Abelino Monge v. State

Affirmed and Opinion filed January 13, 2009

Affirmed

and Opinion filed January 13, 2009.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00468-CR

____________

ABELINO MONGE, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the

185th District Court

Harris County,

Texas

Trial Court Cause

no. 1034794

O P I N I

O N

Following

a plea of guilty, appellant, Abelino Monge, was convicted of capital murder and

was incarcerated to serve a life sentence. In one issue, appellant challenges

the trial court = s denial of his motion to suppress his recorded confession.

He contends he was unlawfully arrested, his subsequent confession was tainted

under the A fruit of the poisonous tree @ doctrine, and the State did not

prove attenuation of the taint. We affirm.

BACKGROUND

On July

12, 2005, Detective Mark Reynolds arrived at a murder scene in which the victim

had been shot twice in the back. Although the initial investigation did not

produce any suspects, Reynolds later found, in the victim = s back yard, a cell phone that had

been issued to appellant. Reynolds obtained the phone records and learned

that, on the day of the murder, the cell phone had been used to place calls to,

and receive calls from, the victim. The phone records also listed calls

between appellant, the victim, and a third individual, Margil Ochoa.

Reynolds

drove to appellant = s workplace on the morning of July 21, 2005, to question

appellant about the cell phone. Appellant responded that his cell phone had

been stolen, but he voluntarily accompanied Reynolds to the sheriff = s department for further

questioning. Upon arrival, appellant was placed in a small windowless room,

where he was briefly questioned. Appellant denied any involvement in the

murder. He voluntarily provided a DNA saliva sample, consented to a search of

his vehicle and residence, and submitted to a polygraph examination that ended

at approximately 6:00 p.m. Having been told he was free to leave, appellant

instead fell asleep on the floor of the room where he had been interviewed. [1]

There would be no further contact between appellant and the law-enforcement

officers until the following morning.

Meanwhile,

in a different interview room, the detectives were separately questioning

Margil Ochoa, who appeared to be more forthcoming with information than

appellant had been. At approximately midnight on July 22, Ochoa admitted his

and appellant = s involvement in the murder, specifically identifying appellant as the A shooter. @ After several more hours of

questioning, Ochoa signed a written confession that again implicated him and

appellant in the murder. At no time did the deputies procure an arrest warrant

for appellant.

At approximately 7:00 a.m., the

district attorney agreed to accept capital murder charges against appellant and

Ochoa. Reynolds informed appellant he was under arrest, and placed him in

handcuffs. While Reynolds was processing the paperwork, a second set of detectives

decided to question appellant again. Appellant was given Miranda

warnings. He was then advised that Ochoa was also under arrest, and that Ochoa

had implicated appellant in the crime. Specifically, one of the detectives

told appellant:

I was here

late last night too whenever all this was going on and I went and picked up

Ochoa and he = s trying to help hi[m]self. You know what I = m saying? . . .

. . . .

I = m going to tell you up front . . . that your

fall partner has given you up . [2] He = s given every detail about what took place from the

time you guys left climbing over the fence, just about knocking him over, going

down, sliding down the bayou, swimming in the bayou . . . . You know, they,

they know everything at this point and all it is, to getting you convicted. . .

. And you know here you have, uh one, one guy that = s trying to help hi[m]self, he = s concerned about his family, he doesn = t wanna spend the rest of his life in jail, you know

he = s honestly trying to help hi[m]self. You know he = s admitting that, you know, this just wasn = t supposed to happen like this. . . . You know what I

mean? We have his story.

. . . .

But I can tell you . . . everything that he = s said is collaborated [sic] by the dead guy[ = ]s girlfriend, so we know that he = s telling the truth from that point on.

After learning that Ochoa

had implicated him, appellant confessed to shooting the victim twice. The

interview, including appellant = s confession, was recorded and videotaped.

Appellant

was indicted for capital murder. Before trial, appellant moved to suppress his

confession, contending it was tainted by a warrantless, unlawful arrest.

