COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00139-CR

Michael O’Neal Hutchins a/k/a 

Michael ONeal Hutchins

v.

The State of Texas

§

§

§

§

§

From the 213th District Court

of Tarrant County (1147257D)

November 21, 2012

Per Curiam

(nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

PER CURIAM
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00139-CR

MICHAEL O’NEAL HUTCHINS 

A/K/A MICHAEL ONEAL HUTCHINS

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Michael O’Neal Hutchins appeals his conviction and forty-nine year 

sentence for aggravated robbery. In four points, appellant challenges the trial 

court’s denial of his motion to suppress his statements during an interview with

Arlington police, contending that (1) he did not knowingly, intelligently, and 

voluntarily waive his rights under Miranda, (2) he did not make an explicit waiver 

of his rights under article 38.22 of the code of criminal procedure, (3) the 

 

1See Tex. R. App. P. 47.4.
3

interrogation was a continuation of an earlier interrogation that had begun without 

proper warnings under Miranda and article 38.22, and (4) he was not aware that 

his earlier statements during an unwarned interrogation were inadmissible and 

thus could not be used against him, thus his subsequent waiver was not 

voluntary under Miranda and article 38.22. We affirm.

Standard of Review and Applicable Law

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. 

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 

We give almost total deference to a trial court’s rulings on questions of historical 

fact and application-of-law-to-fact questions that turn on an evaluation of 

credibility and demeanor, but we review de novo application-of-law-to-fact 

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. 

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

It is the State’s burden to establish a valid waiver of Miranda rights by a 

preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. 

App. 2011). There are two facets to any inquiry with respect to the adequacy of 

a purported waiver of Miranda rights: (1) the waiver must be ―voluntary in the 

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

intimidation, coercion, or deception‖; and (2) the waiver must be made ―with a full

awareness both of the nature of the right being abandoned and the 
4

consequences of the decision to abandon it.‖ Id. (quoting Ripkowski v. State, 61 

S.W.3d 378, 384 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916 (2003)).

Before it may be said that a waiver of a Miranda right is involuntary, there 

must be some element of official intimidation, coercion, or deception. Id. at 349. 

And ―[o]nce it is determined that a suspect[ ] . . . at all times knew he could stand 

mute . . . , and that he was aware of the State’s intention to use his statements to 

secure a conviction, the analysis is complete and the waiver is valid as a matter 

of law.‖ Moran v. Burbine, 475 U.S. 412, 422–23, 106 S. Ct. 1135, 1141 (1986), 

quoted in Leza, 351 S.W.3d at 349. Thus, a waiver is knowing and intelligent 

when the record shows that the accused has been made aware, and fully 

comprehends, that he has the right to remain silent in the face of police 

interrogation and to discontinue the dialogue at any time, and that the 

consequence of his waiver is that his words may be used against him later in a 

court of law. Leza, 351 S.W.3d at 350.

Unlike claims of involuntary waiver of Miranda rights, claims of 

involuntariness under article 38.22 of the code of criminal procedure need not be 

predicated on police overreaching. Oursbourn v. State, 259 S.W.3d 159, 172 

(Tex. Crim. App. 2008). Section 6 of that article may be construed not only as 

protecting people from police overreaching but also as protecting people from 

themselves. Id. Thus, a confession given under the duress of hallucinations, 

illness, medications, or even a private threat could be involuntary under Texas 

law. Id.
5

Applicable Facts

Testimony at Suppression Hearing

Fort Worth police interviewed appellant, who was a suspect in several 

robberies in Fort Worth. Sometime shortly after the interview, Fort Worth police 

arrested appellant on an assault charge.2 While appellant was in custody as a 

result of the arrest, Fort Worth police contacted Sergeant Anthony Wright with 

the Arlington police department, who was investigating a robbery at a QT 

convenience store in Arlington. The Fort Worth officers told Sergeant Wright that 

they had received a tip which led them to suspect that appellant had been 

involved in several robberies, including the QT robbery. Sergeant Wright then 

interviewed appellant starting around 9 p.m. at the Mansfield Law Enforcement 

Center. Sergeant Wright taped the interview, during which appellant waived his 

Miranda rights.

Sergeant Wright testified that he did not know how long appellant had 

been in custody when he picked him up from Fort Worth and took him to 

Mansfield for the interview. Sergeant Wright did not remember what appellant 

was wearing, and he did not know whether appellant had eaten, but he did say 

appellant did not appear fatigued. The interview lasted thirty minutes.

 

2

It is unclear when Fort Worth police arrested appellant, but it was 

sometime between the time of their interview, which ended around 10:30 p.m. 

