State v. Scarberry
| Decision Date | 09 June 2022 |
| Docket Number | 13-20-00413-CR |
| Parties | THE STATE OF TEXAS, Appellant, v. ERIC SCARBERRY, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. Tex. R. App. P 47.2(b).
On appeal from the 156th District Court of Bee County, Texas.
Before Chief Justice Contreras and Justices Benavides and Tijerina
The State appeals from the trial court's order granting the suppression of certain items of evidence in Eric Scarberry's criminal case. By two issues, the State argues the trial court erred by granting Scarberry's motions to suppress on the grounds that (1) the search warrant violated Article 18.04(5) of the Texas Code of Criminal Procedure, and (2) Scarberry's statements were obtained in violation of Miranda and Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc Ann art. 38.22; Miranda v. Arizona, 384 U.S. 436, 498 (1966). We affirm in part and reverse and remand in part.
On July 25, 2019, Scarberry was indicted on one count of burglary of a building with intent to commit theft and one count of theft, both state jail felonies alleged to have occurred at Coastal Bend College in Beeville, Texas. See Tex. Penal Code Ann. §§ 30.02, 31.03. An attorney from the Bee County Regional Public Defender entered her appearance as attorney of record for Scarberry on June 25, 2020. She then filed two motions to suppress on July 28, 2020. The first motion requested suppression of certain evidence due to a faulty search warrant. Specifically, Scarberry alleged that the warrant issued was invalid because: (1) the supporting affidavit did not reflect sufficient probable cause to justify the issuance of the search warrant; and (2) the warrant failed to comply with Article 18.04(5) of the Texas Code of Criminal Procedure, which requires the magistrate's name to appear in clearly legible handwriting or in typewritten form with the magistrate's signature. See Tex. Code Crim. Proc. Ann. arts. 18.01(b), 18.04(5).
The second motion requested the suppression of any oral statements Scarberry purportedly made to law enforcement on the grounds that the statements were involuntary and taken in violation of Article 38.22 of the Texas Code of Criminal Procedure. See id. art. 38.22. The motion also asserted that admission of the statements would violate Scarberry's statutory and constitutional rights.
On August 20, 2020, the trial court held a hearing on Scarberry's motions to suppress. At the hearing, the search warrant and corresponding affidavit were admitted into evidence, and the court heard argument concerning the warrant's propriety. After hearing argument, the trial court stated, "The only problem-honestly, the only problem I see with this search warrant are the signatures, and if that's enough to find that that search warrant is invalid then-then that's where you win."
The trial court also heard testimony and argument concerning the oral statements Scarberry allegedly made to police. Detective Adam Levine of the Bee County Sheriff's Office testified that he could not remember on what day or at what time Scarberry made the statements at issue. He also did not record the statements. However, he did include their substance on an undated supplemental incident report. Levine could not remember when he completed the report, but he affirmed it was not made contemporaneously with his conversation with Scarberry.
Scarberry's and Levine's accounts differed concerning the nature of their conversation. Scarberry testified that he was in his cell and was informed that Levine wanted to speak to him. Scarberry was brought into an interview room where Levine was waiting for him. According to Scarberry, when he walked into the room, Levine immediately said, "[T]his isn't about the case that [Scarberry was] in jail for." Scarberry testified that Levine asked about an unrelated incident and denied making any incriminating statements whatsoever. Scarberry also testified about an interaction he had with the Chief of Police at Coastal Bend College, Kevin Behr:
[T]he only time I actually talked to Mr. Behr is when I got arrested when I went over there to talk to him and they arrested me and he came-he came to me and said if I wanted to make a statement he would come back for me later on.
Levine's own testimony concerning what he asked Scarberry varied. Initially, Levine stated that he approached Scarberry at the Bee County Jail and:
I asked him if he wanted to have the opportunity-or I told him he would be given the opportunity to talk to Chief Behr about his case since I'm really not too involved with the investigation. I just assisted Chief Behr with some interviews. And I told him he would have the opportunity to tell his side of the story. And that was-I didn't ask him any questions about the case or anything like that.
Levine then went on to state that he "asked [Scarberry] if he wanted to have the opportunity to present his side of the story to [Behr]." Levine later confirmed that his question was whether Scarberry "wanted to give a statement to Chief Behr about the Coastal Bend College burglary," but he also acknowledged that he simply asked if Scarberry "wanted to give a statement." Levine also testified that it is "not uncommon" for him to approach people in custody and ask if they want to give a statement about the crime for which they have been arrested.
Regardless of the substance of his inquiry, Levine testified that Scarberry initially declined to give a statement, then proffered a partial admission, and then reiterated that he did not wish to discuss the matter further with law enforcement. Specifically, Levine testified:
I was just going to say that to save anyone who is in custody, the jail staff, everyone else's time, we ask them if they wish to provide a statement. He chose not to. That was the end of it, other than the comment that he made, and that was after I asked him if he wanted to talk to Chief Behr.
Levine affirmed that Miranda warnings were not administered.
The trial court granted both motions to suppress. The trial court also issued findings of fact concerning the search warrant. The trial court found that "the Search Warrant and Affidavit were made in good faith . . . and . . . the affidavit fully and accurately described the location to be searched with adequate specificity to locate the property on the ground." The trial court also found "that there was probable cause for the search, and under the apparent authority of the Search Warrant, that said search was conducted in good faith." However, the trial court ultimately found that "the magistrate's name was not in 'clearly legible handwriting or in typewritten (or printed) form with the magistrate[']s signature'" and therefore concluded that "the Search Warrant is invalid and . . . the property recovered through the execution of the Search Warrant must be suppressed at trial."
This appeal followed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5). We abated this case so that the trial court could make findings consistent with Vasquez v. State on the voluntariness of Scarberry's oral statements to Levine. See id. art. 38.22, § 6; Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) ( ). The trial court issued the following findings of fact:
(internal citations omitted). The trial court concluded that Scarberry's statements to Levine were "not knowingly and voluntarily made." We did not specifically request findings from the trial court concerning whether Levine's conversation with Scarberry constituted an interrogation. See Alford v. State, 358 S.W.3d 647, 651 n. 6 (Tex. Crim. App. 2012) (quoting Nichols v. State, 810 S.W.2d 829, 831 (Tex. App.-Dallas 1991, pet. ref'd)); cf. Greer v. State, No. 14-18-01000-CR, 2020 WL 6439721, at *4 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) ().
The State argues by its first...
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