State=s Motion for Rehearing Overruled; Reversed and Remanded; Opinion of November 28, 2006 Withdrawn and Substitute Majority and Concurring Opinions filed August 30, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-00098-CR
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ANGEL RESENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 960,399
C O N C U R R I N G O P I N I O N
I respectfully concur in the court=s judgment.
The majority correctly reverses the trial court=s judgment because the trial court erred in denying appellant=s motion to suppress as to the part of appellant=s September 2, 2003 statement given after his admission that he shot the complainant. The majority correctly concludes that the trial court erred in taking judicial notice of appellant=s prior testimony, given at the trial of Esteban (ASteve@) Perez. Nonetheless, this testimony, even if considered, would not change this court=s stated conclusion that the interrogation of appellant became custodial when probable cause arose to arrest appellant and the law enforcement officers did not tell appellant he was free to leave.
Regarding the trial court=s taking judicial notice of appellant=s testimony at Perez=s trial, the majority correctly concludes that appellant preserved error as to his complaint that this judicial notice was improper. Presuming for the sake of argument that the trial court acted properly in taking judicial notice or that appellant failed to preserve his complaint in this regard, appellant=s testimony at Perez=s trial would not change this court=s analysis and conclusion.[1] Although appellant did testify at Perez=s trial that his September 2, 2003 statement was freely and voluntarily given, the voluntariness of a confession is an issue distinct from whether appellant was in custody so as to require Miranda warnings. See Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884B85, 68 L. Ed. 2d 378 (1981); Wilkerson v. State, 657 S.W.2d 784, 792 (Tex. Crim. App. 1983). Appellant also stated that, when he was making his September 2, 2003 statement, the investigators did not at any time tell him that he did not have a right to leave. This testimony is consistent with the transcript reflecting appellant=s statement. The investigators did not tell appellant that he could not leave, and they did not tell him that he was free to leave. Appellant further testified that the investigators showed him the exit door, offered him a drink, and offered him the ability to go to the restroom when he wanted. This testimony appears to address what appellant claims the officers told him at the beginning of his September 2, 2003 statement. In any event, though the transcript of appellant=s statement does not reflect that the officers made these statements, even if they did, these statements would not change the outcome in this appeal. In addition, appellant also testified at Perez=s trial that he was Anot being held without [his] will@ and that he was not in custody at that time; however, these statements describe the situation at the beginning of appellant=s September 2, 2003 statement. Again, these facts are not contrary to the majority=s conclusion that the interrogation became custodial later, when appellant stated that he was the first one to shoot the complainant. Appellant also stated his beliefs about whether he was free to leave at any time; however, appellant=s subjective belief in this regard is not relevant to the custody determination. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). In sum, appellant=s prior testimony would not alter this court=s conclusion that, when appellant stated on September 2, 2003, that he shot the complainant, this manifestation of probable cause, combined with the other circumstances, would lead a reasonable person to believe that he was under restraint to the degree associated with an arrest. See id. at 255.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Substitute Majority and Concurring Opinions filed August 30, 2007.
Panel consists of Justices Anderson, Edelman, and Frost. (Anderson, J., substitute majority).
Publish C Tex. R. App. P. 47.2(b).
[1] Appellant agreed that his testimony at Perez=s trial would be admissible in a trial in this case. In that testimony, appellant described the material aspects of his September 2, 2003 statement. Therefore, if there had been a trial and conviction in this case, any error in admitting the September 2, 2003 statement likely would have been harmless. However, as the majority correctly points out, under applicable precedent, the inquiry in this case, in which appellant pleaded Aguilty,@ is only whether the evidence that should have been suppressed would inculpate appellant Ain any measure.@ See, e.g., McKenna v. State, 780 S.W.2d 797, 799B800 (Tex. Crim. App. 1989).