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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-16-00242-CR

Decided: February 22, 2018

Panel consists of Chief Justice Radack and Justices Keyes and Caughey.


After a jury found appellant, Alexander Adam Jackson, guilty of murder, the trial court found one enhancement paragraph to be “true” and assessed appellant's punishment at 50 years' confinement. In three issues, appellant contends that: (1) his conviction is void because the record does not show that the visiting judge who presided over the trial took the constitutionally required oath of office; (2) the trial court erred by denying appellant's motion to suppress statements that he made to police, which he claims were taken in violation of his Miranda 1 rights; and (3) the judgment should be reformed to accurately reflect appellant's jail-time credit toward his sentence. We affirm.


The Offense

On June 16, 2011, a burning body was discovered in a field in southwest Houston. Police identified the body as that of Sherell Baldwin. Baldwin's family told police that she had gone to Houston to visit appellant the day before. After investigating appellant further, police obtained a warrant for his arrest. When police went to his house to arrest him, appellant tried to escape through a window. His escape attempt was unsuccessful, and police arrested him for Baldwin's murder.

Motion to Suppress Statements Made to Police

After his arrest, police took appellant to the police station for an interview. They arrived at the homicide division at 9:15 a.m. Before questioning appellant, Detective T. Miller advised appellant of his Miranda rights, and appellant agreed to waive them. Thereafter, Miller obtained an unrecorded statement from appellant. The two spoke from 9:30 a.m. to 10:49 a.m.

At that time, appellant agreed to give a recorded statement. Before the questioning began, Miller again advised appellant of his Miranda rights. In the first recorded statement, appellant denied any involvement in Baldwin's death. The statement lasted from 10:49 a.m. until 11:48 a.m. At that time, Miller stated on the recording, “That will be the end of the interview. I think we've covered just about everything.”

Miller then left the interview room to discuss the case with other detectives. Miller returned to the interview room, and he and appellant talked for several more hours. During this time, Miller and appellant discussed several discrepancies in appellant's earlier statement. Miller told appellant about the different levels of offenses, such as capital murder and negligent homicide. At some point, after looking at photographs of Baldwin and discussing the different types of homicide with Miller, appellant admitted some involvement in the offense.

Around 5 p.m., when appellant became uncomfortable talking in the interview room because he was afraid of being recorded, he and Miller moved to the Lieutenant's office to continue their conversation. Miller did not re-Mirandize appellant when they changed locations. However, at 5:40 p.m., appellant agreed to give a second recorded statement, and Miller read appellant his Miranda rights for a third time before the second recorded interview began.2 In the second recorded statement, appellant changed his statement to admit some involvement in the crime. His version of the story at this time was that he was with Baldwin, but that she jumped out of his car. The second recorded statement lasted from 5:40 p.m. until 6:17 p.m.

Miller then moved appellant back to the interview room and gave him a 40-minute break to eat dinner. Miller then resumed the interview, confronting appellant with inconsistencies in his second statement by pointing out that the autopsy showed no injuries consistent with jumping out of a moving car and that there was evidence of strangulation instead. When Miller urged appellant to tell the truth, appellant became physically ill and was taken to the bathroom, where he vomited. Miller asked appellant if he was ready to continue, and appellant said that he was okay to do so.

When appellant returned to the interview room, Miller asked if he would give a recorded statement so that he could demonstrate a version of events in which appellant described having his hand on Baldwin's neck. Appellant agreed, and a third recorded statement was taken. Appellant was again informed of his Miranda rights before the third recorded statement was taken.

Appellant filed a motion to suppress, contending that the second and third recorded statements, as well as all of the unrecorded statements after the first recorded statement, were taken in violation of Miranda. The trial court denied appellant's motion to suppress, and the statements were admitted at trial.

The Trial

Though the case was assigned to the Honorable Michael McSpadden's court, it was tried by the Honorable Lee Duggan, Jr. Judge Duggan is retired; he was formerly a district court judge and a Justice on this Court. Appellant did not object to a trial before Judge Duggan. After the jury returned a guilty verdict, Judge Duggan assessed appellant's punishment at 50 years' confinement.


Appellant's first issue on appeal asks this Court to consider:

[w]hether the judgment of conviction is void as the record fails to demonstrate that the visiting judge who presided over Appellant's trial took the constitutionally required oath of office[.]3

Standard of Review and Applicable Law

We indulge a presumption in favor of the regularity of the proceedings in the trial court, absent any evidence of impropriety. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000); Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). We have consistently upheld this presumption “absent a showing to the contrary.” See Murphy, 95 S.W.3d at 320; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd). The defendant bears the burden to overcome the presumption with contrary evidence. See Murphy, 95 S.W.3d at 320; Dusenberry, 915 S.W.2d at 949. Because the presumption applies, a challenge to a visiting trial court judge for an alleged failure to take the constitutionally required oath requires a prima facie showing that the trial judge did not take the oath. Murphy, 95 S.W.3d at 320. The mere absence of proof in the record that a visiting judge took the judicial oath of office does not overcome the presumption. Id.


