Walter Lee McCreary v. State

Opinion issued May 17,

2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01035-CR

———————————

walter lee V. mccreary , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 178th District

Court

Harris County, Texas

Trial Court Case No. 1227912

MEMORANDUM OPINION

Walter Lee V. McCreary was certified

to stand trial as an adult for the felony offense of capital murder. [1]

A jury found him guilty, and the trial court assessed punishment at confinement

for life. In his sole issue on appeal, McCreary contends that the trial court

erred by failing to suppress his oral statements obtained in violation of the

Family Code. We affirm.

Background

Officers from the Webster Police Department

(WPD) responded to a report of a shooting at the Nasa

Liquor Store. They discovered the body of the store owner, Thanh

Pham, in a pool of blood behind the store’s counter and a nearly empty cash register.

Pham died from gunshot wounds to his head, torso, and upper extremity. Police

recovered .45 caliber shell casings, a bullet fragment, and latent fingerprints

from inside the store. Three of the fingerprints lifted from the store’s

counter belonged to McCreary. A firearms identification expert determined that

the shell casings and bullet fragments could only have come from a limited

number of firearms, including a Taurus brand .45 semiautomatic pistol .

When Joseph Rock, a Webster-area

resident, learned of Pham’s death, he informed WPD that he had shopped at the

liquor store shortly before the shooting. As he pulled into the store’s parking

lot, Rock observed a young man wearing a light gray or white hoodie and blue

shorts outside of the store listening to an I-Pod. The young man was in the same

location when Rock left the store after making his purchases. Rock identified

McCreary in a photo array.

Having no other suspects and also having

received two anonymous tips about McCreary’s involvement in Pham’s death, WPD Detectives

Quintana, Palermo, and Latham made contact with McCreary, then 15 years-old, at

his mother’s home. There, police recovered a pair of blue shorts and an I-Pod.

According to McCreary’s mother, McCreary wore the blue shorts on the day of

Pham’s death. Although it was his opinion that probable cause did not yet exist

to arrest McCreary, Detective Latham asked McCreary to make a voluntary

statement at the police station. Detective Latham informed McCreary that he was

“not being placed under arrest . . . not being charged with the crime. And that

he’s going to be able to leave whenever he wants and that [the detectives

would] be glad to give him a ride back.” Both McCreary and his mother

consented.

Due to the cold weather, the detectives suggested that

McCreary bring some warm clothing to the police station. McCreary responded:

“Let me get my white hoodie -- I mean, my black hoodie[ .]”

McCreary sat in the front passenger seat of the detectives’ vehicle on the way

to the police station. He was not handcuffed or restrained. He inquired en

route whether the detectives’ service weapons were “four fives.”

At the police station, Detective Latham reaffirmed that McCreary

was still free to leave at any time, and, without answering any questions, McCreary

asked to leave. McCreary walked out of the police station’s back door, jumped a

fence, and “shot” the detectives his “middle finger.”

The next day, McCreary telephoned

police and requested a second opportunity to give a voluntary statement.

Detectives Quintana and Palermo picked McCreary up from his home. This time, however,

McCreary’s mother was not there. En route to the police station, McCreary again

sat in the front passenger seat of the detective’s vehicle without handcuffs or

other restraints.

Detective Latham took McCreary to an interview room and shut

the door. Just as he did the day before, Detective Latham began the interview

by asking McCreary whether he was at the police station of his own free will

and whether he understood that he was not under arrest. McCreary responded

affirmatively, and no admonishments were given. Detective Latham characterized

the one-hour interview that followed as “an intense interview, a tactical

interview” during which McCreary laughed, cried, got angry, and made

incriminating statements about the amount of money stolen from the store and

the manner in which Pham was shot. The interview was video-recorded. Although Detective

Latham exaggerated the evidence and repeatedly accused McCreary of murdering

Pham, Detective Latham never expressed an intent to

arrest McCreary. And, when McCreary indicated he was ready to leave, Detective Latham

did not arrest McCreary. Instead, he and Detective Quintana gave McCreary a

ride home.

