IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0546-20
KEDREEN MARQUE PUGH, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
KELLER, P.J., delivered the opinion for a unanimous court. WALKER, J.,
filed a concurring opinion joined by NEWELL, J.
Appellant was arrested pursuant to a warrant. At the time he was arrested, he was the driver
and sole occupant of a car registered to his wife. On the way to the police station, he volunteered
to an officer that he was going to be “honest” and had “stuff” in the car. When asked what he had
in the car, Appellant responded that he had drugs and a handgun. Heroin and a loaded gun were
found together in a shopping bag on the front passenger floorboard. Assuming, without deciding,
that the police officer’s question about what was in the car constituted custodial interrogation and
elicited an inadmissible answer, we conclude that any error in admitting this answer was harmless.
PUGH — 2
I. BACKGROUND
A. Facts
A warrant had been issued for Appellant’s arrest, and Officer Joe Rios was assigned to pick
him up. The officer set up surveillance on Appellant and watched while he drove a Chevy Impala
to his house, did some yard work, and left again in the Impala. Officer Rios and others decided to
arrest Appellant while he was driving. Appellant was pulled over, arrested pursuant to the warrant,
handcuffed, and placed into a marked patrol vehicle. The Impala, which was registered to
Appellant’s wife, was moved off the roadway and parked at a gas station.
While being transported to the police station, Appellant initiated the following exchange with
Officer Lopez:
APPELLANT: Officer?
OFFICER LOPEZ: Yes, sir.
APPELLANT: I’m going to be honest, sir; I got stuff in the car, man.
OFFICER LOPEZ: What do you got in the car?
APPELLANT: I got drugs in the car, and I got a small handgun.
Appellant had not yet been read Miranda1 warnings. Officer Lopez radioed the information received
from Appellant to Officer Rios.
Officer Rios searched the Impala and found shopping bags on the front passenger seat and
the front passenger floorboard. A black zipper bag and a clear mason jar were in the bag on the
floorboard. The zipper bag contained a loaded handgun. The mason jar contained a brown
substance, a razor blade, small jewelry bags, and Ziploc bags. In his training and experience, Officer
1
Miranda v. Arizona, 384 U.S. 436 (1966).
PUGH — 3
Rios recognized the brown substance as heroin.
Mark Florence, a forensic scientist for the Bexar County Crime Lab, analyzed the brown
substance. It tested positive for heroin, and it weighed 9.937 grams.
Appellant was charged with possession of heroin with intent to deliver in an amount greater
than 4 grams but less than 200 grams. He moved to suppress his statement about the drugs and the
handgun. The trial court denied his request. At trial, Rios, Lopez, and Florence testified for the
State. The defense put on no witnesses. In closing argument, one of the prosecutors made the
following comments regarding whether Appellant knowingly possessed the heroin:
And this Defendant says, out of the blue -- and you’ll hear it. It may have been hard
for you to hear on these speakers; but you hear him say clearly -- he says, “I’m going
to be honest with you, Officer. I got some stuff in the car, man.” And the officer
follows up with, “What you got in the car?” And the Defendant says, “I got drugs and
I got a small handgun.” He knowingly possesses this heroin and this firearm. We
know that. We know that from the words from his own mouth.
***
And the Defendant even follows up, if you continue listening. He follows up and
says, “Man, did they find the drugs, did they find” -- what does he say specifically?
“Did they find it already?” I mean, he’s concerned. He wants that found, it seems
like, so his wife doesn’t find it.
***
The other thing, too, for you to consider, who is driving the silver or gray Impala that
Officer Rios sees arrive at the location at the residence on Athens Field? Not Megan
Pugh, not the wife. This Defendant. He’s doing surveillance to arrest him on the
warrant, and this Defendant drives up alone in the vehicle. He then does some yard
work. He gets in the car to then go to Home Depot to return some blinds; and he’s
driving the car, too, alone. There’s nobody else in the vehicle. So we have connected
him by his own words telling the officers that “I’ve got some drugs in the car and a
small handgun.” The drugs are found within his reaching in the front passenger area
of the car. And you saw the pictures where they’re found, okay. And he’s the only
occupant both times in the vehicle. The wife’s in another car, in an Altima at the
Home Depot.
PUGH — 4
The jury found Appellant guilty.