Appellant relies on Herrod v. State for the proposition that the presumption of regularity does not apply to challenges to the lack of a visiting judge's oath of office. See 650 S.W.2d 814 (Tex. Crim. App. 1983). This Court, however, has declined to apply Herrod when the case, as here, involves a retired district judge sitting on a district court bench, noting that when “an eligible retired district judge has duly filed his election to continue in a judicial capacity no formal order need be entered by the presiding judge of the administrative district or by the duly elected judge of said district court for him (retired judge) to exchange benches and preside over a trial in a district court.” Smith v. State, No. 01-15-01055-CR, 2017 WL 929544, slip op. at 2 (Tex. App.—Houston [1st Dist.] March 9, 2017, pet. ref'd) (not designated for publication) (quoting Herrod, 650 S.W.2d at 817).

Nevertheless, appellant argues that, while Herrod acknowledges that retired district court judges can sit on a district court bench even absent a proper assignment in the record, the record must nonetheless show that that the retired district court judge took the required oaths. We disagree. There would be a presumption of regularity if another district court judge sat for Judge McSpadden, and the same is true for a retired district court judge sitting by assignment. Appellant provides no authority requiring that this Court revisit our holding in Smith v. State, and we decline to do so.

Because Judge Duggan is a retired district court judge sitting on a district court bench, Herrod does not apply, and the presumption of regularity does.

Accordingly, we overrule appellant's first issue on appeal.


Appellant's second issue on appeal asks this Court to consider:

[w]hether the trial court erred by denying Appellant's Motion to Suppress his unrecorded and recorded statements occurring after Appellant's first recorded statement as [the police officer] deliberately employed a two-step interrogation technique to circumvent Miranda[.]

Standard of Review

We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for abuse of discretion and review the trial court's application of the law to the facts de novo. Id. Almost total deference should be given to a trial court's determination of historical facts, especially those based on an evaluation of witness credibility or demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility and may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); see State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

When, as here, the trial court makes findings of fact with its ruling on a motion to suppress a statement, we do not engage in our own factual review but determine only whether the record supports the trial court's factual findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial court abuses its discretion in making a finding not supported by the record, we will defer to the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).


Appellant claims that Miller violated his Miranda protections by “deliberately employ[ing] a two-step interrogation to circumvent Miranda.” A “two-step” or “question first, warn later” interrogation occurs when a suspect is interrogated without receiving Miranda warnings, a confession is obtained, the suspect is then given the Miranda warnings, and the suspect repeats the confession. Vasquez v. State, 483 S.W.3d 550, 553 (Tex. Crim. App. 2016) (citing Missouri v. Seibert, 542 U.S. 600, 605–06, 124 S. Ct. 2601, 2606 (2004)). The deliberate employment of such a tactic is impermissible. Carter v. State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010); see also Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008) (holding that when two-step interrogation tactic has been used deliberately, suspect's unwarned and warned statements must be suppressed).

Appellant's complaint that he received “midstream Miranda warnings” is misplaced. Appellant was given his Miranda rights not once, but twice, before any statements, recorded or unrecorded, were ever taken. There was no “midstream” warning.

Appellant's real complaint is that the Miranda warnings given before his first unrecorded and recorded statements were insufficient to apply to any of the subsequent interviews, particularly the five-hour unrecorded questioning that occurred before the second recorded interview. Appellant contends that the break in time and the move to a different location required new Miranda warnings before Miller could proceed with questioning. We disagree.

In determining whether a break in questioning requires the reiteration of Miranda warnings, we may consider (1) the passage of time, (2) whether the interrogation was conducted by a different person, (3) whether the interrogation related to a different offense, and (4) whether appellant indicated that he remembered his rights. See Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). If the totality of the circumstances indicates the second interview is essentially a continuation of the first, the Miranda warnings remain effective as to statements made during the second interview. See Dunn v. State, 721 S.W.2d 325, 338 (Tex. Crim. App. 1986) (noting that “rewarning is not required where the interrogation is only a continuation about the same offense”), abrogated on other grounds by Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

Here, the first recorded statement, before which appellant twice received Miranda warnings, concluded at 11:48. Miller resumed questioning appellant at 12:05. Thus, there was only a 17-minute break in the questioning. All of the questioning was done by the same officer—Miller. All of the questioning was about the same offense—Baldwin's murder. While Miller did not remind appellant of his Miranda rights before the five-hour, unrecorded questioning, appellant had received those warnings less than 3 hours previously and had waived them. And, Miller did provide Miranda warnings twice more during the day. Throughout the course of the day, appellant was given his Miranda warnings four times.

