Anthony Ray Newsome v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-07-273-CR
ANTHONY RAY NEWSOME APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one point, Appellant Anthony Ray Newsome contends that the trial
court erred by failing to grant his motion to suppress his oral statement given
at a hospital to a police officer. We affirm.
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… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
In September 2005, Officer Petty, while at Arlington Memorial Hospital
on an unrelated matter, noticed Newsome’s arrival at the hospital and that he
was bleeding profusely. The officer stated the man had a bloody towel held up
to his neck while blood was coming down his shirt. A doctor informed Officer
Petty that Newsome had been shot. Officer Petty contacted dispatch to find
out if any shootings had been reported but none had been at the time. He then
spoke with Newsome to find out what had happened. He learned his name and
birthday and Newsome informed him that he had been shot by a white man at
a Kroger store. After contacting dispatch again, Officer Petty learned that an
unidentified male had attempted to rob an elderly man in a Tom Thumb parking
lot only to be shot three times by the victim.2
Officer Petty also questioned Newsome about where he was when he had
been shot but Newsome was unsure. Because of the seriousness of
Newsome’s injuries, Officer Petty was unable to question him any further.
Newsome was not placed under arrest at that time nor given his Miranda
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… More specifically, the evidence later showed that a retired Arlington
resident stopped by a local Tom Thumb grocery store. As he began to walk
toward the store, a gun-toting would-be robber accosted him in the parking lot.
The would-be victim pulled out his own weapon and shot the robber three
times, and the perpetrator, Newsome, escaped the scene, leaving a trail of
blood.
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warnings. Later, the officer said he had a conversation with another officer
who gave him a description of the perpetrator as relayed by the complainant.
The officer stated that the description matched the injured person with regard
to his clothing and ethnicity. The detective assigned to the Tom Thumb
robbery confirmed the link between Newsome and the shooting at Tom Thumb.
Newsome was arrested at John Peter Smith hospital and charged with two
counts of aggravated robbery along with the use or exhibition of a deadly
weapon and a repeat offender notice.
Prior to trial, the State waived the first count of aggravated robbery and
the deadly weapon charge. In accordance with Newsome’s pretrial motion to
suppress, the trial court heard evidence regarding Newsome’s hospital
statements. At the close of a Jackson v. Denno 3 hearing, the trial court
specifically concluded that Officer Petty’s presence at the hospital was
unrelated to the robbery investigation, that the officer did not have Newsome
in custody, and that Newsome volunteered that he had been shot. Therefore,
the trial court ruled Newsome’s oral statements admissible. Newsome pleaded
not guilty; however, the jury found him guilty and assessed his punishment at
forty-two years’ confinement. This appeal followed.
3
… 378 U.S. 368, 84 S. Ct. 1774 (1964).
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III. Motion to Suppress
In his single point, Newsome asserts error on the part of the trial court by
failing to suppress his oral statement at the hospital. Specifically, he frames his
point thusly:
[Newsome] contends the trial court erred by failing to grant his
motion to suppress the oral statement he made to a police officer
while under extreme medical duress. [Newsome] further asserts
that a review of this unique situation establishes, in and of itself,
a custodial interrogation requiring the police officer to Mirandize
[Newsome].
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
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deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When, as here, the trial court makes explicit fact
findings, we determine whether the evidence, when viewed in the light most
favorable to the trial court’s ruling, supports those fact findings. Kelly, 204
S.W.3d at 818–19. We then review the trial court’s legal ruling de novo unless
its explicit fact findings that are supported by the record are also dispositive of
the legal ruling. Id. at 819. We must uphold the trial court’s ruling if it is
supported by the record and correct under any theory of law applicable to the
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case even if the trial court gave the wrong reason for its ruling. State v.
Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State,
123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974
(2004).
B. Analysis
Custody is one of the triggers that necessitate Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The Texas Code
of Criminal Procedure sets forth the parameters for the use of statements at
trial. Specifically, article 38.22, entitled “When statements may be used,”
reads in part “[n]othing in this article precludes the admission of a statement
. . . that does not stem from custodial interrogation, or of a voluntary
statement, whether or not the result of custodial interrogation[.]” Tex. Code
Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005). In Dowthitt v. State, the court
of criminal appeals stated
A person is in “custody” only if, under the circumstances, a
reasonable person would believe that his freedom of movement
was restrained to the degree associated with a formal arrest. The
“reasonable person” standard presupposes an innocent person. . . .
In the past, we have recognized four factors relevant to
determining custody:
(1) Probable cause to arrest,
(2) Subjective intent of the police,
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(3) Focus of the investigation, and
(4) Subjective belief of the defendant.
. . . [F]actors two and four have become irrelevant except to
the extent that they may be manifested in the words or actions of
law enforcement officials; the custody determination is based
entirely upon objective circumstances.