Appellant did not testify at the suppression hearing, which spanned several

days. The trial court, which ultimately denied the suppression motion, found

that appellant was free to leave the sheriff = s department at all times until he

was actually placed in custody at 4:00 a.m. on July 22. The court further

concluded that the detectives improperly failed to procure an arrest warrant,

and that the warrantless arrest was not excused by article 14.04 of the Code of

Criminal Procedure. However, the court determined that the taint of the warrantless

arrest was attenuated.

Appellant

indicated his intent to appeal the trial court = s ruling, and then pled guilty to the

charged offense. The court sentenced appellant to confinement for life in the

Texas Department of Criminal Justice. This appeal ensued. In one point of

error, appellant contends the trial court abused its discretion by denying his

motion to suppress because the State failed to prove attenuation of the taint

of his unlawful arrest.

STANDARD

OF REVIEW

We

employ a bifurcated standard of review to consider a trial court = s ruling on a motion to suppress

evidence. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App.

2000); Turner v. State , 252 S.W.3d 571, 576 (Tex. App. C Houston [14th Dist.] 2008, pet. ref = d). We will defer almost entirely to

the trial court = s findings of historical fact that are supported by the

record, especially when the findings relate to an evaluation of credibility and

demeanor. See Turner , 252 S.W.3d at 576 (citing Guzman v. State ,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford the same level of

deference to rulings on mixed questions of law and fact when the resolution of

those issues turns upon an evaluation of credibility and demeanor. See

State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman ,

955 S.W.2d at 89 . By contrast, we review de novo the issues that do not

depend upon credibility and demeanor. See Turner , 252 S.W.3d at 576 .

The

trial court is the sole fact-finder at a suppression hearing and may freely

believe or disbelieve all or part of the evidence presented. See Ross ,

32 S.W.3d at 855 ; Weems v. State , 167 S.W.3d 350 , 354 B 55 (Tex. App. C Houston [14th Dist.] 2005, pet. ref = d). Therefore, we review the

evidence in the light most favorable to the trial court = s ruling. State v. Kelly , 204

S.W.3d 808, 818 (Tex. Crim. App. 2006); Rothstein v. State , 267 S.W.3d

366, 371 (Tex. App. C Houston [14th Dist.] 2008, no pet.). We will sustain the

trial court = s ruling if it is reasonably supported by the record and is correct under

any applicable legal theory. See Ross , 32 S.W.3d at 855 B 56.

ANALYSIS

The A fruit of the poisonous tree @ doctrine generally precludes the use

of evidence, both direct and indirect, obtained following an illegal arrest. See

Wong Sun v. United States , 371 U.S. 471, 484 (1963); State v. Iduarte ,

268 S.W.3d 544, 550 (Tex. Crim. App. 2008). Here, the State does not challenge

the illegality of appellant = s warrantless arrest, which did not fit within any of the

recognized exceptions to the warrant requirement. Instead, the State contends

the nexus between the unlawful arrest and appellant = s confession was so attenuated as to

dissipate the taint of the prior illegality. See Wong Sun , 371 U.S. at

487 B 88. After reviewing the record, we

agree.

Evidence that is sufficiently

attenuated from the unlawful arrest is not considered to have been obtained

therefrom. See Sims v. State , 84 S.W.3d 805, 810 (Tex. App. C Houston [1st Dist.] 2002, no pet.).

The prosecution carries the burden of proving attenuation. See Brown v.

Illinois , 422 U.S. 590, 604 (1975); Garcia v. State , 3 S.W.3d 227,

242 (Tex. App. C Houston [14th Dist.] 1999), aff = d , 43 S.W.3d 527 (Tex. Crim. App. 2001). In deciding

whether appellant = s confession, which was given following an illegal arrest,

was sufficiently attenuated as to permit the use of the confession at trial, we

are to consider the following factors:

(1) whether

Miranda warnings were given;

(2) the

temporal proximity of the arrest and the confession;

(3) the

presence of intervening circumstances; and

(4) the

purpose and flagrancy of the official misconduct.