B. Appeal
The court of appeals concluded that Officer Lopez engaged in custodial interrogation when
he asked the question, “What do you got in the car?”2 The appellate court further concluded that
Appellant’s answer to the question was inadmissible as a result.3 The court engaged in a harm
analysis as follows:
In this case, Pugh’s statement to Officer Lopez that he had drugs and a handgun in
his wife’s car led to the search of the car. Other than the expert’s testimony
identifying the drug recovered as heroin, the only witnesses to testify were Detective
Rios and Officer Lopez, and both witnesses testified regarding the statement.
Finally, during closing argument, the State repeatedly referred to the statement as
evidence establishing Pugh’s possession of the heroin. Accordingly, we hold the
erroneous admission of Pugh’s statement likely was a contributing factor in the jury’s
deliberations in arriving at a guilty verdict and, therefore, resulted in harm.4
II. ANALYSIS
In two grounds for review, the State takes issue with the court of appeals’s error and harm
determinations. We find it unnecessary to reach the first issue, regarding error. We address the
second ground, regarding harm. The State’s second ground for review states: “Even if the answer
to the officer’s question was inadmissible, the court of appeals erred in factoring admissible
evidence, including the defendant’s initial volunteered statement and the fruit of the unMirandized
statement, into its harm analysis.” Under this ground, the State argues, “Because even under the
court of appeals’s reasoning, the initial statement, the handgun, and the narcotics were still
2
Pugh v. State, No. 04-19-00516-CR, 2020 Tex. App. LEXIS 3126, *5 (Tex. App.—San
Antonio April 15, 2020) (not designated for publication).
3
Id.
4
Id. at *6-7.
PUGH — 5
admissible at trial, the court of appeals gave improper weight to the contested statement in
concluding that its admission harmed Pugh.”
In addressing the issue of harm, we find it necessary to discuss some of the law surrounding
Miranda. A statement taken in violation of Miranda must be suppressed at trial, but other evidence
subsequently obtained as a result of that statement need not be suppressed.5 In particular, a failure
to comply with Miranda is not a valid basis for suppressing the physical fruits of a custodial
statement.6 And a failure to comply with Miranda in an earlier interview does not bar statements
in a later interview that complies with Miranda unless the police engage in a two-stage interrogation
technique calculated to undermine the Miranda warning.7 Finally, volunteered statements are not
barred by Miranda, even when the accused is in custody.8
In assessing harm, the court of appeals found it significant that Appellant’s statement about
drugs and a handgun led to the search of the car. The court also emphasized the fact that the only
witnesses (other than the person who tested the substance) both testified regarding the statement, and
that the prosecutor relied on it in argument to show Appellant’s possession of the heroin. We
5
Wells v. State, 611 S.W.3d 396, 406 (2020).
6
Contreras v. State, 312 S.W.3d 566, 582-83 (Tex. Crim. App. 2010).
7
See State v. Castanedanieto, 607 S.W.3d 315, 328 (“By contrast, a failure to comply with
Miranda in a prior interview gives rise to no such presumption and ordinarily does not bar
statements made in a subsequent interview that does comply with Miranda. The only exception is
when the police engage in a two-step interrogation technique “in a calculated way to undermine the
Miranda warning.”).
8
See Arizona v. Mauro, 481 U.S. 520, 529 (1987) (quoting Miranda, 384 U.S. at 478)
(“Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility
is not affected by our holding today.”); Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990)
(same). With respect to the observations made infra, Article 38.22 provides no greater protection.
See TEX. CODE CRIM. PROC. art. 38.22, § 5; Contreras, 312 S.W.3d at 582-83.
PUGH — 6
understand the court to mean that the heroin would not have come into evidence absent the
statement, and that the remaining testimony almost all included references to the statement. But the
first conclusion is incorrect. The heroin would have come into evidence because it was physical
evidence not barred by Miranda. The heroin was admissible, and so was the analysis that
determined that the substance was in fact heroin.
And regardless of the State’s reliance on the statement, the jury had other evidence from
which to infer Appellant’s guilt. His volunteered statement, “I’m going to be honest sir; I got stuff
in the car, man,” was admissible, and that statement implies guilty knowledge.9 Even without an
explicit reference to drugs, that statement, when combined with the heroin that was found, would
have given rise to the obvious conclusion that Appellant knew the heroin was in the car.10
It was clear from his volunteered statement that Appellant knew he had something in the car
that the police would find of interest. The record suggests only one other item that could have been
besides the heroin—the gun. But the gun was in the same shopping bag as the heroin, and it was
loaded. And there was other paraphernalia suggesting that the owner of the heroin was also a dealer.
