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Foster v. State

Court of Appeals of Texas, Fourteenth District

May 21, 2019

LESLIE RAY FOSTER, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 16-CR-1600

          Panel consists of Justices Christopher, Jewell, and Hassan.

          OPINION

          TRACY CHRISTOPHER, JUSTICE

         Appellant made custodial statements to two different interrogators in two different settings, but only the second interrogator warned appellant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Appellant moved to suppress both of his statements, claiming that the interrogators had circumvented Miranda by subjecting him to the two-step technique that is sometimes known as "question first, warn later." In response to appellant's motion, the State stipulated that certain pre-Miranda statements were inadmissible, but it argued that the post-Miranda statements should be admitted because appellant voluntarily waived his rights under Miranda. The trial court agreed with the State and denied appellant's motion to suppress. Appellant now complains of that ruling in this appeal from his conviction for theft. For reasons explained more fully below, we conclude that the trial court's ruling was not an abuse of discretion.

         I. The Arrest

         In the early hours of the morning, several men broke into a motorcycle shop by sawing through a metal wall panel. The break in was immediately detected by an alarm company, which promptly notified the police.

         The police raced to the scene with their sirens off, hoping to establish a perimeter before engaging the burglars. When they arrived, the police found appellant standing out front and serving as a lookout. Appellant initially ran away, but then he turned around and walked towards the police with his hands up. The police saw a black object in appellant's hand (later determined to be a cellphone) and ordered appellant to stop and get on the ground. When appellant failed to follow these instructions, he was tackled by an officer and a detective, the two individuals who would later interrogate him.

         Appellant was arrested, handcuffed, and secured in the backseat of a patrol car, but according to the officer who arrested him, he was not warned of his rights because the scene was still active. The remaining burglars had taken off on foot, and the police were still searching for them in a nearby field. The police called in a canine unit to aid in the search, and as that search continued, appellant was transported to the police station for processing.

         II. The Custodial Statements to the Officer

         The officer who arrested appellant also transported him to the police station. The officer's patrol car was equipped with an interior video camera, which recorded his interaction with appellant.

         The camera recorded roughly thirty-seven minutes of footage, beginning with the officer's race to the motorcycle shop. Appellant was apprehended approximately five minutes into the recording, and he was secured in the backseat of the patrol car another five minutes after that. He then sat alone for the next seventeen minutes as the police continued to search the scene.

         The officer returned to his patrol car at about the twenty-seven minute mark, and then he drove away without making any comments to appellant. The detective was not present at this time.

         The officer drove in silence for a full minute, and then appellant broke that silence by asking, "Did y'all get him?" The officer tersely responded, "Working on it." When appellant asked, "Huh?" the officer explained that there were two dogs on the scent, and that "he's gonna get bit."

         The officer then began his own series of questions, asking appellant whether he lived in the La Marque area, where the motorcycle shop was located. Appellant answered that he was from Houston, but that he happened to be in the La Marque area that evening. Without providing full context to his answer, appellant added that "they came down to pick [him] up" and asked him "to stand out there and wave for them." The officer asked how many other men were out there, and appellant said "about seven." The officer continued, "Where did all the rest of them go?" Appellant answered, "They seen y'all coming."

         For the next minute, the officer drove in silence, and then appellant restarted the conversation. "How many did they apprehend?" he asked. The officer said, "You're the first." Appellant continued, "What were they actually trying to do?" The officer responded, "What everybody else does there in the middle of the night- trying to steal shit." When appellant asked what they were specifically trying to steal, the officer said, "All that place has got is ATVs and bikes."

         At that point, appellant heard over the officer's radio that only two men were seen running away, and one of them was wearing a white shirt, while the other was wearing all dark clothing. Appellant then volunteered, "Oh that's the one they call Joe. He had on all black. . . . And the white shirt. That's Joe and George." The officer asked whether those suspects were from the local area or from Houston, and appellant said he did not know, but that they had picked him up. Appellant added, "So that's what they were up to."

         After receiving another update over the radio, the officer told appellant that the dogs were closing in on the other burglars and that "somebody's about to get bit." The officer then asked, "So how'd you get blood on your hands?" Appellant said, "My knife," which he indicated he had "probably dropped."

         After another extended period of silence, appellant asked, "What actually did they do though? That's what I'm trying to figure out." The officer responded, "That's what we're still trying to figure out. We're just trying to get ...


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