In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00559-CR
_________________
KENNETH LEE MARTIN JR., Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-110,726-R
________________________________________________________________________
MEMORANDUM OPINION
This is an appeal by Kenneth Lee Martin Jr. of the trial court’s ruling on a
motion to suppress an oral statement made by appellant. Martin contends that the
admission of his oral statement was improper because it was the product of a
custodial interrogation and was not electronically recorded in accordance with the
provisions of the Texas Code of Criminal Procedure. After the trial court denied
his motion to suppress, a jury convicted Martin of felony possession of a controlled
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substance and assessed punishment at two years confinement in state jail and a
$10,000 fine. We affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Leonard Roff, an officer with the Pinehurst Police Department, was on
patrol in Orange County when he observed a vehicle, with its high beams on,
approach him from behind. Martin was riding in the front passenger seat of the
vehicle. Martin’s cousin, Brandon Lee Martin, was driving. The vehicle was
owned by Brandon’s girlfriend, who was not in the vehicle at the time. Officer
Roff conducted a traffic stop. West Orange Police Officer Chance Reed arrived on
the scene and assisted Roff with the traffic stop. At some point during the stop,
Constable Rob Strause also arrived at the scene.
After stopping the vehicle, Roff obtained “verbal consent” from the driver to
search the vehicle. Roff found a small plastic baggy containing methamphetamine
between some clothing in the trunk of the vehicle. Officer Roff testified he
considered Brandon and Martin as being detained at that point in time and would
not have allowed them to leave. Roff asked both Brandon and Martin who owned
the drugs. Roff never advised them of any Miranda warnings. See Miranda v.
Arizona, 384 U.S. 436 (1966). Roff testified he told Brandon and Martin that if
they both denied ownership of the drugs, he would charge them both with
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possession. Martin then made the statement that Brandon had a baby on the way
and did not need to go to jail. Martin stated that he would “take the hit for it.” Roff
then handcuffed Brandon and Martin and placed them both under arrest.
At some point thereafter, Constable Strause read Martin his Miranda rights.
Id. After being read his rights, Martin again claimed ownership of the contraband.
Because of a malfunction of the audio and video equipment on Roff’s patrol car,
the traffic stop and oral statements were not recorded.
Prior to trial, Martin filed a motion to suppress the oral statements he made
during the traffic stop. In the motion, Martin alleged that admission of his oral
statements would violate articles 38.22 and 38.23 of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West Supp. 2013), art.
38.23 (West 2005). At the hearing on the motion to suppress, Martin denied ever
claiming ownership or possession of the alleged contraband. In its oral findings of
fact, the trial court found in pertinent part:
Officer Roff conducted a traffic stop and was given verbal consent to
search the vehicle. He searched the vehicle, and in the trunk he found
some methamphetamine between some clothing. He inquired as to
the . . . driver and the passenger as “Who does that belong to?” And
neither party admitted ownership, did not belong to them. The officer
then advised them he was going to place both of them under arrest for
possession. The defendant at that time stepped forward and said --
admitted the drugs were his and that he -- the driver had a family and
did not need to go to jail. The officer proceeded to arrest both of
them. The audio and video equipment were not functioning. So,
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there was no recording of the arrest. Constable Rob Strause arrived at
the scene and read the [Miranda] warnings to the defendant. The
defendant then admitted that the drugs, again, were his. And the
defendant was placed under arrest and charged with the offense.
The Court then denied the motion to suppress.
Constable Strause did not testify at trial. Martin’s confession came into
evidence only through the trial testimony of Officers Roff and Reed. A jury
convicted Martin of the alleged offense; he was sentenced to two years
confinement in jail and assessed a $10,000 fine. The trial court entered a judgment
of conviction in accordance with the jury’s verdict and this appeal followed. On
appeal, Martin argues in one issue that the trial court erred in denying his motion to
suppress the “unrecorded oral statements made by appellant while [he] was
detained.”
II. STANDARD OF REVIEW
We review the trial court’s ruling on a motion to suppress under a bifurcated
standard. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We
defer to the trial court’s determination of historical facts supported by the record,
especially when they are based on credibility assessments, and mixed questions of
law and fact that turn on credibility assessments. State v. Iduarte, 268 S.W.3d 544,
548-49 (Tex. Crim. App. 2008); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997) (en banc). We review legal questions and mixed questions of law and
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fact that do not turn on credibility assessments under a de novo standard. Leza v.