The State accepted a capital murder

charge against McCreary at a time when he was being held in a juvenile

detention facility on an unrelated aggravated assault charge. Detectives

Palermo and Quintana retrieved McCreary from the juvenile detention center and

transported him to another facility for the purpose of entering his

fingerprints in the Automatic Fingerprint Identification System (AFIS). McCreary

did not receive any admonishments. While the detectives were processing

McCreary’s information, McCreary observed a deputy walking by and stated, “You

got a chrome .45, man, that’s nice.” The detectives returned McCreary to the

juvenile detention center.

Over the course of the eight-day trial

on guilt-innocence, the State presented physical evidence and the testimony of

twenty-one witnesses, including the investigating officers, medical and

forensic experts, and Rock. McCreary’s classmate, Edwin Alfaro, testified that,

within one or two weeks of Pham’s death, McCreary bragged about shooting Pham

and taking money from the store. The State also presented evidence that Craig Lindhorst , McCreary’s acquaintance, had stolen a Taurus

brand .45 semiautomatic pistol and sold it to

McCreary.

McCreary filed pre-trial motions to

suppress his oral statements made during the video-recorded interview

(the “recorded statements”) and his oral statement, during fingerprinting,

complimenting the deputy’s .45 caliber service weapon (the “unrecorded

statement”), contending that

the statements were obtained in violation of provisions of the Family Code

governing statements by a juvenile. After hearing testimony and argument at

trial, the trial court denied the suppression motions and admitted McCreary’s

statements into evidence.

Admissibility of

Statements by a Juvenile

“A motion to suppress is nothing more

than a specialized objection to the admissibility of evidence.” Simmons v. State , 288 S.W.3d 72 , 76 − 77

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d ). McCreary argues that the trial court

erred by admitting his recorded and unrecorded statements because they were

custodial statements taken in violation of sections 51.095, 52.02 and 52.025 of

the Family Code. See Tex. Family Code Ann . §§ 51.095 (West 2008) (governing admissibility of

statements by juvenile), 52.02 (West 2008) (governing taking of juvenile into

custody), 52.025 (West 2008) (governing designation of juvenile processing

office). Specifically, with respect to the oral statements

recorded during his interview with Detective Latham, McCreary asserts that

Detective Latham violated the Family Code by (1) conducting the interrogation

at the Webster police station instead of a juvenile processing office as

required by sections 52.02 and 52.025 and (2) failing to have a magistrate give

McCreary the statutory warnings required by sections 51.095(a )( 1)(A)

and 51.095(a)(5). With respect to his unrecorded statement — “you got a chrome .45, man, that’s

nice” — McCreary

asserts that sections 51.095(a )( 1)(A) and 51.095(a)(5)

likewise preclude its admission in evidence because he made the statement while

in custody, he made the statement in response to “conversational interaction”

with Detective Palermo, and he was not given any statutory admonishments by a

magistrate. We disagree that the provisions of the Family Code precluded the

admission of McCreary’s statements in evidence.

I. Standard

of Review

We review the trial court’s ruling on a

motion to suppress the statement of a juvenile under the same abuse of

discretion standard as a motion to suppress the statement of an adult in a

criminal proceeding. Balentine v. State , 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); In re D.J.C. , 312 S.W.3d 704 , 711 (Tex.

App.—Houston [1st Dist.] 2009, no pet.). When, as here, the trial court

makes factual findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those findings. State v. Iduarte ,

268 S.W.3d 544, 548 (Tex. Crim. App. 2008). At a suppression hearing,

the trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. Cantu v. State , 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). We

give great deference to the trial court’s determination of historical facts. Iduarte , 268 S.W.3d at 548 ; In re

D.J.C. , 312 S.W.3d at 711. Mixed

questions of law and fact that turn on the credibility and demeanor of a

witness are reviewed under the almost-total-deference standard; however, mixed

questions of law and fact that do not turn on the credibility and demeanor of a

witness are reviewed de novo. Iduarte , 268 S.W.3d at 548 ; In re D.J.C. , 312 S.W.3d at 711. If

the trial court’s ruling is correct under any theory of law applicable to the

case, the ruling will be sustained. Iduarte , 268 S.W.3d at 548 ; In re D.J.C. , 312 S.W.3d at 711.

