Opinion issued November 8, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00645-CR
———————————
TERRENCE REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1283986
MEMORANDUM OPINION
After the trial court denied his motions to suppress evidence and a recorded
confession, Terrence Reed pleaded guilty to unlawful possession of a firearm. See
TEX. PENAL CODE ANN. § 46.04(a) (West 2011). The trial court found Reed to be a
habitual offender and assessed his punishment at twenty-five years’ confinement.
Reed challenges the trial court’s denial of his motions to suppress. Finding no
error, we affirm.
Background
Officer K. McDaniel questioned Reed while Reed was in custody in the
Harris County Jail on unrelated charges of burglary of a motor vehicle. Over the
course of three separate interviews, Reed admitted to stealing a firearm and selling
it to a third party, Victor Martinez.
Officer McDaniel later contacted Martinez and questioned him about the
gun. Martinez denied possessing the gun but disclosed that he knew who had it.
Martinez was reluctant to turn the gun over to police, because as a convicted felon,
his possession of a firearm is illegal. After McDaniel assured Martinez that he
would not arrest him, Martinez complied and brought the gun to the authorities.
McDaniel testified that he had read Reed Miranda warnings before each of
the three interviews. McDaniel recorded only the last interview. Reed first asked
McDaniel whether he was in trouble, and McDaniel responded, “No, no.” Reed
then asked, after being read his Miranda warnings, “You aren’t gonna put no new
charges on me, or anything?” McDaniel did not answer. After a pause, Reed said,
“Well, I’m willing to cooperate, but I was just wondering.” McDaniel then said,
“All we really want to know about is—you talked about [Martinez]—you sold him
the gun. Tell us about that.” After Reed confessed, detailing how he stole the gun
2
and sold it to Martinez, he again asked, “I don’t have any new charges on me, or
nothing do I?” Officer McDaniel replied that he would present the case to the
District Attorney, who would decide whether to charge Reed.
Discussion
Reed challenges the admissibility of the firearm to be used as evidence
against him and of a recorded statement that he gave to police. The trial court
declined to suppress either.
Standard of Review
We review a trial court’s ruling on a motion to suppress for abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We
view the evidence in the light most favorable to the trial court’s ruling. Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006)). We defer to a trial court’s express or
implied determination of historical facts, as well as to its application of law to fact
questions if those questions turn on the evaluation of credibility and demeanor. See
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will uphold the
trial court’s ruling if it is reasonably supported by the record and correct on any
theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.
Crim. App. 2003).
Suppression of the Firearm and Standing
3
Reed first contends that, because Martinez is a convicted felon and
McDaniel knowing this, encouraged Martinez to commit the offense of possessing
a firearm as a felon in order to obtain the firearm. Therefore, the firearm should
have been suppressed, because it constitutes illegally obtained evidence. The State
counters that Reed lacks standing to raise this challenge.
Article 38.23 of the Texas Code of Criminal Procedure provides:
No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.
TEX CODE CRIM. PROC. ANN. art. 38.23 (West 2005). To challenge the admission
of evidence under article 38.23, an appellant must first establish that he has
standing. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). We review
the question of standing de novo. Id.
Reed admitted that he had sold the gun to Martinez, and thus had no
expectation of privacy in the gun. See Pham v. State, 324 S.W.3d 869, 875 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d) (“By giving the bag to [a confidant to
deliver to a third party], appellant assumed the risk that his confidant would reveal
that information to the public, thus frustrating appellant's expectation of privacy.”).
Martinez cooperated with the authorities and willingly produced the gun. Reed has
not demonstrated how McDaniel’s urging Martinez to obtain the gun knowing
4
Martinez was a felon implicates Reed’s constitutional or legal rights. Reed thus
lacked standing to challenge the admission of the gun or complain about
McDaniel’s encouraging Martinez to retrieve the gun. See Pham, 324 S.W.3d at
875.
Suppression of Recorded Statement
Second, Reed contends that his recorded statement was involuntary, because
Officer McDaniel unlawfully induced Reed to make it with promises of
transactional immunity if he cooperated in the investigation. Smith v. State, 70
S.W.3d 848, 850–51 (Tex. Crim. App. 2002) (“A grant of immunity from
prosecution is, conceptually, a prosecutorial promise to dismiss the case.”). Texas
Code of Criminal Procedure article 38.21 provides, “A statement of an accused
may be used in evidence against him if it appears that the same was freely and
voluntarily made without compulsion.” TEX. CODE CRIM. PROC. ANN. art. 38.21
(West 2005). A promise of immunity renders a confession invalid only if it induces
the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). To
exclude a statement based on a promise of immunity, the defendant must show that
a promise was made. Henderson v. State, 962 S.W.3d 544, 564 (Tex. Crim. App.
1997). The promise must be “(1) positive, (2) made or sanctioned by someone in
authority, and (3) of such an influential nature that a defendant would speak
untruthfully in response thereto.” Muniz, 851 S.W.2d at 254. A promise is
5
established only by the presence of an “if–then” relationship. See Chamber v.
State, 866 S.W.2d 9, 20–21 (Tex. Crim. App. 1993). There is no promise unless a
defendant can demonstrate that his confession was induced by “implicitly or
explicitly suggesting a deal, bargain, agreement, exchange, or contingency.” Id.
Viewed in the light favoring the trial court’s ruling, the record does not
support Reed’s contention that his statement was involuntary. Officer McDaniel
testified that he had read Reed his statutory warnings, including a warning that his
statements could be used against him. Although Reed asked whether any further
charges would be filed, the trial court, as fact-finder, reasonably could have
concluded McDaniel made no promise to Reed. Reed directs us to his question at
the beginning of the audio recording of his third interview regarding whether he
would be facing any new charges. However, the officers present did not answer
Reed’s question. Reed then told McDaniel, “I’m willing to cooperate, but I was
just wondering.” McDaniel again ignored the question and told Reed that he
wanted to know how he had obtained the gun. Silence may not be assumed to
render a promise because a promise must carry the suggestion of a quid pro quo.
Hill v. State, 902 S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).
Conclusion
We conclude that Reed has failed to show he meets the threshold criteria to
suppress the evidence offered against him. Accordingly, the trial court did not
6
abuse its discretion in denying Reed’s motion to suppress. We therefore affirm the
judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
7