Charles Hugh Firth v. The State of Texas--Appeal from 5th District Court of Bowie County

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana




No. 06-04-00094-CR








On Appeal from the Fifth Judicial District Court

Bowie County, Texas

Trial Court No. 03F0701-005



Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss



On August 11, 2003, while investigating Bowie County burglaries committed by someone driving a red car, sheriff's deputy George Huggins interviewed Charles Firth, // after Firth waived his Miranda // rights. Sheriff's investigator Joe Langehennig witnessed the interview. // Firth commented that he did not drive a red car, but instead drove a purple or burgundy Toyota Corolla. Langehennig asked Firth no questions during that interview, but remembered a report by Sally LaBombard that, apparently unrelated to the "red car" burglaries being investigated, a man in a burgundy Toyota Corolla had burglarized her home August 7. Firth was asked no questions about the LaBombard burglary at the time. No part of the August 11 interview was electronically recorded.

Langehennig later confirmed the vehicle description with LaBombard. He then prepared a photographic lineup, from which LaBombard identified Firth as the man who burglarized her home. On August 13, Langehennig interviewed Firth concerning the LaBombard burglary. Firth was warned of his rights, but waived those rights and gave a written statement in which he confessed to the LaBombard burglary. Langehennig later located Firth's burgundy Toyota at a local car dealership.

Before his resulting trial for burglary of a habitation, // Firth moved to suppress his written statement, arguing that his August 11 oral statement's "noncompliance with Article 38.22" rendered the August 13 written statement "fruit of the poisonous tree." The trial court overruled Firth's motion to suppress and entered its findings of fact and conclusions of law. // The trial court found that the officers warned Firth of his constitutional rights pursuant to Miranda and that Firth waived those rights before making incriminating statements. A Bowie County jury found Firth guilty and recommended the maximum sentence of twenty years. The trial court sentenced Firth accordingly.

The written statement was properly admitted, so we affirm the judgment. We reach that conclusion because we hold (1) the August 11 statement was admissible under Article 38.22, and (2) even if the August 11 statement was inadmissible, the August 13 statement was not excludable on either constitutional or statutory grounds.

In reviewing the trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to those facts. See id.

(1) The August 11 Statement Was Admissible Under Article 38.22

Article 38.22 of the Texas Code of Criminal Procedure sets out the conditions to be met before the State may use a suspect's oral statement against him or her:

No oral . . . 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 . . . is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.


Tex. Code Crim. Proc. Ann. art. 38.22, 3(a).

Article 38.22 also provides that, if a suspect's custodial statement contains incriminating facts that are later found to be true, the statement is admissible at trial:

Subsection (a) of this section shall not apply to any statement which contains assertions of facts 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(c). The phrase "found to be true" means something "the police are unaware [of] at the time of the confession [and is] later, after the confession, found to be true." // Romero v. State, 800 S.W.2d 539, 544 45 (Tex. Crim. App. 1990). Such corroborated oral statements need only circumstantially demonstrate the defendant's guilt. Moore v. State, 999 S.W.2d 385, 400 01 (Tex. Crim. App. 1999). The two examples listed in Section 3(c) are for illustrative purposes only and do not act as a limitation on qualifying oral statements. Port v. State, 791 S.W.2d 103, 106 (Tex. Crim. App. 1990).

Here, LaBombard had reported to Langehennig that, when she approached her house on August 7, there was a burgundy Toyota Corolla parked in her driveway. So, Langehennig knew, before the interview, that the suspect in that burglary drove such a car. Firth's statement, however, that he owned a burgundy Corolla was previously unknown by the police officers. Langehennig confirmed this fact and located the vehicle. His ownership of the car connected him to the LaBombard robbery. Therefore, this single assertion of fact was conducive toward Firth's guilt and thus rendered the oral statement admissible in its entirety.

We do not have any details as to the means of corroborating Firth's ownership of the burgundy Corolla. However, the Texas Court of Criminal Appeals has confirmed that Article 38.22 places "no limitation" on the manner in which the facts asserted are corroborated. See id.; Briddle v. State, 742 S.W.2d 379, 388 (Tex. Crim. App. 1987). Langehennig does not testify to the details of that part of his investigation. The record shows only that he did confirm Firth owned the burgundy Corolla shown in the photograph. So, the record provides sufficient evidence to draw the conclusion that Langehennig did corroborate the information in Firth's oral statement to the officers. Regardless of how Langehennig located the vehicle, the important consideration is that he did, in fact, locate it. See Port, 791 S.W.2d at 108.