Appellant cites no cases holding that a break in questioning of less than 20 minutes requires that the officer give Miranda warnings again. Indeed, much longer breaks in questioning have been upheld. See Bible, 162 S.W.3d at 242 (holding Mirandized interview, followed two to three hours later by un-Mirandized interview, were, for purposes of Miranda, same interview); Ex parte Bagley, 509 S.W.2d 332, 337–38 (Tex. Crim. App. 1974) (holding Miranda warnings given before first statement were sufficient to cover interrogation that resumed 6 to 8 hours later); Satchell v. State, No. 05-14-01197-CR, slip op. at *5, 2015 WL 9486107 (Tex. App.—Dallas Dec. 29, 2015, pet. ref'd) (not designated for publication) (holding that Miranda warnings given at scene of arrest were sufficient to cover questioning at police station approximately one hour later). Similarly, appellant cites no cases requiring that Miranda rights be read again when an officer changes interrogation rooms or stops or starts a recording.

Because all of the statements by appellant were part of a single interview, and appellant was given his Miranda warnings twice before the questioning began, the trial court did not abuse its discretion in denying appellant's motion to suppress.

Accordingly, we overrule appellant's second issue on appeal.


Appellant's third issue on appeal asks this Court to consider:

[w]hether the written judgment should be reformed to accurately reflect Appellant's time credited toward his sentence[.]

Article 42.03, section 2(a), provides that an appellant shall be given credit on his sentence for the time he spent in jail from the time of his arrest until he is sentenced, excluding confinement served as a condition of community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a) (Vernon 2003).

Appellant asserts that the judgment should be modified to reflect 11 extra days of credit for time served. The State argues that appellant should have raised this issue to the trial court by requesting a judgment nunc pro tunc. Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record. Broussard v. State, 226 S.W.3d 619, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet) (citing McGregor v. State, 145 S.W.3d 820, 822 n.1 (Tex. App.—Dallas 2004, no pet.)); Houston v. State, No. 01-09-00669-CR, 2011 WL 946979, slip op. at 4 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (not designated for publication). When the record is clear, appellate courts modify the judgment to correct the credit for time served. See Jones v. State, No. 04–04–00526–CR, 2005 WL 2860016, at *1 (Tex. App.—San Antonio Nov. 2, 2005, no pet.); see also Lawson v. State, No. 05–99–00624–CR, 2003 WL 21659813, at *1 (Tex. App.—Dallas July 16, 2003, no pet.).

The record here supports modification of the judgment. It is undisputed that appellant was arrested on June 30, 2011. On July 5, 2011, the State filed a motion to hold appellant without bond, thereby indicating that appellant had not yet been released on bond. The trial court granted the State's motion for a period of 60 days, beginning on July 5, 2011. Thus, the record shows that appellant was in custody, and not released on bond, beginning on June 30, 2011, and for at least 11 days thereafter. Pursuant to this Court's power to modify or reform the trial court's judgment under TEX. R. APP. P. 43.2(b), we modify the trial court's judgment to give appellant credit for eleven additional days of confinement after his arrest. The period labeled “From 07/11/2011 to 03/10/2016” should instead read “From 06/30/2011 to 03/10/2016.”

We sustain appellant's third issue on appeal.


As hereinabove modified, we affirm the trial court's judgment.


1.   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) (prohibiting use of accused's oral statement made during custodial interrogation unless certain warnings are given and accused voluntarily, knowingly, and intelligently waives rights).

2.   The second recorded statement took place in the Lieutenant's office, and appellant was aware that the statement was being recorded. Miller testified that he never records a statement without telling the suspect that it is being recorded.

3.   “Article XVI, Section 1 of the Texas Constitution requires that ‘appointed officers' take two oaths before entering upon the duties of their office.” Prieto Bail Bonds v. State, 994 S.W.2d 316, 318 (Tex. App.—El Paso 1999, pet. ref'd.) The first is an oath to faithfully execute the duties of office and to uphold the Texas and United States Constitutions. TEX. CONST. art. XVI, § 1(a). The second is an anti-bribery oath before the officials enter upon the duties of their office. TEX. CONST. art. XVI, § 1(b).

Sherry Radack Chief Justice

Justice Keyes, concurring.

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