Ward et al. v. Combs, et al

IN THE

TENTH COURT OF APPEALS

No. 10-03-014-CV

     D'ANN WARD

     AND D'GENA THOMPSON,

                                                                              Appellants

     v.

     KENNETH L. COMBS

     AND CRAIG M. DAUGHERTY,

                                                                              Appellees

From the 82nd District Court

Falls County, Texas

Trial Court # 34,265

MEMORANDUM OPINION

      D’Ann Ward and D’Gena Thompson filed a legal malpractice suit against Kenneth L. Combs and Craig M. Daugherty in Falls County complaining about the manner in which the attorneys litigated Ward’s personal injury claim in Bell County. Daugherty filed a motion to transfer venue to Smith County. The court granted Daugherty’s motion after hearing. Ward and Thompson filed this interlocutory appeal.

      This Court has jurisdiction over an interlocutory appeal only when expressly provided by statute. Stary v. DeBord, 967 S.W.3d 352, 352-53 (Tex. 1998); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 878 (Tex. App.—Waco 2001, no pet.). The venue statutes expressly prohibit an interlocutory appeal of an adverse venue determination. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002); Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); Am. Home Prods. v. Clark, 999 S.W.2d 908, 910 (Tex. App.—Waco 1999), aff’d, 38 S.W.3d 92 (Tex. 2000).

      We notified Appellants by letter dated January 23, 2003 that their appeal appears subject to dismissal for want of jurisdiction. We warned them that the appeal could be dismissed if they did not file a response within ten days thereafter showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3. They have not responded.

      Accordingly, we dismiss their appeal for want of jurisdiction. Appellants shall pay all costs of court in this behalf expended.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 12, 2003

[CV06]

The State argues that the three statements were properly admitted because Gonzalez was detained for questioning as a witness and the statements in question were made voluntarily.[1]

Article 38.22 and the Fourth Amendment do not preclude the admission of non-custodial statements. See, e.g., Tex. Code Crim. Proc. Ann. art. 38.22, 5; Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). A statement is custodial 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, 931 S.W.2d at 254. Subjective belief about custody is irrelevant unless that belief is shown in words or actions. Id. Although the investigation's focus and the existence of probable cause are relevant, the determination of custody must be made by considering all objective circumstances. Id. at 254-55.

A person held for investigative detention is not in custody. See id. at 255. An investigative detention is a detention of a person reasonably suspected of criminal activity to determine identity or maintain the status quo momentarily while obtaining more information. See Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). The detention's scope must be temporary, lasting no longer than necessary to effectuate its purpose, and must involve actual investigation and use the least intrusive means possible. See Davis v. State, 947 S.W.2d 240, 244-45 (Tex. Crim. App. 1997); Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). However, the passage of time alone is not determinative. See Smith v. State, 945 S.W.2d 343, 346-47 (Tex. App.Houston [1st Dist.] 1997, pet. ref'd) (holding detention of almost four hours was valid because the police diligently pursued the suspects vision that he used to lead a search for victim's body).

Police conduct may elevate non-custodial interrogation to custodial interrogation. Dowthitt, 931 S.W.2d at 255. We examine each progressive level of intrusion to determine its reasonableness under the circumstances based on the information known to the officer at the time. Francis v. State, 896 S.W.2d 406, 411 (Tex. App.Houston [1st Dist.] 1995, pet. dism'd). In Dowthitt, custody was inferred in an usual circumstance when: (1) a very long time period elapsed during which interrogation occurred, (2) the police exercised control over the defendant, and (3) the defendants admission to being present at the scene of the crime manifested probable cause. Dowthitt, 931 S.W.2d at 257. In Berkemer v. McCarty, the U.S. Supreme Court stated that the only relevant inquiry is how a reasonable man in the suspects position would have understood his situation, and whether treatment by the police can be fairly characterized as the functional equivalent of formal arrest. Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984).

When Gonzalez made all three statements, he (1) had never been told that he was a suspect, (2) was never told he was under arrest, (3) was told that the detectives wanted to question him as a witness, and (4) was never placed in handcuffs. We find nothing in the record that indicates Gonzalez should have been given Miranda warnings at any point prior to the three statements at issue in this appeal. Gonzalez has failed to demonstrate that, when he made these three statements, he was subjected to restraints comparable to those associated with a formal arrest. See Berkemer, 468 U.S. at 441-42, 104 S.Ct. at 3151; Dowthitt, 931 S.W.2d at 255. Because Gonzalez was told he was not free to leave,[2] at most, these statements were made during an investigative detention. See Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879-80. We do not find that police conduct elevated the non-custodial interrogation or the investigative detention into a custodial interrogation. See Dowthitt, 931 S.W.2d at 255. Thus, we find that these statements were properly admitted by the trial court.

We overrule this issue.

CONCLUSION

Having overruled the single issue, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 3, 2005

Do not publish

[CRPM]