Herrera v. State

• Decision Date: 21 November 2007
• Docket Number: No. PD-1986-05.,PD-1986-05.
• Citation: 241 S.W.3d 520
• Parties: Gerald HERRERA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

241 S.W.3d 520

Gerald HERRERA, Appellant, v. The STATE of Texas.

No. PD-1986-05.

Court of Criminal Appeals of Texas.

November 21, 2007.

Alexander L. Calhoun, Austin, for Appellant.

Whitney S. Wiedeman, Asst. Crim. D.A., Lockhart, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, HERVEY, and COCHRAN, JJ., joined.

The court of appeals upheld the trial judge's determination that Gerald Herrera was not "in custody" for purposes of Miranda v. Arizona¹ when he was interviewed by Investigator Powell about a fight while he was in held in the county jail on an unrelated offense.² We agree and affirm.

I. Factual and Procedural Background

In July 2001, Gerald Herrera and some members of his family were involved in an interracial fight with a group of African-Americans outside of the Mia Mar Bar in Lockhart, Texas. During the fight, several of the African-Americans were stabbed or cut.

Sergeant Tedford arrived at the scene shortly after the fight ended. Another officer immediately asked Sergeant Tedford to stop a red car that was leaving the scene. Sergeant Tedford stopped the car and identified the three occupants as Gerald Herrera and his parents, Maria and Natividad. Gerald was seated alone in the backseat of the car. While the Herreras were questioned by Tedford and another officer, Officer Garza conducted a search of the car and discovered a lock-blade knife in the backseat on the floorboard. Officer Garza arrested Gerald on an outstanding warrant and transported him to the Caldwell County Jail.

The next morning, Investigator Powell went to the jail to talk to Gerald about the fight. Investigator Powell did not give Gerald Miranda³ warnings or advise of him of his statutory rights under Article 38.22, Section 2(a) of the Texas Code of Criminal Procedure⁴ before he spoke to him. Investigator Powell also failed to record the conversation.⁵

During the interview, Gerald told Investigator Powell "that he had a knife in his pocket, that, when he was stopped by the officers, that he took the knife out of his pocket and dropped it on the floorboard." Gerald also told Investigator Powell that he saw his brother fighting with some males and that he witnessed an African-American male hit his father. Explaining his involvement in the fight, Gerald told Investigator Powell that

when he got to the street and somebody knocked his glasses off, that it knocked him down and that somebody, someone was kicking and hitting on him . . . [H]e reached in his pocket to get his knife, but that every time he tried to reach in his pocket somebody would hit him or kick him, so he just curled up into a ball trying to protect himself.

Gerald was later charged with three counts of aggravated assault with a deadly weapon. Gerald elected to have a jury trial and entered pleas of not guilty. Before trial, Gerald had filed a motion to suppress the statements that he made to Investigator Powell. Although Gerald did not request a pretrial suppression hearing, during Investigator Powell's testimony at trial, Gerald, citing his motion to suppress, objected when Investigator Powell began to testify about his conversation with Gerald in the jail. The judge then excused the jury and allowed the parties to question Investigator Powell about the circumstances surrounding the interview.

When defense counsel asked Investigator Powell if Sergeant Tedford told him that the Herreras were suspects, Investigator Powell stated that Sergeant Tedford only told him that they had been involved in the fight. Defense counsel continued to inquire into Investigator Powell's conversation with Sergeant Tedford:

Q. [Defense Counsel:] Detective Powell, when you talked to Sergeant Tedford, he told you that a bunch of Blacks had been stabbed, didn't he?

A. [Investigator Powell:] He told me that some people had been stabbed.

Q. He didn't tell you Blacks were stabbed?

A. No. He gave me some names which I knew to be black persons.

. . .

Q. And Tedford also told you that they had been stabbed by Hispanics, did he not?

A. Not in those words, no.

Q. What did he say?

A. He said that the Herreras were involved.

Q. Okay, so you knew Blacks had been stabbed?

A. Yes, sir.

Q. And the Herreras were involved?

A. Yes, sir.

Q. And basically you suspected the Herreras of stabbing the Blacks, correct?

A. You're trying to put words in my mouth, sir. That's not what I expected.

Q. Okay.

A. I did not know that maybe the Blacks had attacked the Herreras and they were acting in self-defense.

Q. Okay. But you knew — fine. But it is fair to say you suspected the Herreras of stabbing the Blacks whether it was self-defense or otherwise? Would that be fair?

