OPINION

No. 04-10-00060-CR

Karl Anthony HODSON,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kendall County, Texas

Trial Court No. 4727

Honorable N. Keith Williams, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice

Steven C. Hilbig, Justice

Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

AFFIRMED

A jury convicted Appellant Karl Anthony Hodson of capital murder. The trial court 

assessed punishment at confinement in the Texas Department of Criminal Justice-Institutional 

Division for life without parole. On appeal, Hodson contends the trial court erred in denying his 

motion to suppress his statements to law enforcement officers made on July 24, 2007 and July 

25, 2007. We affirm the trial court’s judgment.
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BACKGROUND

Leon Denver Poe, a Pizza Hut delivery man, was robbed and stabbed to death while 

making a pizza delivery. Once Poe’s body was recovered, Texas Ranger Sergeant Kyle Dean 

traced the call made to Pizza Hut to Hodson’s parents’ cellular phone account. Sergeant Dean 

then contacted Hodson’s father and asked that Hodson call the Ranger back. During this time, 

Sergeant Dean had interviewed some witnesses who placed a white pick-up truck with rust spots 

at the murder scene. 

July 24, 2007 Statement

Once Hodson called Sergeant Dean back, Sergeant Dean contacted Sergeant Randy 

Boysen with the Department of Public Safety, asking him to go to the family residence to 

determine if Hodson would agree to an interview. 

When Sergeant Boysen arrived at the Hodson family residence, he noticed a white pickup truck with rust spots. Sergeant Boysen asked Hodson and his girlfriend, co-defendant Jenillee 

Sheppard, if they would agree to an interview with Sergeant Dean. Both Hodson and Sheppard 

said they were willing to do the interview. Due to the recent heavy rain, the road to the Hodson 

residence was very slippery and Sergeant Boysen was afraid Sergeant Dean would not be able to 

make it up the road so he suggested meeting Sergeant Dean at the Bandera County Lakehills 

Annex (“the Annex”). Sergeant Boysen then informed Hodson and Sheppard that they were not 

under arrest and that the interview was voluntary. All parties, including Hodson’s parents, 

agreed to the interview at the Annex. Deputy David McGilvray was at the Hodson residence as 

well. Deputy McGilvray offered to drive Hodson to the Annex, which Hodson accepted.

Deputy McGilvray testified he did not order Hodson to ride with him. 
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At the Annex, Hodson agreed to be interviewed without the presence of Sheppard or his 

parents. Sheppard was then taken to a separate room. At the start of the interview, Sergeant 

Dean advised Hodson he was not under arrest and was free to leave at any time. Sergeant Dean 

did not read Hodson his statutory warnings because Sergeant Dean did not feel as if he had 

probable cause to arrest Hodson at that time. During the sixty minute interview, Hodson 

admitted to being present at the time of the murder and robbery. Hodson also said he helped 

dispose of the body because a man named Paul Strait told Hodson he would kill him if Hodson 

did not help. Sergeant Dean then told Hodson he did not believe him and that he would be 

interviewing Sheppard soon and she would “give it up.”

When the interview concluded, Sergeant Dean allowed Hodson’s parents to go in and see 

their son. Sergeant Dean did not station anyone outside the interview room to prevent Hodson 

from leaving. Sergeant Dean testified Hodson never asked to leave, speak to his parents or an 

attorney, nor was he told he was not free to leave.

Sergeant Dean then interviewed Sheppard. During the interview, he heard a commotion 

but continued the interview. Sheppard told Sergeant Dean it was her belief they were only going 

to rob Poe but that she saw Hodson stab him.

While Sergeant Dean was interviewing Sheppard, Deputy McGilvray heard the 

commotion as well, and when he looked in the interview room, he saw Hodson half-way outside 

the window. Deputy McGilvray testified Hodson’s father was hanging onto Hodson’s legs while 

trying to fall backwards. Sergeant Boysen was outside the Annex and saw Hodson drop from a 

window and run away. Sergeant Boysen pursued Hodson on foot.

While Hodson was on the run, Sergeant Dean used Sheppard’s statement that she had 

seen Hodson stab Poe to secure an arrest warrant for Hodson. Hodson was eventually arrested.
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July 25, 2007 Statement

After Hodson was arrested, he was taken before a magistrate. Hodson was then read and 

advised of his rights per article 15.17 of the Texas Code of Criminal Procedure. See TEX. CODE 

CRIM. PROC. ANN. art. 15.17 (West Supp. 2010). At the magistrate hearing, when asked if he 

wanted an attorney appointed to represent him, Hodson replied in the affirmative and filled out 

the appropriate paperwork. 

