Shiflet v. State

• Decision Date: 09 October 1985
• Docket Number: No. 812-82,812-82
• Citation: 732 S.W.2d 622
• Parties: Max SHIFLET, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 622

732 S.W.2d 622

Max SHIFLET, Appellant, v. The STATE of Texas, Appellee.

No. 812-82.

Court of Criminal Appeals of Texas En Banc.

Oct. 9, 1985.

Robin D. Orr, Oren B. Hamlin, Bay City (Court-appointed), for appellant.

Jack Salyer, Dist. Atty., Bay City, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Max Shiflet, appellant, was convicted by a jury for committing the offense of murder of Diana Kaiser. The trial judge assessed appellant's punishment at life imprisonment in the Department of Corrections. The Corpus Christi Court of Appeals affirmed. See Shiflet v. State, 653 S.W.2d 830 (Tex.App.--Corpus Christi 1982). We granted appellant's petition for discretionary review in order to make the determination whether the court of appeals correctly held that at the time that appellant, who was then a deputy sheriff for Wharton County, made an oral admission against interest, which was later reduced to writing, he was not then in the custody of Carl Weathers, a Texas Ranger, and Earl Winebrenner, the Chief Deputy for the Wharton County Sheriff's Department. ¹ Because we find that the court of appeals reached the right result, that the appellant's oral admission against interest was admissible evidence, because when he made the admission he was not in custody, we will affirm its judgment.

This Court's predecessor, the Court of Appeals, established long ago the general rule that oral confessions of guilt, or oral admissions against interest, made by one in custody are inadmissible evidence because they are so liable to be misunderstood, so easily fabricated, and so hard to be contradicted. See Gay v. State, 2 Tex.App. 127 (1877), and Riley v. State, 4 Tex.App. 538 (1878).

Today, except in the most limited of circumstances, and unless made in compliance with the provisions of Art. 38.22, V.A.C.C.P., oral confessions of guilt, or oral admissions against interest, made by a suspect who is in custody, are not admissible evidence. Also see Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973).

However, if the person who makes an oral confession of guilt, or an oral admission against interest, is not in custody, a different rule applies.

Art. 38.22, Section 5, V.A.C.C.P., provides in pertinent part: "Nothing in this article precludes the admission of a statement made by the accused ... that does not stem from custodial interrogation ..." Thus, an oral admission against interest or an oral confession of guilt, which does not stem from custodial interrogation, and is given freely, voluntarily and without compulsion or persuasion, is admissible evidence against the accused. Also see Art. 38.21, V.A.C.C.P.

Therefore, the first question that we must decide is whether the oral admission against interest that appellant made to Weathers and Winebrenner was the product of custodial interrogation.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated: "By custodial interrogation, we mean 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." 384 U.S., at 444. In a footnote, the Court indicated that the concept of "custodial interrogation" was what it had in mind in its decision of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), when it set restrictions on questioning out of the presence of counsel after the investigation of the police had "focused" on the suspect. However, "focus" does not necessarily amount to "custody." Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

From the above, two concepts, the custody concept and the focus concept, have evolved. The distinction between the two concepts is an important one, because it embodies the difference between an objective and a subjective standard for determining when the requirements of the Fifth Amendment and Art. 1, Section 9, Texas Constitution, are triggered. If the focus concept is used, then, in making the determination whether the suspect is in custody, the inquiry must be directed solely to the thoughts of the police officer--his intentions in questioning the suspect, whether he believed he had probable cause to act, and the point in time at which such probable cause developed. If the custody concept is used, then the inquiry shifts to the suspect and what he could reasonably perceive--whether a reasonable person would believe that his freedom was being deprived in a significant way. This requires reference to all of the circumstances of the interrogation to make an objective determination whether custody can reasonably be inferred. However, one commentator, see Ringel, Searches & Seizures, Arrests and Confessions (2nd Edition 1985 revision), has pointed out that in the absence of objective facts to indicate that the suspect's view of the situation was reasonable, no court has yet accepted the subjective view of the suspect as determinative of the issue of custody. In Beckwith v. United States, supra, the Supreme Court rejected the use of focus as a concept distinct from custody. Notwithstanding this Court's decision of Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.1979), this Court does not appear to have completely jettisoned the concept of focus in making the determination whether the suspect was in custody, McCrory v. State, 643 S.W.2d 725 (Tex.Cr.App.1983), nor does it appear that the Supreme Court has jettisoned the concept of focus in making that determination. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Therefore, in making the determination whether the appellant was in custody when he made his oral admission to Weathers and Winebrenner, we will use both concepts. Cf. McCrory v. State, supra.

