Wexler v. State

• Decision Date: 30 June 2021
• Docket Number: NO. PD-0241-20,PD-0241-20
• Citation: 625 S.W.3d 162
• Court: Texas Court of Criminal Appeals
• Parties: Suzanne Elizabeth WEXLER, Appellant v. The STATE of Texas

625 S.W.3d 162

Suzanne Elizabeth WEXLER, Appellant

v.The STATE of Texas

NO. PD-0241-20

Court of Criminal Appeals of Texas.

Delivered: June 30, 2021

John Crump, for State.

Nicholas Mensch, for Appellant.

OPINION

Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Yeary, Slaughter, and McClure, JJ., Joined.

Appellant challenges the admissibility of a statement she made to police during the execution of a search warrant, claiming that the statement was a product of custodial interrogation. The court of appeals determined that Appellant made the statement before she was in custody, and it was properly admitted by the trial court. Wexler v. State , 593 S.W.3d 772, 775 (Tex. App.—Houston [14th Dist.] 2019). We granted Appellant's petition for discretionary review to decide whether the court of appeals erred in this determination. We conclude that Appellant failed to meet her burden of showing that she was in custody when she made the statement, and we affirm the judgment of the court of appeals.

I. Background

Police were told that the house at 318 Avenue A in South Houston was a site of drug dealing. During a week of surveillance, narcotics K-9 officers arrested four people leaving the house in possession of methamphetamine, and police got a warrant to search the house.

The search warrant was executed with the help of uniformed and plainclothes officers, narcotics K-9 units, and the Harris County Sheriff's Office High Risk Operations Unit (HROU), a SWAT-like team whose function was to secure the residence and detain any occupants. While uniformed officers in marked police cars blocked both ends of the street, 20 to 25 HROU officers surrounded the house, announced via loudspeaker from an armored vehicle that they had a search warrant, and directed occupants to exit the house. Appellant came out and was detained by HROU officers and put in the back of a patrol car.

While HROU did a protective sweep of the house, narcotics detective Jerome Hill questioned Appellant. Hill suspected that Appellant and someone named Jimmy were involved in distributing drugs, but Hill did not tell Appellant that she was a suspect, and he did not give her any warnings. The encounter was not recorded, but Hill testified that he said, "We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We're going to find it no matter what." Appellant told him that the drugs were "in her bedroom in a dresser drawer." Hill and other narcotics officers went into the house to conduct the search and found 25.077 grams of methamphetamine in the dresser drawer, marijuana packaged for individual sale, drug paraphernalia, scales, cash, and handgun magazines and ammunition. Hill arrested Appellant for possession with intent to distribute a controlled substance.

At trial Appellant objected to the admission of her statement that the drugs were in her bedroom in a dresser drawer. She claimed the statement was hearsay and that it should be excluded because Hill was trying to extract a confession and obtain evidence from her without giving her any warnings. The State responded that it was a statement by a party opponent or a statement against interest and that Appellant was detained but not in custody when she gave the statement. After voir dire examination of Hill and arguments of the parties outside the presence of the jury, the trial court overruled Appellant's objection and admitted her statement.

Appellant's friend testified in her defense. He said Appellant and her boyfriend, Jimmy, had broken up and that she had moved out of the house months before the search; she was in the house on the day of the search only to retrieve some of her belongings, and the drugs belonged to Jimmy. During deliberations, the jury asked for clarification of Detective Hill's testimony and sent out a note asking, "When Ms. Wexler was asked by Mr. Hill where the drugs would be found, was her response ‘my bedroom’ or ‘the bedroom’ or another variant?" The court read back to the jury Hill's testimony: "The defendant told me it would be in her bedroom in a dresser drawer." The jury found Appellant guilty, and the trial court sentenced her to 25 years in prison.

II. Court of Appeals

Appellant claimed on appeal that she was in custody when she was placed in the back of the patrol car and that she should have been given Article 38.22 and Miranda warnings before Hill questioned her. Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; TEX. CODE CRIM. P. art. 38.22. She said her statement to Hill should have been excluded because she was not given the warnings. Wexler , 593 S.W.3d at 777. The court of appeals determined that the statement was properly admitted because Appellant was temporarily detained rather than under arrest when she made the statement. Id. at 780.