After magistration, Hodson was taken from the Bandera County jail to the Kendall 

County jail. It was at the Kendall County jail that Lieutenant Louis Martinez interviewed 

Hodson. Before the interview began, Lieutenant Martinez again advised Hodson of his rights. 

Hodson waived those rights on the record during the interview and agreed to speak to Lieutenant 

Martinez without his attorney present. It was during this interview that Hodson confessed to 

robbing and stabbing Poe.

Trial Court Proceedings

Hodson filed a motion to suppress the oral statements made on July 24 and July 25, 

claiming the statements were obtained in violation of the Fifth, Sixth, and Fourteenth 

Amendments of the United States Constitution, Article 1, Section 9 of the Texas Constitution, 

and articles 15.17 and 38.22 of the Texas Code of Criminal Procedure. 

After the first suppression hearing, the trial court denied Hodson’s motion to suppress the 

July 24 statement but, with the State’s concession at that hearing, granted his motion to suppress 

the July 25 statement.

A second suppression hearing was held to reconsider the admissibility of Hodson’s 

second statement. Based on a recent United States Supreme Court case, Montejo v. Louisiana, 
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the trial court denied Hodson’s motion to suppress the July 25 statement. See 129 S.Ct. 2079 

(2009).

Hodson was subsequently found guilty of capital murder and sentenced to life without 

parole. He then perfected this appeal.

ANALYSIS

Standard of Review

A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion under 

a bifurcated standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). As the 

reviewing court, we will defer to the trial court’s determination of facts but review the trial 

court’s application of the law de novo. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. 

App. 2000). All evidence will be viewed “in the light most favorable to the trial court’s ruling.” 

State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). The trial court’s ruling will be 

upheld if there is any valid theory of law applicable to the case, even if the trial court did not 

base its decision on that theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

July 24, 2007 Statement

In his first point of error, Hodson contends his statements made on July 24, 2007 should 

have been suppressed because he was in custody, but was never given the required constitutional 

and statutory warnings. The State contends Hodson was not in custody when the interview took 

place and therefore, the statutory warnings were not required.

A suspect need only be given article 38.22 and Miranda warnings if the suspect is in 

custody. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); Miranda v. Arizona, 384 U.S. 

436, 478 (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 associated with a 
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formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury 

v. California, 511 U.S. 318, 322 (1994)). The Texas Court of Criminal Appeals has recognized 

four situations that may constitute custody: 

(1) when the suspect is physically deprived of his freedom of 

action in any significant way, (2) when a law enforcement 

officer tells the suspect that he cannot leave, (3) when 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) when there is probable 

cause to arrest and law enforcement officers do not tell the 

suspect that he is free to leave.

Id. Because Hodson was repeatedly told he was not under arrest and was free to leave at any 

time, we are only concerned with the first, third, and fourth situations. This court has found that 

when interpreting the fourth situation, we consider whether the suspect voluntarily arrived at the 

place of interrogation, the length of the interrogation, whether the suspect was forbidden from 

seeing family or friends, how much control was exercised over the suspect, and whether a 

“pivotal admission established custody.” Espinoza v. State, 185 S.W.3d 1, 3 (Tex. App.—San 

Antonio 2005, no pet.) (quoting Xu v. State, 100 S.W.3d 408, 413 (Tex. App.—San Antonio 

2002, pet. ref’d)). These factors are also helpful in determining whether a suspect is in custody 

in the first and third situations. Id. Therefore, we will focus our analysis on these factors.

Hodson voluntarily went to the Annex with Deputy McGilvray. The interview began 

promptly, lasted about an hour, and Hodson was only waiting twenty-six minutes or so before he 

fled the Annex through the window. It was undisputed that Hodson was allowed to see his 

parents after the interview. As for the amount of control exercised over Hodson, he was told he 

was there voluntarily and could leave at any time because he was not under arrest, his family was 

allowed to see him, and no guard was stationed outside his interview room to keep him from 

leaving. At no point in time was Hodson placed in handcuffs or physically restrained.
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As for the final factor, Hodson made an admission during the interview. The question 

becomes whether this admission established custody. Hodson relies on Dowthitt because in that 

case, the defendant admitted to being present during the murders. The Court of Criminal 

Appeals held that “a reasonable person would have realized the incriminating nature of the 

admission.” Dowthitt, 931 S.W.2d at 257. But, the court in Dowthitt also found other factors 

indicating police control over the defendant, such as an interrogation lasting over twelve hours, 

the defendant being escorted to and from the restroom, police officers ignoring his requests to 

see his wife and ignoring his complaints of exhaustion, and the defendant being denied food. Id. 