See Brown , 422 U.S. at 603 B 04; Bell v. State , 724

S.W.2d 780, 788 (Tex. Crim. App. 1986); Weems , 167 S.W.3d at 359 . These

four factors do not necessarily carry equal weight. See Bell , 724

S.W.2d at 788 B 90 (generally describing the relative importance of each factor); Self

v. State , 709 S.W.2d 662, 668 (Tex. Crim. App. 1986). We will apply each

of these factors, in turn, to the evidence adduced at the suppression hearing.

A. Whether Miranda Warnings were Given

The

giving of Miranda warnings, standing alone, does not sufficiently

attenuate the taint of an arrest in violation of the Fourth Amendment. See

Brown , 422 U.S. at 603 . As the Court of Criminal Appeals observed, A the right to be free from warrantless

arrest is at least equal in magnitude to the state and federal constitutional

right to be free from unreasonable searches and seizures. . . . [T]he State cannot

violate the Fourth Amendment with impunity by washing its hands in the

procedural waters of the Fifth Amendment[.] @ Bell , 724 S.W.2d at 787 .

However, Miranda warnings, while not the only consideration, remain an important

factor in determining whether a confession was obtained through exploitation of

an illegal arrest. See Brown , 422 U.S. at 603 ; Little v. State ,

758 S.W.2d 551, 566 (Tex. Crim. App. 1988); Self , 709 S.W.2d at 666 .

At the

beginning of the recorded interview, appellant was given Miranda

warnings. Appellant acknowledged that he understood those rights, and he

implicitly waived those rights by proceeding to answer the detectives = questions. See Turner , 252

S.W.3d at 583 B 84; State v. Oliver , 29 S.W.3d 190, 193 (Tex. App. C San Antonio 2000, pet. ref = d). Appellant notes that, unlike

several other attenuation cases, he received only one Miranda

admonition. See Little , 758 S.W.2d at 566 (three Miranda

warnings); Bell , 724 S.W.2d at 785 B 86 (at least four warnings); Self ,

709 S.W.2d at 666 (three warnings); Weems , 167 S.W.3d at 359 (at least

three warnings). However, we do not perceive these authorities as holding that

the first factor of Brown v. Illinois requires multiple Miranda warnings.

The fact that repeated warnings may have been sufficient in other cases

does not necessarily mean, in the context of this attenuation analysis, that

multiple warnings are mandatory . See Bell , 724 S.W.2d at 788

(asking simply whether Miranda warnings were given); see also Rosalez

v. State , 875 S.W.2d 705, 722 (Tex. App. C Dallas 1993, pet. ref = d) (resolving first factor in State = s favor because defendant received Miranda

warnings immediately after arrest, and indicated he understood his rights).

This

first factor weighs in the State = s favor.

B. Temporal Proximity between

Arrest and Confession

Next, we

analyze the temporal proximity between the arrest and the confession. This

factor, which has been described as A ambiguous, @ is given the least weight among the

four Brown v. Illinois considerations. See Weems , 167 S.W.3d at

359 ; Darden v. State , 783 S.W.2d 239, 243 (Tex. App. C Corpus Christi 1989, pet. ref = d). Generally, longer time periods

tend to favor a finding of attenuation. See Townsley v. State , 652

S.W.2d 791, 797 (Tex. Crim. App. 1983). By contrast, when the time between the

arrest and confession is short, it may be inferred that the defendant was not

given time to reflect upon his situation following his arrest. See Weems ,

167 S.W.3d at 359 ; see also Juarez v. State , 758 S.W.2d 772, 781 (Tex.

Crim. App. 1988), overruled on other grounds by Boyle v. State , 820

S.W.2d 122 (Tex. Crim. App. 1989) ( A [T]he shorter the time, the more

likely it is that the taint of the illegal arrest or stop has not been purged. @ ).

Here,

the trial court found that appellant was in custody as of 4:00 a.m. on July 22

but that he was not informed of his arrest until 6:30 a.m., roughly

two-and-one-quarter hours prior to the interview that produced his recorded

confession. [3] Courts that

have considered similar time frames consistently have resolved this factor in

the accused = s favor. See Bell , 724 S.W.2d at 788 (one-and-a-half to three

hours); Self , 709 S.W.2d at 666 (two hours); Weems , 167 S.W.3d at

360 (two to two-and-a-half hours).

