Officer Roberts first asked appellant to explain what occurred on the day of the robbery.  Appellant responded that he went to lock the back door.  When he was at the back of the store, two masked men entered, placed guns in his face, walked him to the office, and threw him down on the floor.

Officer Roberts then confronted appellant regarding inconsistencies between this explanation and the actions depicted on the surveillance tape.  Officer Roberts emphasized that the tape reflected the accomplices did not wear masks or brandish guns when they initially encountered appellant and began accompanying him to the office.  While urging appellant to reveal the truth, Officer Roberts made several statements effectively manifesting probable cause: appellant was Ajust as guilty@ as the others even if he did not carry a gun or physically take the money because he Aknew what was going on@; this statement was his opportunity to do Adamage control@ because he was presently in Aa world of shit@; and if he intended to stand by his first version, she would present the evidence to the ADA=s office.@

Appellant then admitted the accomplices had previously approached him and revealed their intent to rob the store, but appellant claimed he did not give them Apermission@ or know when the robbery would occur.  Officer Roberts questioned this claim by stating the surveillance tape showed that appellant watched the accomplices drive into the loading dock area behind the store before the robbery, although he knew no one should have been in the area.  Officer Roberts again highlighted that the accomplices followed appellant into the building without wearing masks or carrying guns.  Officer Roberts reiterated that she wanted to know the truth, particularly the identity of the accomplices and how they approached appellant about the intended robbery.

Officer Bonnette also made statements effectively manifesting probable cause to appellant.  Specifically, he said that appellant needed to do Adamage control@ because Awe got you if we want you@ and Acan go down to the DA=s office.@  Officer Bonnette again informed appellant he was not under arrest, but the officers wanted to know how the robbery occurred, the identity of the participants, and how the proceeds were distributed.

Appellant then repeated that he knew the robbery was planned but did not know the intended date although the accomplices had indicated it would occur at closing time.  Appellant stated that, on the evening of the robbery, the accomplices came to the back door and asked Awhat=s going on?@ and the number of persons in the store.  Appellant replied that the store was closed and only a few employees were present.  The accomplices asked, Ado you think it=s cool?@ Appellant responded that he Acan=t say@ because Aain=t nobody there.@  He claimed the accomplices were waiting at the back when he went to the area.  Officer Roberts again told appellant the surveillance tape showed that he was waiting at the back of the store when the accomplices drove up.  The officers also stated that the tape indicated appellant allowed the accomplices to enter the store, but appellant never admitted this fact.  Appellant acknowledged he was promised some robbery proceeds although he had not yet received any money. 

The remainder of the interview was devoted to the officers= attempts to ascertain the identity of the accomplices.  Eventually, appellant provided the name of one accomplice.  In addition, the officers and appellant reviewed numbers stored in appellant=s cellular phone attempting to locate numbers of the accomplices.

Finally, at the motion-to-suppress hearing, Officer Roberts testified she did not tell appellant that he was not required to speak with her.  In addition, the audiotape indicates the officers did not explicitly tell appellant he was free to leave.

C.        Analysis

We apply a de novo standard of review because the pertinent facts are undisputed and the only issue is whether the trial court correctly applied the law to those facts.  See Guzman, 955 S.W.2d at 89.  For our analysis, we discern two distinct portions of the interview: (1) appellant=s initial explanation, claiming he was a victim; and (2) his subsequent statement, implicating himself in the robbery, albeit not to the extent reflected on the surveillance tape.

Because the officers did not manifest probable cause to appellant during the first part of the interview, the fourth Dowthitt scenario was not satisfied with respect to appellant=s initial explanation.  Accordingly, we focus on the second part of the interview.

Despite the officers= manifestation of probable cause to appellant during the second part of the interview and their failure to explicitly inform appellant he was free to leave, we conclude the fourth Dowthitt scenario was not satisfied. Specifically, a reasonable person in appellant=s situation would not believe that he was under restraint to the degree associated with an arrest.

Significantly, at the outset of the entire interview, the officers unequivocally informed appellant he was not under arrest.  During the second portion of the interview, the officers reiterated that appellant was not under arrest, even while effectively manifesting they had probable cause to arrest.  Further, by asserting they might present the case to the ADA=s office@ in the future, the officers effectively communicated appellant was not in custody, although he might eventually be arrested.  Therefore, the officers implied that appellant was free to leave.  Indeed, appellant was not arrested that day.

