NO. 74,040






Johnson, J., delivered the unanimous opinion of the court.


On December 14, 2000, appellant was convicted of capital murder for murdering two people during the same criminal transaction, alleged to have occurred on or about October 25, 1997. Tex. Penal Code Ann. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071 2(h). Appellant raises five points of error. We affirm.

In his first point of error, appellant claims that the trial court committed reversible error by failing to make findings of fact and conclusions of law regarding the voluntariness of his statement pursuant to Article 38.22, section 6. On December 3, 2002, a supplemental clerk's record containing the required findings and conclusions was filed with this Court. Appellant's first point of error is dismissed as moot. Nenno v. State, 970 S.W.2d 549, 552 (Tex. Crim. App. 1998), overruled in part on other grounds, Terrazas v. State, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999).

In appellant's second point of error, he contends that the trial court committed reversible error by admitting appellant's custodial statements in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article 1, section 10 of the Texas Constitution; and Texas Code of Criminal Procedure Articles 1.05, 14.01-06, 38.22, and 38.23. Appellant maintains that his confession was the result of an illegal arrest. (2)

At the hearing on appellant's motion to suppress his custodial statements, the state presented evidence that on October 26, 1997, appellant was riding in a car with Donnie Tran (Donnie) and two others. Police stopped the car because they had a warrant for Donnie's arrest for the offense of murder. (3) When Donnie's car came to a stop, the officers were not immediately able to determine which passenger was Donnie. Therefore, all of the occupants of the car were handcuffed as they exited the vehicle. As soon as Donnie was identified, the officers removed the handcuffs from appellant and the other passengers.

Detective Todd Miller testified that after removing appellant's handcuffs, he explained that Donnie was being arrested for murder. Miller then told appellant that he was not under arrest and was free to leave if he so desired. However, Miller asked if appellant would accompany him to the police station to discuss the murder for which Donnie was arrested and the instant capital murder. Appellant agreed and went with Miller to the police station.

When Miller and appellant arrived at the police station, Miller took appellant to an interview room and asked if he wanted anything to drink or if he needed to use the restroom. Appellant replied that he did not. Miller reiterated that appellant was not under arrest and asked appellant if he understood that to be the case. Appellant replied that he did.

In accordance with Article 38.22, Miller read appellant his rights. When he finished reading appellant his rights, Miller asked appellant if he understood his rights. Appellant replied that he did. Appellant then agreed to waive his rights and speak to Miller.

The interview began at approximately 12:30 a.m. on October 27, 1997. Despite the late hour, appellant was well rested. He related to Miller that he slept until 6:00 p.m. the day before. Miller questioned appellant about the murder Donnie was arrested for and also informed appellant that he had information that appellant was involved in the two murders in this case. Shortly after the interview began, appellant asked to use the restroom. Miller showed appellant where the bathroom was, and appellant left the interview room. Appellant was not escorted by police officers. Upon his return, appellant confessed to being involved in the two murders in this case.

After appellant confessed, Miller placed him under arrest. Miller asked appellant if he would give a written or recorded statement. Appellant agreed to give a statement and asked that it be written. Miller then read appellant his Article 38.22 warnings again. Miller asked appellant if he still understood his rights, and appellant replied that he did.

Appellant then dictated his statement while Miller typed it. After appellant finished dictating, Miller gave appellant a copy and asked him to read it to make sure it was accurate. Appellant indicated that it was. Before appellant signed his statement, Miller left the interview room and, following Houston Police Department procedure, asked Officers Motard and Hale to interview appellant and present him with a questionnaire regarding the voluntariness of his statement without Miller present. Motard and Hale entered the interview room and, in response to their questions, appellant answered that he was Son Tran, that the statement was his, that he read the entire statement, that he was not promised anything in exchange for his statement, that no one forced him to make the statement, that he was not physically abused, that Miller read him his rights and he understood them, that he agreed to give up his rights, that he made his statement of his own free will, that he did not want to make any corrections, that he did not have any questions, and that he could read. The officers then asked appellant to read an oral waiver. Appellant agreed and acknowledged orally that "prior to and during the making of this statement I intelligently, voluntarily waived or gave up the rights set out above and gave the following voluntary statement." Appellant initialed the questionnaire and signed his written statement. He was then transported to the Harris County Jail.

In his written statement, appellant related that, although he and two others were involved in luring the victims to the location of their deaths, it was Donnie who actually shot the victims. Miller relayed this information to the officers who were interviewing Donnie and the other passengers of the car. After comparing notes, Miller discovered a discrepancy between appellant's version of events and the version of one of his accomplices.