Although

the A time proximity @ element is A generally not a strong determining

factor per se, @ this second factor tends to favor appellant, against admission of the

confession. See Bell , 724 S.W.2d at 788 B 89. However, because each factor

need not be resolved in the State = s favor before a confession may be

admitted, we must consider the third and fourth Brown factors. See

Juarez , 758 S.W.2d at 780 .

C. Presence of Intervening

Circumstances

Generally,

a confession obtained through interrogation following an illegal arrest should

be excluded unless subsequent A intervening events break the causal connection between the

illegal arrest and the confession so that the confession is sufficiently an act

of free will to purge the primary taint. @ Townsley , 652 S.W.2d at 796 B 97 (citing Taylor v. Alabama ,

457 U.S. 687 (1982)). Similarly, intervening events that flow from the illegal

arrest usually do not, by themselves, attenuate the taint. Bell , 724

S.W.2d at 789 .

The

United States Supreme Court has not defined what constitutes an A intervening event @ that sufficiently purges the taint

of an illegal arrest. The Texas Court of Criminal Appeals has identified some

significant intervening events as including the accused = s appearance before a magistrate,

termination of the illegal custody, consultation with counsel, or a volunteered

statement that was not made in response to police interrogation. See id .

at 789 n.5. Here, the trial court found, and the State acknowledges, that none

of these specifically-enumerated events intervened to dissipate the taint of

appellant = s warrantless arrest.

However, several jurisdictions have

repeatedly held that confrontation of the accused with untainted

information of his guilt C such as the confession of an accomplice C may qualify as an intervening

circumstance, if the untainted evidence was acquired apart from the illegal

arrest. See State v. Brunetti , 901 A.2d 1, 25 (Conn. 2006) (concluding

defendant = s confession was prompted not by unlawful detention but by lawful

discovery of untainted, incriminating evidence); State v. Tobias , 538

N.W.2d 843 , 847 B 48 (Wis. Ct. App. 1995) (same); Thorson v. State , 653

So. 2d 876, 886 (Miss. 1994) (same); People v. Gabbard , 398 N.E.2d 574,

579 (Ill. 1979) (same); Allen v. Cupp , 426 F.2d 756, 759 (9th Cir. 1970)

( A We conclude . . . that the confession

was not the product of the illegal arrest and custody, but the product of

appellee = s own decision to confess after his

companion had done likewise. @ ). In adopting this rule, the Wisconsin Supreme Court

concluded:

[T]estimony

indicates that the confrontation with this untainted evidence was the

intervening circumstance that induced Tobias to confess. Several jurisdictions

have held confrontations may constitute intervening circumstances under the Brown

analysis. A > A defendant = s

confrontation with untainted evidence, which induces in the defendant a

voluntary desire to confess, may be a legitimate intervening circumstance = to dissipate the taint of the defendant = s earlier illegal arrest. @

. . . .

. . . This possibility was contemplated by the United

States Supreme Court in Brown , where it observed that it is entirely

possible that persons arrested illegally frequently may decide to confess, as

an act of free will unaffected by the initial illegality. Because Tobias = s incriminating statements were an act of free will

induced not by the illegal arrest but by the confrontation with untainted

evidence, we conclude this Brown factor weighs in favor of attenuation.

Tobias , 538 N.W.2d at 847 B 48 (citations omitted).

In 1984, the Texas Court of Criminal

Appeals was presented with a similar situation but declined to find

attenuation. See Gregg v. State , 667 S.W.2d 125 (Tex. Crim. App. 1984),

overruled on other grounds by Russell v. State , 717 S.W.2d 7 (Tex. Crim.

App. 1986). However, we believe Gregg is factually distinguishable.