A potential issue could arise by focusing on the fact that Langehennig already knew that a burgundy Corolla was used in the August 7 burglary. The impact that prior knowledge has on the "found to be true" element of Subsection (c) was outlined in Port. During the course of the investigation of a missing postal carrier, Debra Sue Schatz, Port's father reported that his son was missing and that there were bullet holes inside their house. Id. at 105. The father also handed over a pistol that smelled as if it had been fired recently. Id. A consensual search of the Port home yielded further incriminating evidence against the missing Port. Id.

When Port was apprehended and after he was read his Miranda rights, Port explained that he shot the victim in the head twice with his .22 caliber pistol. Id. Later, when Port saw the gun that had been given to the police, he asked if that was his gun and stated he recognized it as the gun he used to kill the victim. Id. at 106. On appeal, Port challenged the admission of these two statements at trial, arguing that the circumstances did not satisfy Tex. Code Crim. Proc. Ann. art. 38.22, 3(c). Id. at 104. The intermediate court of appeals had held that Port's statements were inadmissible because the incriminating facts in Port's statements were either already known or failed to conduce to show guilt. Id. The Texas Court of Criminal Appeals rejected the court of appeals' interpretation of Article 38.22, Section 3(c), concluding that the results of the victim's autopsy confirmed the victim had been shot twice in the head. Id. at 108. Therefore, the first statement was rendered admissible under Article 38.22. Id. As to the second statement, the court noted the police already had custody of the gun. Id. However, the court pointed out, Port's assertion that the gun was the one he used to kill the victim was not found to be true until ballistics tests confirmed that the gun in question was the gun used to kill the victim. Id.

In contrast, when the record contained no evidence that the fact was actually corroborated in any manner, the Texas Court of Criminal Appeals held that the Section 3(c) exception was not satisfied. See Romero, 800 S.W.2d at 545. Such is not the case here. While, here, we have scant evidence of the manner in which Langehennig corroborated Firth's statement, we do have evidence that he did corroborate the fact by locating the car. Under the current state of the law concerning Section 3(c), we conclude the record contains sufficient corroboration to establish the reliability of Firth's oral statement. See Briddle, 742 S.W.2d at 388.

We conclude the limited exception of Tex. Code Crim. Proc. Ann. art. 38.22, 3(c) applies to the unrecorded oral statement here since the statement led to corroboration of previously-unknown facts which tended to prove Firth's guilt in this case. Application of this exception touches on the admissibility of only the unrecorded oral statement, not the subsequent written statement, the admission of which Firth complains. Nevertheless, since the unrecorded oral statement could have been properly admitted into evidence, there can be no taint that would follow from it and attach to the subsequent written statement. //

(2) Even if the August 11 Statement Was Inadmissible, the August 13 Statement Was Not Excludable on Either Constitutional or Statutory Grounds


Even if Article 38.22, Section 3(c) did not apply to the unrecorded statement taken August 11, that does not require exclusion of the August 13 written statement. To fully understand this point, we examine Article 38.22 in its two major components: the constitutional safeguards consistent with Miranda and the statutory guidelines for admissibility of an oral statement. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). The Fifth Amendment privilege against self-incrimination is protected during custodial interrogation by certain procedural safeguards delineated in Miranda. These constitutional safeguards have been codified in the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22. Beyond the constitutional requirements, the additional recording requirements with which law enforcement officers must comply in order for an oral statement to be admissible have been treated as evidentiary in nature rather than constitutionally protected.

Firth does not contend the oral statement of August 11 was involuntary or coerced. Firth contends, merely, that "his written confession was obtained following a previous oral statement which was inadmissible pursuant to Article 38.22 of the Texas Code of Criminal Procedure, thereby making his written confession 'fruit of the poisonous tree.'"

