Creeks v. State

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

The record before us was poorly developed at the revocation hearing as to the *852 exact circumstances under which the incriminating statement was made to the probation officer by the appellant.

It is clear, however, that Storey, the probation officer, testified that on June 23, 1975, he learned the appellant had been arrested for theft and the officer took steps to see that a warrant issued for appellant’s arrest for probation violation on that basis. On the same date the appellant called and informed Storey of his arrest, a fact of which Storey was already aware. On Júne 24 the appellant “on his own” came to the probation office. While Storey testified he did not arrest the appellant and that his “chief” had said, “Do not stop anyone,” the record reflects the following on voir dire examination of Storey by appellant’s counsel:

“Q. You indicated for him to go with you into your office?

“A. Yes, sir. We knew Officers were coming.

“Q. Did you call the Officers?

“A. I believe Lynch called the Officers. We took him out of the central probation room and brought him over to my side and had him sit down. He wanted to call his Attorney. I let him call his Attorney. As a matter of fact, he was on the phone to you whenever the Officers came.” (Emphasis Supplied.)

It was then developed that while waiting for the police to “pick him up” Storey had “this conversation” with the appellant. Over objection that appellant was effectively in custody and under arrest and that any statement was inadmissible, Storey was permitted to relate that the appellant had told him he (the appellant) had stolen some money from the place of business where he worked. There was a showing that no warnings as to his rights were given to the appellant prior to his statement.

Custodial interrogation was defined in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” And such custodial interrogation is not limited to police station house interrogation. Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969).

In Ancira v. State, 516 S.W.2d 924 (Tex. Cr.App.1974), this court cited with approval United States v. Phelps, 443 F.2d 246 (5th Cir. 1971), where it was stated:

“ . . . [w]e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant.”

In light of the record before us it is clear that while the probation officer Sto-rey may not have formally arrested the appellant, the appellant was in fact detained while awaiting the arrival of the arresting officers and was deprived of his freedom of action in a significant way. The record reflects appellant’s understanding of his situation as he asked and was permitted to call his attorney to whom he was talking when the arresting officers arrived. Prior thereto, he had made the incriminating statement to Storey without any warnings being given.

It is true that Miranda does not bar volunteered statements, Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), but nothing in this record shows that it was volunteered rather than being elicited by Storey after the appellant was detained. If it is the State’s position that the statement was volunteered, then in light of the objection it was incumbent upon the State to so show.

It is true that in Cunningham v. State, 488 S.W.2d 117 (Tex.Cr.App.1972), this court held that an admission by a probationer to his probation officers, even as a result of questioning during a reporting session, was not an in-custody interrogation *853 condemned by Miranda under the circumstances there presented. See also Kirven v. State, 492 S.W.2d 468 (Tex.Cr.App.1973). However, in footnote # 3 of Cunningham at p. 120 the court cautioned:

“It is not our intention to hold that Miranda can never be applicable to any contact, interview, interrogation, visit, etc. between a probationer and his probation officer regardless of the circumstances.” State v. Lekas, 201 Kan. 579 , 442 P.2d 11 (1968).

It appears that the statement was admitted in violation of Miranda .

Even if it can be argued that Miranda cannot be so interpreted, we are still left with the provisions of Article 38.22, Vernon’s Ann.C.C.P., which prohibit the admissibility of oral statements while in custody unless such statements are found to be true “which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.” Sec. (l)(e). This statute would also have called for the exclusion of the statement. There being no showing that the statement was admissible as exception to Article 38.22, supra, or Miranda , the court erred in admitting the same.

Since it is clear from the opinion on original submission that the appellant’s statement to the polygraph operator was likewise inadmissible, the State’s motion for rehearing is denied.