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Date: 10-12-2020
Case Style:
Joshua Michael Webb v. The State of Texas
Case Number: 10-19-00240-CR
Judge: JOHN E. NEILL
Court: TENTH COURT OF APPEALS
Plaintiff's Attorney: William W. Durham
Taylor Carter
Darian Etienne
Defendant's Attorney:
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Huntsville, TX - Criminal defense lawyer represented defendant charged with Aggravated Sexual Assault.
A trial court’s denial of a motion to suppress is reviewed for an abuse of discretion.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the evidence in the
light most favorable to the trial court’s ruling, see Gutierrez v. State, 221 S.W.3d 680, 687
(Tex. Crim. App. 2007), and we review the trial court’s ruling under a bifurcated standard
of review, giving almost total deference to the trial court’s rulings on (1) questions of
historical fact, even if the trial court’s determination of those facts was not based on the
evaluation of credibility and demeanor, and (2) application-of-the-law-to-fact questions
that turn on the evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666,
673 (Tex. Crim. App. 2007). However, when application-of-the-law-to-the-fact questions
do not turn on credibility and demeanor of the witnesses, we review the trial court’s
ruling on those questions de novo. Id. Furthermore, we review the record to determine
whether the trial court’s ruling is supported by the record and correct under some theory
Webb v. State Page 3
of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003).
B. Applicable Law
Oral confessions of guilt or oral admissions against interest made by a suspect who
is in custody are not admissible unless made in compliance with the provisions of article
38.22 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22; see
also Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985). However, if a person
makes an oral confession of guilt or an oral admission against interest while not in
custody, a different rule applies. See Shiflet, 732 S.W.2d at 623. Article 38.22, section 5
provides that: “Nothing in this article precludes the admission of a statement made by
the accused . . . that does not stem from custodial interrogation . . . .” TEX. CODE CRIM.
PROC. ANN. art. 38.22, § 5. Thus, an oral confession or an oral admission against interest
that does not stem from custodial interrogation, and is given freely, voluntarily, and
without compulsion or persuasion, is admissible evidence against the accused. See Shiflet,
732 S.W.2d at 623. Further, Miranda warnings are required only when the questioning by
police stems from custodial interrogation. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.
Crim. App. 1996).
Custodial interrogation is “questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in
any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed.
Webb v. State Page 4
2d 694 (1966). 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 that he
was not at liberty to leave. See Dowthitt, 931 S.W.2d at 254 (citing Stansbury v. California,
511 U.S. 318, 323-25, 114 S. Ct. 1526, 1529-30, 128 L. Ed. 2d 293 (1994)); see also Herrera v.
State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). The determination of “custody” must
be made on an ad hoc basis after considering all of the objective circumstances. Herrera,
241 S.W.3d at 526.
At least four general situations may constitute “custody”: (1) the suspect is
physically deprived of his freedom of action in any significant way; (2) a law enforcement
officer tells the suspect that he cannot leave; (3) law enforcement officers create a situation
that would lead a reasonable person to believe that his freedom of movement has been
significantly restricted; and (4) there is probable cause to arrest and law enforcement
officers do not tell the suspect that he is free to leave. Gardner v. State, 306 S.W.3d 274,
294 (Tex. Crim. App. 2009). In all four circumstances, the initial determination of
“custody” depends on the objective circumstances of the interrogation, not on the
subjective views of the interrogating officer or the person being questioned. Dowthitt, 931
S.W.2d at 255. In any event, in the first three circumstances, the restriction upon freedom
of movement must amount to the degree associated with an arrest as opposed to an
investigative detention. Id. Regarding the fourth circumstance, the officers’ knowledge
of probable cause must “be manifested to the suspect” to constitute “custody.” Id.
Webb v. State Page 5
Moreover, in determining whether an encounter amounts to an arrest or an
investigative detention, the Court of Criminal Appeals has listed the following factors to
consider: (1) the amount of force displayed; (2) the duration of the detention; (3) the
efficiency of the investigative process and whether it is conducted at the original location
or whether the person is transported to another location; (4) “the officer’s expressed
intent—that is, whether he told the detained person that he was under arrest or was being
detained only for a temporary investigation”; and (5) any other relevant factors. State v.
Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008).
A trial judge’s ultimate “custody” determination “presents a mixed question of
law and fact.” Herrera, 241 S.W.3d at 526 (citing Thompson v. Keohane, 516 U.S. 99, 112-13,
116 S. Ct. 457, 465-66, 133 L. Ed. 2d 383 (1995)). We afford almost total deference to a trial
judge’s “custody” determination when the questions of historical fact turn on credibility
and demeanor; otherwise, we review the trial judge’s “custody” determination de novo.
Id.