In addition, the audiotape reflects that the officers clearly indicated the primary focus of the interview was discovering details of the robbery and the identity of appellant=s accomplices, rather than obtaining sufficient information to arrest appellant that day.  The officers urged appellant to help himself by revealing information about the accomplices.  In fact, at one point, Officer Bonnette assured appellant the accomplices would not know he revealed their identities. Appellant responded that he understood Ay=all are working for me@ and Ay=all are giving me an opportunity.@  We recognize that appellant=s subjective belief alone is irrelevant to the custody determination, and we instead consider the words and actions of the officers.  See Dowthitt, 931 S.W.2d at 254. However, appellant=s response at least indicates that he construed the officers= assertions regarding the purpose of the interview consistent with our interpretation.  Appellant=s response supports a conclusion that a reasonable person would not believe he was under restraint to the degree associated with an arrest.

Moreover, appellant=s interview was conducted at his place of employmentCin a vacant office at the storeCas opposed to a police station. During the interview, the officers even allowed appellant to receive a call on his cellular phone about a prospective job.  These facts alone might not negate custody.  However, when considered with all circumstances of the interview, these facts support a conclusion that appellant was not in custody.

The present case is similar in pertinent respects to Houston v. State, 185 S.W.3d 917 (Tex. App.CAustin 2006, pet. ref=d).  In Houston, an investigating officer received a tip, and a security camera revealed, that the defendant was involved in the robbery of a convenience store.  Id. at 919.  The officer spoke with the defendant while he was voluntarily at the police station being questioned by another detective about an unrelated offense.  Id.  The officer confronted the defendant with the evidence demonstrating his involvement in the robbery and read the Miranda warnings.  Id. At some point, the officer also searched the defendant=s sport coat while he was not wearing it, without his consent.  Id. at 921.  The defendant initially refused to waive his rights and speak about the robbery.  Id. at 919.  Both officers then assured the defendant regarding the strength of the State=s case and again urged him to confess.  Id. at 919B20.  The officers explicitly told the defendant he was not under arrest.  Id. at 919.  The officers also made other statements implying that the defendant was not under arrest and was free to leave: they requested that he refrain from committing any more robberies until Awe can get you arrested@ and stated, Ayou walk out of here and you lose your chance to tell us how you honestly feel.@  Id. at 921.  The defendant finally admitted committing several robberies, including the one at issue.  Id. at 920.  The investigating officer then told the defendant he would be released that day if he agreed to turn himself in once a warrant for his arrest was issued.  Id.  However, subsequently, the defendant was not allowed to leave the station because the officers received new information that he had committed another unrelated offense.   Id.

The defendant moved to suppress his confession pursuant to Miranda and article 38.22 on the ground that the purportedly custodial interrogation should have ceased once he invoked his right to remain silent.   Id.  The court of appeals held that the defendant was not in custody when he made his confession.  Id. at 920B21.  The court recognized that some of the officers= actions indicated a custodial interrogation: reading the Miranda warnings, which are synonymous in our culture with formal arrest; searching the defendant=s coat; and conveying the strength of the State=s case.  Id. at 921.  Nevertheless, the court held that a reasonable person would not have believed his freedom of movement was restrained to the degree associated with a formal arrest.  See id. The court relied on facts that are similar to the present case: the officers explicitly told the Houston defendant he was not under arrest, implied that he was free to leave, and effectively stated that, if he left the station without confessing, he would lose the opportunity to provide his version.  See id.  Consequently, we conclude that Houston is instructive.  See id.; see also Oregon v. Mathiason, 429 U.S. 492, 493B96 (1977) (holding defendant was not in custody when he confessed to burglary during voluntary questioning at police station; although officer relayed information to defendant regarding his involvement and stated his truthfulness might be considered by the district attorney or judge, officer also told defendant he was not under arrest, and he was allowed to leave after confession).

Appellant primarily relies on In re D.A.R., 73 S.W.3d 505 (Tex. App.CEl Paso 2002, no pet.).  When initially questioned by a school police officer, D.A.R., a thirteen-year-old student, denied a report by a fellow student that he possessed a weapon on school grounds.  Id. at 508.  Later the same day, the officer summoned D.A.R. and told him that approximately fifteen students had since reported that D.A.R. brought a gun to school and it would be best if he relinquished it.  Id. at 508, 512.  D.A.R. then confessed to possessing the gun and showed the officer its location.  Id. at 508.  D.A.R. was read the Miranda warnings and arrested.  Id.  The court held that D.A.R. was in custody when he made his confession because the officer manifested probable cause when he informed D.A.R. of the information provided by fellow students and pressed him to reveal the gun=s location and the officer had not told D.A.R. he was free to leave.  See id. at 511B12.  Appellant asserts that he was likewise in custody when he admitted some participation in the robbery because, after he  initially denied any involvement, the officers recited contradictory evidence and urged him to tell the truth.

