Opinion
No. 05-07-00030-CR
Opinion Filed March 19, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court, Dallas County, Texas, Trial Court Cause No. MA06-14418-A.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
OPINION
The trial court convicted Thai Ngoc Nguyen of hindering apprehension and assessed punishment at forty-five days in jail. In two issues, appellant challenges the legal sufficiency of the evidence to support his conviction and the trial court's denial of his motion to suppress. We conclude the evidence is legally sufficient to support appellant's conviction. However, we also conclude the trial court reversibly erred in allowing his oral admission to police. Accordingly, we reverse the trial court's judgment and remand for further proceedings. Addison Police Officer Vance Johnson testified he stopped appellant for violating traffic laws. Appellant was driving a car that belonged to Michael Sanchez, who was a passenger. Officer Johnson said he became suspicious when appellant and Sanchez gave conflicting stories on where they had been and where they were going. Officer Johnson asked Sanchez if he could search his vehicle, and Sanchez agreed. During the search, Officer Johnson found methamphetamine and placed Sanchez under arrest. He advised Sanchez of his Miranda and statutory rights and placed him in his squad car. Sanchez denied ownership of the drugs. The officer then advised appellant he was under arrest for traffic violations. While he was advising appellant of his rights, appellant interrupted him and said he wanted a lawyer, and Officer Johnson did not complete the warnings. Specifically, Officer Johnson did not inform appellant that if he could not afford an attorney, one would be appointed for him, and that he had the right to terminate the interview at any time. Officer Johnson placed appellant in the back of his patrol car with Sanchez and then returned to his search of Sanchez's car. Because the in-car video recorder had been activated, Sanchez and appellant's conversation was recorded. Almost immediately, Sanchez began pleading with appellant to take responsibility for the drugs. Appellant was hesitant, but he and Sanchez began yelling for Officer Johnson. When the officer returned to the suspects, he heard Sanchez pleading with appellant to tell the police that the drugs were his, not Sanchez's. Officer Johnson testified that he told Sanchez that he could not ask appellant any questions since appellant had "basically told me he doesn't want to talk to me." He then returned to Sanchez's vehicle. Inside the patrol car, Sanchez continued to beg appellant to take the blame for the drugs. Appellant told Sanchez "to get [the officer] over here." Both again began yelling for the officer, who returned to the car and asked what the two were "yelling about." The audio/videotape shows that during this second interlude, Sanchez repeatedly denied the drugs were his, and appellant agreed but did not claim ownership. Officer Johnson responded: "Well, you can tell me that all night long. You already told me that you wanted an attorney. I'm not going to ask you any questions about that. If you want to tell me that's your stuff, then tell me that's your stuff." Again, appellant responded that "it's not his." Finally, Officer Johnson told appellant, "Do you not understand what I'm saying? If you, if you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his." Appellant responded, "Honestly, I don't want to, but it's mine. Okay?" Officer Johnson allowed Sanchez to exit the squad car and told him he was not charging him with possession of methamphetamine. However, he did not release Sanchez and continued to search his car. A tablet of ecstasy was found in a container that also held Sanchez's wallet, and Sanchez was re-arrested. After transporting both suspects to the station and booking them in, Officer Johnson said he reviewed the videotape and heard Sanchez begging appellant to "take the rap" for him for the methamphetamine. After listening to the tape, Officer Johnson said he did not charge appellant with possession of methamphetamine. Instead, appellant was charged with hindering the arrest of Sanchez for telling Johnson that the methamphetamine was his. At trial, appellant sought to suppress his oral statements. He argued that Officer Johnson "interrogated" him without ever advising him of all his Miranda and statutory rights, rendering inadmissible his oral statement that the drugs were his. Additionally, he argued that Officer Johnson and Sanchez, jointly, coerced him into making the statement. In response, the State argued appellant initiated the contact with Officer Johnson that resulted in the statement and that the statement was "volunteered" and not the product of interrogation or coercion. The trial court denied the motion to suppress, stating that appellant initiated the "conversation" with Officer Johnson "and though that does not in and of itself make them a waiver of his rights, I believe considering all of the facts and circumstances that I have heard, that he was well aware that by talking to the officer it could bring charges upon himself and that he knowingly and voluntarily re-initiated contact after having been given the bulk of his Miranda warnings." The trial court then found appellant guilty of hindering apprehension. We begin by addressing appellant's second issue in which he contends the evidence is legally insufficient to support his conviction. Appellant argues that if anything, the only crime he committed was making a false report to a peace officer. He asserts that the facts presented to the trial court fail to meet the statutory definition of hindering apprehension. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The finder of fact, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept any or all evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In making our review, we are permitted to consider all evidence in the trial court record, whether admissible or inadmissible, when making a legal sufficiency determination. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006). Appellant was charged with hindering apprehension under section 38.05(a)(2) of the Texas Penal Code. Under section 38.05(a)(2), a person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense, he
