Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Stevens OPINION A Red River County jury convicted Bobby Ray Mims of aggravated robbery after watching a recording of his confession. Mims was sentenced to life imprisonment and was ordered to pay $2,391.00 in restitution to the owner of the gaming arcade that he robbed at gunpoint. On appeal, Mims argues that (1) the trial court erred in allowing the admission of the recording and (2) the record fails to support the amount of restitution ordered. Because we find that Mims’s voluntary confession was not the result of custodial interrogation, we conclude that the trial court did not err in admitting it. We also conclude that the record supports the trial court’s restitution order. As a result, we affirm the trial court’s judgment. Mims Did Not Meet His Burden to Show He Was in Custody During Questioning Mims argues that the trial court erred in admitting his recorded confession because he was not given Miranda[1] warnings or Article 38.22 statutory warnings. Mims also argues that the recorded interview violated his Sixth Amendment right to counsel. The crux of Mims’s argument is that his confession was necessarily the result of custodial interrogation because it was given while he was awaiting trial in jail. Because confinement does not automatically constitute custody that triggers Miranda and Article 38.22 warnings, we disagree with Mims’s conclusion. Instead, we find no abuse of discretion in the trial court’s conclusion that Mims was not in custody at the time of his voluntary confession. We also find that Mims failed to preserve his non-warning-related Sixth Amendment complaints for our review. Factual Background In a hearing outside the presence of the jury, the State informed the trial court that it intended to introduce a recorded statement given by Mims while he was in jail. The State reported that Mims initiated the contact and wished to report that he committed the offense only because he was kidnapped by someone who held a gun to him and forced him to rob the gaming arcade. In response, Mims argued that the recording should be suppressed under Article 38.22 of the Texas Code of Criminal Procedure because Mims was not issued Miranda warnings before his confession. Mims’s counsel also argued, “I was appointed to represent [Mims] on this case. . . and nobody contacted me before he was interrogated.” During the suppression hearing, Freddy Booker, an investigator with the Lamar County Sheriff’s Department, testified that Mims requested to speak with an officer about a grievance. In response to Mims’s written request, Booker brought Mims to the interview room so that, pursuant to office policy, the interview with Mims could be recorded. Booker said that Mims’s statement was completely voluntary and that he had no idea what Mims wanted to talk about. Booker testified, I really didn’t even talk to him. I just sat there and let him talk. And he was talking — he started talking about a robbery case that he was a suspect in with the City of Clarksville, and I just advised him he probably needed to talk to the city police. Rather than heed Booker’s advice, Mims told Booker that he committed the robbery under duress. Booker confirmed that he did not ask any questions about the robbery. Booker also said that he did not Mirandize Mims because he “wasn’t questioning [Mims] about anything” and did not know that Mims was represented by counsel. At the end of the discussion, Booker advised Mims that he “probably needed to write another grievance and ask to speak with the city [police].” When asked if Mims was free to leave, Booker said, “Yeah, he could have went back to . . . his cell at any time he wanted to,” but admitted that he did not expressly inform Mims of that fact. Mims reiterated his argument at the end of the hearing.[2] Applicable Law “The Fifth Amendment to the United States Constitution commands that no person ‘shall be compelled in any criminal case to be a witness against himself[.]“‘ Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (quoting U.S. CONST. amend. V). “The warnings set out by the United States Supreme Court in Miranda . . . were established to safeguard an uncounseled individual’s constitutional privilege against self-incrimination during custodial interrogation.” Id. (citing Miranda, 384 U.S. at 467). This is because custodial interrogation places “‘inherently compelling pressures’ on the persons interrogated.” Thompson v. Keohane, 516 U.S. 99, 107 (1995) (quoting Miranda, 384 U.S at 467). “Prior to any [custodial] questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney.” Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.— Texarkana 2014, pet. ref’d) (quoting Miranda, 384 U.S. at 444). “Under both the Federal constitutional standard and the Texas Confession Statute, evidence obtained as a result of a custodial interrogation is inadmissible unless the State proves the officer gave proper warnings and shows an affirmative waiver of rights by the accused.” Id. at 840 (quoting Hutchison v. State, 424 S.W.3d 164, 175 (Tex. App.—Texarkana 2014, no pet.) (footnotes omitted) (citations omitted)); see Miranda, 384 U.S. at 444; Carter v. State, 309 S.W.3d 31, 35–36 (Tex. Crim. App. 2010) (“Failure to provide the warnings and obtain a waiver prior to custodial questioning generally requires exclusion of statements obtained.”); Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). Yet, “[a]n officer’s obligation to administer Miranda warnings attaches . . . ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”‘” Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)). Also, Article 38.22′s constraints on use of an accused’s statement only apply to custodial interrogations.