Appellant also posits that this case is similar to Miller v. State, 196 S.W.3d 256 (Tex. App.CFort Worth 2006, pet. ref=d).  Several officers met with Miller, a confidential police informant, to ascertain his knowledge regarding drug trafficking.  Id. at 262B63.  During the meeting, a person believed to be involved in narcotics activities repeatedly attempted to phone Miller.  Id. at 263.  Miller admitted that the call involved his receipt the previous day of money relative to a narcotics transaction.  Id.  The officers informed Miller he had violated the confidential-informant agreement through this activity.  Id.  When an officer asked whether Miller possessed any drugs at his house, he replied affirmatively.  Id.   While searching the home, officers discovered drugs.  Id.  Subsequently, they read Miller the Miranda warnings, and he was arrested.  Id.  The court of appeals held that Miller was in custody once the officers asserted he had violated the confidential-informant agreement by conducting an illegal act because he had become the focus of the investigation and had relayed information amounting to probable cause.  Id. at 265.  Appellant contends that he was likewise in custody during his interview because he became the focus of the investigation after Officer Roberts viewed the surveillance tape.

However, unlike the present case, there is no indication the officers ever told D.A.R. and Miller they were not under arrest; and D.A.R. and Miller were arrested the day of their interviewsCafter they confessed and the illegal objects at issue, i.e. the gun and drugs, were found.  See D.A.R., 73 S.W.3d at 508B13; Miller, 196 S.W.3d at 261B67. Moreover, in contrast to the present case, the D.A.R. court emphasized that D.A.R. was only thirteen years old, the pertinent part of his interview occurred in the office of the school police officer with the door closed, and D.A.R. had been escorted there by another uniformed security officer.  See D.A.R., 73 S.W.3d at 510B12.  Therefore, we conclude that D.A.R. and  Miller are not controlling.

In sum, considering all the objective circumstances, we hold that appellant was not in custody under the fourth Dowthitt scenario.  Accordingly, the trial court did not err by denying appellant=s motion to suppress.  We overrule appellant=s first issue.

III.  Jury Instruction

In his second issue, appellant complains that the trial court refused to submit a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23(a), which provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In 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.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

At trial, appellant requested an article 38.23(a) instruction, contending an issue existed on whether his statement to the police officers resulted from custodial interrogation.  The trial court denied appellant=s request. 

An article 38.23(a) instruction is required only if the evidence heard by the jury raises a disputed issue of fact that is material to the defendant=s Aclaim of a constitutional or statutory violation that would render evidence inadmissible.@  Madden v. State, 242 S.W.3d 504, 509B11 (Tex. Crim. App. 2007); see Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). If there is no disputed issue of fact, legality of the challenged conduct is a question of law to be decided solely by the trial court.  Madden,  242 S.W.3d at 510.

In this case, there were no disputed issues of fact material to the custody determination.  Officer Roberts=s trial testimony regarding appellant=s interview was similar in pertinent respects to her testimony at the motion-to suppress hearing.  In addition, the jury heard the audiotape of the interview.  Appellant did not testify or present any evidence disputing Officer Roberts=s trial testimony or the contents of the audiotape.  Further, there were no internal inconsistencies in Officer Roberts=s trial testimony raising a factual dispute.  Therefore, the custody determination was a question of law based on undisputed facts.  Accordingly, appellant was not entitled to submission of an article 38.23(a) instruction.  We overrule his second issue.

IV.  Assistance of Counsel

In his third issue, appellant argues he received ineffective assistance of counsel. To prevail on an ineffective-assistance claim, an appellant must prove (1) counsel=s representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Appellant generally claims his counsel was ineffective by failing to request a jury instruction pursuant to article 38.22.  However, article 38.22 outlines two different situations in which a trial court is required to submit a jury instruction. See Tex. Code Crim. Proc. Ann. art. 38.22 '' 6, 7 (Vernon 2005).  Appellant does not identify which instruction his counsel purportedly should have requested. Nevertheless, appellant has failed to demonstrate that counsel was deficient by failing to request either instruction.