Therein the Court of Criminal Appeals recited that Gregg was suddenly, and

unlawfully, seized at night by five presumably-armed deputy sheriffs, and was

taken to the sheriff = s office to investigate as part of the investigation of a

robbery. See id . at 127 B 28. After being interrogated, Gregg was taken before a

magistrate to receive a Miranda warning. See id . at 127. In the

interim, two other persons had confessed to participating in the robbery. See

id . at 128. After reading one of the other confessions, Gregg likewise

confessed to the robbery. See id . On appeal, he contended that his

confession, which flowed from an illegal seizure, should not have been admitted

into evidence at trial. See id . at 127 B 28. The State responded that the

confession was admissible because it had proven attenuation of the taint under Brown

v. Illinois . See id . at 128. The Court of Criminal Appeals

disagreed:

In light of

Taylor v. Alabama , we are compelled to disagree with the State that it

has met the four [ Brown ] factors set out above.

In Taylor v. Alabama , the Supreme Court held

that before a tainted confession may be legally sanitized, the prosecution must

establish that the confession A originated

outside the aura of coercion that surrounds the illegal detention. @

Id . (citations omitted). Under this Taylor v.

Alabama framework, the Court concluded that Gregg was not shown to be A outside the influence of the police

custody @ prior to his confession, and held

that the State had not demonstrated attenuation of the taint. See id .

at 130. Thus, the Court of Criminal Appeals was not convinced that, under the

facts presented, Gregg = s reading of an accomplice = s confession was a significant

intervening circumstance that removed the taint from the confession:

We find that the record clearly reflects that at the

time appellant read the statement he had been seized, was under the exclusive

control of members of the Sheriff = s

office, and was unaided by counsel. Furthermore, before reading the other

person = s confession, appellant was unaware that he had been

implicated in the robbery. Considering the intimidating atmosphere and the

coerciveness of the situation , we are unable to state that appellant had

total freedom of choice in giving the confession after he had read Massengale = s confession.

Id . at 129 (emphasis added).

However,

Gregg did not announce a blanket rule that, as a matter of law,

confronting an accused with untainted incriminating evidence cannot be a

legitimate intervening event in any case. [4]

After all, whether a confession was produced by free will must be answered upon

the facts of each case and does not rely on a A talismanic test. @ See Brown , 422 U.S. at 603 .

Instead, we read Gregg as holding that, in light of the flagrant and

coercive misconduct of the law-enforcement personnel, Gregg = s confession could not be said to

have been A the product of a free will. @ See Gregg , 667 S.W.2d at

129 ; Brown , 422 U.S. at 603 . For example, we note that Gregg was taken

before a magistrate before his confession, [5]

a fact which has been held to constitute a A significant intervening @ event. See Bell , 724 S.W.2d

at 789 n.5. Given the Gregg Court = s disdain for the sheriffs = misconduct, however, even Gregg = s appearance before a magistrate was

insufficient to dissipate the taint of the illegal seizure. See Gregg ,

667 S.W.2d at 130 . Thus, although Gregg = s appearance before a magistrate did

not persuade the Court of Criminal Appeals to find attenuation of the taint

under the facts of that case, such an event continues to be a significant

intervening event in other cases. See Bell , 724 S.W.2d at 789 n.5.

Similarly, Gregg should not be read as rejecting the proposition that, in

an appropriate case , an accused = s confrontation with untainted

evidence could serve as a legitimate intervening event.

Here,

appellant repeatedly denied any involvement in the murder until he learned that

Ochoa had implicated him in the crime. During a restroom break, appellant saw

that Ochoa had been arrested. He was told that Ochoa had A given [him] up, @ and that Ochoa had identified

appellant as the A main guy @ during the shooting. The detectives then advised appellant

of specific details from Ochoa = s confession: A He = s given every detail about what took

place from the time you guys left climbing over the fence, just about knocking

him over, going down, sliding down the bayou, swimming in the bayou[.] @ Finally, appellant was told that

Ochoa = s account had been corroborated by

another witness. Appellant then confessed to the murder. Under these facts,

we conclude C as have courts in other jurisdictions in similar cases C that appellant = s confession was not the result of

his unlawful arrest but, rather, the product of appellant = s voluntary decision to confess after

learning his accomplice had done likewise. See People v. Holman , 620

N.E.2d 1222, 1230 (Ill. App. Ct. 1993); People v. Dale , 545 N.E.2d 521,

533 (Ill. App. Ct. 1989); People v. Thomas , 542 N.E.2d 881, 889 (Ill.