The determination of custody must be made on an ad hoc
basis, after considering all of the (objective) circumstances. . . .
We have outlined at least four general situations which 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 that he cannot leave, (3)
when law enforcement officers 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 that
he is free to leave. Concerning the first through third situations,
Stansbury indicates that the restriction upon freedom of movement
must amount to the degree associated with an arrest as opposed
to an investigative detention.
931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996) (citations omitted); see also
Stansbury v. California, 511 U.S. 318, 322–24, 114 S. Ct. 1526, 1528–30
(1994).
Custodial interrogation is “questioning 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, 86 S. Ct.
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at 1612. The United States Supreme Court has delineated a two part inquiry
to determine whether a suspect is in custody:
(1) what were the circumstances surrounding the
interrogation, and
(2) under those circumstances would a reasonable person
feel he or she was not free to terminate the questioning and
leave.
See Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995);
Stansbury, 511 U.S. at 322–23, 114 S. Ct. at 1528–29. The first inquiry is
a factual determination regarding the circumstances surrounding the
interrogation. See Thompson, 516 U.S. at 112, 116 S. Ct. at 465.
A distillation of the foregoing discussion, as applied to Newsome and as
asserted in this appeal, is that he was in custody because he reasonably
believed that his freedom of movement was restrained by his medical condition.
However, it is apparent that for custody to attach to the lack of freedom of
movement, the restriction must be created by the police officer, as exemplified
by the third example given in Dowthitt, “when law enforcement officers create
a situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted.” 931 S.W.2d at 255 (emphasis
supplied). Likewise, we hold that Dowthitt’s first example, “when the suspect
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is physically deprived of his freedom of action in any significant way,” implicitly
refers to a deprivation created by the police officer. Id.
In Guerrero v. State, Trooper Davis testified that he went to the
emergency room of McKenna Memorial Hospital in New Braunfels to identify
persons who had been injured in an accident. 605 S.W.2d 262, 265 (Tex.
Crim. App. [Panel Op.] 1980). There were several persons present in the
emergency room when Davis entered. Id. He asked whether anyone knew
who was driving the car that had been in the accident. Guerrero answered that
he was the driver. Id. The court reasoned as follows in concluding that
Guerrero’s statement should not be suppressed:
Davis asked the question as a part of his required investigation of
the facts of the accident. When [Guerrero] made the statement,
the investigation had not shifted from the investigatory to the
accusatory or custodial stage. Davis did not arrest appellant until
later, when he decided that appellant was intoxicated. The
statement was not the product of custodial interrogation and was
admissible.
Id.; see also Yarborough v. State, 178 S.W.3d 895, 899–902 (Tex.
App.—Texarkana 2005, pet. ref’d) (holding that article 38.22 did not apply
because Yarborough’s movements were restrained only to the extent that he
received medical treatment for his stab wounds and nothing in the record
suggested that his statements were made in response to custodial
interrogation); Redmond v. State, 30 S.W.3d 692, 696–97 (Tex.
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App.—Beaumont 2000, pet. ref’d) (holding that there was no custodial
interrogation when officer asked defendant, who was neither in custody nor
under arrest at the time, but who was in an ambulance with two broken legs,
strapped into a gurney, what had happened); Vessels v. State, 938 S.W.2d
485, 486, 488 (Tex. App.—El Paso 1996, no pet.) (concluding that defendant’s
statements were not the result of custodial interrogation when he went to a
hospital for treatment of a gun shot wound to his hand and there was no
showing on the record that he was in police custody, that he was restrained,
that a guard was posted, that he was told not to leave, that he was
handcuffed, or that he was under arrest at the time he told the police what had
occurred). But see Clemmer v. State, 645 S.W.2d 918, 919–20 (Tex.
App.—Fort Worth 1983, no pet.) (excluding Clemmer’s statements made in the
emergency room after an officer formally placed him under arrest and advised
him of his rights).
Here, the trial court read the following findings into the record:
The officer was there on an unrelated incident. He was told that
there was a shooting victim or shooting person there. He went to
try to ascertain whether this person was a victim, talk with him.
Mr. Newsome volunteered that he was shot. And he was not in
custody at that time. And as such, he was not subject to custodial
interrogation. And the Court’s going to make a finding that the
statement that he gave was a voluntarily made statement and was
admissible as a matter of both law and fact.
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Applying the relevant standard of review, we hold that Newsome was not in
custody, hence not subject to custodial interrogation, and hence not subject to
the parameters of Miranda and article 38.22. See Wiede, 214 S.W.3d at 24;
Kelly, 204 S.W.3d at 818. For the foregoing reasons, Newsome’s sole point
is overruled.
IV. Conclusion
Having overruled Newsome’s sole point, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 20, 2008
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