In an effort to reconcile the conflicting statements, Miller had appellant brought back from the jail to an interview room later that day. He read appellant his Article 38.22 rights one more time and asked appellant if he understood his rights. Appellant replied that he did and agreed to speak with Miller. Miller then presented appellant with the statement of his accomplice, which identified appellant as the actual shooter in this case. Confronted with these statements, appellant said that he knew that Miller would find out eventually. Appellant then confessed that he was, in fact, the actual shooter in this case. Miller asked appellant to make a corrected written statement, which appellant did. Miller then followed the same procedure that he had employed with appellant's first statement to verify that this second, corrected statement was given voluntarily. Officers Waters and Abbondandolo read appellant the questionnaire regarding the voluntariness of his statement. Appellant again initialed the questionnaire, acknowledged his statement was given voluntarily, and signed his corrected statement.

Appellant asserts that his confession resulted from an illegal arrest, and that therefore, it was inadmissible as the fruit of such illegal arrest. Appellant discusses factors which can demonstrate a break in the causal chain between an illegal arrest and a subsequent statement and seems to presume that he was arrested at the same time that Donnie was arrested. Appellant acknowledges that Officer Miller testified that Tran was not under arrest and was free to leave, but insists that he was never given any opportunity to do so at the scene because he was placed in handcuffs in the back seat of a police vehicle and whisked away before ever being told that he was not under arrest. He also asserts that, in spite of Officer Miller testifying that he was free to leave and offering him drinks and the ability to use the bathroom, such were simply offers indicating that he was not free to leave, but could simply get a drink and use the bathroom before talking to the police and could expect to be with police for some time.

The record reflects that, at the suppression hearing, Officer Miller testified that, after it was determined which of the four occupants of the vehicle was Donnie, the handcuffs were removed from all of the others, including appellant. Officer Miller also testified that at that point no weapons were drawn and that he explained to appellant that he was not under arrest, but rather that Donnie was under arrest. According to Miller, appellant agreed to go to the police station and talk about what he knew about the murder cases. Miller also testified that appellant was not handcuffed during either interview. Officer Ladd, who was working with Officer Miller at the time of Donnie's arrest, also testified at the suppression hearing and corroborated Miller's testimony about appellant being unhandcuffed at the scene, being told that he was not under arrest, and being asked to accompany them to the homicide office to talk about what he knew about the case.

Appellant and another passenger who was in the car when Donnie was arrested testified at the suppression hearing. That passenger indicated that he believed that he was under arrest, that he did not have any choice about getting in the police car. He also testified that he was subsequently transported to a police station and only after he was taken inside the building were the handcuffs removed.

Appellant testified that he was placed in an unmarked police vehicle and driven off with three officers while he was still handcuffed, without any explanation of his destination or the reason for the stop. Appellant also testified that he did not believe he had any choice other than to comply with the officers' instructions and indicated that no one told him whether he was under arrest or not. He said that he knew where they were going only when he read "Police Station" on the building. After they entered and he was taken upstairs, one of the officers pointed out a sign on the wall that read "homicide." He testified that only after he was placed in a little interview room was he uncuffed. When asked if there was ever a time when it was explained to him that he was not under arrest, appellant replied, "No, sir. They told me I was under arrest in the beginning." He reiterated that he was not told that he was not under arrest or was free to go, nor that they ever asked if he would like to accompany them to answer some questions about Donnie's case. He testified that, right when he was placed in the interview room, he was told that he was arrested for murder and that was the reason he was down there.

The trial court entered findings of fact and conclusions of law that the officers who testified at the suppression hearing, including Miller and Ladd, were "truthful and credible" and that appellant's oral statement and two written statements, "were made voluntarily, knowingly, and intelligently." The trial court also specifically found that, when Donnie was arrested: 1) Officer Miller explained to appellant that he was not under arrest and was free to leave if he so desired; 2) Officer Miller asked appellant if he would be willing to go with police to their offices to discuss his knowledge of the offense for which Donnie had been arrested; and 3) that appellant agreed to accompany them to their offices. The trial court further found that no officer threatened, coerced, or compelled appellant to go to the police station and that his decision to do so was solely the product of his free will. The trial court's conclusions of law included that appellant was not placed under arrest at the scene of the traffic stop and was not under arrest until after his first oral confession, when Officer Miller told him he was under arrest.

In a motion to suppress hearing, the trial court is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). A trial court's ruling on a suppression motion lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We review a trial court's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial court's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); see also, Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(we review mixed questions of law and fact de novo if the resolution of the ultimate questions does not turn on an evaluation of credibility and demeanor). As in all cases involving a determination of whether a Fourth Amendment "seizure" has occurred, we assess the encounter by looking at the totality of the circumstances. Hunter v. State, 955 S.W.2d 102, 204 (Tex. Crim. App. 1997).

