IN THE
TENTH COURT OF APPEALS
No. 10-11-00117-CR
BRADFORD RANDLE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 35109CR
MEMORANDUM OPINION
Bradford Craig Randle was convicted of aggravated assault on a public servant
and sentenced to 20 years in prison. TEX. PENAL CODE ANN. § 22.02 (West 2011). We
affirm.
BACKGROUND
After a traffic stop by a deputy with the Ellis County Sheriff’s Department,
Randle threatened the deputy with a knife. The deputy shot Randle in the abdomen,
and Randle was taken to the emergency room at Parkland Hospital in Dallas. Randle
ultimately gave two oral statements about what had occurred. Both statements were
recorded and introduced into evidence. Prior to making the first statement in the
hospital, he was not given his statutory warnings pursuant to article 38.22, section 2(a)
of the Texas Code of Criminal Procedure.1 Prior to making the second statement in jail,
Randle was given his statutory warnings.
CUSTODIAL INTERROGATION
Randle first argues that the trial court erred in admitting his statement 2 in
contravention of article 38.22, section 3 of the Texas Code of Criminal Procedure. TEX.
CODE CRIM. PROC. ANN. art. 38.22, § 3 (West 2005). Specifically, he contends his oral
statement at the hospital after surgery was the result of a custodial interrogation and he
should have been given the statutory warnings pursuant to section 2(a) of article 38.22.
Id. §§ 2(a); 3(a)(2).
Oral statements made by an accused as a result of custodial interrogation are not
admissible unless made in compliance with the provisions of article 38.22 of the Code of
Criminal Procedure. See id. But, statutory warnings are required only when the
statement stems from custodial interrogation. Id.; Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007).
1These warnings are substantially similar to the warnings required by Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
2Although Randle occasionally refers to “statements” made, it appears that, for this issue, he is referring
only to the oral statement he made at the hospital.
Randle v. State Page 2
At trial, the defendant bears the initial burden of proving that a statement was
the product of custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim.
App. 2009). A person is in "custody" only if, under the circumstances, a reasonable
person would believe that his freedom of movement was restrained by law enforcement
to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 323-25, 114 S. Ct. 1526,
1529-30, 128 L. Ed. 2d 293 (1994)). The determination of "custody" must be made on an
ad hoc basis, after considering all of the objective circumstances. Dowthitt, 931 S.W.2d
at 255 (Tex. Crim. App. 1996). In reviewing a trial court’s “custody” determination, we
conduct a bifurcated review, affording almost total deference to the trial court's rulings
on questions of historical fact and on application of law to fact questions that turn upon
credibility and demeanor while reviewing de novo the trial court's rulings on
application of law to fact questions that do not turn upon credibility and demeanor.
Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007); Ripkowski v. State, 61 S.W.3d
378, 381-382 (Tex. Crim. App. 2001).
At least four general situations may constitute "custody” for the purposes of
article 38.22: (1) the suspect is physically deprived of his freedom of action in any
significant way; (2) a law enforcement officer tells the suspect that he cannot leave; (3)
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) there is
Randle v. State Page 3
probable cause to arrest and law enforcement officers do not tell the suspect that he is
free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). In all four
circumstances, the initial determination of "custody" depends on the objective
circumstances of the interrogation, not on the subjective views of the interrogating
officer or the person being questioned. Dowthitt, 931 S.W.2d at 255. In the first three
circumstances, the restriction upon freedom of movement must amount to the degree
associated with an arrest as opposed to an investigative detention. Id. With regard to
the fourth circumstance, the officers' knowledge of probable cause must be
communicated to the suspect to constitute "custody." Id.
In this case, the pertinent question is whether Randle was “in custody” for the
purposes of article 38.22 when questioned at the hospital by Texas Ranger Don Stoner.
Randle argues that he was in “custody” for various reasons: 1) an officer was placed
outside Randle’s hospital room door; 2) it was “possible” Randle was handcuffed to the
hospital bed; 3) Randle was questioned at 1 a.m. after surgery; 4) Randle was
interviewed hours after the incident and after an interview of the deputy involved; and
5) Ranger Stoner verified probable cause events at the interview that he already knew.
It was undisputed that an officer was placed outside Randle’s hospital room
door, but the only testimony as to why the officer was there came from Ranger Stoner
who said the officer was there to report medical findings. There was no evidence that
the officer was placed outside the door to prevent Randle from leaving. Further, there
Randle v. State Page 4
was no evidence that Randle was handcuffed to his hospital bed. Again, Ranger Stoner
was the only witness asked about whether Randle was handcuffed. He replied, “He
could have been, sir. I don’t know. He was under the covers.” This is not evidence that
Randle was handcuffed.
The evidence showed that Randle was questioned at 1 a.m. sometime after his
surgery at Parkland Hospital. However, the time and location of the interview did not
amount to a restriction of Randle’s freedom to the degree that would be associated with
an arrest. Further, regardless of whether Ranger Stoner had probable cause and could
have obtained an arrest warrant, he did not have one at the time of the interview.
Stoner testified that when he initially spoke to Randle at the hospital, Randle and the
deputy were both suspects in the incident. After speaking with Randle, Stoner
determined that Randle’s version of the events did not match the evidence at the scene
or the deputy’s version of the events. Stoner, however, did not confront Randle with
what the evidence at the scene showed or what the deputy had said occurred. Thus,
there was no communication of probable cause to arrest.