Whether Firth complains of a failure to provide him warnings in compliance with Miranda or a failure to record the oral statement pursuant to Tex. Code Crim. Proc. Ann. art. 38.22, 3(a)(1), // we hold that any noncompliance with Article 38.22 did not taint the subsequent written statement. That is true because (a) officers complied with Miranda and (b) noncompliance with Article 38.22's statutory component does not require exclusion of a subsequent statement.

(a) The Officers Complied with Miranda

Under our standard of review, we afford a great deal of deference to the trial court's findings when those findings turn on issues of credibility. Here, both officers testified that Firth was warned of his constitutional rights before the August 11 questioning and that Firth waived those rights.

We defer to the trial court's finding that Deputy Huggins properly warned Firth in compliance with Miranda and Article 38.22's codification of Miranda. The uncontroverted evidence in the record supports this conclusion. To the extent Firth's point of error raises noncompliance with Miranda and Section 3(a)(2) of Article 38.22, we overrule those contentions. //

(b) Noncompliance with Article 38.22's Statutory Component Does Not Require Exclusion of a Subsequent Statement


We next address Firth's point of error as one raising only the failure of the officers to comply with the statutory requirements of Article 38.22, Section 3. Absent an exception, the failure to record Firth's oral statement made August 11 would render Firth's oral statement inadmissible. Such a failure would not, however, implicate Firth's constitutional rights against self-incrimination. It follows, as well, that such a failure would have no bearing on the admissibility of any subsequent written statement.

The United States Constitution does not require the electronic recording of oral statements made in response to custodial interrogation. See United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988); Hawes v. State, 125 S.W.3d 535, 541 (Tex. App. Houston [1st Dist.] 2002, no pet.). The Texas Constitution also does not require recording oral statements. Hawes, 125 S.W.3d at 541.

Admission of statements in violation of the recording requirement of Article 38.22 is nonconstitutional error. Nonn v. State, 117 S.W.3d 874, 879 80 (Tex. Crim. App. 2003); Hawes, 125 S.W.3d at 541; see Hernandez v. State, 114 S.W.3d 58, 65 (Tex. App. Fort Worth 2003, pet. ref'd); Davidson v. State, 42 S.W.3d 165, 167 (Tex. App. Fort Worth 2001, pet. ref'd). Because errors committed with respect to the recording requirements of Article 38.22 do not implicate a defendant's constitutional rights, the effect of any such error would have been limited to the oral statement alone. The "fruit of the poisonous tree" doctrine is a constitutional doctrine and does not apply to statutory noncompliance. No taint would follow to attach to a later statement lawfully taken.

The Austin Court of Appeals applied such a distinction in a recent case with similar facts concerning an appellant's statements to officers. Millslagle v. State, 150 S.W.3d 781, 784 (Tex. App. Austin 2004, pet. dism'd). In Millslagle, the court treated the issue strictly in terms of statutory application and held the failure to record appellant's oral statements did not render his later written statement inadmissible. Id. Millslagle contended that his written statement should not have been admitted because the interrogation that immediately preceded it was not recorded. The Austin court noted that Article 38.22 did not "speak directly to his contention." Id. Although the failure to record appellant's oral statements to officers did render those oral statements inadmissible under Section 3 of the statute, the court pointed out that Section 3 does not govern the admissibility of Millslagle's subsequent written statement. The admissibility of his written custodial statement was governed by Section 2 of Article 38.22, and requirements of Section 2 were clearly satisfied. Id.

The court went on to discuss its opinion in Horton v. State, 78 S.W.3d 701 (Tex. App. Austin 2002, pet. ref'd), in which it similarly upheld the admission of a written statement made immediately after the accused made a voluntary, but unrecorded, oral statement. The court dispelled Millslagle's misunderstanding of its holding in Horton, reiterating that the written statement was not tainted by the inadmissible oral statement. Id.

We conclude Firth's contention fails because his unrecorded oral statement was admissible under Article 38.22, Section 3(c) of the Texas Code of Criminal Procedure. The factual assertions he made in that statement were later found to be true and tended to show his guilt. Even if that conclusion is incorrect, the officers' noncompliance with respect to Firth's oral statement did not taint his subsequent written confession. The trial court properly admitted the written statement. We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice


Date Submitted: March 29, 2005

Date Decided: June 23, 2005


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