Article 15.22 states, "A person is arrested when he has been actually placed under restraint or taken into custody by an officer ...." "A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)(citing Stansbury v. California, 511 U.S. 318 (1994)). Where circumstances show that a person voluntarily accompanies police in the investigation of a crime and knew, or should have known, that the police might suspect that he is implicated in the offense, and he is not being forced, coerced or threatened, the act is voluntary and the person is not then in custody, even if he is acting upon the invitation, urging, or request of police. Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994).

In reviewing a trial court's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal, supra, 935 S.W.2d at 138.

The record supports the trial court's finding that appellant voluntarily agreed to accompany police to discuss the offense for which Donnie had been arrested and its conclusion that appellant was not under arrest at the scene of the traffic stop. Because the totality of the circumstances reflected by the record supports the trial court's conclusions, we hold the trial court did not abuse its discretion in overruling appellant's motion to suppress and in admitting his statements into evidence. Appellant's second point of error is overruled.

In his third and fourth points of error, appellant alleges that the trial court erred in failing to compel the testimony of his co-defendants, Truc Hoang and Donnie Tran, at the motion to suppress hearing and at the trial. When the defense called Truc and Donnie to testify at the suppression hearing, and again at trial, they both asserted their Fifth Amendment privilege against self-incrimination. The trial court ruled that Truc and Donnie could not be compelled to testify. Appellant did not object to the trial court's ruling and did not make an offer of proof as to what Truc and Donnie would have testified to, had they been so compelled. (4) Appellant has not, therefore, preserved error for our review. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000)(even constitutional error may be waived on appeal if not preserved by objection); Green v. State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1020 (1993)(when claiming error in the trial court's acceptance of a co-defendant's assertion of a Fifth Amendment claim not to testify, absent an offer of proof, nothing is preserved for review). Appellant's third and fourth points of error are overruled. (5)

In his fifth point of error, appellant asserts reversible error by the trial court "in failing to require the state to give notice of 'intent to use' extraneous offenses or misconduct of the appellant" under Tex. R. Evid. 404(b). Appellant does not specify any particular extraneous offense or misconduct evidence that was admitted without notice, but rather claims reversible error because the state failed to provide the requisite notice.

On the morning that trial on the merits began, just after appellant was arraigned outside the presence of the jury, appellant argued that, because he had received no notice, no evidence of any prior arrests or extraneous bad acts and two other killings should be admitted. The state responded that the other killings were part and parcel of this capital murder, which occurred during a two-week crime spree, and that they were same-transaction contextual evidence. The state noted that defense counsel had made numerous trips to the state's office to review the materials. The state also argued that actual notice had been provided in the form of the confession and the complete offense report, which laid out the other two killings, and that these offenses are so intertwined that it would be virtually impossible for the police officers to testify without reference to the two extraneous killings. The trial court stated that it would allow the state to introduce evidence of motive, preparation, and plan in regards to the extraneous killings in a limited capacity, and that it believed that appellant had received notice. The trial court did say that it would entertain objections at trial if appellant thought the state was going far outside of Rule 404(b) and that it would rule on those objections at that time. The trial court reiterated that appellant needed to object so that the court would know what he was complaining about, as it was possible that some evidence could help him and he might then choose not to complain.

Before the punishment phase began, appellant pointed out that, several months earlier, the trial court had granted his motion for discovery of extraneous offenses and ordered the state to provide notice of any extraneous offenses it reasonably expected to utilize as part of its case in chief at either guilt/innocence or punishment. The state again indicated that the extraneous offenses would involve the other killings, which were described in appellant's own confession, and that appellant had been given a copy thereof. It also stated that appellant's counsel had, on several occasions, come and reviewed the entire state's file, which was open, remained open, and included the entire offense report, autopsy reports, photographs, and everything else related to the extraneous killings. Appellant acknowledged that surprise was not the question, but rather the question was notice of the state's intent. The trial court overruled appellant's objection.

Appellant's brief does not cite any specific extraneous offense evidence about which he did not receive notice. We shall therefore limit our discussion to his complaint about the lack of notice with regard only to the evidence which was discussed when he objected at trial, i.e. the two extraneous killings.

Rule 404(b) provides that evidence of other crimes, wrongs or acts may be admissible for non-character conformity purposes provided that, upon timely request by the defendant, reasonable notice of the state's intent to introduce such evidence in the state's case-in-chief is given in advance of trial. Rule 404(b) excepts evidence arising in the same transaction.

Article 37.071, which sets out the punishment-phase procedures after conviction of capital murder, "contains no notice provision with regard to the introduction of [evidence of] unadjudicated, extraneous offenses." Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App.), cert. denied, 531 U.S. 980 (2000). Thus, appellant's complaint about not receiving notice with regard to the punishment phase has no merit.