February 13, 2009, and 9 p.m. the next day. The evidence does not show what 

the assault charge was for, but appellant admitted during his interview with the 

Fort Worth police that he had recently been in a fight.
6

Sergeant Wright acknowledged that he started out the interview by telling 

appellant that he ―had been speaking with Fort Worth, which is initially who 

identified‖ appellant to him. Sergeant Wright showed appellant photographs and 

video stills of a couple of robberies in Arlington, including the QT one, but he did 

not remember showing appellant photos or video stills of any of the Fort Worth 

offenses. When Sergeant Wright told appellant he had done an analysis of ―all 

the videos,‖ he was referring to the two Arlington robberies, but Sergeant Wright 

had viewed some of the video stills from Fort Worth. Sergeant Wright did not 

know what appellant was talking about when he mentioned not knowing about 

three people wearing the same clothes. Sergeant Wright said that he questioned 

appellant about the 7-11 robbery first, then the QT one, but he could not be sure 

whether appellant was looking at the 7-11 and QT photos together when he 

confessed to the QT robbery because all the photos were on the table by that 

point.

Sergeant Wright testified that he made no promises to appellant, did not 

coerce appellant, and was not aware of any promises made by Fort Worth police; 

he told appellant he did not know about the facts of the Fort Worth cases. 

Sergeant Wright did not know ―anything about [Fort Worth’s] investigation.‖ 

Sergeant Wright admitted that appellant could have thought during the interview 

that Sergeant Wright knew everything that Fort Worth police knew about 

robberies other than the ones in Arlington.
7

Appellant testified that in the initial Fort Worth interview, the police told him 

he was under arrest but did not read him his Miranda warnings. He thought they 

told him, however, that he did not have to talk to them, but he was not sure. The 

Fort Worth interview took place the day before the interview with Sergeant 

Wright. When asked if he thought the Arlington interview was ―in connection 

with‖ the Fort Worth interview, appellant answered he did, ―[s]eeing how he 

[Sergeant Wright] said that he had already spoke with the . . . Fort Worth people.‖ 

Appellant thought his confession was going to help ―somewhat‖ with the Fort 

Worth investigation. However, he did not think the statements he made in the 

Fort Worth interview could be used against him in the Arlington interview. He 

said he thought he had to tell Sergeant Wright the same things he told Fort Worth 

police. He also ―was very unsure about what was going on. [He] really didn’t 

know the concept . . . so [he] was very unsure about the whole process.‖

Appellant said that he did not realize that he was helping to build a case 

against himself when he made the waiver because the day before in Fort Worth, 

he was told that if he cooperated, they would work with him and that by being 

honest, they would go easy on him for punishment. If he had realized that he 

would be charged with aggravated robbery by the Arlington police, he would not 

have waived his rights.

According to appellant, Sergeant Wright did not promise him anything, but 

―he kind of led [appellant] into believing that he had already spoke with Fort 

Worth, and that they had been working hand in hand.‖ Appellant never 
8

confessed to any of the Fort Worth robberies, however. He also did not believe 

he ever really confessed anything to Sergeant Wright. He said he had never 

been through an interrogation before and was confused. He said his questions 

to the officer about whether he would be tried in Fort Worth or Arlington or 

whether he was going back to Fort Worth show his confusion about the Arlington 

interview and whether it was an extension of the Fort Worth interview.

Audiotapes

The audiotapes of appellant’s two interviews were played for the trial court. 

Appellant’s answers in the tape of the Fort Worth interview are very difficult to 

understand. However, the officers’ questions are easier to understand, and it is 

quite clear that they told appellant at the beginning of the interview that he was 

not in custody and that he was free to leave at any time. They also said the 

same thing later in the interview, towards the end.3 Although appellant did not 

admit to participating in robbing store clerks in several cities, he did over the 

course of the interview admit being in the car with two men whom the Fort Worth 

officers told appellant were involved in those robberies; appellant also admitted 

stealing cigarettes from some of those stores. However, throughout the 

interview, appellant denied knowing about or participating in any robberies at 

those same stores.4 Although the police focused primarily on what appear to be 

 

3One of the officers did tell appellant that he was in ―some trouble.‖

4Although appellant initially denied knowing that at least one of the men 

had a gun, he later admitted he knew one of them, Dre, had a gun with him.
9

Fort Worth offenses, they did ask appellant about a 7-11 robbery in Arlington and 

told him they were going to show the pictures from that store to Arlington police 

―in the morning.‖5 Throughout the interview, Fort Worth police told appellant they 

knew he was one of the men in the video and that they thought he was just 

making bad decisions while under the influence of drugs.