Article 38.22, section 6 outlines a Ageneral voluntariness@ instruction.  See id. ' 6; Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008).  Once Aa question is raised@ under section 6 regarding the voluntariness of a defendant=s statement, the trial court must, among other requisites, (1) make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions and (2) upon finding as a matter of law and fact that the statement was voluntarily made, instruct the jurors they shall not consider the statement for any purpose unless they believe beyond a reasonable doubt that the statement was made voluntarily. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6; Oursbourn, 259 S.W.3d at 174B75.  The section 6 instruction does not require a factual dispute, but the parties must actually litigate a section 6 voluntariness issue before a jury instruction is necessary.  See Oursbourn, 259 S.W.3d at 175B76.

At trial, appellant did not raise a question regarding general voluntariness of his statement under section 6.  Instead, appellant suggested that his statement was inadmissible pursuant to Miranda and Article 38.22, section 3 because it resulted from custodial interrogation but he was not given the required warnings.^[5]  Therefore, appellant was not entitled to submission of an article 38.22, section 6 instruction.  See id. at 174B76. Accordingly, counsel was not deficient by failing to request such an instruction.  See Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (rejecting appellant=s claim that counsel was ineffective by failing to request adequate article 38.23 instruction where appellant was not entitled to instruction).

Article 38.22, section 7 outlines a Astatutory warnings@ instruction.  See Tex. Code Crim. Proc. Ann. art. 38.22 ' 7;  Oursbourn, 259 S.W.3d at 176.  Section 7 provides, AWhen the issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement.@  Tex. Code Crim. Proc. Ann. art. 38.22 ' 7.  Under section 7, if the defendant made his statement as the result of custodial interrogation, he is entitledCwhen the issue is raised by the evidenceCto have the jury decide whether he was adequately warned of his rights and knowingly and intelligently waived them.  Oursbourn, 259 S.W.3d at 176.  AThe phrase >the issue= refers to compliance with the statutory warnings set out in . . . [article] 38.22, '' 2 & 3, and the voluntariness of the defendant=s waiver of the rights.@  Id.  For the issue to be Araised by the evidence,@ there must be a genuine factual dispute.  Id.

Because the trial court correctly determined appellant=s statement was not the product of custodial interrogation, no warnings were required.  See Tex. Code Crim. Proc. Ann. art. 38.22 ' 3. Therefore, there was no Aissue@ on whether appellant adequately received such warnings and voluntarily waived them.  See id. ' 7.  Because appellant was not entitled to submission of a jury instruction under article 38.22, section 7, appellant=s counsel was not deficient by failing to request the instruction.  We overrule appellant=s third issue.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed December 18, 2008.

Panel consists of Justices Frost, Seymore, and Guzman (Frost, J., concurring).

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]   Although Lee and Rivera gave otherwise substantially similar testimony, their accounts differed on whether another robber, in addition to the masked man, definitely entered the office.  In any event, the State proved that two men besides appellant committed the robbery, even if they did not all enter the office.

^[2]  The actions depicted on the surveillance tape, which was admitted at trial, are not exactly clear. The actions summarized above are reflected by a combination of the surveillance tape, Wedemeyer=s trial testimony, Officer Roberts=s testimony during the motion-to-suppress hearing and at trial, and Officer Roberts=s recitations to appellant during his interview regarding the actions shown on the surveillance tape.

^[3]  In his stated issue, appellant also asserts his statement was obtained in violation of Code of Criminal Procedure article 38.38.  However, appellant advances no argument to support this assertion. Moreover, article 38.38 would not apply to any issue regarding appellant=s motion to suppress his statement.  See Tex. Code Crim. Pro. Ann. art. 38.38 (Vernon 2005) (providing that evidence a defendant has contacted or retained an attorney is not admissible on issue of whether he committed a criminal offense, and judge and State may not comment that defendant has contacted or retained an attorney).

^[4]  Two recordings of appellant=s statement were admitted at the motion-to-suppress hearing and during trial.  The recordings are identical except that background noise was eliminated from the second tape.  Even the second tape is somewhat difficult to understand.  However, we recite the contents based on the comprehensible portions of the tape and Officer Roberts=s testimony at the motion-to-suppress hearing.

^[5]  At the motion-to-suppress hearing, appellant also complained that the statement was recorded without his knowledge; however, he offered no theory to demonstrate the statement was inadmissable for this reason.