[3] Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). As a result, “[i]f an accused is not in custody when he makes a statement, then the question of voluntariness does not arise.” Id. Construction of the term “‘custody’ for purposes of Article 38.22 is consistent with the meaning of ‘custody’ for purposes of Miranda.” Herrera, 241 S.W.3d at 526. As explained by the Texas Court of Criminal Appeals, At trial, the defendant bears the initial burden of proving that a statement was the product of “custodial interrogation:” [sic] The mere filing of a motion to suppress does not thrust a burden on the State to show compliance with Miranda . . . warnings unless and until the defendant proves that the statements he wishes to exclude were the product of custodial interrogation. Thus, the State has no burden at all unless “the record as a whole clearly establishe[s]” that the defendant’s statement was the product of custodial interrogation by an agent for law enforcement. It is the defendant’s initial burden to establish those facts on the record. Id. (alteration in original) (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)); see Sloan v. State, 418 S.W.3d 884, 888 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Mims argues that he has met his burden to show he was in custody because he was incarcerated and awaiting trial when he volunteered his confession. But “service of a term of imprisonment, without more, is not enough to constitute Miranda custody.” Howes v. Fields, 565 U.S. 499, 512 (2012). As a result, “[a] prison inmate, like appellant, is not in custody per se” for purposes of application of Miranda or Article 38.22. Sloan, 418 S.W.3d at 889 (citing Nguyen, 292 S.W.3d at 678). This is because there is “no basis for the assumption that the coercive aspects of custodial interrogation are present in every instance in which an inmate is questioned by a law enforcement officer.” Herrera, 241 S.W.3d at 531; see Davis v. State, 533 S.W.3d 498, 511 (Tex. App.—Corpus Christi 2017, pet. ref’d); Washington v. State, No. 07-17- 00427-CR, 2018 WL 4924933, at *5 (Tex. App.—Amarillo Oct. 10, 2018, pet. ref’d) (mem. op., not designated for publication) (“[B]eing incarcerated does not ipso facto equate custody for purposes of affording the inmate his Miranda warnings or otherwise complying with article 38.22 of the Texas Code of Criminal Procedure.”).[4] “Even though an inmate is not at liberty to leave a detention facility, the deprivation of freedom is not absolute.” Herrera, 241 S.W.3d at 531. “Inmates, in varied degrees, retain some level of freedom and autonomy while incarcerated.” Id. “Thus, encounters between a government agent and an inmate will, in some cases, closely resemble situations involving station-house questioning found non- custodial for Miranda purposes.” Id. at 531–32. The United States Supreme Court has clarified that whether an accused “is in custody turns on (1) a factual determination of the circumstances surrounding the interrogation and (2) a legal determination of whether, under the factual circumstances, a reasonable person would feel that he was not free to terminate the questioning and leave.” Colvin v. State, 467 S.W.3d 647, 657 (Tex. App.—Texarkana 2015, pet. ref’d) (citing Thompson, 516 U.S. at 112). “Generally, a person is considered to be in custody for purposes of Miranda and Article 38.22 when: (1) the person is formally arrested; or (2) the person’s freedom of movement is restrained to the degree associated with a formal arrest.” Sloan, 418 S.W.3d at 889 (citing Nguyen, 292 S.W.3d at 677). “However, for a person who is already an inmate of a prison or jail, ‘the question turns on whether, under the facts and circumstances of the case, “a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave.”‘” Id. (citing Nguyen, 292 S.W.3d at 678) (quoting Miranda, 384 U.S. at 532)); see Howes, 565 U.S. at 512. “When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation.” Howes, 565 U.S. at 514. As a result, when evaluating the question of custody in the context of a confession provided by an inmate, we consider, but are not limited by, these factors: the language used to summon the inmate; the physical surroundings of the interrogation; the extent to which the inmate is confronted with evidence of his or her guilt; the additional pressure exerted to detain the inmate or the change in the surroundings of the inmate which results in an added imposition on the inmate’s freedom of movement; and the inmate’s freedom to leave the scene and the purpose, place, and length of the questioning. Herrera, 241 S.W.3d at 532. Standard of Review “We review a trial court’s denial of a motion to suppress for an abuse of discretion.” Elrod v. State, 533 S.W.3d 52, 55 (Tex. App.—Texarkana 2017, no pet.). “[T]he trial court is the ‘sole and exclusive trier of fact and judge of the credibility of the witnesses’” and evidence presented at a suppression hearing, especially when the motion to suppress is based on the voluntariness of a confession. Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007) (quoting Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)); see Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 1973). As a result, we give almost total deference to the trial court when reviewing its factual determination of the circumstances surrounding the interrogation. Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). Yet, because “[a] trial judge’s ultimate ‘custody’ determination ‘presents a “mixed question of law and fact,”‘ . . . when the questions of historical fact do not turn on credibility and demeanor . . . we will review a trial judge’s ‘custody’ determination de novo.” Herrera, 241 S.W.3d 520, 526–27. Analysis The trial court found that Mims was not in custody during the recorded confession.