State v. Jennifer Lujan ( 2013 )

NO. 07-12-00068-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 29, 2013
THE STATE OF TEXAS, APPELLANT
v.
JENNIFER LUJAN, APPELLEE
FROM THE COUNTY COURT OF TERRY COUNTY;
NO. 28604; HONORABLE J. D. WAGNER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellee Jennifer Lujan was charged by information with driving while
intoxicated. She filed a motion to suppress various testimonial statements allegedly
elicited by police during custodial interrogation. After a hearing on her motion, the trial
court signed an order granting the motion. The State has appealed. 1 Finding no
evidence in the record supporting the ruling of the trial court, we will reverse its order.
1
Tex. Code Crim. Proc. Ann. § 44.01(a)(5) (West Supp. 2012).
Background
The very limited evidentiary record on suppression, consisting only of the
testimony of a Brownfield, Texas police officer, shows that the officer responded to the
scene of a motor vehicle collision involving a vehicle operated by appellee. According
to the officer, the collision occurred in the “middle of the road.” Suspecting appellee of
intoxication, the officer placed her in his vehicle and transported her to the police station
for field sobriety testing. In his opinion, the sally port at the station was a safer location
for performing the tests than the scene of the accident.
On the way to the station appellee asked the officer, “If I pass this test will I be
free to leave?” The officer responded, “I can’t predict the future.” The officer did not
read appellee Miranda 2 warnings before conducting the field sobriety tests.
A video and audio recording of the stop and at least part of the field sobriety tests
apparently was made, but it was not admitted into evidence in the trial court and is not
part of the appellate record.
Appellee filed a pre-trial motion seeking suppression of evidence. Specifically,
she alleged while in custody law enforcement obtained various unspecified statements
from her in violation of the United States and Texas Constitutions and the Texas Code
of Criminal Procedure. The following exchange between the trial court and appellee’s
counsel at the conclusion of the suppression hearing further defines appellee’s
suppression objective.
2
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
The Court: So what you’re asking is to leave [the officer’s] testimony and
the video out completely?
[Appellee’s Counsel]: I’m asking from the point that he places her that he
says her--she had no right to leave. When he places her under temporary
detention, from that point forward, to be suppressed. At the very least or
alternatively, I’m asking at the point where he is actually asking her
questions to her and she’s eliciting responses from her at that--I feel like
that must be suppressed. I also feel like the field sobriety test and any
testimony regarding that should be suppressed as well.
***
The Court: I’m going to rule on the defendant’s motion.
[Appellee’s Counsel]: All evidence to be suppressed to the point that
she’s placed in temporary detention? (sic)
The Court: Yes, ma’am.
The written order of suppression merely states appellee’s motion was granted.
Analysis
The State frames the issue for review as, “Whether the video and audio
recordings of field sobriety tests and testimony regarding same are admissible as
evidence when the peace officer did not give the suspect Miranda warnings prior to
speaking with the suspect.” Disagreeing, appellee believes the question is “whether the
Trial Court erred in granting her suppression motion, a somewhat broader question than
the issue addressed by the State.”
In reviewing the ruling of a trial court’s motion to suppress evidence, we give
“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
3
(Tex.Crim.App. 1997). We review de novo questions of law and “mixed questions of
law and fact” that do not depend upon credibility and demeanor. Montanez v. State,
195 S.W.3d 101, 106 (Tex.Crim.App. 2006).
Appellee’s written motion to suppress sought exclusion of statements made by
her. Although there is much discussion in the hearing record regarding questions posed
to appellee by the officer during the course of their interaction, the record provides us
with evidence of only one express statement made by appellee. We will address that
statement. The officer testified that on the way to the police station appellee asked him,
“If I pass this test am I going to be free to leave?” Article 38.22 codifies the Miranda
warnings. Lemmons v. State, 75 S.W.3d 513, 519 (Tex.App.--San Antonio 2002, pet.
refused). The Miranda protections against self-incrimination come into issue only when
the defendant is subjected to custodial interrogation seeking testimonial responses.
Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Williams
v. State, 116 S.W.3d 788, 791 (Tex.Crim.App. 2003) (noting Fifth Amendment applies
only to incriminating evidence that is testimonial in nature). Custodial interrogation is
questioning initiated by law enforcement officers after a person is taken into custody or
otherwise deprived his or her freedom of action in any significant manner. Miranda, 384
U.S. at 444; Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979). Custodial
interrogation includes express questioning of a suspect as well as words or actions by
police (other than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response. Jones v. State, 795
S.W.2d 171, 174 (Tex.Crim.App. 1990), (quoting Rhode Island v. Innis, 446 U.S. 291,
300-02, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)). A communication is testimonial if it
4
“explicitly or implicitly, relate[s] a factual assertion or disclose[s] information.” Williams,
116 S.W.3d at 791 (quoting Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341,
101 L. Ed. 2d 184 (1988)).
As reflected in this record, appellee’s “pass the test” question was just that, a
question, and was not a response to an action of the officer. See Miranda, 384 U.S. at
478 (“Volunteered statements of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding today”). Based on the information
before it, the trial court erred by ordering its suppression.
Other than the “pass the test” question, the record does not contain the
substance of any statements attributable to appellee, whether or not in custody at the
time. It was appellee’s initial burden to identify on the record the statements she sought
to suppress. See Wilkerson v. State, 173 S.W.3d 521, 532 (Tex.Crim.App. 2005) (citing
Paez v. State, 681 S.W.2d 34, 36 (Tex.Crim.App. 1984) (mere filing of motion to
suppress does not “thrust a burden on the State to show compliance with Miranda or
article 38.22 warnings”)); Wyss v. State, No. 03-07-00515-CR, 2008 Tex. App. Lexis
6654, at *7 & 7-8 n.3 (Tex.App.--Austin Sept. 5, 2008, no pet.) (mem. op.) (noting initial
burden at pre-trial suppression hearing is on defendant to come forward with evidence).
Appellee having failed to meet that burden, the trial court erred in its broad suppression
order. 3
3
If appellee claims generally that the Miranda warnings are a constitutional
precedent to field sobriety tests, we disagree. See Gassaway v. State, 957 S.W.2d 48,
51 (Tex.Crim.App. 1997) (stating that a recitation of the alphabet and counting
backwards are not testimonial in nature because these communications are physical
evidence of the functioning of the DWI suspect’s mental and physical faculties and any
5
Absence of Findings of Fact and Conclusions of Law
The State timely requested findings of fact and conclusions of law which the trial
court apparently did not prepare. In State v. Cullen, 195 S.W.3d 696, 699
(Tex.Crim.App. 2006) the Court of Criminal Appeals held, “upon the request of the
losing party on a motion to suppress evidence, the trial court shall state its essential
findings. By ‘essential findings,’ we mean that the trial court must make findings of fact
and conclusions of law adequate to provide an appellate court with a basis upon which
to review the trial court's application of the law to the facts.” The State has not
requested that we abate the appeal for preparation of findings and conclusions and,
given the state of the record, we fail to see that findings and conclusions could assist in
the presentation of the appeal. Reiterated, with the single exception we have
discussed, nothing in the record identifies the statements to which appellee’s motion to
suppress was addressed, and no evidence shows the substance of the statements or
the time, place or circumstances in which they were made.
indication of intoxication comes from the suspect’s demeanor, manner of speaking, and
possession of the mental ability for correctly performing the tests); Miffleton v. State,
777 S.W.2d 76, 80 (Tex.Crim.App. 1989) (concluding video recording of DWI suspect’s
field sobriety test was not testimonial in nature and therefore not offensive to the Fifth
Amendment).
6
Conclusion
We reverse the order of the trial court. The case is remanded to the trial court for
proceedings consistent with this opinion. 4
James T. Campbell
Justice
Pirtle, J., dissenting.
Do not publish.
4
We emphasize that our conclusion the evidentiary record presented to us in this
interlocutory appeal does not support the trial court’s order is not a ruling on the
admissibility of any evidence. If objection is raised to the admission of evidence in trial
court proceedings following remand of this case, the decision to admit or exclude the
evidence is left to the sound discretion of that court.
7