IN THE
TENTH COURT OF APPEALS
No. 10-08-00353-CV
MCI Sales and Service, Inc.,
Appellant
v.
James Hinton, Individually and as
Representative of the Estate
of Dolores Hinton, Deceased, et al.,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2003-2308-4
order OF RECUSAL
I hereby recuse myself from further participation in this case.
_____________________________
REX D. DAVIS
Justice
Date: ________________________
en shed, Ashford gave his consent. He also agreed to accompany the detective to the police station.
At the police station, Ashford again denied involvement in the murders and claimed he had lied to his father. Ashford remained at the police station for approximately one hour for questioning. Malcom then proposed that he take a polygraph test “to clear the matter up.” He drove Ashford to the polygraph office and stayed with him throughout the three to three-and-a-half hour examination. After learning that he failed the exam, Ashford voluntarily discussed his involvement in the murders. Although Malcom did not place him under arrest at that time, in an “abundance of caution” he read him his rights. Ashford acknowledged his rights and made a written statement at 9:00 p.m. in which he confessed to killing Ogdie and Chance. Malcom arrested Ashford after he completed the written statement.
Motion to Suppress
Prior to trial, Ashford filed a motion to suppress the written statement arguing that the statement should have been suppressed because he had invoked his right to counsel. The trial court denied the motion. In his first issue, Ashford argues that the court abused its discretion in denying this motion.
Standard of Review
A trial court’s denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion “when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
The trial court’s findings of fact are given “almost total deference,” and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App. 1997). However, the application of the relevant law to the facts is reviewed de novo. Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106.
Applicable Law
Custodial interrogation must cease once a person invokes his right to counsel. Miranda v. Arizona, 384 U.S. 436, 473, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, a police officer is not required to cease questioning after a suspect requests counsel if he is not in custody. Brossette v. State, 99 S.W.3d 277, 282 (Tex. App.—Texarkana 2003, pet. dism’d). Further, the Code of Criminal Procedure allows for the admission of “a statement that does not stem from custodial interrogation.” Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon 2006).
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. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994). The subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Id. The custody determination is based entirely upon objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
The determination of custody must be made on an ad hoc basis, after considering all of the circumstances. Id. (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). Stationhouse questioning does not, in and of itself, constitute custody. Id. (citing California v. Beheler, 463 U.S. 1121, 1124-25, 103 S. Ct. 3517, 3519-20, 77 L. Ed. 2d 1275 (1983)). Likewise, custody does not occur merely because the suspect submits to and fails a polygraph test. Id. However, 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.
The four general situations which may constitute custody are: (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. Shiflet, 732 S.W.2d at 629. For the first three situations, the restriction upon movement must amount to the degree associated with an arrest as opposed to an investigative detention. Stansbury, 511 U.S. at 320, 114 S. Ct. 1526. For the fourth situation, the officers’ knowledge of probable cause must be manifested to the suspect. Id. However, a manifestation of probable cause such as providing a suspect with information substantiating probable cause does not automatically establish custody. Dowthitt, 931 S.W.2d at 255. 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 a degree associated with an arrest. Id.
Analysis
Ashford was not in custody during the initial interview at his home. Although Malcom had a warrant for Ashford’s arrest during the initial interview at the house, he did not arrest Ashford nor did he communicate his intent to arrest him. Rather, he chose to seek his cooperation. Ashford spoke voluntarily with Malcom, who gave no indication that Ashford was not free to leave. Ashford was not in custody when he requested an attorney, and Malcom was not required to cease questioning at that time.
Ashford voluntarily accompanied Malcom to the police station and to the polygraph office. Two factors weigh in favor of custody in this situation: (1) Malcom’s manifestation of his knowledge of probable cause by confronting Ashford with the information his father provided to police, and (2) that Ashford met with detectives for approximately nine hours. However, Malcom did not physically restrain Ashford, tell him he could not leave, or manifest any intent to detain him as a suspect. Considering all the circumstances, the record does not show that Malcom was in custody during the questioning at the police station or during the polygraph examination. Regardless, prior to giving the written statement, Malcom read Ashford his rights. Even if we were to find that this consensual inquiry escalated into custodial interrogation, by advising Ashford of his rights, the requirements of Miranda and article 38.22 were met and the statement was admissible. The trial court did not abuse its discretion in denying the motion to suppress. We overrule Ashford’s first issue.
Double Jeopardy
The indictment alleged that Ashford committed capital murder by intentionally killing Kevin Ogdie and Kelly Chance in count one and by killing one victim in the course of committing or attempting to commit robbery in counts two and three. Ashford was convicted on all three counts and, in his third issue, complains that the three convictions violate his right against the imposition of multiple punishments under the Fifth Amendment's double jeopardy clause. He asks us to vacate the convictions under counts two and three. The State agrees that double jeopardy bars three capital murder convictions; however, it argues that we should vacate the conviction under count one and retain the convictions under counts two and three.
The test for determining which conviction is barred by double jeopardy is the “most serious punishment” test. Landers v. State, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997). Generally, the “most serious punishment” is the longest sentence imposed, with rules of parole eligibility and good time serving as a tie-breaker. Id. However, all three of Ashford’s convictions are for capital murder and each carries the same punishment, parole eligibility, and good-time credits. In the absence of any other “tie-breaker,” we find that two convictions are a more serious punishment than one conviction. Accordingly, we will vacate Ashford’s conviction under count one and retain the convictions under counts two and three. We sustain issue three.
Jury Instruction
Ashford requested that the trial court include the following instruction on count one in the jury charge: “if self defense is raised by the evidence, then the State has the burden to disprove self defense beyond a reasonable doubt.” The court denied this request. In his second issue, Ashford complains of this ruling.
Due to our disposition on issue three, we need not address Ashford’s second issue. However, we would find that the jury charge complied with the Penal Code and properly placed the burden on Ashford to produce evidence raising the defense, placed the burden of persuasion on the State to disprove the defense, and required the jurors to acquit if they had a reasonable doubt about the defense. See Tex. Pen. Code Ann § 2.03 (Vernon 2003). Accordingly, the trial court did not err in omitting Ashford’s requested instruction. We overrule issue two.
Conclusion
We reform the trial court’s judgment to delete the conviction for capital murder under count one of the indictment. As reformed, the judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Reformed and affirmed
Opinion delivered and filed August 23, 2006
Do not publish
[CRPM]
[1] Malcom testified that Ashford never mentioned an attorney.