A. No, sir, that would not be fair. That would not be fair. I — they — I was told that the Herreras were involved. The extent of their involvement, I have no idea.

Q. But they were suspects by being involved, weren't they?

A. No, sir. They were involved. They were part of the fight.

Q. They were part of the fight. And that doesn't make them a suspect?

A. If you want to use that terminology, everybody in Caldwell County that night was a suspect.

In response to additional questioning by defense counsel, Investigator Powell testified that Gerald was in the custody of the county jail when he was interviewed and that he did not warn Gerald of his rights.

When questioned by the prosecutor, Investigator Powell stated that Gerald was not in jail because of the fight and that Gerald did not refuse to talk to him. Investigator Powell also explained why he interviewed Gerald:

At the time I talked to him the next day, I still didn't have a clear picture of what happened. It could have been that he was acting in self-defense. It could have been that he had been attacked — him and his family had been attacked. I did not have a clear picture of what happened. . . .

. . .

I knew there had been a fight. I knew that several people had been cut. I knew that some of the Herrera family had been injured, but that's all I knew.

Without entering findings, the trial judge overruled Gerald's objection and allowed Investigator Powell to testify about what Gerald had told him during the interview.

The jury found Gerald guilty of one count of aggravated assault with a deadly weapon and acquitted him of the two remaining counts. Gerald was then sentenced to eight years' imprisonment.

Gerald appealed, contending, among other things, that the trial judge erred in admitting the unrecorded oral statements that he had made to Investigator Powell.⁶ Gerald claimed that the statements were admitted in violation of the Fifth Amendment and Article 38.22, Texas Code of Criminal Procedure.⁷ The Third Court of Appeals held that the trial judge did not err by admitting the statements into evidence.⁸ Addressing the issue of "custody" for purposes of Miranda, the court observed that "[c]ourts generally have declined to equate incarceration with custody[.]"⁹ The court then determined that the defendant bears the burden of proving that a statement was the result of custodial interrogation¹⁰ and, after examining the facts of this case, the court held: "Apart from the fact of incarceration, there is no evidence of compulsion or that the statement was otherwise one of custodial interrogation."¹¹ Turning to Article 38.22, Texas Code of Criminal Procedure, the court held that the statement was admissible because Article 38.22 "does not preclude admission of a statement that does not stem from `custodial interrogation.'"¹²

Gerald petitioned for review and we granted his first ground for review, which asks us to decide whether the court of appeals's decision upholding the trial court's determination that Gerald was not subject to "custodial interrogation" when interviewed by Investigator Powell in jail conflicts with the United States Supreme Court's holding in Mathis v. United States¹³ and our decision in Jones v. State.¹⁴

II. Law and Analysis

A.

The Fifth Amendment to the United States Constitution commands that no person "shall be compelled in any criminal case to be a witness against himself[.]"¹⁵ The warnings set out by the United States Supreme Court in Miranda v. Arizona were established to safeguard an uncounseled individual's constitutional privilege against self-incrimination during custodial interrogation.¹⁶ The Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."¹⁷ Unwarned statements obtained as a result of custodial interrogation may not be used as evidence by the State in a criminal proceeding during its case-in-chief.¹⁸

When considering "custody" for Miranda purposes, we apply a "reasonable person" standard—"[a] person is in `custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest."¹⁹ Our "custody" inquiry also includes an examination of all of the objective circumstances surrounding the questioning.²⁰ The subjective belief of law enforcement officials about whether a person is a suspect does not factor into our "custody" determination unless an official's subjective belief was somehow conveyed to the person who was questioned.²¹

Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding.²² Section 3 provides that an oral statement is admissible against a defendant in a criminal proceeding if, among other things: (1) the statement was electronically recorded; (2) the defendant was given the warnings set out in Section 2(a) before the statement was made and it is included on the recording; and (3) the defendant "knowingly, intelligently, and voluntarily"...