Brown v. State
| Decision Date | 18 February 1987 |
| Docket Number | No. 3-85-255-CR,3-85-255-CR |
| Citation | 725 S.W.2d 801 |
| Parties | Ronny Joe BROWN, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Allen Cazier, Holland, Barbour, Cazier & Holland, San Antonio, for appellant.
Ronald Earle, Dist. Atty., Terrence Keel, Asst. Dist. Atty., Austin, for appellee.
Before SHANNON, C.J., and BRADY and CARROLL, JJ.
Appellant was convicted of the offense of injury to a child. Tex.Pen. Code Ann. § 22.04(a)(1) (Supp.1987). The jury assessed punishment at imprisonment for sixty-five years. We will affirm the judgment of conviction.
In his first point of error, appellant contends the trial court erred in admitting into evidence three incriminating recordings (one audiotape and two videotapes) of questioning sessions he underwent before his formal arrest. Appellant argues specifically that he was in custody without a warrant and without probable cause at the times of the questioning, and that the recordings are therefore "tainted" and inadmissible. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Self v. State, 709 S.W.2d 662 (Tex.Cr.App.1986); 3 LaFave, Search and Seizure § 11.4(b) (1987).
In response to appellant's motion to suppress the three recordings, the trial court conducted a pretrial hearing to determine whether appellant was in custody unlawfully at the times the recordings were made. See Tex.Code C.P.Ann. art. 28.01, § 1(6) (Supp.1987). Appellant and police officers Howard K. Hall and Bruce Boardman testified at the hearing. Appellant testified that he took the victim, the 21-month-old daughter of his girlfriend, in his pickup truck to a minor-emergency clinic in Austin at approximately 11:15 a.m., Wednesday, April 10, 1985; that shortly after his arrival, several uniformed police officers arrived in three marked police vehicles; and that two of the officers asked him to accompany them alone to a back room of the clinic where he was questioned briefly regarding the child's injuries. His testimony continued:
Q Let me ask you this, from the minor-emergency clinic, where did you go? Where did you go next?
A We went to the hospital. 1
Q How did you get there?
A I rode in the front seat of one of the police cars with an officer.
Q Why did you go to the hospital with the police officer?
A I felt that--first off, they asked me if I would go ahead and go with them.
Q What did you say?
A I said, Well, sir, my vehicle's--I brought the child to the clinic in my vehicle and I'd much rather--or is there any reason why I can't drive my own vehicle down there, and they said, No, we need you to go and come with us, and I went ahead and explained that I didn't feel comfortable leaving my truck on the outside of the building there.
* * *
Q Did you express to the officer that you would like to drive your own pickup truck?
A I did.
Q Did they permit you to do so?
A No.
* * *
Q Okay. Now, did the uniformed officer that brought you to the hospital stay with you the whole time that you were at the hospital?
A He did.
Q Did there come a time when you asked to go to the men's room?
A Yes, sir.
Q Okay, how did that work?
A It was like 15 minutes after we'd got there, I'd asked the officer if it would be all right if I could use the restroom and he said, Yes, it's right outside the door there, and I got up and he followed me over to the door and I went in and he waited there until I got through.
Q When you came out of the restroom, was he there waiting for you?
A He was.
Appellant related further that after he finished in the hospital's restroom, he was questioned by several police officers in a small, back room and that this questioning was audiotaped. 2 His testimony continued:
Q Now, from the hospital, you went where?
A They had asked me about taking them back to [my residence] to show them what happened.
Q And how did you get from the hospital to [your residence]?
A In an unmarked car.
Q Okay. Was it a police car?
A Yes, sir.
Q Were you taken there by a policeman?
A Yes, sir.
Q Now, after the events that occurred at [your residence] with the police officers ..., where did you go from there?
A Okay. They had asked me--I believe I had told them that I wanted to go back to the hospital and they had informed me that I needed to go to the station with them.
Q "They" being who?
A For sure it was Officer Boardman.
Q Officer Boardman told you that you needed to go to the station with him; is that correct?
A Uh-huh. I was asking him more or less what was the next step and what else they wanted me to do, and he told me that I probably needed to talk to Sergeant Hall one more time and sign a statement.
