Kelly, Reginald Tyrone v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed November 17, 2005

Affirmed and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00619-CR

NO. 14-04-00620-CR

____________

REGINALD TYRONE KELLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause Nos. 965,179 & 965,180

M E M O R A N D U M O P I N I O N

In a single trial, a jury convicted appellant, Reginald Kelly, for possession of a controlled substance, namely cocaine, weighing less than one gram, including any adulterants and dilutants, and unauthorized use of a vehicle. See Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon Supp. 2004), '' 481.115(a)B(b) (Vernon 2003); Tex. Pen. Code Ann. ' 31.07 (Vernon 2003). The jury assessed punishment at eight years= confinement on each cause, to run concurrently, and assessed a $500 fine. In a single issue, appellant contends the trial court erred in admitting into evidence his unrecorded oral statements made during custodial interrogation. We affirm.

 I. FACTUAL BACKGROUND

On October 16, 2003, two Houston Police officers, Sergeant Coker and Officer Lummus, pulled over appellant because the car appellant was driving had been reported stolen. The officers immediately handcuffed appellant, searched him for weapons, placed him in the back seat of the patrol car, and read him his Miranda rights. Shortly thereafter, Sergeant Coker, while standing outside the vehicle, saw three rocks of crack cocaine inside the car in an open compartment to the left side of the steering wheel.

While Sergeant Coker inventoried the car, Officer Lummus spoke by telephone to the woman who owned the car, Billie Coleman. Coleman told Officer Lummus her purse and keys were inside the car when it was stolen. After speaking with Ms. Coleman, Officer Lummus asked appellant where he got the car, and appellant stated he got the car Afrom a man named Billie Coleman.@ Officer Lummus responded to appellant=s answer by telling appellant Billie Coleman was a female, not a male. Officer Lummus then told appellant Coleman=s purse was missing from inside the car. Appellant did not respond to Officer Lummus= statement about the whereabouts of the missing purse. Instead, appellant wanted his cell phone from inside the stolen car. Officer Lummus explained to appellant she could not give him the phone because she did not know whether the phone belonged to Coleman or appellant. When Officer Lummus did not give appellant the phone, appellant told Officer Lummus, AWell, that=s my cell phone. Her purse is over there where I am staying.@ Appellant then told Officer Lummus the purse could be found under a pile of clothes. The officers went to the location, appellant=s aunt=s house, and retrieved the purse Coleman had described and its contents, including Coleman=s identification and credit cards. The officers next transported appellant to jail. En route, appellant told the officers, AHow can ya=ll take me to jail when I have cooperated with you? That lady is getting her car back and her purse.@ All the preceding statements made by appellant were oral and unrecorded.

II. DISCUSSION

Appellant contends the trial court erred in admitting into evidence his unrecorded oral statements made during custodial interrogation. Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of oral statements by an accused. It provides in pertinent part:

Sec. 3.(a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

* * *

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of fact or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Tex. Code Crim. Proc. Ann. art. 38.22 '' 3(a)(1), (c) (Vernon 2005).

Appellant does not provide any specific citation to the record pinpointing the exact statements of which he complains on appeal. However, the record reveals in a pre-trial hearing, appellant sought to exclude evidence as to three statements made by appellant. The trial judge overruled appellant=s hearsay objections to each statement.

Appellant made three statements after officers arrested him. After speaking to Coleman to verify whether the vehicle was actually stolen, Officer Lummus approached appellant, discussed the circumstances by which appellant had this particular vehicle, and inquired into the location of Coleman=s purse. During that conversation initiated by Officer Lummus, appellant made two statements: (1) AWell that=s my cell phone. Her purse is over there where I=m staying@ and (2) he got the car Afrom a man named Billie Coleman.@ Appellant made a third statement while police transported appellant to jail: AHow can ya=ll take me to jail when I have cooperated with you? That lady is getting her car back and her purse.@ We will analyze each of those statements in turn.

A. Appellant=s statement while in the back of the police car

In his brief, appellant appears to not attack the admissibility of his third unrecorded oral statement in which he asked the officers, AHow can ya=ll take me to jail when I have cooperated with you? That lady is getting her car back and her purse.@ Appellant appears to concede the statement was not made in response to custodial interrogation initiated by police. However, because that concession is not clear, we will evaluate that statement=s admissibility.