II. Custodial Interrogation of a Juvenile

Because McCreary was a juvenile at the time of his arrest,

the provisions of the Family Code control certain issues involving his

substantive rights. Roquemore v. State , 60 S.W.3d 862, 866 (Tex.

Crim. App. 2001); Comer v. State , 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (noting that “issues involving substantive

rights of pre-transfer juveniles, such as legality of detention or a

confession, though raised in a criminal forum,” are governed by applicable

provisions of Family Code). “The

Family Code seeks to strike a balance between the competing interests of public

safety and child welfare. This balance is struck in part by limiting the

investigative function of the police.” Roquemore , 60 S.W.3d at 872 (citing Comer , 776 S.W.2d at 193, 196). Evidence obtained in violation of the

applicable provisions of the Family Code must be suppressed. See Tex.

Code Crim. Proc. Ann. art.

38.23(a) (West 2005) (“No evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws of the State of Texas .

. . shall be admitted in evidence against the accused on the trial of any

criminal case.”); see also Jeffley v. State , 38 S.W.3d 847, 854 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d ) (observing that

unlawfully obtained statements are inadmissible against juvenile in criminal

proceedings treating juvenile as adult).

The admissibility of custodial

statements made by a juvenile is governed by section 51.095 of the Family Code.

See Tex.

Family Code Ann . § 51.095.

Subsection 51.095(a)(5) provides that a juvenile’s oral statement is admissible

if these conditions are satisfied: (1) the statement is made while the child is

in the custody of an officer, in a detention facility or other place of

confinement, or in possession of the Department of Family and Protective

Services; (2) the statement is recorded by an electronic recording device; and (3)

at some time before making the statement, “the child is given the warning

described by Subdivision (1)(A) by a magistrate, the warning is part of the

recording, and the child knowingly, intelligently, and voluntarily waives each

right stated in the warning.” [2]

Id. § 51.095(a )( 5). A juvenile’s oral statement made as a

result of custodial interrogation without the benefit of a magistrate warning

is inadmissible at trial. See id. §

51.095(a )( 5), (b)(1); see also Tex. Code Crim. Proc. Ann. art.

38.22 §§ 2, 3 (West 1979 & Supp. 2000). But “[a]

statement of a juvenile that is not the product of custodial interrogation is

not required to be suppressed by section 51.095[.]” In re D.J.C. , 312 S.W.3d at 712 n.1; see Meadoux v. State , 307 S.W.3d 401, 408

(Tex. App.—San Antonio 2009), aff’d on other grounds ,

325 S.W.3d 189 (Tex. Crim. App. 2010) (“A voluntary oral statement by a

juvenile that does not stem from custodial interrogation is admissible, even if

the juvenile did not receive the statutory admonishments.”).

Custodial interrogation is questioning that is initiated by

law enforcement after a person has been taken into custody or otherwise

deprived of his freedom in any significant way. See Stansbury v. California , 511 U.S.

318, 322 , 114 S. Ct. 1526, 1528 (1994); In

re D.J.C. , 312 S.W.3d at 712 (addressing whether juvenile was in custody

for purpose of determining admissibility of confession in juvenile delinquency

proceeding). “A custodial interrogation occurs when a defendant is in custody

and is exposed ‘to any words or actions on the part of the police . . . that

[the police] should know are reasonably likely to elicit an incriminating

response.’” Roquemore ,

60 S.W.3d at 868 (quoting Rhode Island v.

Innis , 446 U.S. 291, 301 , 100 S. Ct. 1682 , 1689 − 90 (1980)). A juvenile is in custody

if, under the objective circumstances, a reasonable child of the same age would

believe his freedom of movement was significantly restricted. Jeffley , 38 S.W.3d at 855 .