With regard to appellant's complaints about not receiving notice of the state's intent to use evidence of the two extraneous killings at the guilt/innocence phase, certainly an "open file" does not provide reasonable notice of intent to introduce evidence in the state's case-in-chief. Buchanan v. State, 911 S.W.2d 1, 15 (Tex. Crim. App. 1995). While "open file" is not sufficient notice, in Hayden v. State, 66 S.W.3d 269, 271-72 (Tex. Crim. App. 2001), we held that delivery to the defense of witness statements detailing extraneous offenses can satisfy the notice requirements of Rule 404(b). We pointed out that the provision's purpose is to prevent surprise. Id. at 272. In Hayden, we also noted that the defendant did not dispute the state's claim that he had actual notice, and that reasonable notice is implicit in the delivery if it follows upon the heels of the timely request for notice. Id. We also pointed out that, while the record in Hayden did not reflect how soon after its receipt of the request for notice the state responded with its delivery of the witness statements, the defendant should have communicated to the court that he had not made the connection between his request for notice and the state's delivery of witness statements. Id.

The record reflects that appellant's Motion for Discovery of Extraneous Offenses, which requested that the state provide "notice of any extraneous offenses which the [s]tate may seek to introduce as evidence," was filed on August 15, 2000, and was "granted by agreement" August 24, 2000. The above-mentioned discussion about the extraneous offense notice on the morning that trial on the merits began occurred on December 11, 2000. Appellant did not dispute the state's assertions that actual notice had been provided in the form of the confession and the complete offense report which laid out the other two killings. As noted above, during the discussions before the punishment phase began, appellant acknowledged that surprise was not the issue. Appellant also does not dispute the state's claim that appellant's statement, which included detailed descriptions of his involvement in the two extraneous killings, was entered into evidence at guilt/innocence in a redacted form, with those references to his involvement in the extraneous killings being excised. The record reflects that the statement was entered into evidence at guilt/innocence in such redacted form, and the trial court specifically stated that some of the objections thereto had been sustained and some were overruled, and that it had made rulings ordering that certain information be deleted from the statement because it had made findings that certain things in the statement were not relevant and not admissible. The unredacted statement, which included the details of the extraneous killings, was not admitted into evidence until the punishment phase.

Based upon the record, we cannnot conclude that the trial court abused its discretion in concluding that appellant was provided with reasonable notice of the state's intent to use evidence of the two extraneous killings at guilt/innocence. Appellant's fifth point of error is overruled.

We affirm the judgment of the trial court.

Johnson, J.

Delivered: April 2, 2003

En banc

Do Not Publish

1. Unless otherwise indicated, all future references to articles refer to the Texas Code of Criminal Procedure.

2. We observe that appellant's pretrial motion to suppress did not explicitly seek to suppress his confession as the fruit of an illegal arrest, but rather focused on claims that the confession was involuntary or coerced, and that he was deprived of his right to counsel and did not waive such right. Appellant's motion did state that, at the time he confessed, he was under arrest or was so substantially deprived of his constitutional liberties that, under the surrounding circumstances, his detention constituted an arrest. In light of this assertion, the severity of the sentence, and in the interests of justice, we shall address the merits of appellant's claim on appeal. See, e.g., Burks v. State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995); Vuong v. State, 830 S.W.2d 929, 936 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992).

3. Donnie Tran was arrested for a murder dubbed by police as the "Rose Club killing," which took place just days before the two victims in this case were killed. The Rose Club killing is related to the present case because the victims in this case assisted Donnie and appellant in killing the victim at the Rose Club. The two victims in this case were shown to have been killed because Donnie and appellant were concerned they would admit to the Rose Club killing, if questioned by police.

4. The record reflects that, at the suppression hearing, appellant called the two witnesses to testify and they each stated that they would like to exercise their Fifth Amendment right not to give testimony at the hearing. After Donnie was questioned by the trial court and invoked his right not to testify, appellant simply stated that "I think he has the right not to incriminate himself ... I'm not sure he has the right not to testify." He did not object to the trial court's ruling or argue in contravention of that ruling with regard to either witness. At trial, after the state rested, appellant stated that he wanted to put the two co-defendants on the witness stand "and have them reiterate what they said." Outside the presence of the jury, the two witnesses again indicated that they wanted to invoke their Fifth Amendment right not to testify. Again, appellant failed to object to or argue against the trial court's ruling.

5. We also observe that this Court has held that a person's constitutional privilege against self-incrimination overrides and is superior to a defendant's constitutional right to compulsory process of witnesses. Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986); Ellis v. State, 683 S.W.2d 379, 383 (Tex. Crim. App. 1984). We have also held that a trial court cannot compel a witness to answer questions unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken in asserting the privilege, and that the answer cannot possibly tend to incriminate the witness. Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984).