provides or aids in providing the other with any means of avoiding arrest or effecting escape. Tex. Pen. Code Ann. § 38.05(a)(2) (Vernon Supp. 2007).The information alleged that appellant provided and aided Sanchez with means to avoid arrest and effect escape for possession of a controlled substance by telling Officer Johnson that the bags containing the controlled substance belonged to appellant instead of Sanchez "at the urging of [Sanchez] during a traffic stop and questioning." The evidence showed that during a traffic stop, Sanchez was arrested for possession of methamphetamine, a controlled substance, and appellant was arrested on traffic violations. While in the squad car, appellant agreed to take the blame for Sanchez. Appellant and Sanchez called Officer Johnson back to the car, and appellant told Officer Johnson that the drugs were his. At that point, Officer Johnson released Sanchez from the car and told him he was not charging him with possession of methamphetamine in light of appellant's admission, although he re-arrested him shortly thereafter on a different drug charge. We conclude these facts were sufficient to satisfy the statutory elements of the offense. In reaching this conclusion, we reject appellant's argument that the facts only give rise to the crime of making a false statement to a police officer. Under that statute, a person commits an offense if, with intent to deceive, he knowingly makes a false statement to a peace officer conducting a criminal investigation that is material to the investigation. Tex. Pen. Code Ann. § 37.08(1)(1) (Vernon 2003). Appellant argues that hindering apprehension "involves conduct which is more than simply making a false statement." Assuming appellant is correct, his conduct was more than simply making a false statement — he provided Sanchez with a means of avoiding arrest and effecting escape. In particular, appellant deflected blame from Sanchez onto himself, leading the officer to allow Sanchez out of the squad car and nearly causing Sanchez's release altogether. We conclude the evidence was legally sufficient to support appellant's conviction for hindering apprehension. We reject the second issue. In his first issue, appellant contends the trial court erred in admitting his oral statement that the drugs were his. In particular, he argues he was subjected to custodial interrogation without being given his complete Miranda and statutory warnings after he had invoked his constitutional rights to silence and to an attorney. The State responds that irrespective of the incomplete warnings, appellant initiated the communication with Officer Johnson and "volunteered his statement" without interrogation by Officer Johnson. Article 38.22 of the Texas Code of Criminal Procedure governs the procedure involved to admit "statements made as a result of custodial interrogation" in criminal cases. Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005). Miranda also places limits on the use of statements produced by custodial interrogations. Miranda, 384 U.S. at 476-77. Even though made when in custody, a defendant's voluntary statements that are not made in response to interrogation are not excluded by either article 38.22 or Miranda. Badall v. State, 216 S.W.3d 865, 868 (Tex.App.-Beaumont 2007, pet. ref'd). The parties do not dispute that appellant was in custody; thus, we begin with the question of whether appellant was subjected to interrogation or its functional equivalent. "Interrogation" is any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Moran v. State, 213 S.W.3d 917, 922 (Tex.Crim.App.), cert. denied, 128 S. Ct. 235 (2007). The question of whether police words or conduct is an interrogation is viewed from the perspective of the accused, and the intent of police is relevant only to the extent it relates to whether the officer knew or should have known he would elicit an incriminating response. See Innis, 446 U.S. at 301; Moran, 213 S.W.3d at 922; Russell v. State, 215 S.W.3d 531, 535-36 (Tex.App.-Waco 2007, pet. ref'd). We do not look at the statements made by police in a vacuum; rather, we construe these statements in light of the circumstances of the interaction between the police and the accused on each particular occasion. See Morris v. State, 897 S.W.2d 528, 532 (Tex.App.-El Paso 1995, no pet.). However, where the comments of the police are "designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Innis, 446 U.S. at 301 n. 7. Here, we focus on the second interaction between Officer Johnson and appellant. The record shows that both appellant and Sanchez called Officer Johnson back to the squad car. Sanchez then told Officer Johnson that he "got [appellant] to tell you it's not mine; it's his." The following occurred:
[APPELLANT]: It's not his.
[OFFICER JOHNSON]: Huh?
[APPELLANT]: It's not his.
[OFFICER JOHNSON]: It's not his? Yeah, it is. It's in his bag.