9
See United States v. Bahadar, 954 F.2d 821, 831 (2d Cir. 1992) (“Moreover, the evidence
showed that Bahadar told Ali to ‘look at the stuff and check it as well.’ If Bahadar truly did not know
that the parking lot transaction was a heroin transaction, why was he so concerned with the contents
of the package?”).
10
See United States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001) (Although custodial
statements should have been suppressed, error was harmless beyond a reasonable doubt. The
“evidence of guilt was overwhelming,” which included the fact that defendant “was the sole
occupant of a vehicle carrying over 46 pounds of marijuana” and made the “spontaneous statement”
to law enforcement on the way to jail that “I messed up.”); United States v. Son Anh Chu, 988 F.2d
981, 985 (9th Cir. 1993) (referring to holding in a prior case “that there [was] no reasonable
possibility that the verdict would have been different had the allegedly improper instruction not been
given” because “the defendant made a statement to the arresting officer that implied he knew he was
carrying methamphetamine,” the “[d]rugs were found both on his person and in the trunk of the car
he was driving,” and “[h]e had ‘all the tools of the trade’ in his possession.”).
PUGH — 7
The obvious and manifest inference to be drawn from these facts was that the gun was being used
to protect the heroin11 and that, if Appellant knew about the gun, then he must also have known
about the heroin.12
The court of appeals also erred by failing to consider other evidence that tied Appellant to
the heroin. He was the driver and sole occupant of the car in which the heroin was found, at the time
it was found.13 And because he had been under surveillance, the jury also knew that he had been the
driver and sole occupant of the car for a period of time immediately preceding the police discovery
of the heroin.14 Finally, the heroin was in the front passenger side of the car within the driver’s easy
reach.
The only evidence that Appellant could point to that might suggest that the heroin belonged
11
See Plummer v. State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (“drug dealers
frequently use guns to protect themselves and their merchandise”); Patterson v. State, 769 S.W.2d
938 (Tex. Crim. App. 1989) (possession of firearm used to protect drugs and facilitate their
possession).
12
See Son Anh Chu, 988 F.2d at 985 (referring to the defendant having “all the tools of the
trade”).
13
See Butler, 249 F.3d at 1101 (vehicle’s sole occupant spontaneously admitting, “I messed
up”).
14
See United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (upholding use of
a permissive instruction that told the jury that it may, but is not required to, draw an inference about
the defendant’s knowledge of the marijuana stored in his truck based on his operation of the vehicle
where the defendant was the sole operator of the commercial trailer containing the drugs, even
though he did not load the trailer, where the load was not sealed and he had signed the bill of lading)
(characterizing as a “flight of fancy,” to think someone at the loading site, or persons unknown,
surreptitiously placed the marijuana in the vehicle hoping it would somehow find its way to the right
destination 2000 miles away without the knowledge or complicity of the driver). Such a permissive
instruction would not be allowed under Texas law, TEX. CODE CRIM. PROC. art. 36.14 (jury
instructions must be “not expressing any opinion as to the weight of the evidence”), but the case
illustrates the strong inference that the sole operator of a vehicle for an extended period is aware of
contraband within his easy reach).
PUGH — 8
to someone else was the fact that the car was not registered in his name, but that evidence was
wholly insubstantial because it was registered to his wife. That he would use a car registered to his
wife for his own personal purposes would come as a surprise to no one.15 And the drugs and gun
aside, the evidence showed that Appellant used the car in just such a manner. Aside from the
registration, there was no evidence connecting the wife and the heroin at all, much less to the
exclusion of Appellant.
This is a case in which the defendant was caught red-handed with the drugs and had no
realistic defense. He was the driver and sole occupant of a vehicle containing contraband within
easy reach. His use of the car and his volunteered statement both strongly reinforced the conclusion
that the heroin that was found belonged to him. And in light of the other evidence in this case, the
car being registered to his wife was really another factor against him, not in his favor. We conclude
that the court of appeals’s harm analysis was unsound and that its finding of harm was in error.
We reverse the judgment of the court of appeals, and remand the case to it for consideration
of Appellant’s remaining issue.
Delivered: June 9, 2021
Publish
15
See United States v. Jones, 565 U.S. 400, 402 (2012) (attachment of electronic tracking
device installed Jeep Grand Cherokee registered to the defendant’s wife held to be a “search” under
the Fourth Amendment); United States v. Jenkins, 501 Fed. Appx. 685, 687 (9th Cir. 2012) (car
containing drugs was registered to defendant’s wife).