C. Discussion
In the instant case, Thomas Bean, a detective with the Walker County Sheriff’s
Office, testified that he met with Webb twice at the Sheriff’s Office. Detective Bean
recounted that Amanda Mernaugh, Webb’s mother, transported Webb, who was
eighteen years old at the time, to the Sheriff’s Office on both occasions. At the first
meeting, Detective Bean introduced himself to Webb, gathered personal information
Webb v. State Page 6
from Webb, and informed Webb that “he was free to leave, that the door was unlocked,
and that he was here voluntarily. . . .” Detective Bean attempted to record the interview;
however, he was unable to recover the video from the interview due to a malfunction
with the hard drive on camera.1
Thereafter, Detective Bean called Webb and arranged for a second interview about
a week later. At the beginning of the second interview, Detective Bean once again
informed Webb that he was free to leave at any time; that the door was unlocked; and
that he was there voluntarily. In his testimony, Detective Bean recalled the following
from the second interview:
I explained to Mr. Webb—well, first off, I thanked him for coming in, told
him that he was free to leave, and I explained to him that I had completed
my investigation, and during that investigation[,] I had found the video
from him purchasing the pregnancy test, and then we observed the video
of the forensic interview, and I explained to him about the pregnancy test,
and I asked him why he didn’t explain—why he said he didn’t do that in
the previous interview, and he said that he had purchased it for his mom.
I asked him why he didn’t tell me in the previous interview, and he told me
that it was her business. I then explained to him about the forensic
interview and all of the stuff that the victim had explained to us about how
he had taught her how to give a hand job and a blow job while she was on
her period, because she couldn’t have sex, and I told him that it was going
to go to the District Attorney’s office next, and that I just needed to hear his
side of the story to find out exactly what was going on, and I wanted him
to be truthful with me, to tell me what was going on. At that point[,] he
told me that they did it. I stopped and I asked him what they did, and he
told me that they had sex. He proceeded to go on and talk about how it
was a mistake, and I stopped him, and I, at that point, read him his
[Miranda] rights.
1 Following a hearing outside the jury’s presence, the trial court excluded any evidence of this initial
interview.
Webb v. State Page 7
Webb then requested an attorney, and Detective Bean stopped the interview and placed
Webb under arrest based on his confession that he had had sex with a thirteen-year-old
girl. It is the trial court’s admission of the statement made during this second interview
that is the basis of Webb’s complaints in the first two issues.
Based on our review of the record, we cannot say that, at the time of Webb’s
confession, a reasonable person would have believed that Webb was under restraint to
the degree associated with an arrest. See Wilson v. State, 442 S.W.3d 779, 784-87 (Tex.
App.—Fort Worth 2014, pet. ref’d). Our conclusion is premised on the following facts:
(1) Webb, an eighteen-year-old adult, voluntarily came to the Sheriff’s Office twice for
interviews and was not transported there by law enforcement2
; (2) Detective Bean
specifically mentioned to Webb that he was free to leave, that the door was unlocked, and
that he was there voluntarily; (3) Detective Bean informed Webb that he only wanted to
get Webb’s side of the story; (4) the encounter lasted only a few minutes before Webb
offered his confession; and (5) Webb had freedom of movement because Detective Bean
did not handcuff or use force on Webb during questioning. See Colvin v. State, 467 S.W.3d
647, 655 (Tex. App.—Texarkana 2015, pet. ref’d) (concluding that the trial court not abuse
2 The fact that Webb’s mother drove Webb to the Sheriff’s Office is of no consequence to our
analysis. Webb does not direct us to any authority holding that the presence of one’s mother somehow
transforms a voluntary encounter between a suspect and law enforcement into a custodial interrogation.
Rather, based on the totality of the circumstances, the record demonstrates that Webb’s participation in the
two interviews was voluntary. See, e.g., TEX. PENAL CODE ANN. § 8.07(b) (West Supp. 2019) (noting that a
person is considered an adult at age seventeen for the purpose of criminal responsibility).
Webb v. State Page 8
its discretion by admitting Colvin’s unwarned confession where the record showed that
the statements were not the product of custodial interrogation given that, among other
things, Colvin agreed to speak with law enforcement and drove himself to the interview;
the interviewing officer told Colvin that he was not being held and that he was not under
arrest; and Colvin was not searched or handcuffed and had freedom of movement); see
also Garcia v. State, 106 S.W.3d 854, 858 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)
(holding that no reasonable person would have believed that Garcia was restrained to the
degree associated with a formal arrest when the record showed that Garcia and his
girlfriend voluntarily came to the police department; the interviewing officer informed
Garcia that he was free to leave, that he was there voluntarily, and that he could talk
about the incident if he chose to do so; the interviewing officer was not armed; and there
was no evidence that Garcia was coerced or forced into making a statement). Therefore,
viewing the evidence in the light most favorable to the trial court’s ruling, we conclude
that Webb’s confession was not the product of a custodial interrogation for which
Miranda warnings were required. See Gardner, 306 S.W.3d at 294; Sheppard, 271 S.W.3d at
291; Dowthitt, 931 S.W.2d at 255, 263. Accordingly, we cannot say that the trial court
abused its discretion by denying Webb’s motion to suppress.3
See Guzman, 955 S.W.2d at
89. We overrule Webb’s first two issues.
3
In his brief, Webb mentioned the issue of “piggybacking,” which involves a situation where law
enforcement obtains incriminating evidence during a custodial interrogation of an individual without first
providing Miranda warnings and then re-obtains the same information after providing Miranda warnings.