State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011); Carmouche, 10 S.W.3d at
327.
In Alford v. State, the Texas Court of Criminal Appeals explained that “‘[i]f
credibility and demeanor are not necessary to the resolution of an issue, whether a
set of historical facts constitutes custodial interrogation . . . is subject to de novo
review because that is an issue of law[.]’” 358 S.W.3d 647, 653 (Tex. Crim. App.
2012); see also State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013). The
fact that credibility and demeanor “are important factors” in the trial court’s
assessment does not necessarily mean that the raised issue “‘turns’” on an
evaluation of credibility and demeanor. Saenz, 411 S.W.3d at 494. Additionally,
“[t]he ultimate legal determination of whether an individual was in custody
requires an appellate court to take the facts, as assessed for weight and credibility
by the trial court, and then to make a legal determination as to whether those facts
amount to custody under the law.” Id. We take the trial court’s fact findings that
are supported by the record and determine whether those facts amount to custody
under the applicable law. See id.
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III. ANALYSIS
Martin argues his oral statements were inadmissible against him at trial
because they were not electronically recorded pursuant to article 38.22. Under
Texas law, a defendant’s oral statement, made as the result of a custodial
interrogation, is not admissible against him in a criminal proceeding unless, among
other requirements, the statement is electronically recorded. Tex. Code Crim. Proc.
Ann. art. 38.22, § 3(a)(1). The State argues that Officer Roff’s detention of Martin
was non-custodial before the time that Officer Roff placed Martin under arrest and,
thus, the statements are not subject to the requirements of article 38.22. The State
further contends that Martin’s confession was not the result of a custodial
interrogation as the statement was not made in response to a question by Officer
Roff.
A. Custody
A person is “in custody” if, after considering all of the objective
circumstances, a reasonable person would believe that his or her freedom of
movement is restrained to the degree associated with a formal arrest. Dowthitt v.
State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996); see also Estrada v. State,
313 S.W.3d 274, 294 (Tex. Crim. App. 2010). In making this determination, we
ascertain first, “whether, in light of ‘the objective circumstances of the
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interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to
terminate the interrogation and leave.’” Howes v. Fields, 132 S. Ct. 1181, 1189
(2012) (citations omitted). If the answer is “yes,” we then consider “whether the
relevant environment presents the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.” Id. at 1190. In Dowthitt, the Texas
Court of Criminal Appeals outlined 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 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.
Dowthitt, 931 S.W.2d at 255. In the first three of these categories, a detainee’s
freedom of movement must be restrained “to the degree associated with an
arrest[.]” Id.; State v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012). With
regard to the fourth category, an officer’s belief that probable cause exists must be
“manifested to the suspect.” Dowthitt, 931 S.W.2d at 255; Ortiz, 382 S.W.3d at
376-77.
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To support his contention that his statements were made in response to a
custodial interrogation, Martin relies on Officer Roff’s testimony that Martin and
Brandon were being detained at the time that he questioned them, as well as Roff’s
testimony that he would not have allowed them to leave after he found the drugs.
An officer’s subjective view regarding the nature of an interrogation, or his belief
concerning the potential culpability of the individual being questioned, may be one
of many factors that bear upon the assessment of whether that individual was in
custody, but “‘only if the officer’s views or beliefs were somehow manifested to
the individual under interrogation and would have affected how a reasonable
person in that position would perceive his or her freedom to leave.’” Estrada, 313
S.W.3d at 294 (quoting Stansbury v. California, 511 U.S. 318, 325 (1994)); see
also State v. Stevenson, 958 S.W.2d 824, 829 n.7 (Tex. Crim. App. 1997).
Texas law is well settled that “a person held for investigative detention is not
in ‘custody.’” Ramirez v. State, 105 S.W.3d 730, 738 (Tex. App.—Austin 2003,
no pet.) (citing Dowthitt, 931 S.W.2d at 255). An investigative detention occurs
when an officer detains someone who is reasonably suspected of engaging in
criminal activity to determine his identity or to maintain the status quo while more
information is gathered. Id. at 739 (citing Terry v. Ohio, 392 U.S. 1, 20-21
(1968)). Although an interrogation may begin as non-custodial, police conduct
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during the encounter may transform a consensual exchange into a custodial
interrogation. Dowthitt, 931 S.W.2d at 255.