Q And did you have any conversation with Sergeant Boardman at that time before returning to the police station or before going to the police station for the first time, I should say, about your pickup truck?
A Yes, sir.
Q What did you tell Sergeant Boardman about your pickup truck?
A I told him that I was still worried about my pickup truck because I'd asked an officer earlier whether I could go ahead and use it to do all this running around in because I was worried about it being towed off at the minor emergency clinic and he told me, No, not to worry about it, and I needed to come with them until they were through.
Q Had any of these officers ever handcuffed you?
A No.
Q Did they ever tell you that you were under arrest?
A No.
* * *
Q And you were never told that you were not free to leave?
A No.
Q And in fact, you were asked on several occasions whether, in fact, your movement had been in any way restricted; is not that correct? Sergeant Boardman asked you that, for instance, on the second videotape? 3
A Right.
Q And you told him that you understood that you had not been in any way restricted to that point. Isn't that true?
A Well, I more or less--well, could you repeat that again?
Q Sergeant Boardman asked you on the second videotape, has anybody told you at any time before right now that your movement--no one has--has anyone ever told you at any time prior to right now that your movements have been restricted or that you couldn't do anything that you wanted to do or go anywhere that you wanted to go?
He asked you that question, didn't he?
A I believe he did.
Q And you told him, No, no one has ever told me any of those things?
A I may have told him no, but that wasn't what I was thinking.
Q Well, did you tell him yes or did you tell him no?
A I told him that no, I hadn't been restricted.
Q But it was all a big mistake?
A Right, because he was aware that I was pushing him to let me use my vehicle, and I didn't feel that it would do any good to argue with him.
* * *
Q You, in fact, gave your permission for the officers to go out there to the apartment with you, didn't you?
A They had asked me.
Q They asked for your permission and you gave it?
A Right. I said I didn't see any reason why not.
Q And they didn't do anything to threaten you to give that permission, did they?
A No.
Q They didn't use any force against you or anything like that, did they?
A No.
Q They didn't coerce you in any way, did they?
A Coerce me? I don't know what that means.
Q Force you to do it?
A No.
Q And in fact, Officer Boardman, after you finished there at the duplex, asked you, did he not, Do you have any objections to going down to the police department with us, just like he testified?
A I'd said, No.
Q And you said, No, I don't have any objections?
A No. I was under the impression that this was the final stage of telling them--telling them what they wanted to know.
Q So you were basically trying to please the police officers?
A Right.
Q And you basically asked them what else--what else they wanted you to do? Is that what your testimony was?
A Right. Well, the whole process was taking three or four hours, and the whole time I was trying to get to the hospital and notify the child's mom or make sure that the mom knew what was going on instead of just taking her--their word for it.
Howard K. Hall testified that he viewed the unconscious child at the hospital at approximately 12:00 p.m. on the day in question; that he "realized the child was injured very seriously"; that to his knowledge appellant was not in custody at the time appellant arrived at the hospital; that he audiotaped a discussion he and other officers had with appellant in a "family room" at the hospital; that appellant voluntarily accompanied the officers to the family room; that he administered the Miranda 4 4 warnings to appellant at the beginning of the discussion although appellant was not in custody at that time; and that he did nothing that might have indicated to appellant that he was in custody.
Bruce Boardman testified that he received a telephone call at approximately 11:45 a.m. on the day in question from a police officer at the minor-emergency clinic; that the officer informed him that the clinic physician suspected the child had been assaulted although appellant claimed the injuries were caused by an accidental fall down stairs; and that he participated in the questioning of appellant at the hospital. His testimony continued:
Q And did you have any further contact with the defendant that day?
A Yes, sir. Later, after the victim's mother ... arrived, we--or my sergeant--Sergeant Hall had obtained permission from Ronny Brown and [the mother] to go back to the location where the victim had allegedly fallen down the stairs so that we could photograph the area.
Q And who went out to that location?
A Myself, Sergeant McDavid and Officer John Jones.
Q Did you foresee that Mr. Brown was under arrest at that time?
A No, sir.
Q Was he handcuffed?
A No, sir, he was not.
Q What happened when you arrived there at the apartment?
A Mr. Brown had the keys to the residence. He went in and invited us into the residence.
Q What happened...
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