COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-449-CR
DERRICK LANARD FORD APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Derrick Lanard Ford appeals his conviction for murder. In a
single issue, Ford argues that the trial court erred by admitting his oral
confession because it did not comply with the requirements of article 38.22 of
the Texas Code of Criminal Procedure. We will affirm.
1
… See Tex. R. App. P. 47.4.
II. F ACTUAL B ACKGROUND
On August 10, 2000, Billy Teel died after suffering a subdural hematoma
as the result of being pushed out of a moving vehicle. The two men who had
been in the truck with Teel fled from the scene of the crime. A ball cap was
recovered near the scene of the crime, but no one was arrested in connection
with Teel’s murder.
Almost six years later, Officer Matthew Hardy, an officer with the City
of Fort Worth Police Department, was assigned the cold case. He obtained a
search warrant to collect a buccal swab from Ford so that he could compare it
to DNA from the ball cap that had been recovered in 2000. Officer Hardy
attempted to locate Ford and eventually found that he was living with his sister
at a mobile home park. Officer Hardy had a telephone conversation with Ford
and eventually met him at the mobile home park where Ford was living.
Ford moved to suppress the conversation that took place during that
meeting, and the trial court held a hearing on Ford’s motion to suppress. The
following is the testimony given at the suppression hearing.
A. Officer Hardy’s Version of the Events
When Officer Hardy arrived at Ford’s sister’s, Ford’s niece or another
female relative answered the door. Ford later came out and talked with Officer
2
Hardy on the porch.2 Officer Hardy told Ford that he needed to execute a
search warrant for a buccal swab and that Ford was not under arrest. Ford
asked what this was about, and Officer Hardy explained that it was in reference
to an investigation of an event that had happened several years ago and said
that he would answer Ford’s questions after he executed the search warrant.
Officer Hardy asked Ford to step into his unmarked police vehicle so he could
execute the search warrant without the buccal swab being contaminated. Ford
complied by getting in the car.
After Officer Hardy obtained the buccal swab from Ford, Officer Hardy
explained that the investigation was in reference “to a man who had come out
of a vehicle” about six years ago. Ford immediately began talking. He said that
he did not mean to hurt the man. Officer Hardy asked what had happened, and
Ford continued by telling Officer Hardy that
he and another person named David Jackson had met this -- or had
-- had observed this man walking towards a truck in some
apartments west of Como, past the Ridglea area of Fort Worth, and
that he had a weapon with him and he described . . . that it was
the weapon that he later got arrested with later that morning on
the day of the offense. And he said that they were going to jack
the man, which means, based on my experiences, to rob the man,
and that they did not intend to hurt him. That [Ford’s] car had
2
… Officer Hardy testified that he did not want to talk to Ford inside the
mobile home partly because of “officer safety” and partly because he wanted
privacy so there would not be any interruptions.
3
broken down and he only wanted to get a ride home, he had no
money.
....
And so they got into the car -- into the truck and stated that
the -- the man was driving. He described him as an older, white
male. He said that David Jackson was in the middle seat, in the
front seat, and that he was on the far right side in the front seat on
the passenger side. And stated that they were going down the
road and the man was talking like “Don’t hurt me. I’ve got a
family.” And that they were telling him “We’re not going to hurt
you. We just want your truck.” And then the man came out of the
truck.
Ford told Officer Hardy that the man came out of the truck after Ford displayed
a weapon.
After Ford told Officer Hardy this information, Officer Hardy asked Ford
if he would agree to provide an audiotaped statement. Ford said that he did not
know whether or not he wanted to give his statement without an attorney, and
Officer Hardy responded that it was his right to have an attorney. Ford
thereafter kept saying that he did not mean for the man to get hurt. And then
Ford agreed to make his statement. He asked whether David Jackson had
admitted being involved in any way and stated, “I would never hurt anybody.
I might threaten, but I would never hurt anybody.” During the taping, Ford
equivocated on whether he should have an attorney. Officer Hardy ultimately
pushed Ford to make a decision, and Ford said that he wanted an attorney.
4
Officer Hardy told Ford that the investigation would continue, and Ford
left the vehicle and walked toward the house. Officer Hardy testified that he
did not smell any alcohol on Ford as he talked to him, nor did Ford appear to
exhibit any signs of intoxication. Officer Hardy also stated that Ford was not
ever under arrest during the entire time that they were in the car, that the doors
of the unmarked car were not locked, that Ford was never handcuffed, that
Ford was seated in the front of the vehicle with Officer Hardy, that Ford was
never detained, that Ford was never threatened with a weapon or verbally, that
Ford was never promised anything, and that Ford never asked to leave. Ford
was not arrested until January 12, 2007.