[APPELLANT]: But, it's not his.
[SANCHEZ]: He handed it to me, sir.
[APPELLANT]: That's the truth, sir.
[SANCHEZ]: It's not mine, sir.
[APPELLANT]: Please, I don't want to go to jail. We both don't want to go to jail.
[OFFICER JOHNSON]: Okay. Well, you're going to jail. Period. He's going to jail for possession of meth.
[SANCHEZ]: But, it's not mine.
[APPELLANT]: It's not his.
[OFFICER JOHNSON]: Well, you can tell me that all night long. You already told me that you wanted an attorney. I'm not going to ask you any questions about that. If you want to tell me that that's your stuff, then tell me that's your stuff.
[SANCHEZ]: It's the truth, sir. I'm not going to jail for him.
[APPELLANT]: Tell him it's not yours.
[OFFICER JOHNSON]: He already told me that, okay? That's irrelevant. That's irrelevant.
[APPELLANT]: Are you still going to take him to jail?
[OFFICER JOHNSON]: It's in his bag with his checkbook.
[APPELLANT]: But it's not his.
[SANCHEZ]: He handed it to me, sir.
[OFFICER JOHNSON]: Do you not understand what I'm saying? If you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his.
[SANCHEZ]: Tell him, dog. Please, I'm not going down for your shit.
[APPELLANT]: Honestly, I don't want to, but it's mine. Okay?
[SANCHEZ]: Thank you.
[APPELLANT]: There, you happy now?Having listened to the audio portion of the videotape, we conclude Officer Johnson's highlighted statement to appellant was nothing more than an invitation to make an incriminating statement. Although we agree that appellant initiated the conversation, that fact does not control our consideration of whether the exchange was "interrogation." Appellant's statement was not spontaneous or volunteered; it was in direct response to a remark made by Officer Johnson that the officer should have known would elicit an incriminating response, particularly given the circumstances. We therefore conclude that appellant was subjected to interrogation while in custody and was therefore entitled to the protections of article 38.22 and Miranda. Appellant argues both were violated. We begin with a discussion of article 38.22. Article 38.22, section 3(a) governs the admissibility of the oral statements of the accused. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2005). It provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against him in a criminal proceeding unless, prior to the statement but during the recording, he is given the warnings provided in section 2(a) and he knowingly, intelligently, and voluntarily waives the rights set out in the warning. Id. § 3(a)(2). Section 2(a) requires that the accused, prior to making the statement, be warned that, among other things, "if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning" and "he has the right to terminate the interview at any time." Id. § 2(a)(4), (5). Strict compliance with section 3(a) is required. Id. § 3(e); Woods v. State, 152 S.W.3d 105, 116 (Tex.Crim.App. 2004). It is undisputed appellant was not warned that if he was unable to employ a lawyer, he had the right to have one appointed to advise him prior to and during any questioning or that he had the right to terminate the interview at any time. Consequently, appellant's statement was not taken in strict compliance with article 38.22, and the trial court erred in admitting it. See Woods, 152 S.W.3d at 118 (concluding it was error to admit defendant's oral statement when defendant not warned he could terminate inteview). The erroneous admission of the statement in violation of article 38.22 is statutory error. Consequently, the appropriate standard of harm is to disregard the error unless a substantial right has been affected. Tex. R. App. P. 44.2(b); Woods, 152 S.W.3d at 118. A substantial right is affected when the error has a substantial and injurious effect of influence in determining the verdict. Woods, 152 S.W.3d at 119. Our focus is not on the totality of the circumstances surrounding the taking of the oral statement; rather, we examine the other evidence and arguments to determine whether the erroneous admission might have affected the verdict. Nonn v. State, 117 S.W.3d 874, 881 (Tex.Crim.App. 2003). The crux of the State's prosecution in this case was appellant's oral statement to Officer Johnson that the drugs were his. Appellant's inadmissible statement was the only evidence to support that allegation in the information. Given these circumstances, we conclude the error affected appellant's substantial rights. In reaching our conclusion, we note that the State relies heavily upon the fact that appellant "re-initiated" the interaction with Officer Johnson at the time the statement was made. That appellant initiated the communication with Officer Johnson is not dispositive given that Officer Johnson wholly failed, at any time, to give appellant his complete warnings. Having concluded that admission of the statement in violation of article 38.22 was harmful error, we need not address appellant's Miranda complaints. We sustain the second issue. We reverse the trial court's judgment and remand for proceedings consistent with this opinion.
Miranda v. Arizona, 384 U.S. 436, 471-72 (1966).