Ervin v. State

• Citation: 333 S.W.3d 187
• Decision Date: 11 August 2010
• Docket Number: No. 01–08–00121–CR.,01–08–00121–CR.
• Parties: Ashley ERVIN, Appellant,v.The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

333 S.W.3d 187

Ashley ERVIN, Appellant,

v.The STATE of Texas, Appellee.

No. 01–08–00121–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 11, 2010.Discretionary Review Refused

Dec. 15, 2010.

Leora Teicher Kahn, Attorney at Law, Houston, TX, for Appellant.Jessica A. Caird, Assistant District Attorney, Houston, TX, for Appellee.Panel consists of Justices KEYES, ALCALA, and HANKS.

OPINION

ELSA ALCALA, Justice.

Appellant, Ashley Ervin, appeals from a judgment convicting her for the capital murder of Brady Davis. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). Appellant pleaded not guilty to the jury. The jury found her guilty, and, because the State did not seek the death penalty, punishment was automatically assessed at life imprisonment without parole. See id. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009). In seven issues, appellant challenges the legal and factual sufficiency of the evidence to sustain the conviction and the trial court's admission of her three statements made to the police, which she claims were made in violation of Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). We conclude that the evidence is legally and factually sufficient; that the trial court properly admitted the first two statements because statutory warnings were not required for appellant, who was not in custody; and that the court properly admitted the third statement that was made following waiver of Miranda warnings because the evidence fails to show that the officers deliberately employed a two-step interrogation technique to circumvent Miranda. We affirm.

Background

On May 25, 2006, while she was walking from the bus stop near her house at around 5:30 a.m., Mary Ann Crutcher was approached by a man in a hoodie threatening her with a semi-automatic gun. He ran from her when she refused his demand to give him any money and jewelry. About an hour after this attack, Davis was two blocks away at a carwash cleaning his barbeque pit. He was shot and killed with a semi-automatic gun that used .380 caliber ammunition. When she learned about his death, Davis's wife noticed that his cell phone was missing. Houston police officer A. Brown was assigned the Davis case, but he did not have any information about who committed the offenses.

One month later on June 23, officers with the homicide division of the Houston Police Department were working together to solve a missing persons report concerning the disappearance of Maria Aparece and Huy Ngo, an offense that occurred three weeks after the Davis murder. Officers Arnold and Termuelen were attempting to locate Keithron Fields to execute a “pocket” arrest warrant for him for that case. The officers did not have a warrant for appellant, and she was not a suspect. Because Keithron was dating appellant, Officers Arnold and Termuelen tried to locate him at appellant's house, where she lived with her mother, Serena Hawkins. Keithron was not at the house at 3:00 p.m. Hawkins, however, told the officers that appellant drove a black Nissan and worked at McDonalds at Deerbrook Mall.

At 4:30 p.m., Officers Arnold and Termuelen, who were in plain clothes, went to the McDonalds at the Deerbrook Mall, where they found appellant working the front cash register. They asked her if she would come with them because they were conducting an investigation. She was “very polite” and agreed. The officers asked appellant about her car because they believed a black vehicle may have been used in the Aparece and Ngo offense. When appellant showed them her black car, they asked for consent to search it, and she agreed.

At 5:40 p.m., while she was at the mall parking lot, appellant signed a written consent allowing officers to search her black Nissan Sentra. The officers had the car towed to the police department's fingerprint stall. The keys to the car went with the car when it was towed, and officers could not recall whether her house keys were on the same ring with her car keys that went with the car.

Officer Arnold asked appellant if she “minded” coming to the police station to give a statement. She agreed. But having agreed to allow the officers to tow her car, appellant needed a ride to the police station to give her statement. She rode to the station in a marked patrol unit because no one with an unmarked car from the homicide division was available to drive her to the station, and Officer Arnold still had work in the field to complete. Appellant left the mall in the patrol car shortly after she signed the consent form. She was not in custody, was not handcuffed, and was free to leave if she wished, though she would have had to ask the officer to let her out of the car because the car did not have door handles inside the passenger compartment.