The fact that Appellant's freedom of movement was restricted when she was placed in the patrol car did not establish that she was under custodial arrest because a person under detention also may have her freedom of movement restricted but to a lesser degree. Id. at 779. There was no evidence that Appellant was aware of the presence of the armored vehicle or the number of officers on the scene, or that access to the street had been blocked. Id. at 780. Even if she were aware, this would show only one factor—the amount of force used—to determine custody. Id. (citing State v. Sheppard , 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) ). There was no evidence that police used physical force on Appellant, handcuffed her, threatened her, displayed a firearm, or even spoke to her in a hostile tone. Wexler , 593 S.W.3d at 780.

There was evidence that an investigation was underway and that Appellant was detained during a protective sweep of the house, but the detention was brief, Appellant was questioned on scene, Hill was the only officer to question her, and he did not tell her that she was a under arrest or even a suspect. Id. (citing Herrera v. State , 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007) ("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.")). When Appellant was questioned, drugs had not yet been found, and Hill did not have probable cause to arrest her. Wexler , 593 S.W.3d at 780.

The court of appeals concluded that the record supported the trial court's implied finding that Appellant was temporarily detained and not arrested when Hill questioned her, so Hill was not required to warn her under Miranda or Article 38.22, and the trial court did not err in admitting her statement. Wexler , 593 S.W.3d at 780.

The dissenting opinion asserted that under the facts of the case, a reasonable person would have believed she was under restraint to the degree associated with an arrest. Id. at 783 (Hassan, J., dissenting) (quoting Dowthitt v. State , 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) ). "Appellant left the protections of a private home only after being instructed by an organized and well-equipped amassment of law enforcement personnel." Wexler , 593 S.W.3d at 784 (Hassan, J., dissenting). According to the dissent, these facts demonstrate that the police created a situation that would have led a reasonable person to believe her freedom had been significantly restricted, and Appellant was entitled to Miranda warnings. Id. at 785 (citing Dowthitt , 931 S.W.2d at 255 ).

III. Standard of Review

A trial court's ruling on a motion to suppress is reviewed for abuse of discretion and should be reversed only if it is outside the zone of reasonable disagreement. State v. Cortez , 543 S.W.3d 198, 203 (Tex. Crim. App. 2018) ; State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). Custody is a mixed question of law and fact that does not turn on credibility and demeanor unless the witness testimony, if believed, would always decide the custody question. State v. Saenz , 411 S.W.3d 488, 494 (Tex. Crim. App. 2013). We apply a bifurcated standard of review, giving almost total deference to the trial court's factual assessment of the circumstances surrounding the questioning and reviewing de novo the ultimate legal determination of whether the person was in custody under those circumstances. Id.

When a trial court denies a motion to suppress and does not enter findings of fact, we view the evidence in the light most favorable to the ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Herrera , 241 S.W.3d at 527. The party that prevailed in the trial court is afforded the strongest legitimate view of the evidence, and all reasonable inferences that may be drawn from that evidence. State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

IV. Miranda and Article 38.22

Miranda and Article 38.22 deem statements produced by custodial interrogation to be inadmissible unless the accused is first warned that she has the right to remain silent, her statement may be used against her, and she has the right to hire a lawyer or have a lawyer appointed. Miranda , 384 U.S. at 479, 86 S.Ct. 1602 ; TEX. CODE CRIM. P. art. 38.22. In addition, Article 38.22 requires a warning that the accused has the right to terminate the interview at any time. Herrera , 241 S.W.3d at 526. The warnings are required only when there is custodial interrogation. Id.

A custody determination requires two inquiries: the circumstances surrounding the interrogation and whether a reasonable person in those circumstances would have felt that she was not free to leave. Thompson v. Keohane , 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). "Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test" to determine whether there was restraint on freedom of...