Mims v. State

607 S.W.3d 419

Bobby Ray MIMS, Appellant

v.The STATE of Texas, Appellee

06-20-00027-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: July 3, 2020

Date Decided: July 28, 2020

Discretionary Review Refused November 18, 2020

Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, TX, for Appellant.

Val Varley, Red River District Attorney, Clarksville, TX, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Stevens

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.

I. 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 Miranda¹ 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.

A. 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

B. 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, 86 S.Ct. 1602 ). This is because custodial interrogation places " ‘inherently compelling pressures’ on the persons interrogated." Thompson v. Keohane , 516 U.S. 99, 107, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (quoting Miranda , 384 U.S. at 467, 86 S.Ct. 1602 ).

"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, 86 S.Ct. 1602 ). "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, 86 S.Ct. 1602 ; 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, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (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, 132 S.Ct. 1181, 182 L.Ed.2d 17 (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, 116 S.Ct. 457 ). "Generally, a person is considered to be in...