Our analysis involves two steps. In re D.J.C. , 312 S.W.3d at 712.

First, we determine whether there was a formal arrest or restraint of movement

to the degree associated with an arrest by examining all of the circumstances

surrounding the interrogation. Stansbury , 511 U.S. at 322 , 114 S. Ct. at 1528 − 29; In

re D.J.C. , 312 S.W.3d at 712. This determination focuses on the

objective circumstances of the interrogation, not on the subjective views of either

the interrogating officers or the person being questioned. Stansbury , 511 U.S. at 322 , 114 S. Ct. at 1528 − 29; In

re D.J.C. , 312 S.W.3d at 712. “[T]he restriction upon freedom of

movement must amount to the degree associated with an arrest as opposed to an

investigative detention.” Dowthitt v. State , 931 S.W.2d 244, 255 (Tex.

Crim. App. 1996).

Second, we consider whether, in light of the circumstances, a

reasonable person would have felt that he was at liberty to terminate the

interrogation and leave. In

re D.J.C. , 312 S.W.3d at 712. Courts have traditionally considered

four factors in making this determination: (1) whether probable cause to arrest

existed at the time of questioning; (2) the subjective intent of the police;

(3) the focus of the investigation; and (4) the subjective belief of the

defendant. Id. Because the custody

determination must be based upon the objective circumstances, however, the

subjective intent of both the interrogating officers and the person being

questioned is irrelevant except to the extent that intent is manifested in

words or actions. Id.

A juvenile may be in custody when he is interrogated alone by

an armed police officer in an enclosed space. See In re D.J.C. , 312 S.W.3d at 713; see also In re D.A.R. , 73 S.W.3d 505 , 511 − 12 (Tex. App.—El Paso 2002, no pet.).

Being the focus of an investigation alone does not amount to being in custody. Meek v. State , 790 S.W.2d

618, 621 (Tex. Crim. App. 1990). Neither does stationhouse questioning,

in and of itself , constitute custody. Dowthitt , 931 S.W.2d at 255 . When the circumstances show that an

individual acts upon the invitation or request of the police and there are no

express or implied threats that he will be forcibly taken, that person is not

in custody. Dancy v. State , 728 S.W.2d 772 , 778 − 79 (Tex. Crim. App. 1987); In re D.J.C. , 312 S.W.3d at 713.

“The mere fact that an interrogation begins as non-custodial, however, does not

prevent it from later becoming custodial; police conduct during the encounter

may cause a consensual inquiry to escalate into custodial interrogation.” Dowthitt , 931 S.W.2d at 255 .

Four general situations may constitute custody: (1) when the

suspect is physically deprived of his freedom of action in any significant way,

(2) when a law enforcement officer tells the suspect that he cannot leave, (3) when

law enforcement officers create a situation that would lead a reasonable person

to believe that his freedom of movement has been significantly restricted, or

(4) when there is probable cause to arrest and law enforcement officers do not

tell the suspect that he is free to leave. See id. ; In re D.J.C. , 312 S.W.3d at 713.

McCreary relies on the fourth situation. The existence of

probable cause, in and of itself, does not establish that a suspect is in

custody. Dowthitt ,

931 S.W.2d at 255 . Custody requires that the law

enforcement officer’s knowledge of probable cause be manifested to the suspect.

See id . “Such manifestation could

occur if information substantiating probable cause is related by the officers

to the suspect or by the suspect to the officers.” Id. Additionally, other circumstances must lead a reasonable person

to believe that he is under restraint to the degree associated with an arrest. Id.

When a juvenile is taken into custody,

Section 52.02 of the Family Code applies. In re D.J.C. , 312 S.W.3d at 715.

