# MBUGUA v. State

> Texas Court of Appeals, 1st District (Houston) · March 17, 2010 · 312 S.W.3d 657

URL: https://www.frixlaw.com/law-library/cases/9634813

## Case

- **Full name:** Michael MBUGUA, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 17, 2010
- **Citations:** 312 S.W.3d 657; 2009 WL 2634596
- **Precedential status:** Published
- **Opinion:** Concurrence by Sharp
- **Judges:** Tim Taft
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634813

## How later opinions describe it (automated extraction)

- holding that appellant did not preserve his complaint regarding admissibility of his custodial statement because complaint on appeal did not comport with grounds argued in motion to suppress
- affirming trial court’s decision to redact portion of medical record stating that defendant said he injured his hand “in a fight” because defendant did not explain why it was important for medical professionals to know that cut was from “a fight” or how that “information was i…
- holding that a suspect did not invoke his right to counsel when he asked, “Can I have him present now?” after he was informed of his right to an attorney
- finding no error in jury charge because there was no conflict in the evidence raising a disputed fact that would have mandated a 38.23 jury instruction
- holding that appellant did not clearly and unambiguously invoke right to counsel by questioning, “Can I wait until my lawyer gets here?”

## Opinion text

JIM SHARP, Justice,
concurring.
I am compelled to concur in the decision of the Court and write separately to express my concern over the conduct of the police, trial counsel, and the State in this case.
Appellant was clearly in custody at the time that he first made incriminating statements, and I would expressly so hold. Telling a person repeatedly that he is “not under arrest” will neither cloak all sins nor absolve police from failing to provide a person required warnings 1 before interrogation when that person is, in fact, in custody. Behavior may speak as loudly as words, and when police behavior would cause a reasonable person to feel that he or she was not at liberty to terminate the interrogation and leave, then that person is in custody, no matter how many times an officer may declare otherwise. 2 See *672 Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); Thompson v. Keohane, 516 U.S. 99, 112 , 116 S.Ct. 457, 465 , 133 L.Ed.2d 383 (1995).
In this case, the detective’s refusal to allow appellant to use the telephone at the time that appellant requested it and’ the detective’s statements to appellant that officers would “not allow” him to “to make a phone call right now,” that officers were “going to just have you talk to us right here,” and that appellant could make a phone call “after you talk to us” would have led a reasonable person to believe that his freedom of movement had been significantly restricted, Dowthitt, 931 S.W.2d at 255 , and a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and to leave. 3 Thompson, 516 U.S. at 112 , 116 S.Ct. at 465 .
At that point, appellant was in custody. The police were, therefore, required to provide him with the proper warnings and to receive from him a knowing, intelligent, and voluntary waiver of his rights before questioning him. 4 They did not. They proceeded with a custodial interrogation and did not bother to warn him or to seek a waiver of his rights until after appellant had already given incriminating statements as the result of that custodial interrogation.
The police officers’ failure to timely provide appellant his required warnings is compounded (indeed, fatally) by trial counsel’s failure to preserve this complaint for appellate review, which precludes us from reviewing what seems to me to be the improper admission at trial of statements made as a result of custodial interrogation without proper warnings and without a proper waiver of rights. Trial counsel must be vigilant to properly assert, present, and argue all grounds at trial that are appropriate to suppress a client’s statement that was taken in violation of constitutional or statutory rights. While appellant would undoubtedly have been convicted even without the admission of his statement (the often recited phrase by prosecutors to describe sure-win cases — “like shooting fish in a barrel”— has rarely beén more appropriate), he may well not have had his own words used against him if the rights that are granted to all under our laws had been properly championed by the person who had the particular duty to do so.
Lastly, the State need not have introduced this statement to secure appellant’s conviction. Appellant was witnessed by at least two people in the commission of this offense. Appellant’s wrecked vehicle was at the scene, complete with a clear trail from that vehicle to the decedent. And, although forensic scientists at the Houston Police Department did not trace appellant’s fingerprints to the knives found on site, there was little need to — fingerprints *673 should be a mere footnote in a case file when a piece of the appellant’s actual finger was left behind! Thus, the use of appellant’s constitutionally suspect statement against him was not only violative of his rights, but wholly unnecessary to secure justice.
. See Tex.Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).
. A person is in “custody” during an interrogation if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). In other words, given these circumstances surrounding the interrogation, would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and to leave? See Thompson v. Keohane, 516 U.S. 99, 112 , 116 S.Ct. 457, 465 , 133 L.Ed.2d 383 (1995).
. The State refers us to Lewis v. State, 737 S.W.2d 857, 862 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). However, the section to which the State directs us in Lewis is one in which the State was arguing that access to the telephone during the day was indicative of a lack of coercion. Id. It does not support an argument that the deprivation of access to a telephone is not indicative of custody. Indeed, deprivation of the use of a telephone is one indicator of police coercion. See Haynes v. Washington, 373 U.S. 503, 509-10 , 83 S.Ct. 1336, 1341 , 10 L.Ed.2d 513 (1963); Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim.App.1985), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998).
. See Tex.Code Crim Proc. Ann. art. 38.22, § 3(2) (Vernon 2005) (prohibiting admission of oral statement of accused as result of custodial interrogation unless, prior to statement, required warnings were given and accused knowingly, intelligently, and voluntarily waived rights).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634813. Public record. Not legal advice.