Sergeant Wright started his interview with appellant by telling him that he 

had been working ―real close with those Fort Worth guys‖ and that they told him 

appellant had been cooperative and wanted to get all this behind him. Sergeant 

Wright then asked appellant to talk to him, read appellant his Miranda warnings, 

asked if appellant would agree to talk to him, and had appellant sign and initial a 

waiver card saying appellant understood his rights. Sergeant Wright also told 

appellant that he did not know what was going on in Fort Worth, that he was not 

there to discuss it with appellant, and that it was none of his business.

Sergeant Wright asked appellant about robberies at a QT and a 7-11 in 

Arlington. Although he showed appellant pictures, we cannot tell which stores 

were shown in the pictures. Sergeant Wright did tell appellant that based on the 

pictures appellant had looked at in Fort Worth (and had identified himself in), 

Sergeant Wright thought appellant was the person who robbed the clerks in 

Arlington. Appellant admitted that the man in Sergeant Wright’s pictures could 

 

5

They also asked about a robbery on Grapevine Highway, but they did not 

identify the city. From the officers’ questioning, it appears that these robberies 

involved similar methodology and occurred around the same time.
10

have been him, but he told Sergeant Wright he was not sure if he had ever been 

in those stores. Appellant identified his companion, Dre, in a picture when 

appellant and Sergeant Wright were discussing the 7-11 robbery.

When appellant did not say whether he had participated in the QT robbery, 

Sergeant Wright told him he knew the man in the picture was him. Sergeant 

Wright told appellant that the clerk at the QT had identified him but that the clerk 

at the 7-11 could not. According to Sergeant Wright, there was no question that 

the man in the QT picture was appellant because the clerk could clearly see his 

face.

Sergeant Wright said he wanted to know why ―they‖ had picked the QT 

and whether appellant intended to kill or hurt the clerk. In response to that 

question, about halfway through the interview, appellant said the gun was not 

loaded; he also told Sergeant Wright that Dre had dropped him off at the store, 

and he did not know why Dre picked certain stores. This was the first time in the 

interview with Sergeant Wright in which appellant admitted participating in the 

robberies. Sergeant Wright also told appellant that the clerk at the QT was 

distraught over the robbery and feared for his life. Sergeant Wright told appellant 

he wanted to be able to tell the clerk that the robbers did not intend to kill him, 

and appellant affirmed that he did not.

By the end of the interview, appellant had admitted his involvement in both 

offenses. Sergeant Wright thanked appellant for his cooperation and said that he 

would be able to reassure the QT clerk that the men did not intend to kill him that 
11

night and were not going to retaliate against him or his family. Sergeant Wright 

then asked appellant for a saliva sample for DNA testing; when appellant 

expressed confusion, Sergeant Wright told appellant he was not required to 

provide a sample voluntarily. After Sergeant Wright read appellant the consent 

form for the sample, and appellant acquiesced verbally, appellant asked what 

would happen if he waited until he had an attorney to find out what was the best 

thing to do. Sergeant Wright told appellant he was free to consult an attorney 

before giving a DNA sample. Appellant then referred to the Fort Worth interview, 

and Sergeant Wright again explained to appellant that the Fort Worth offenses 

were separate and that he was interested only in the Arlington offenses. Upon 

appellant’s questioning about who would be responsible for prosecuting him, 

Sergeant Wright explained that Tarrant County would be responsible for 

prosecuting all of the cases and that they would probably be handled by one DA.

Findings

The trial court made the following oral findings on the record:

Article 38.22 of the Texas Code of . . . Criminal Procedure was 

complied with. The Defendant was read his Miranda rights by 

Sergeant Wright. The Defendant . . . initialed the card -- the warning 

card which contained the Miranda warning. Specifically, he was 

warned that he had the right to remain silent, not make any 

statements at all. And any statement he make -- may make would --

may be used against him at trial. Any statements you may make 

may be used as evidence against you in court.

He was advised, ―You have the right to have a lawyer present 

to advise you prior to and during any questioning. If you are unable 

to employ a lawyer, you have the right to have a lawyer appointed to 
12

advise you prior to and during any questioning. You have the right

to terminate the interview at any time.‖

The statement given by the Defendant was given to Officer 

Wright. This was recorded. The Miranda warning was recorded by 

Officer Wright also. The Defendant knowingly, intelligently, and 

voluntarily waived any rights set out in the motion. The statement

was recorded by a recording device that was capable of making an 

accurate recording, and I believe it was competent. And the 

recording is accurate and has not been altered. Voices on the 

recording were identified.

The Defendant was not promised anything as -- in order to 

induce him to make a statement. No threats were made to the 

Defendant, no promises. It was a completely voluntar[]y statement 

made by Defendant.