Section 52.02(a) provides, in relevant part, that a person taking a juvenile

into custody must immediately bring that juvenile to a designated juvenile

processing office or perform one of several other enumerated acts. Tex. Family Code Ann . § 52.02(a). A failure on the

part of law enforcement to comply with the requirements of section 52.02 may

render a statement obtained from a juvenile inadmissible. See In re U.G. , 128 S.W.3d 797, 799 (Tex. App.—Corpus Christi 2004,

pet. denied) (holding juvenile’s statement inadmissible when, after being

placed in custody, police took juvenile to police station and held juvenile in

area where adult suspects were being held instead of taking juvenile “to a

juvenile processing office or any of the places listed as an alternative” in

section 52.02).

A. The recorded statements

The trial court determined that the

recorded statements made by McCreary during his interview with Detective Latham

were admissible because the statements did not arise from custodial

interrogation. The trial court further concluded that probable cause to arrest

McCreary did not exist at the time he gave the recorded interview and that,

under the circumstances of the interview, no reasonable fifteen-year-old would

have felt that he was not free to terminate the interview. In reaching these

conclusions the trial court made the following fact findings on the record: ( i ) on the first day detectives made contact with McCreary,

McCreary voluntarily went to the police station with the consent of his mother;

(ii) McCreary only stayed at the police station for a short while, having been

informed that he was not under arrest; (iii) McCreary left the police station

on his own accord; (iv) the next day, McCreary initiated further contact with

detectives by telephone and asked for a second opportunity to give a statement,

(v) having been on probation in juvenile court before, McCreary was a “worldly

15-year-old” familiar with arrest procedures; (vi) McCreary voluntarily gave

the recorded interview; (vii) McCreary concluded the interview “with words that

he was done”; and (viii) McCreary asked for and received a ride home following

the interview. Because the evidence adduced at the

suppression hearing (i.e., the videotaped interview and Detective Latham’s

testimony regarding its circumstances), viewed in the light most favorable to

the trial court’s ruling, supports the trial court’s findings, we afford the

findings almost total deference. See Iduarte , 268 S.W.3d at 548 ; In

re D.J.C. , 312 S.W.3d at 711 .

Applying the first

part of our analysis, we examine all the circumstances surrounding McCreary’s

interview with Detective Latham to determine whether there was a formal arrest

or restraint to the degree associated with an arrest. See In re D.J.C. , 312 S.W.3d at 712 . It is undisputed that McCreary was

never handcuffed and was not formally arrested until well after the interview;

in fact, immediately after the interview, the detectives gave McCreary a ride

home. McCreary twice agreed to accompany the detectives to the police station

and make a statement. En route to and from the police station, McCreary rode in

the front passenger seat of the detective’s vehicle, not in the back seat of a

marked patrol vehicle. Before making any statement, McCreary was told more than

once that he was not under arrest and was free to leave at any time. On both

days McCreary was at the police station, the detectives placed him in an

interview room and shut the door. Nonetheless, on the detective’s first attempt

to question McCreary, McCreary asked to leave. The detectives permitted him to exit

both the interview room and the police station unhindered. On the second day,

McCreary endured one hour of questioning before he stopped the interview on his

own accord. The detectives again permitted McCreary to leave the police station

unhindered. Based on all the objective circumstances surrounding the interview,

the trial court reasonably could have concluded that McCreary was not under

formal arrest nor restrained of freedom to the degree associated with an arrest

at the time he made the recorded statements.

Turning to the second

part of our analysis, we consider whether a reasonable fifteen-year-old in the

same circumstances as McCreary would have felt free to terminate the interview

and leave. See id. In making this

determination, we look first to the objective factors of the existence of

probable cause to arrest McCreary and the focus of the detectives’

investigation and then to the detectives’ and McCreary’s subjective intents as

manifested by their words and actions. Id.

Detective Latham testified that there was limited evidence of McCreary’s

involvement in Pham’s death at the time of the interview—specifically, two

anonymous tips about McCreary, a witness who placed McCreary at the store

shortly before the shooting, and clothing and an I-Pod recovered from

McCreary’s home. Detective Latham acknowledged, however, that McCreary was the

only suspect in Pham’s death.