Randle also argues that even if the interview began as a non-custodial encounter,
it escalated to a custodial interrogation when Randle informed Stoner that he had been
pulled over and got out of the car with a knife. See State v. Stevenson, 958 S.W.2d 824,
828 (Tex. Crim. App. 1997) (“We have recognized though, that subsequent events may
cause a noncustodial encounter to escalate into custodial interrogation.”). However, at
Randle v. State Page 5
most, what occurred was a shift in focus when Stoner discovered that Randle’s version
of the events did not match the evidence at the scene. Even if Randle became the focus
of the investigation during the interview, mere focus upon the defendant does not
convert the investigation into an arrest. See Gardner v. State, 306 S.W.3d 274, 293 (Tex.
Crim. App. 2009); State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997).
Randle has failed to establish that he was in custody during the interview at the
hospital. Therefore, the trial court did not err in admitting the recording of that
noncustodial interview.
As an aside, Randle asserts that he should have been given a jury instruction
pursuant to section 7 of article 38.22 of the Code of Criminal Procedure. He presents no
case authority on the standard of review, whether there was error in the refusal to
submit such an instruction, and if so, whether there was any harm. This argument is
improperly briefed and presents nothing for review. TEX. R. APP. P. 38.1(i); see Cardenas
v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
Randle’s first issue is overruled.
HARM
In his fourth issue, Randle appears to conduct a harm analysis of the alleged
erroneous admission of the hospital statement. Because we have held that Randle was
not in custody and the trial court did not err in admitting the statement for that reason,
Randle’s fourth issue is overruled.
Randle v. State Page 6
VOLUNTARINESS
In his second issue, Randle contends that his hospital statement was involuntary.
The only error, however, that he attributes to the trial court is the failure of the trial
court to: 1) conduct a Jackson v. Denno3 hearing as to the voluntariness of this statement
pursuant to article 38.22, section 6 of the Texas Code of Criminal Procedure; 2) make
findings of fact to support its conclusion as to the voluntariness of this statement
pursuant to article 38.22, section 6 of the Texas Code of Criminal Procedure; and 3)
include a general instruction as to the voluntariness of this statement pursuant to article
38.22, section 6 of the Texas Code of Criminal Procedure.
Voluntariness Hearing
Article 38.22, section 6 provides in pertinent part:
In all cases where a question is raised as to the voluntariness of a
statement of an accused, the court must make an independent finding in
the absence of the jury as to whether the statement was made under
voluntary conditions. If the statement has been found to have been
voluntarily made and held admissible as a matter of law and fact by the
court in a hearing in the absence of the jury, the court must enter an order
stating its conclusion as to whether or not the statement was voluntarily
made, along with the specific finding of facts upon which the conclusion
was based, which order shall be filed among the papers of the cause.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005).
Under the Court of Criminal Appeals’ precedents, section 6 of article 38.22
applies to both an accused's custodial and non-custodial statements. Oursbourn v. State,
3 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
Randle v. State Page 7
259 S.W.3d 159, 171 (Tex. Crim. App. 2008); State v. Terrazas, 4 S.W.3d 720, 727 (Tex.
Crim. App. 1999). Further, a claim of involuntariness under article 38.22, section 6
encompasses subjective involuntariness claims that do not turn solely on police
overreaching. Oursbourn, 259 S.W.3d at 172. Thus, under a section 6 inquiry, courts
consider factors such as the suspect's youth, intoxication, mental retardation, or other
disability. Id. at 172-73. Raising a "question" as to the voluntariness of the statement is
what triggers the trial court's duty under section 6 to conduct a hearing outside the
presence of the jury; thus, a "question is raised" when the trial judge is notified by a
party or raises on his own an issue about the voluntariness of the statement. Oursbourn,
259 S.W.3d at 175.
Raising a Question
In this case, it is undisputed that the trial court did not conduct a hearing outside
the presence of the jury as to the voluntariness of Randle’s hospital statement. The
question becomes then; did Randle raise a question as to the voluntariness of that
statement so as to trigger the trial court’s duty. In reviewing the record, we believe he
did.
Texas Ranger Don Stoner testified about the statement he took from Randle at
the hospital. Prior to the introduction of the statement, Randle objected and a
discussion was held off the record. When Randle requested to make a specific objection
on the record, the trial court would not permit it at that time. Stoner then testified that
Randle v. State Page 8
he did not know if Randle was under any medication at the time Randle made his
statement and that he did not give any warnings to Randle since Randle was not under
arrest. On voir dire, Stoner agreed that Randle was in and out of alertness and
sleepiness and agreed that Randle was under sedation. But he contended that Randle
appeared to understand what Stoner was asking him and responded appropriately to
the questions asked.
After Stoner’s testimony on voir dire, Randle made two more objections. The
first is as follows.
I think that in this situation, because of Mr. Randle’s station (sic) level and
clearly he being under investigation for a matter, I think that goes against
any law we have against statements being able to be used in this type of
situation. No Miranda rights were given, and clearly he was in a
diminished capacity and could not formulate responses that – that were
proper in this situation.
The second objection is as follows:
< For the purposes of the record, I’m going to specify my objections as
pursuant to 38.21 and 38.22 of the Code of Criminal Procedure<.
***