App. Ct. 1989); Brewer v. State , 611 S.W.2d 179, 182 (Ark. 1981); Allen ,

426 F.2d at 759 ; see also State v. Stevens , 574 So. 2d 197, 204 (Fla.

Dist. Ct. App. 1991) (holding that defendant = s confrontation with his mother = s incriminating statement constituted

an intervening event); Commonwealth v. Wright , 332 A.2d 809, 811 (Pa.

1975) ( A Wright denied any involvement in the

shooting until he was confronted with his accomplice. It was this

confrontation, rather than any exploitation of the circumstances of the arrest,

which prompted his confession. @ ).

We

therefore conclude that appellant = s confrontation with Ochoa = s untainted confession [6]

acted as a significant intervening event. Accordingly, this third attenuation

factor weighs in the State = s favor.

D. Purpose and Flagrancy of

Official Misconduct

The

fourth Brown factor, in which courts examine the extent of

law-enforcement misconduct, is one of the most important considerations in an

attenuation analysis. See Bell , 724 S.W.2d at 789 ; Self , 709

S.W.2d at 668 . When official misconduct is the most flagrantly abusive, the

standard for the State to prove attenuation is elevated to require the A clearest indications of attenuation. @ [7] See Bell , 724 S.W.2d at

789 . Examples of such abusive conduct may include A reliance on factors in making an

arrest which were so lacking in indicia of probable cause as to render belief

in its existence entirely unreasonable; an arrest effectuated as a pretext for

collateral objectives; or an arrest which is unnecessarily intrusive on personal

privacy. @ Id . Similarly, the taint

may be unattenuated if the accused was arrested for no apparent justification

and with the sole intent to extract a confession by exploitation. See id .

at 789 B 90.

In

arguing flagrancy of the deputies = misconduct, appellant reminds us

that, as of the time of his confession, he had been kept in a small windowless

room for twenty-two hours and, during that time, had eaten only one meal.

However, although these considerations may be pertinent in a Jackson v.

Denno analysis, [8] appellant

does not contend that his confession was involuntary as a result of coercion.

Instead, appellant concedes that he voluntarily accompanied the detectives to

the sheriffs = department, and that he freely consented to a DNA saliva test, search of

his residence and vehicle, and polygraph examination. Although his movement within the

sheriffs = department C a secure building C was restricted, appellant concedes

that he was free to leave the facility until at least midnight on the second

day, July 22. [9] Thus, we

must conclude that appellant voluntarily remained at the sheriffs = department until he was actually

placed in custody.

Appellant

also acknowledges that his arrest, though warrantless, was supported by

probable cause. The trial court found that Detective Reynolds failed to

procure a warrant because A [i]n his mind he believed that he had probable cause to

arrest the defendant and that a warrant was not necessary. @ The record also supports this

finding, as Reynolds testified that he felt he could arrest appellant because

of Ochoa = s confession. This belief appears,

from the record, to have been founded upon Reynolds = s misunderstanding of the scope of

Article 14.03(a)(6). Based on the record, the trial court therefore concluded

that the officers had not engaged in flagrant misconduct.

We

consider the facts of this case to be analogous to the police conduct involved

in Bell , in which the arresting officer had probable cause to arrest

Bell, but failed to procure a warrant because the officer believed that a

warrant exception applied. See Bell , 724 S.W.2d at 785 B 87. The Court of Criminal Appeals

classified that police conduct as falling A somewhere in between a technical

violation and . . . flagrant conduct[.] @ Id . at 790. The Court

concluded that the police conduct did not decisively weigh against attenuation

of the taint. See id .