[5] After applying the factors discussed in Herrera, we agree. As for the first factor, the record shows that Mims invited the interview by asking to speak with an officer. Although Booker had Mims sent to the interview room, “taking a prisoner aside for questioning—as opposed to questioning the prisoner in the presence of fellow inmates—does not necessarily convert a ‘noncustodial situation . . . to one in which Miranda applies.’” Howes, 565 U.S. at 512 (quoting Mathiason, 429 U.S. at 495). Instead, when an inmate “summon[s] the [officer] to the jail by asking to speak with them[,] . . . [t]his fact in particular weighs against a finding of custody.” Sloan, 418 S.W.3d at 889. Next, Mims did not argue at trial that the physical surroundings of the interview had any characteristics that would favor a finding of custody, and a recording of the interview shows that the room was fairly large and brightly lit. The recording also showed that Booker and Mims were the only people in the room at the time of the confession. As a result, the second factor weighs against a finding of custody. See Howes, 565 U.S. at 515 (weighing the fact that defendant “was interviewed in a well-lit, average-sized conference room, where he was ‘not uncomfortable,’” against a finding of custody); Sloan, 418 S.W.3d at 889–90. The third factor also does not support Mims. The recording shows that Booker did not confront Mims with any evidence of his guilt. Instead, as soon as Booker entered the room, Mims said he was kidnapped and beaten. In response to Booker’s single question of who had kidnapped him, Mims gave a rambling narrative confession lasting fourteen minutes without interruption from Booker. As for the last two factors, while Mims was handcuffed, Mims introduced no other evidence of additional pressures exerted on him during the interview. After the confession, Booker merely said that he would call the city police and would let Mims tell his story to them. From there, Mims advised Booker on what evidence to obtain to exonerate him. The interview lasted a total of twenty-four minutes, and Mims was never requested to speak about the offense. Booker testified that the purpose of the interview was to investigate Mims’s grievance, and the recording showed that Mims’s purpose for initiating the interview was to establish a defense of duress. Although Booker did not tell Mims that he was free to leave, this fact is “less important. . . because appellant initiated the interview himself.” Id. at 890. Also, Mims did not show that he was not returned to his cell or that his freedom of movement in the jail was further restricted after the interview. “A reasonable person in appellant’s position would understand that he was talking to [Booker] because of his own request to do so, and he could have terminated the interview at his own request.” Id. Based on analysis of the factors discussed in Herrera, we conclude that Mims was not in custody during the interview. As a result, we find no abuse of discretion in the trial court’s admission of Mims’s confession. The Sixth Amendment Complaints Raised by Mims for the First Time on Appeal Are Unpreserved Next, Mims argues that the recorded confession violated his Sixth Amendment right to counsel because he was not warned that he was entitled to have an attorney present, and he did not affirmatively waive his right to counsel. We have rejected Mims’s argument that he was required to be informed of his right to counsel under Miranda and Article 38.22. We also find that Mims did not preserve his remaining Sixth Amendment arguments for our review. To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). These preservation requirements apply to suppression issues like the Sixth Amendment complaint raised by Mims. See Darcy v. State, 488 S.W.3d 325, 330 (Tex. Crim. App. 2016) (a complaint about “the admission of evidence that was obtained in violation of the right to counsel—is of the type of claim that is forfeited by inaction”); Lucio v. State, 351 S.W.3d 878, 909 (Tex. Crim. App. 2011); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). At trial, Mims’s objection focused on the failure to issue Miranda and Article 38.22 statutory warnings. During that discussion, Mims’s counsel generally complained, “I was appointed to represent [Mims] on this case . . . and nobody contacted me before he was interrogated.” Mims did not specifically invoke the Sixth Amendment and never argued that he did not validly waive his Sixth Amendment right to counsel by initiating contact with Booker and voluntarily confessing to the crime. It is also clear that the trial court did not understand that Mims was raising the Sixth Amendment complaints that he now raises on appeal because the trial court only ruled on Mims’s argument related to Miranda and Article 38.22′s statutory warnings. As a result, we find that the Sixth Amendment complaints raised by Mims for the first time on appeal are unpreserved. The Record Supports the Trial Court’s Restitution Order “[T]he amount [of restitution] must be just and supported by a factual basis within the record.” Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014). The owner of the gaming arcade, Greg Russell, testified that the robber took $2,300.00 “and some change.” As a result, Mims argues that the trial court’s restitution order of $2,391.00 was improper. Yet, Mims introduced into evidence a written statement by Russell saying that the robber “got $2,391 in cash.”[6] Because the record supported the full restitution amount, we overrule Mims’s last point of error. Conclusion We affirm the trial court’s judgment. Scott E. Stevens Justice Date Submitted: July 3, 2020 Date Decided: July 28, 2020 Publish