The record establishes that Martin and Brandon were detained while Officer
Roff searched the car. They were not handcuffed. After Officer Roff found
methamphetamine in the trunk of the car, he questioned both men as to whom the
contraband belonged. Probable cause to arrest both men existed, and Officer Roff
did not tell Martin he was free to leave. See id. After neither man admitted to
ownership of the contraband, Officer Roff made a statement to them that he was
charging and arresting them both. The record establishes there were ultimately
three officers on the scene from three different jurisdictions.1 See Ortiz, 382
S.W.3d at 374 (noting that “[a]n ordinary traffic stop usually involves a single
police car and one or two officers.”). Under the circumstances, we conclude that
Officer Roff’s statement would lead a reasonable person in Martin’s position to
conclude his freedom of movement was restricted to the degree associated with an
arrest. See id. at 375; see also Dowthitt, 931 S.W.2d at 255. On this record, we
conclude that Martin was in custody when he made the statement. See Ortiz, 382
S.W.3d at 375; see also Dowthitt, 931 S.W.2d at 254-55. The question then
1
It is unclear from the record at what point during the stop Constable
Strause arrived on the scene.
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becomes whether the statement was made as the result of Roff’s interrogation or
was a voluntary admission as asserted by the State.
B. Interrogation
All parties agree that Martin was not advised of his Miranda rights
immediately following the officer’s statement that they were both being arrested.
When considering whether a temporary detention has evolved into a custodial
interrogation, we consider “the compulsive aspect of custodial interrogation[.]”
Stansbury, 511 U.S. at 323. Interrogation has been defined as express questioning
or any words or actions by police that “the police should know are reasonably
likely to elicit an incriminating response[.]” Rhode Island v. Innis, 446 U.S. 291,
301-02 (1980). According to the State, Martin’s statement to Officer Roff was a
spontaneous, “res gestae” admission. The record supports a conclusion that
Martin’s statement was not made in direct response to Roff’s initial question about
ownership of the contraband. The question then becomes whether Martin’s claim
of ownership was made in direct response to Roff’s follow-up statement that,
because neither admitted to ownership of the contraband, both men would be
arrested. The likelihood of eliciting a response focuses on the perception of the
suspect, not the intent of the police. Id. at 301.
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Martin brought the motion to suppress and took the stand to support his
claims. He testified at the suppression hearing that Officer Roff did not ask him if
he had any knowledge of the contraband recovered from the vehicle and, further,
that he had no discussions with the police officers regarding possession or
ownership of any alleged contraband. In fact, Martin denied that he ever told the
police officers that the drugs were his. Martin offered no testimony in support of
his motion to suppress that he made a claim of ownership of the contraband only in
response to a statement or question posed by law enforcement. On cross-
examination by the State, Martin was asked if he ever made the statement that the
drugs were his, he replied, “I was never asked to do that.” The prosecutor then
stated: “Then you just answered my question. The cops never asked you?” Martin
replied, “No, sir.” Officer Roff testified that after his initial inquiry as to whom the
drugs belonged, he never asked Martin any further questions. Roff testified that
when he told both men that he was charging them both with possession of
contraband, Martin volunteered the statement that Brandon did not need to go to
jail because he had a baby on the way and the drugs belonged to Martin.
Officer Reed testified that Roff questioned both men about ownership of the
methamphetamine, and “[a]t first, originally neither subject took ownership of it.
Then as it progressed, Mr. Kenneth Martin stated to Brandon something along the
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lines of ‘You’ve got a child along the way,’ basically. ‘I’ll take the hit for it.’” On
this record, the trial court could have reasonably concluded that Martin’s statement
was a spontaneous or voluntary admission, not the result of police interrogation
and was not subject to the provisions of article 38.22. See Tex. Code Crim. Proc.
Ann. art. 38.22; see also Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App.
1990) (citing Innis, 446 U.S. at 300); Ruth v. State, 167 S.W.3d 560, 570 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d). We overrule this issue and affirm the
judgment of the trial court.
AFFIRMED
__________________________
CHARLES KREGER
Justice
Submitted on July 1, 2013
Opinion Delivered January 29, 2014
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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