The Court also finds that the Defendant did not confess to Fort 

Worth police, and that he was not in . . . custody at the time because 

he was not under arrest. But in any event, no statement was made 

by Defendant at that time.

But the Court finds that in its totality, the action of officer -- or 

Sergeant Wright complied with 38.22; therefore, the Court will 

overrule your objection. State’s Exhibit 5 will be -- which is the

unredacted copy, will be admitted for record purposes only. State’s 

Exhibit 6 will be admitted to the jury for all purposes. . . .

Analysis

Miranda

Appellant does not contend that he was denied access to outside 

resources or physical needs, that he was in any physical or mental discomfort, or 

that Sergeant Wright made any promises or threats to coerce the confession. 

Appellant’s main contention is that he thought the interview with Sergeant Wright 

was merely a continuation of his prior, unwarned interview with Fort Worth police; 

as such, he did not realize what he was doing when he waived his rights during 
13

the interview with Sergeant Wright because he had already spoken with Fort 

Worth police by that point and had not been warned during that interview. In 

other words, appellant contends that he thought Sergeant Wright would have 

found out what appellant told Fort Worth regardless of whether he talked with 

him, so his waiver was meaningless. 

Although appellant contends that he was in custody during the Fort Worth 

interview and, thus, that he should have received Miranda warnings, the trial 

court believed that appellant was not in custody and that warnings were not 

required.

There are at least four general situations when a suspect’s detention 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. Dowthitt

v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); McCulley v. State, 352 

S.W.3d 107, 115–16 (Tex. App.––Fort Worth 2011, pet. ref’d). In the first 

through third situations, the restriction upon freedom of movement must amount 

to the degree associated with an arrest as opposed to an investigative detention. 

Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Concerning the 

fourth situation, the officers’ knowledge of probable cause must be manifested to 
14

the subject, and such manifestation could occur if information sustaining the 

probable cause is related by the officers to the suspect or by the suspect to the 

officers. Dowthitt, 931 S.W.2d at 255; McCulley, 352 S.W.3d at 116. Situation 

four, however, will not automatically establish custody; rather, custody is 

established if the manifestation of probable cause, combined with other 

circumstances, would lead a reasonable person to believe that he is under 

restraint to the degree associated with an arrest. Dowthitt, 931 S.W.2d at 255; 

McCulley, 352 S.W.3d at 116. Additionally, the length of time involved is an 

important factor to consider in determining whether a custodial interrogation 

occurred. Dowthitt, 931 S.W.2d at 256; McCulley, 352 S.W.3d at 116.

The Fort Worth interview took about three hours. The audiotape of that 

interview shows that the police told appellant more than once that he was free to 

leave and that he was not in custody. The trial court was thus justified in not 

believing appellant’s testimony that the police told him he was under arrest. After 

the interview, the Fort Worth police did not arrest appellant for any robberies; 

instead, they arrested him for assault. Thus, the record supports the trial court’s 

finding and conclusion that appellant was not in the custody of, or under arrest 

by, the Fort Worth police during that interview and that, therefore, Miranda

warnings were not required. See Estrada v. State, 313 S.W.3d 274, 294–95 

(Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011).

Moreover, the trial court believed Sergeant Wright’s testimony, borne out 

by the recording, that he made it ―extremely clear‖ to appellant before the 
15

interview started that he was an Arlington police officer and was investigating two 

Arlington crimes. The two interviews were under different circumstances: one 

was voluntary with Fort Worth police; the other occurred after appellant had 

already been arrested by Fort Worth police, and Sergeant Wright had to transport 

him to the Mansfield detention center. Even if the trial court believed that the 

Fort Worth officers’ statements to appellant in their interview indicating that they 

believed he was in a bad situation and had not intended to hurt anyone 

amounted to promises of leniency with respect to the Fort Worth crimes, there is 

still no evidence that Sergeant Wright promised, or that appellant thought, that he 

would be granted leniency regarding the Arlington crimes. See Muniz v. State, 

851 S.W.2d 238, 254 (Tex. Crim. App.) (―Before a promise will render a 

confession inadmissible, it must be shown that the promise induced the 

confession. . . . In order to induce the confession, the promise must be 

(1) positive, (2) made or sanctioned by someone in authority, and (3) of such an 

influential nature that a defendant would speak untruthfully in response thereto.‖ 

(citation omitted)), cert. denied, 510 U.S. 837 (1993); Wilson v. State, 348 

S.W.3d 32, 39 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that 

appellant could not demonstrate that statements by sergeant would have induced 

an innocent person to confess). Additionally, the trial court determined that, 

despite appellant’s contention that he was confused, the totality of the 

circumstances showed that Sergeant Wright’s explicit warnings, along with 

appellant’s answers, were sufficient to show that appellant was aware of his 
16

rights and the consequences of waiving them. See Joseph v. State, 309 S.W.3d 

20, 27 (Tex. Crim. App. 2010).