B. Ford’s Version of the Events
Ford also testified at the suppression hearing. He had been arrested in
August 2000 for unlawfully carrying a weapon and had been taken to a line up
where he asserted his right to an attorney and did not make a statement.
Six years passed, and Ford received a telephone call in December 2006
from Officer Hardy, stating that he wanted to show Ford some pictures. Ford
said that he asked Officer Hardy what it was about and told him that he did not
“want to be a part of anything.” Ford said that it was a bad time because he
was watching his niece and nephew and that Officer Hardy left him no choice
5
but to meet with him because Officer Hardy said that he was right around the
corner.
After Ford got off the phone, he went outside to smoke a cigarette, and
Officer Hardy was sitting in his vehicle outside Ford’s home. Ford stood on the
porch and smoked a cigarette while Officer Hardy sat in his vehicle. When
Officer Hardy left his vehicle and approached Ford, Officer Hardy asked Ford to
“come and get in the car” so that Officer Hardy could show Ford some pictures.
Ford told Officer Hardy that he did not feel comfortable getting in the car. Ford
also said that he wanted a lawyer.3 Officer Hardy told Ford that he had a
search warrant for the swab. Ford asked to see the search warrant, and Officer
Hardy showed it to him. Ford thereafter agreed to comply with the search
warrant and asked if the swab could be done in the house. Officer Hardy told
Ford to come to his car so that he could get a “better testing because out here
it’s real airy.” Ford ultimately went to the car.
Ford testified that Officer Hardy told him that he was not under arrest,
and Ford said that he felt like he was free to leave while he was outside the
car. When Officer Hardy started questioning Ford, he felt like Officer Hardy
“was trying to hold [him],” so Ford kept telling him that he wanted his attorney.
3
… On redirect, Ford said that the first time he mentioned wanting a
lawyer was the first time Officer Hardy came to the door of his house.
6
Ford’s attorney asked him what transpired after he sat down in the car,
and Ford said that Officer Hardy gave him “the Miranda right papers” and said
that he needed to go through them before he gave Ford the test. Ford said that
he did not feel like he could leave at that point. He said that Officer Hardy
questioned him about people he knew. Ford answered those questions but
eventually stopped because he felt like Officer Hardy was “trying to get [him]
in trouble for something [he had not] even done.” Ford testified that he was
never shown any pictures, that he did not make any of the declarations that
Officer Hardy testified about, and that he had asked for an attorney before
Officer Hardy turned on the tape recorder. Ford stated that Officer Hardy never
mentioned anything about a robbery and possible homicide that was committed
in August 2000.
At the end of the audiotaped conversation, Ford asked if he could leave,
and Officer Hardy told him that he could. Ford asked Officer Hardy to “pop the
lock” because the door was locked, but Ford admitted that he did not know
that the door was locked until he was ready to leave.
Ford said that he was “highly intoxicated” that day because he had been
drinking brandy for “a good couple of hours.” Ford told Officer Hardy that he
had been drinking and asked him if it would affect the swab. In spite of his
7
alleged intoxicated state, Ford admitted that he knew what was going on and
that he was capable of taking care of his sister’s children.
On cross-examination, Ford reiterated that Officer Hardy had told him that
he was not under arrest. Ford, however, said that he felt pressured when
Officer Hardy started talking. Ford admitted that he was not handcuffed, that
he had free use of his hands, that he had not been patted down, and that he
had not been treated in any way like he was under arrest. 4 Ford was adamant
that he did not say any of the things that Officer Hardy mentioned. The State
replayed the portion of the audiotape in which Ford said, “Have you talked to
David, man, he must have said he had something to do with it.” Ford tried to
explain his statement by saying that Officer Hardy had started pressuring him
and had mentioned that “type of stuff.” The prosecutor then questioned Ford
about the consistency of his statement on the tape with what Officer Hardy had
testified:
Q. [Prosecutor:] Matt Hardy says that you admitted to a
robbery but said you didn’t mean to hurt the man. What you said
there is consistent with what he says you said, that you threatened
the man when you robbed him, but you didn’t mean to hurt him.
Isn’t that consistent?
4
… Ford admitted that he knew how the police treated people when they
were under arrest because Ford had been arrested approximately ten times.
8
A. No, it’s not. Because that had nothing to do with -- the
man never did even question me about that stuff. He was talking
to me about some stuff and some robberies that had been going on
in the area. That’s why I said that about David.
Due to the detailed testimony Ford gave, the prosecutor ultimately asked Ford
whether he had a pretty good recollection of the circumstances that had
occurred inside the car, and he replied, “Not really.”
