Francis E. Talmadge v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

Nos. 04-98-01003-CR & 04-98-01004-CR
Francis Estella TALMADGE,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court Nos. 95-CR-5580 & 95-CR-5581
Honorable Pat Priest, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: May 3, 2000

AFFIRMED

Appellant, Francis Talmadge, plead nolo contendere to two counts of Arson.(1) The trial court assessed punishment at ten years probation. Prior to her plea, Talmadge sought to suppress her written statements given to the investigating officers, arguing they did not comport with the requirements of Tex. Crim. Proc. Code Ann. art. 38.22 2 (Vernon 1994). The trial court denied the motion to suppress. On appeal, Talmadge challenges the admission of her written confession to the charged offense. Talmadge avers the trial court should have excluded the written statement because it was a product of custodial interrogation, and she did not receive the warnings required by Tex. Crim. Proc. Code Ann. art. 38.22 2 (Vernon 1994).

Standard of Review

A trial court's ruling on a motion to suppress is reviewed with the abuse of discretion standard. See Santos v. State, 822 S.W.2d 338, 339 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). We "should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Furthermore, we "should afford the same amount of deference to trial courts' rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Id. However, we may review de novo mixed questions of law and fact not falling within this category.

Tex. Crim. Proc. Code Ann. art. 38.22

Tex. Crim. Proc. Code Ann. art. 38.22 provides:

No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Custody

In Dowthitt v. State, 931 S.W.2d 244, 254-57 (Tex. Crim. App. 1996), the Court of Criminal Appeals discussed the determination of whether a person is in "custody" and outlined four general situations that may constitute custody for purposes of Article 38.22. These situations are: (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 he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. See Dowthitt v. State, 931 S.W.2d at 255.

When the fourth situation has occurred, the officer's knowledge of probable cause must be manifested to the suspect. See id. However, the fourth situation does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe she is under restraint to the degree associated with an arrest. See id.

Art. 38.22 warnings

At the time Talmadge's questioning began, she was not a suspect. However, her answers to the officers' questions were inconsistent, and the officers' further interrogation eventually elicited an oral confession from Talmadge. Because a reasonable person would have realized the nature of her admission, the officers' knowledge of probable cause must have been manifest to Talmadge. However, as Dowthitt makes clear, there must be other circumstances present in order to establish the custodial nature of the situation. See Bradley v. State, 960 S.W.2d 791, 803 (Tex. App.-El Paso 1997, pet. ref'd).

In this case, the circumstances surrounding the questioning of Talmadge do not establish custody. Talmadge arrived on her own and left on her own. She was not arrested. She was never handcuffed, placed in a cell, or restrained in any way. She was only questioned for a short period of time. She was never told she could not leave; in fact, she was told she could terminate the interview and leave whenever she wanted. In light of the facts, as determined by the trial court, we hold Talmadge was not in custody at the time she gave her written confession.

Conclusion

Under the circumstances of this case, the failure to include the warnings mandated by Tex. Crim. Proc. Code Ann. art. 38.22 2 on the face of Talmadge's written statement does not render it inadmissible, and the trial court did not err in overruling Talmadge's motion to suppress. The judgments of the trial court are affirmed.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. See Tex. Pen. Code Ann. 28.02 (Vernon 1994)