Ultimately,

based on its resolution of the Brown factors, the Bell Court

declined to find attenuation. See id . at 790 B 91. Although we classify the

official misconduct here as analogous to that involved in Bell , however,

we do not reach the same ultimate attenuation conclusion after weighing the Brown

factors. In Bell , the Court found no intervening circumstance that

would militate in favor of admission of the confession. See id . at 789,

790. By contrast, we have held that appellant = s confrontation with Ochoa = s untainted confession served as a

legitimate intervening event that was sufficient A to break the causal connection @ between the illegal arrest and

confession. See id.

Having

weighed the pertinent Brown factors, then, we conclude on the record

presented that the taint of appellant = s unlawful arrest was attenuated.

CONCLUSION

Although

appellant was unlawfully arrested without a warrant, we hold the State carried

its burden to prove, under Brown v. Illinois and Bell v. State ,

that the taint of the illegal arrest was attenuated. Therefore, we affirm the

trial court = s ruling denying appellant = s motion to suppress his recorded

confession.

/s/ J. Harvey Hudson

Senior Justice

Panel consists of Justices Anderson

and Frost, and Senior Justice Hudson. *

Publish. Tex. R. App. P. 47.2(b).

[1] Both parties

agree that appellant was free to leave until at least midnight on July 22, six

hours after the polygraph examination concluded.

[2] Emphasis added.

[3] Appellant argues

that, although he was considered to be in custody at 4:00 a.m., we should analyze

the A time proximity @

factor beginning at 6:30 a.m., at which time appellant first became aware that

he had been arrested. We agree. This factor focuses on the defendant = s ability to reflect upon his situation, and the

consequences of confession, after his arrest. See Darden , 783 S.W.2d at

243 . Because appellant was not aware that he had been arrested until 6:30

a.m., it follows that his period of self-reflection would not begin until then,

either. See id .

[4] In 1993, citing Gregg ,

we declined to find attenuation from the mere fact that an accomplice gave an

incriminating statement. See Griffin v. State , No. C14-91-01227-CR,

1993 WL 46554 , at *4 (Tex. App. C Houston [14th

Dist.] Feb. 25, 1993, pet. ref = d) (not

designated for publication). However, the record there did not clearly show

that Griffin, the accused, was even aware of his companion = s incriminating statement. See id . In

addition, we noted that the incriminating statement itself may have resulted

from an illegal arrest. See id .; see also Taylor , 457 U.S. at

692 B 93 (declining to characterize, as intervening event,

evidence that itself was fruit of illegal arrest). Therefore, Griffin

can be distinguished and is not controlling here.

[5] See Gregg ,

667 S.W.2d at 127 .

[6] There has been

no suggestion that Ochoa = s written confession resulted from an illegality,

because a warrant exception applies to Ochoa = s

arrest. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(6) (Vernon Supp.

2008) ( A Any peace officer may arrest, without warrant . . . a

person who makes a statement to the peace officer that would be admissible

against the person under Article 38.21 and establishes probable cause to

believe that the person has committed a felony. @ ).

[7] This statement,

from Bell , implies that there may be some overlap between the third and

fourth Brown factors. See also Morelos v. State , 772 S.W.2d

497, 505 (Tex. App. C Houston [14th Dist.] 1989, pet. ref = d) (addressing both factors together, and noting that A [f]ree and voluntary execution of a written consent to

the search is an intervening factor that weighs heavily in favor of the State,

but allegations of official misconduct in obtaining the consent would

necessarily weaken the consent @ ) (citation

omitted).

[8] Jackson v.

Denno , 378 U.S. 368 (1964); see Smith v. State , 779 S.W.2d 417 , 428 B 29 (Tex. Crim. App. 1989) (evaluating voluntariness of

confession by, inter alia , level of physical deprivation brought to bear

on accused).

[9] At argument,

counsel for appellant rejected the suggestion that appellant was in custody

following the polygraph examination at 6:10 p.m. Instead, it was contended

that, although appellant chose to remain at the sheriff = s = department, a

reasonable person would have believed he was free to leave the facility. See

Turner , 252 S.W.3d at 577 .

*

Senior Justice J. Harvey Hudson sitting by assignment.