Situations where the manifestation of probable cause triggers custody are unusual. State 

v. Stevenson, 958 S.W.2d 824, 829, n.7 (Tex. Crim. App. 1997). Even though a suspect may 

implicate himself in an offense, unless the circumstances are unique, as in Dowthitt, “this alone 

does not trigger custody.” Garcia v. State, 237 S.W.3d 833, 837 (Tex. App.—Amarillo 2007, no 

pet.). “[A]lthough appellant’s statements were sufficient to establish probable cause to arrest 

him, the other circumstances present would not ‘lead a reasonable person to believe that he is 

under restraint to the degree associated with an arrest.’” Trejos v. State, 243 S.W.3d 30, 47 (Tex. 

App.—Houston [1st Dist.] 2007, pet. ref’d) (quoting Dowthitt, 931 S.W.2d at 254). Here, 

Sergeant Dean testified Hodson admitted to being present during the robbery and murder. Other 

than this admission, there were no other circumstances present to lead a reasonable person to 

believe he was under arrest. 

We hold the trial court correctly concluded Hodson was not in custody when he made the 

statements in question. Because Hodson was not in custody at that time, the failure to admonish 

him of his constitutional and statutory rights did not render the statements inadmissible. 
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Therefore, we hold that the trial court did not abuse its discretion in denying Hodson’s motion to 

suppress the July 24 statements.

July 25, 2007 Statement

In his second point of error, Hodson contends his statements made on July 25, 2007 

should have been suppressed because his Fifth and Sixth Amendments right to have an attorney 

present during questioning attached when he requested an attorney at the magistrate hearing. 

Hodson argues that because he requested an attorney during magistration, law enforcement 

officers were not allowed to re-initiate contact with him at the jail and therefore, his inculpatory 

statements to Lieutenant Martinez should have been suppressed. The State argues, and we agree, 

that in light of Montejo v. Louisiana, law enforcement officers are no longer barred from reinitiating contact once a defendant has requested an attorney.

Prior to Montejo, Michigan v. Jackson was the controlling case on the Sixth Amendment 

right to counsel. 475 U.S. 625 (1986), overruled by Montejo v. Louisiana, 129 S.Ct. 2079 

(2009). Jackson stood for the proposition that once a defendant requested an attorney at an 

arraignment or magistrate hearing, law enforcement officers were barred from initiating 

interrogation thereafter. Id. at 636. If law enforcement officers initiated the interrogation, “any 

waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id.

Montejo changed the landscape by expressly overruling Jackson. Montejo, 129 S.Ct. at 

2091. In Montejo, the defendant, charged with murder, was taken before a judge and counsel 

was appointed for him. Id. at 2082. After the preliminary hearing, two law enforcement officers 

asked Montejo to go with them to find the murder weapon. Id. Although it was disputed, 

Montejo was read his Miranda warnings and finally agreed to accompany the officers. Id. 

During this excursion, Montejo wrote a letter of apology to the widow; the letter was later 
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admitted at trial. Id. The Supreme Court explained that even though Montejo had been 

appointed counsel at the preliminary hearing, the officers were not barred from re-initiating 

contact with him after the hearing and the inculpatory letter was admissible under the Sixth 

Amendment. Id. at 2091. 

The Court explained that Jackson was no longer needed because: (1) Miranda v. Arizona

guarantees any suspect in custodial interrogation the right to have an attorney present, and to be 

advised of that right;1 (2) Edwards v. Arizona guarantees that once a suspect has invoked his 

right to an attorney, interrogation must cease;2 and (3) Minnick v. Mississippi guarantees that 

once a suspect has invoked his right to counsel and the interrogation has ceased, interrogation 

may not resume until counsel is present.3

The Court remanded the case due to Fifth Amendment concerns: “If Montejo made a 

clear assertion of the right to counsel when the officers approached him about accompanying 

them on the excursion for the murder weapon, then no interrogation should have taken place 

unless Montejo initiated it.” Id.

 Montejo, 129 S.Ct. at 2089-90. The Court further 

explained that under these three cases, “a defendant who does not want to speak to the police 

without counsel present need only say as much when he is first approached and given the 

Miranda warnings.” Id. at 2090.

The Texas Court of Criminal Appeals, in Hughen v. State, echoed the Supreme Court’s 

holding in Montejo. 297 S.W.3d 330, 336 (Tex. Crim. App. 2009). The defendant in Hughen

was taken before a magistrate and asked that counsel be appointed to represent him. Id. at 332. 

Thereafter, Hughen was interviewed by law enforcement officers and made inculpatory 

 1 384 U.S. 436 (1966).

2 451 U.S. 477 (1981).