When she arrived at the police station, she began speaking to Sergeant Motard at about 6:00 p.m. Sergeant Motard was asked by Officer Miller, who was investigating the Aparece and Ngo case, to speak to appellant. Appellant was not handcuffed, was not in custody, and was told by Sergeant Motard that “she was not under arrest and she was free to go anytime she wanted to.” He explained that he did not read Miranda warnings to her because she was not in custody and he did not view her as a suspect. He questioned her because she was the girlfriend of one of the suspects, and her car may have been involved in the Aparece and Ngo case.

At first, Sergeant Motard spoke to appellant in a conference room near his desk, but then they moved to his cubicle to type the statement on his computer. Appellant was 17 years of age, had completed 12 years of formal education, and was to begin her senior year of high school that fall. Before he started speaking to her, Sergeant Motard offered her food, a drink, and the opportunity to go to the restroom. Appellant declined all the offers.

Appellant was cooperative as she spoke to Sergeant Motard about the Aparece and Ngo case. Appellant revealed that she had a relationship with the people who were suspected of committing the Aparece and Ngo offense. Appellant was dating Keithron; was the cousin of Tim Randle; was the “distant cousin” of Alvie Butler; and was friends with Dexter Johnson, who in the past had lived near her. Appellant's first written statement described her mere presence at the capital murder of Aparece and Ngo committed by Tim, Alvie, Keithron, and Dexter, when they were all in her black car with her as the passenger. Tim, the driver of her car, dropped off Dexter, Alvie, and Keithron, who approached a blue car. After a few minutes, she saw Dexter driving the blue car, with Alvie in the back seat and Keithron in the front passenger seat. Tim followed the blue car to a wooded area near a park. Dexter pulled into the woods, got people out of the blue car, and took them to the woods. Appellant then heard two gunshots, with a small pause between the shots. Dexter and Keithron drove away in the blue car with Tim following them in appellant's car with her as the passenger. Dexter told appellant he shot the people in the head. Appellant then went with the men to Keithron's apartment. When she completed making her statement, appellant signed it before a notary, representing that it was true and correct to the best of her knowledge.

After appellant finished making the first written statement, Sergeant Motard discussed appellant's version of events with other officers to see if it was consistent with what the officers had learned from speaking to other people who had given information about the Aparece and Ngo case. Because he thought the “same crew” that committed the Aparece and Ngo crime could be involved in the Davis case, Officer Brown asked Sergeant Motard to ask appellant about the unsolved Davis case. This was a “fishing expedition,” according to Sergeant Motard. When appellant acknowledged she had some information about the Davis case, Sergeant Motard decided to take a written statement from her about that case.

In the second written statement, appellant acknowledged that three weeks before the Aparece and Ngo offense, she was with Dexter and Keithron when they committed two other offenses on one night and early morning. Appellant stated that when Keithron tried to take money from a lady at a bus stop, appellant was in the passenger's seat while Dexter drove her car. After that, appellant became the driver of her car. She drove Dexter and Keithron to a carwash knowing they were going to rob someone there, left them there, and picked them up after she heard a gunshot. Appellant's written description of the events in the Davis case stated,

About three weeks ago, Dexter, Keithron, and I had been out all night. Dexter was driving and I was in the back seat. Keithron was in the front seat. Toward morning, I fell asleep on the back seat while they were driving around. Sometime around mid-morning, I heard the passenger car door slam and awoke to see Keithron getting back in the car. He was wearing a hoodie jacket and the hood was on his head. Keithron told Dexter the woman didn't have any money and we drove off. We were in the neighborhood called Northwood Manor. Dexter drove around on the streets looking for someone to get money from. Apparently, there was no one to get money from so Dexter stopped and let me drive. Dexter got in the back seat.

I started driving on Homestead toward Keithron's apartment in Humble. I stopped at the light on Homestead and Hartwicke and there was a carwash on the corner with a man washing a large truck. Dexter said, “Let us out here [.]” Dexter and Keithron got out of my car. I knew they were going to rob someone in the carwash. I turned down around and turned [off] Homestead onto Guadalupe. I drove around for two or three minutes. During that time I heard one gunshot. It was loud and came from the direction of the carwash. I pulled back onto Guadalupe and saw Dexter and Keithron standing in the street. They had...