As to his subjective

intent, Detective Latham testified that he did not believe that probable cause

existed to arrest McCreary either before the interview commenced or after

McCreary made incriminating statements. Although Detective Latham accused

McCreary of capital murder more than once during the interview, his words and

actions during the interview were consistent with a subjective intent not to

arrest McCreary. Detective Latham told McCreary during the interview that an

arrest would not be made until there was a stronger case. Detective Latham

never handcuffed or restrained McCreary, and Detective Latham permitted

McCreary to freely leave the police station upon his request. As to the

subjective beliefs manifested by McCreary’s words and actions, the record

demonstrates that McCreary acknowledged he was making his statement

voluntarily, he was not under arrest, and he was free to leave. Each time

McCreary asked to leave the police station, the detectives permitted him to do

so. Nothing in the record demonstrates that McCreary felt he was not free to

withdraw his agreement to answer Detective Latham’s questions.

Considering all the

circumstances and the weight of the four traditional factors, we conclude that

a reasonable fifteen-year-old in the same situation as McCreary would have felt

free to terminate the interview and leave.

We therefore hold that the trial court was within its discretion in

concluding that McCreary was not in custody at the time he made his recorded

statement; consequently, the provisions of the Family Code governing the taking

of a juvenile into custody and the admissibility of custodial statements by a

juvenile do not apply. See Meadoux , 307 S.W.3d at 408 . Because the provisions of the Family Code

do not apply, McCreary’s recorded statement was admissible in evidence. The

trial court did not abuse its discretion by denying McCreary’s motion to

suppress the recorded statement.

B. The unrecorded statement

Regarding McCreary’s unrecorded statement — “you got a chrome .45, man, that’s

nice” — the

trial court made a critical fact finding: “the statement made was spontaneous

and not the result of any questioning.” McCreary disagrees on

appeal that the statement was spontaneous because “the State’s proffer during

the hearing outside the presence of the jury [established] that there was a

conversational interaction between [Detective] Palermo and [McCreary] prior to

[McCreary’s] statements about the deputy’s firearm.” The standard by which we

must review the trial court’s denial of McCreary’s motion to suppress, however,

requires us to give almost total deference to the trial court’s finding of

historical fact when that finding is supported by the record. See Roquemore , 60 S.W.3d at 868 . And, here,

the record supports a finding that the statement was made spontaneously . According to Detective

Palermo’s testimony at the suppression hearing, McCreary was detained in a

juvenile detention facility on unrelated charges for two days before the State

accepted the capital murder charge arising from Pham’s death. Detectives Palermo

and Quintana received instructions to process McCreary on the new charge and

add his fingerprints to AFIS. While the detectives were processing McCreary, a

Harris County Deputy Sheriff walked by with a service pistol, and McCreary,

without prompting from either detective, stated “you got a chrome .45, man, that’s nice.” Because “[a]

statement of a juvenile that is not the product of custodial interrogation is

not required to be suppressed by section 51.095[,]” we hold that the trial

court did not abuse its discretion by denying McCreary’s motion to suppress the

unrecorded statement. See In re D.J.C. ,

312 S.W.3d at 712 n.1 .

Conclusion

Having determined that the

trial court did not err by refusing to suppress McCreary’s recorded and

unrecorded statements to police, we overrule his sole issue on appeal. The

trial court’s judgment is affirmed.

Harvey Brown

Justice

Panel consists of Justices Bland, Massengale, and

Brown.

Do not publish. Tex.

R. App. P . 47.2(b).

[1] See

Tex. Penal Code Ann . §

19.03(a )( 2) (West 2011).

[2]

The warnings required to be given by section 51.095(a)(1)(A) are as

follows:

(i)

the

child may remain silent and not make any statement at all and that any

statement that the child makes may be used in evidence against the child;

(ii)

the

child has the right to have an attorney present to advise the child either

prior to any questioning or during the questioning;

(iii)

if the

child is unable to employ an attorney, the child has the right to have an

attorney appointed to counsel with the child before or during any interviews

with peace officers or attorneys representing the state; and

(iv)

the child has the

right to terminate the interview at any time[.]

Tex. Family Code Ann . § 51.095(a )( 1)(A).