If we find that at the time appellant made his oral admission to the officers he was not in custody, and also find that his oral admission was given freely, voluntarily and without compulsion or persuasion, then we will hold that it was admissible, and not inadmissible, evidence.

Briefly, the facts that led to the appellant making his oral admission are as follows: In the early morning hours of January 6, 1977, Donald Branson, a truck driver, saw a Chevrolet "Luv" pickup truck, that he knew that Kaiser, the deceased, had driven in the past, parked on the side of Highway 59 just north of the town of Hungerford, which is located south of the City of Wharton. Branson also saw parked behind the pickup truck a white four door sedan vehicle, with red lights on its top, insignia on the door, and several antennaes located thereon, which vehicle he identified as a "County Mounty's" vehicle. Another truck driver testified that shortly before this he had been conversing with Kaiser over his CB radio. He also saw the "County Mounty's" vehicle. However, the truck drivers did not notice any persons in or around either of the parked vehicles. Soon thereafter, Kaiser was reported missing. Her pickup truck was found at another location.

Appellant, who was then a deputy sheriff for Wharton County, and who had been assigned the duty of patrolling that part of Wharton County where Kaiser and her vehicle were last seen on the night of January 5th, was one of the investigating officers. Appellant conducted interviews with truck drivers who had driven on this portion of Highway 59 the night Kaiser disappeared. Appellant reported to Winebrenner that the truck drivers had told him that the "County Mounty" vehicle they had seen was colored brown or tan. Any persons driving such a described vehicle immediately became subject to investigation.

Nothing of any significance occurred until September 6, 1977, when the remains of Kaiser's body were found at a location different from where she had last been seen.

An intensive investigation then ensued. A lot of "backtracking" investigation was done by law enforcement personnel.

The truck drivers were reinterviewed, but by law enforcement personnel other than appellant. It was learned from the reinterviews that the truck drivers had actually reported to appellant that the color of the "County Mounty" vehicle that they had seen parked near Kaiser's vehicle was not colored brown or tan, as appellant had reported, but, instead, was colored white. The investigation then centered on any vehicle colored white, that had an insignia on the side door, red lights on the top, and several antennaes situated thereon. Any person who drove such a vehicle immediately became a suspect.

Because the vehicle that had been assigned to appellant on the night of January 5th fit such a description, appellant also became a subject of the investigation.

On September 29, 1977, appellant voluntarily and willingly took a polygraph examination, the details of which are not reflected in the record of appeal. By appellant's own testimony that was given at the "Jackson v. Denno" hearing, ² see post, since becoming a law enforcement officer he had become a great believer that a polygraph examination was the ultimate device to use in determining whether a person was telling the truth. His testimony makes it obvious that he gave the appearance to all that he was totally amazed when he learned that he had failed the polygraph examination that he took on September 29, 1977. ³

Notwithstanding the fact that appellant failed the examination, he was not fired from his employment, but, instead, was suspended with pay by Winebrenner, who was then acting for H.R. Flournoy, the then Sheriff of Wharton County who was on vacation at the time. Winebrenner testified that he told appellant that he "felt it would be in the best interest of all that he be relieved with pay until the sheriff came back, [and that appellant should stay at his residence] until we get this...