3 498 U.S. 146 (1990).
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statements. Id. at 332. Although the court held that Hughen’s Sixth Amendment right to counsel 

had not been violated when the officers re-initiated contact, the court did not comment on 

Hughen’s Fifth Amendment right to counsel because he raised only the issue of his Sixth 

Amendment right, not his Fifth Amendment right. Id. at 335. Regarding the Fifth Amendment, 

the court only stated, “the Fifth Amendment does bar police-initiated interrogation of an accused 

who, in the context of custodial interrogation, has previously asserted his right to counsel during 

such interrogation, unless the accused’s counsel is actually present.” Id.

In light of Montejo and Hughen, we can easily dispose of Hodson’s Sixth Amendment 

argument that his July 25 statement is inadmissible because Lieutenant Martinez re-initiated 

contact with him after he had requested counsel at the magistrate hearing. Because law 

enforcement officers are no longer barred from re-initiating contact with a defendant after that 

defendant has requested counsel at a preliminary hearing, those statements taken during these 

interviews are no longer presumed invalid under the Sixth Amendment. See Montejo, 129 S.Ct. 

at 2091; Hughen, 297 S.W.3d at 336.

Our inquiry turns to whether Hodson’s relinquishment of his Sixth Amendment right to 

counsel was voluntary, knowing, and intelligent. See Patterson v. Illinois, 487 U.S. 285, 292, n. 

4 (1988). A waiver will be voluntary, knowing, and intelligent when the suspect is admonished 

with the Miranda warnings, “apprised of the nature of his Sixth Amendment rights, and of the 

consequences of abandoning those rights . . . .” Id. at 296. Article 38.22 of the Code of Criminal 

Procedure (“the Code”) sets out the statutory warnings that must be given in order for a waiver to 

be knowingly, intelligently, and voluntarily waived. TEX. CODE CRIM. PROC. ANN. art. 38.22 

(West 2005). The Code states that no oral statement will be admissible unless it was 

electronically recorded and the suspect has been warned, on the record, that he has the right to: 
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remain silent because any statement given may be used against him, have an attorney present, 

have an attorney appointed, and to terminate the interview at any time. Id. art. 38.22 § 2.

It is the State’s burden to prove, by a preponderance of the evidence, that a suspect 

knowingly, intelligently, and voluntarily waived those rights. Joseph v. State, 309 S.W.3d 20, 24 

(Tex. Crim. App. 2010). To ascertain whether a suspect has knowingly, intelligently, and 

voluntarily waived his rights, voluntariness and awareness must be addressed. See Moran v. 

Burbine, 475 U.S. 412, 421 (1986); Joseph, 309 S.W.3d at 25. 

First, the relinquishment of the right must have been voluntary in 

the sense that it was the product of a free and deliberate choice 

rather than intimidation, coercion, or deception. Second, the 

waiver must have been made with full awareness of both the nature 

of the right being abandoned and the consequences of the decision 

to abandon it. Only if the “totality of the circumstances 

surrounding the interrogation” reveals both an uncoerced choice 

and the requisite level of comprehension may a court properly 

conclude that the Miranda rights have been waived. 

Moran, 475 U.S. at 421; Joseph, 309 S.W.3d at 25. 

Although Hodson made an oral statement, Lieutenant Martinez electronically recorded 

that statement. Lieutenant Martinez then read Hodson the statutory warnings. When asked if he 

understood his rights, Hodson asked for clarification on when he could stop the interview. 

Lieutenant Martinez responded, “You can stop talking anytime you want. Nobody can make you 

talk.” Hodson then stated that he understood his rights and proceeded to give his statement. At 

the suppression hearing, Lieutenant Martinez testified that in his opinion, Hodson freely and 

voluntarily gave the statement and that at no time during the interview did Hodson invoke any of 

his statutory rights or was offered anything in exchange for giving a statement. The record 

supports Lieutenant Martinez’s assertions because it shows no evidence of intimidation or 
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coercion. We agree with the trial court that based on the totality of the circumstances, Hodson 

freely and voluntarily waived his statutory rights prior to giving the statement.

Therefore, in light of Montejo v. Louisiana, we overrule Hodson’s contention that his 

Sixth Amendment rights were violated when Lieutenant Martinez interviewed him after he 

requested an attorney at the magistrate hearing. We also hold the State proved, by a 

preponderance of the evidence, that Hodson knowingly, intelligently, and voluntarily waived his 

rights before the inculpatory statements were made. Therefore, the trial court did not err in 

denying the motion to suppress the July 25 statements.

CONCLUSION

Based on the foregoing, we overrule Hodson’s two points of error and affirm the trial 

court’s judgment.

Marialyn Barnard, Justice

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