Marvin Charles Quinsaat v. The State of Texas--Appeal from 178th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00058-CR

Marvin Charles Quinsaat,

Appellant

v.

The State of  Texas,

Appellee

From the 178th District Court

Harris County, Texas

Trial Court # 883,223

MEMORANDUM Opinion

Appellant appeals his conviction for possession of a controlled substance. Appellant contends in his two issues that the trial court erred in overruling Appellant s motion to suppress evidence. We will affirm.

In Appellant s first issue, he complains of the admission of evidence of an oral statement. First, Appellant argues that this violated his rights under the Fifth Amendment. See U.S. Const. amend. V. The Fifth Amendment does not make unwarned statements inadmissible if the statements are the result of words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see Miranda v. Arizona, 384 U.S. 436 (1966). Here, the arresting officer s question as to whether Appellant had any weapons or contraband on his person was attendant to arrest, and not reasonably likely to elicit Appellant s response that there was a controlled substance in the car. See id.; Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994). Thus, the Fifth Amendment does not bar the admission of Appellant s statement.

Appellant also makes an argument that the admission of the statement violated Article 38.23. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2004). [V]iolations of the Miranda rule are not covered by the state exclusionary rule contained in Article 38.23. Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997). Thus, Article 38.23 does not bar the admission of Appellant s statement.

Appellant also makes an argument that the admission of the statement violated Article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004). Article 38.22 does not bar the admission of an unrecorded statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused. Id. 3(c); see Moore v. State, 999 S.W.2d 385, 400-401 (Tex. Crim. App. 1999). Appellant s assertion of the location of the controlled substance, found to be true, established his guilt of possession of the controlled substance. Thus, Article 38.22 does not bar the admission of Appellant s statement.

Accordingly, the trial court did not abuse its discretion in not suppressing evidence of Appellant s oral statement. We overrule Appellant s first issue.

In Appellant s second issue, he complains of the admission of physical evidence, namely the controlled substance. Appellant argues that the evidence constitutes the fruit of his oral statements that, he contends, are inadmissible. Since we have overruled Appellant s objections regarding the admissibility of those statements, we also overrule Appellant s second issue.

Having overruled Appellant s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Opinion delivered and filed September 15, 2004

Affirmed

Do not publish

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