C. Outcome of the Suppression Hearing
After hearing the above testimony, as well as testimony from Ford’s wife
that Ford’s voice on the tape sounded like he was intoxicated, the trial court
stated,
All right. Defendant’s Motion to Suppress the statement falls
under 38.22. And specifically 38.22, Section 3 (a), where it
states: No oral or signed language statement of an accused made
at a custodial interrogation shall be admissible against an accused
in a criminal proceeding unless there’s an electronic recording or
motion picture videotape, et cetera.
The crucial language of 38.22 Section 3 (a) is, of course,
custodial interrogation. And the Court must first find that the
Defendant, Mr. Ford, was in custody. Based upon the testimony
of both Mr. Ford and Officer Hardy, the Court’s going to find that
Mr. Ford was not in custody at the time that he gave a statement.
Therefore, 38.22 does not fall into play.
The trial court thereafter denied Ford’s motion to suppress.
9
D. The Evidence at Trial
Officer Hardy gave testimony at trial similar to the testimony that he gave
at the suppression hearing. Additional evidence elicited at trial corroborated
Ford’s statements that he had committed the offense with David Jackson
because a witness identified Jackson and because the results from Jackson’s
DNA sample revealed that he could not be excluded as a match for the DNA
found on the cap.
E. The Verdict
After hearing the evidence, the jury found Ford guilty of murder and
recommended a punishment of twenty years’ confinement. The trial court
sentenced Ford in accordance with the jury’s recommendation, and this appeal
followed.
III. S TANDARD OF R EVIEW
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
10
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
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 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.
11
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.
When the record is silent on the reasons for the trial court’s ruling, or
when there are no explicit fact findings and neither party timely requested
findings and conclusions from the trial court, we imply the necessary fact
findings that would support the trial court’s ruling if the evidence, viewed in the
light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede,
214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless
the implied fact findings supported by the record are also dispositive of the legal
ruling. Kelly, 204 S.W.3d 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 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).
12
IV. A RTICLE 38.22 A PPLIES O NLY TO S TATEMENTS M ADE
W HILE IN C USTODIAL INTERROGATION
In his only issue, Ford argues that the trial court erred by admitting his
oral confession because it did not comply with the requirements of article 38.22
of the Texas Code of Criminal Procedure. The State responds that the trial
court did not abuse its discretion by overruling Ford’s motion to suppress
because Ford was neither in custody nor under interrogation when he made the
statements at issue.
Texas Code of Criminal Procedure article 38.22, section 3(a)(1) states
that “[n]o oral or sign language statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal
proceeding unless: (1) an electronic recording, which may include motion
picture, video tape, or other visual recording, is made of the statement.” Tex.
Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).
When considering “custody” for Miranda purposes, we apply a
“reasonable person” standard—“[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.”
Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (also stating
that “[o]ur construction of ‘custody’ for purposes of Article 38.22 is consistent
13
with the meaning of ‘custody’ for purposes of Miranda”). Our “custody”
inquiry also includes an examination of all of the objective circumstances
surrounding the questioning. Id. The subjective belief of law enforcement
officials about whether a person is a suspect does not factor into our “custody”
determination unless an official’s subjective belief was somehow conveyed to
the person who was questioned. Id. at 525–26.
Here, the record reveals that Officer Hardy made it clear that Ford was
not under arrest, and Ford even testified that he knew he was not under arrest.
Although Ford stated that he did not feel that he was free to leave once he
entered the vehicle, there was no evidence to support his feeling: according to
Officer Hardy, the doors of the unmarked car were not locked, Ford was never
handcuffed, Ford was seated in the front of the vehicle with Officer Hardy, Ford
was never patted down nor detained, Ford was never threatened with a
weapon or verbally, Ford was never promised anything, and Ford never asked
to leave. According to Officer Hardy, he was not interrogating Ford at the time
that Ford made his statement; instead, Ford made his unsolicited statement
after Officer Hardy explained what he was investigating. Reviewing the
evidence in the light most favorable to the trial court’s ruling, we hold that Ford
was not in custody at the time he made his statement to Officer Hardy. See
id.; Lopez v. State, No. 02-02-00096-CR, 2003 WL 1849206, at *2–3 (Tex.
14
App.—Fort W orth Apr. 10, 2003, pet. ref’d) (mem. op., not designated for
publication) (holding that appellant was not in custody when he made
statements because he was not handcuffed, he was not under arrest, he was
told by officer that he was trying to ascertain appellant’s identity, and appellant
initiated conversation by asking what officer was investigating. The trial court,
therefore, did not err by denying Ford’s motion to suppress. We overrule Ford’s
sole issue.
V. C ONCLUSION
Having overruled Ford’s sole issue, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2009
15