Webb v. State Page 9
II. THE STATE’S QUESTIONING OF A PUNISHMENT WITNESS
In his third issue, Webb argues that the trial court erred by permitting the State to
continue questioning a witness during the punishment phase of trial after that witness
invoked her Fifth Amendment privilege against self-incrimination.
At the punishment phase of trial, Webb called Mernaugh as a witness. During
cross-examination, the State questioned Mernaugh about nude photographs of the child
victim in this case that were allegedly sent to Webb. At the outset of this questioning,
Webb objected that this “line of questioning may cause [Mernaugh] to invoke the Fifth
Amendment . . . .” In response, the trial court provided the following instructions:
Ma’am, you have a Constitutional right to claim the Fifth Amendment on
any questions you think might tend to incriminate you. You have to invoke
that right when the question is asked though. If you invoke that right, I’ll
honor that request and make her move on to the next question. If you feel
comfortable in answering the question, you can do that, but [defense
counsel] cannot invoke the Fifth Amendment for you, and I would not
allow him to do that, but if you think that you’re going to give testimony
that may make you look guilty of some crime, you can claim the Fifth
Amendment privilege, and I’ll honor that request. Do you understand that?
When Mernaugh expressed confusion, the trial court clarified:
Okay, I didn’t figure you would. All right, if somebody asks you
something, and you think it might expose you to criminal prosecution or a
charge of some sort, you’re not required to answer that question under oath
at this time.
See Missouri v. Seibert, 542 U.S. 600, 611-17, 124 S. Ct. 2601, 2609-13, 159 L. Ed. 2d 643 (2004). The issue of
“piggybacking” is not relevant in this case because, as we have concluded, Webb’s confession was not the
product of a custodial interrogation. Furthermore, the record indicates that after Detective Bean read Webb
his Miranda rights, Webb invoked his right to counsel and the interview ended.
Webb v. State Page 10
Mernaugh then invoked her Fifth Amendment privilege against self-incrimination.
Despite the invocation of the Fifth Amendment, the State asked: “Okay, his
response to that, which in no way implicates this witness, was ‘I don’t know, Mom. The
messages were deleted.’ Was it not?” Mernaugh responded, “I’m not—," and the State
interrupted with a different line of questioning pertaining to a pregnancy test that Webb
bought and told police was for Mernaugh.
On appeal, Webb complains that the trial court should not have permitted the State
to continue to question Mernaugh regarding the alleged nude photographs of the child
victim once Mernaugh invoked the Fifth Amendment. However, as shown above, Webb
did not object in the trial court on this ground. Webb’s only “objection” to this line of
questioning was really his initial attempt to invoke the Fifth Amendment on behalf of
Mernaugh.
To preserve error for appellate review, a complaining party must make a timely
and specific objection. See TEX. R. APP. P. 33.1(a)(1); see also Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002). Because Webb did not object to the State’s subsequent
question about the nude photographs of the child victim after the Fifth Amendment was
invoked, we conclude that Webb failed to preserve this issue for appellate review. See
TEX. R. APP. P. 33.1(a)(1); see also Wilson, 71 S.W.3d at 349.
Furthermore, to the extent that Webb contends that his “objection” to the State’s
line of questioning about the purported nude photographs of the child victim somehow
Webb v. State Page 11
preserved error, we note that points of error on appeal must correspond or comport with
objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App.
1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d).
“Where a trial objection does not comport with the issue raised on appeal, the appellate
has preserved nothing for review.” Wright, 151 S.W.3d at 241; see Resendiz v. State, 112
S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that an issue was not preserved for
appellate review because appellant’s trial objection did not comport with the issue he
raised on appeal). Because Webb’s “objection” was merely an attempt to invoke the Fifth
Amendment on behalf of Mernaugh, we cannot say that his “objection” comports with
the argument he makes on appeal. Therefore, based on the foregoing, we conclude that
this issue was not preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also
Resendiz, 112 S.W.3d at 547; Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273; Wright, 154
S.W.3d at 241. Accordingly, we overrule Webb’s third issue.
Outcome: Having overruled all of Webb’s issues on appeal, we affirm the judgment of the
trial court.
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