Likewise, there is no evidence that, in appellant’s words, ―[t]he procedure 

used by the State was designed to circumvent [a]ppellant’s constitutional and 

statutory protections.‖ The recordings show that appellant provided 

progressively more information as the interviews proceeded. Although he had 

been arrested by the time of the Arlington interview, he nevertheless initially and 

repeatedly denied to Sergeant Wright that he had been involved in the Arlington 

robberies. Only at the suggestion that the gun used in the robberies was loaded, 

however—about halfway through the interview6—did appellant decide to talk; 

once he did so, he appeared to be ―in for a penny, in for a pound.‖ Accordingly, 

viewed under the appropriate standard of review, the trial court’s ruling that 

appellant’s confession was knowing, intelligent, and voluntary for purposes of 

Miranda was not error. We overrule appellant’s first point.

Article 38.22

Appellant argues that the short time between the two interviews shows that 

he thought they were connected; thus, he did not understand the warnings 

Sergeant Wright gave him because he thought Sergeant Wright already knew 

everything the Fort Worth police knew and that he had to tell Sergeant Wright the 

same things he told Fort Worth. But appellant’s initial and repeated refusal to 

 

6

The Arlington interview lasted about thirty minutes.
17

answer Sergeant Wright’s questions was not consistent with the answers he 

gave Fort Worth police during their interview. Appellant knew that Fort Worth 

police had arrested him on an assault charge, not a robbery or aggravated 

robbery charge. And although Sergeant Wright started his interview by saying he 

had talked to and worked with the Fort Worth police, he clearly told appellant he 

was concerned only about crimes committed in Arlington. Moreover, this 

statement occurred after Sergeant Wright Mirandized appellant and appellant 

signed the waiver card. The record does not support appellant’s contention that 

he did not know what he was doing when he signed the waiver card and spoke to 

Sergeant Wright about the QT robbery in Arlington. See Leza, 351 S.W.3d at 

352–53. We overrule appellant’s second point.

Coordinated Continuation of Unwarned Fort Worth Interview

In his third and fourth points, appellant contends that the trial court erred 

by denying his motion to suppress because the interview with Sergeant Wright 

was a continuation of an earlier, unwarned, custodial interview with Fort Worth 

police and appellant was therefore unaware that those earlier statements were 

inadmissible and could not be used against him. Appellant did not argue at trial 

that Fort Worth police deliberately failed to Mirandize him to coerce a confession 

to the Arlington aggravated robbery. Although appellant testified on voir dire that 

Fort Worth police told him he was not free to leave, the court listened to an 

excerpt from the beginning of that interview. Appellant’s counsel admitted in her 

argument on the motion to suppress that Fort Worth police had told him he did 
18

not have to talk to them and was free to terminate the interview. Instead, she 

argued that appellant was confused about the effect of the prior interview when 

he was confronted with Sergeant Wright’s warning; counsel contended that 

appellant thought Sergeant Wright was working with the Fort Worth police and, 

thus, that Sergeant Wright should have disabused appellant of any

misperceptions he had regarding the effect of that voluntary interview. 

Accordingly, we conclude and hold that appellant failed to preserve his third and 

fourth points, in which he contends that Sergeant Wright and Fort Worth police 

used a ―coordinated and continuing‖ interrogation procedure that was ―designed 

to circumvent‖ appellant’s rights.7 See Tex. R. App. P. 33.1(a)(1); Romo v. State, 

315 S.W.3d 565, 573 n.7 (Tex. App.—Fort Worth 2010, pet. ref’d); see also

Missouri v. Seibert, 542 U.S. 600, 608, 124 S. Ct. 2601, 2608 (2004); Carter v. 

State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010). We overrule his third and 

fourth points.

 

7Appellant’s counsel did argue the ―cat-out-of-the-bag‖ theory, but the 

thrust of that argument was that appellant did not understand that he was not in 

custody during the Fort Worth interview and that even though he did not confess 

during that interview, he thought Fort Worth police must know he was the culprit 

and had shared that information with Sergeant Wright. See Griffin v. State, 765 

S.W.2d 422, 425, 427 (Tex. Crim. App. 1989).
19

Conclusion

Having overruled appellant’s four points, we affirm the trial court’s 

judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER and GABRIEL, JJ., concur without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 21, 2012