A court should not find an accused=s statement inadmissible simply because the accused made the statement while in custody. See Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984). Whether police expressly or implicitly questioned the suspect at the time the suspect made a statement determines the voluntariness of a statement. Ramirez v. State, 105 S.W.3d 730, 741 (Tex. App.CAustin 2003, no pet.). When an accused in custody spontaneously volunteers information not in response to earlier interrogation by authorities, the statement is admissible even though not recorded because it is not the product of a custodial interrogation. Stevens, 671 S.W.2d at 520; Sanchez v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979); Meador v. State, 811 S.W.2d 612, 620 (Tex. App.CTyler 1989) (holding statements made by appellant en route to the Justice of the Peace office were voluntary and not the product of any custodial interrogation or its functional equivalent), aff=d, 812 S.W.2d 330 (Tex. Crim. App. 1991).

At trial, both Officer Lummus and Sergeant Coker testified about appellant=s third statement. The prosecutor asked both Officer Lummus and Sergeant Coker if the defendant made any voluntary statements while being transported to jail. Both answered by referring to the same statement by appellant. The record indicates appellant spontaneously volunteered his statement to the police, and police did not elicit this statement through questioning. Therefore, we find no error in the admission of this statement.

B. Appellant=s statement as to the location of Coleman=s missing purse found under a pile of clothes in appellant=s bedroom

As a general rule, under Article 38.22, section 3(a), oral confessions are inadmissible. Tex. Code Crim. Proc. Ann. Art. 38.22 ' 3(a) (Vernon 2005). However, section 3(c) provides an exception whereby unrecorded statements, which assert facts or circumstances establishing the guilt of the accused, are admissible if, at the time they were made, they contained assertions unknown by law enforcement but later corroborated. See id. ' 3(c); Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999); Dansby v. State, 931 S.W.2d 297, 298 (Tex. Crim. App. 1996). Thus, subsequent corroboration of previously unknown facts in an oral statement will make an unrecorded oral statement admissible. Woods v. State, 152 S.W.3d 105, 117 (Tex. Crim. App. 2004). Such corroborated statements need only circumstantially demonstrate the defendant=s guilt. Id.; Moore, 999 S.W.2d at 400B01.

After making the unrecorded oral statement, AWell that=s my cell phone. Her purse is over there where I=m staying,@ appellant also told Officer Lummus where he stayed and where they could find the purse at that location. The police did not previously know the purse=s location because the purse was not in Coleman=s car where Coleman left it. Furthermore, Officer Lummus testified she would not have discovered the location of the purse without appellant=s statement because the purse was not located at the address listed on appellant=s driver=s license. Sergeant Coker testified he recovered the purse exactly where appellant directed the officers, under a pile of clothes in the bedroom where appellant slept.

Appellant contends since he was charged with drug possession and unauthorized use of a motor vehicle, and not with taking the vehicle without consent, or with taking any of the vehicle=s contents, the recovery of the purse was not the recovery of fruits of the offense, and appellant=s statements about the purse should not have been admitted over objection. The example given in section 3(c) of Article 38.22, Afinding of secreted or stolen property or the instrument with which he states the offense was committed,@ is illustrative only and is not a limitation on the statements that may be found to be true and conduce to establish guilt. Gunter v. State, 858 S.W.2d 430, 447B48 (Tex. Crim. App. 1993). The corroborated assertion of fact, the location of the purse, unknown to the police at the time appellant made his statement, conduces to establish the guilt of appellant as to the unauthorized use of Coleman=s vehicle. See Moore, 999 S.W.2d at 400B01. Coleman testified she filed a report with the police that her missing vehicle also contained her purse, and officers found Coleman=s purse hidden under a pile of clothes in appellant=s bedroom, circumstantially demonstrating appellant=s guilt. See Woods, 152 S.W.3d at 117. Thus, appellant=s unrecorded oral statement leading the police to Coleman=s purse is admissible.

C. Appellant=s statement that he got the car Afrom a man named Billie Coleman@

Appellant=s statement that he got the car Afrom a man named Billie Coleman@ was part of the same conversation with appellant about the location of Coleman=s missing purse. If any one of the assertions appellant made is found to be true and establishes guilt, the entire oral statement is admissible. See Baldree v. State, 784 S.W.2d 676, 684 (Tex. Crim. App. 1989); Gore v. State, No. 14-01-01135-CR, 2002 WL 31525690, at *2 (Tex. App.CHouston [14th Dist.] Nov. 14, 2002, pet. ref=d) (not designated for publication). Because appellant=s statement regarding the location of Coleman=s purse contained facts found to be true and conduced to establish guilt, the entire oral statement was admissible under Article 38.22, section 3(c). See Moore, 999 S.W.2d at 400B01.

III. CONCLUSION

We find no error in the admission of appellant=s three unrecorded oral statements and overrule appellant=s sole issue on appeal. We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 17, 2005.

Panel consists of Chief Justice Hedges and Justices Anderson and Mirabal.[1]

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Senior Justice Margaret Garner Mirabal sitting by assignment.