NO. 07-04-0479-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 29, 2006

______________________________ GREGORY BANNISTER, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 154 TH DISTRIC T COURT O F LAMB COUNT Y; NO. 3900; HON ORABLE FELIX KLEIN, JUD GE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
The primary issue presented in t his appeal iswhether th e procedural pr otections set outin Miranda v. Ariz

ona and Article38.22 of the Texas Code of Criminal Procedure are applicable to appellant’s statemen t to a jailer concerning the charges again st him. The second issue concer ns admission of evidence of cocaine use and withdrawal. Rejecting appell ant’sargu ments o n both i ssues , we affirm.1 Dispositi on of the manslaughter charge is

not shown i n this recor d. 2 Factual and Pr

ocedural Backg round
On a Saturday morning in M ay 2002 appellant Greg ory Bannis ter was d riving with
a friend from Lubbock tohis home in Cl ovis, New Mex ico. Near the c ity of Amherst his vehicle left the roadway, st riking and killi ng a bicyclist on the shoulder. Appel lant was present when deputies

and DPS trooper

s arrived and he consented tocollection of a blood sample. Because there was no indi cation he was intoxi cated, appellant was not arrested. The sequence of events leading to his subsequen t arrest is not clear from this record. I t does show that testing of appe llant’s b lood indicated the use of cocaine and he was charged with in toxicati on manslaughter and aggrav

ated assault under

two different cause numbers. This record concerns appel lant’s tri al and convi ction for aggrav ated assault and punishment, enhanced by prior conv ictions, of 30 y ears confinement. 1 During trial the S tate sought tointr oduce t estimo ny fro m Lamb Cou nty depu ty s heri ff Shaun Wilson that appellant had made a statement indicating he had used cocaine within
a day before the collision. Afte r voir dire of W ilson the defense objected on the bas is the statement wasthe result of custodial interr ogation w ithout

“proper w

arnings,”in viol ation of his rig ht to counsel, a nd the State had f ailed to gi ve timely notice of its intent to call Wilson. The trial co urt overruled the objections . Wilson testified that w hile appellant was confined in the Lamb County jail in N ovember 2003 he took appellant and another inmate to a c l i n i c fo r

m e d i c a l t r e a t m e n t

. A c c o r d i n g t o Wi lso n, in the clinic’s waiting room, while appellant

was “tal king in g eneral to the oth er inmate and maybe a nurse . . . . I happened2 A defense expert testified that no con clusion cou ld be draw n about when appellant consumed cocaine based on t he analysi s of his blood. 3 to ask him wha t he was inca rcerate d for.” Appella nt replie d “he was be ing charge d with Intoxicated Man sla ugh ter .” Wils on as ked i f the events occ urred near the town of Earth. Appellant

said it “h appened on [highway ] 84 up by Amherst.” After furth er defense objections the court recessed for the ev ening to g ive the defense an oppor tu nity to investig ate the testimony

. The State re called W ilson during rebuttal. 2 Wilson was asked ag ain about appellant’s answer to his first q uestion and repl ied: “He re sponded that he was in jail for Intoxicated Man sla ugh ter .” Wils on te sti fi ed appellant then “stated that he didn’t understand why he was being charged w ith Intoxi cated Manslaug hter if he had used cocaine the day before.” Wilson testified he did not document the statement at the time or take any ste ps then to make an investi gator or pr osecutor working on t he case awar e of it. The prosec utor onlylearned of the statementduring a l unchtime conv ersation the Friday before trial. The prosecutor

asked Wilson to reduce hisrecollecti on of the event to w riting an d provided a copy to defense counsel the same aftern oon.
The State’s rebut

tal evidence also included test imony from Bri an Cantrell, the other inmate at the clinic. Cantrell’ s testimony supported Wilson’s ver sion of events. H e recalled thatappellant asked Wilson, “How can they charge me w ith Intoxi cated Mansla ughter w hen3 At the time of appe llant’s trial Cantrell had discharg ed his sentence and testified

he was not s ubject to probat ion, parole or pending char

ges. 4 I wasn’t drunk, when I was on cocaine at the ti me.” Accordi ng to Cantrell that statement was not in response to q uestioning b y Wilson. 3
Custodial Interrogation Appellant’s first four points advance dif ferent theories w hy admissi on of the evidence of his November 2003 statement was error. Point one rests on Ar

ticle 38.22 of the Texas Code of Criminal Proced ure. Point tw o asserts v iolation of his Sixth Amendment rig htto coun sel. In po int thre e he asse rts violatio n of his Fifth A mendm ent righ t agains t self-incri mination a nd point four complai ns of the State’s fail ure to timely disclose th e sta tement. We review challeng es to a trial court’s ev identiary rulingsfor abuse of discretion. McDonald v. State , 179 S.W.3d 571, 576 (Tex.Crim.App. 200 5). That standard requiresus to give almost total deference to a trial cour t’s determinat ion of historical facts that find support i n the record. State v. Ross , 32 S.W.3d 853, 855 (Tex.Cr im.App. 2000) (suppressi on hearing) ; Guzm an v. State , 955 S.W.2d 85, 89 (Tex.Cri m.App. 1997).
In Miranda v. A rizona , 384 U.S. 436, 86 S.C t.1602, 16 L.Ed.2d 694 (1966), the SupremeCourt prohibited the prosecution ’s use of statement s stemming from cust odi al interrogat ion unless it demonstrated the use of procedura l sa feguards to protect the accused’s right

against sel f incriminatio n. Id. at 444. Arti cle 38.22 of the Code of Criminal Procedure imposes additi onal procedural steps designed toprotect the sa me rights an d, with a limited exception not applicable he re, prohibits use of statem ents made as a result5

of custodial i nterrogati on when the enumer ated procedures ar

e not followed. Tex. Code Crim. Proc. Ann. ar

t. 38.22 (Vernon 2005). Section 5 of Arti c le 38.22 reiter ates that statements which do not result from c ustodial interrogation ar e not sub

ject to ex clusion. The parties ag ree the procedur es described in Mirandaand setout in artic le 38.22, secti on 3 (governing oral statements) were not fol lowed by Wilson. They also agr

ee appellant was in custody at the time of the statements . Their dispute, and resoluti on of appellant’s first and third points, turn on w hether the statements were th e result of interrogation. Appellant

relies primarily

on the holding in Rhode Island v. Innis , 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) , and cases follow ing it hol ding “the term ‘interr ogation’ under Mirandarefers not only to express questioning , but also to any words or

actions on the part of the police (other than th ose normally attendant

to arrest and c ustody) tha t the police should know are reasonably likely to elicit an incriminating response.” Id. at 301. It defined an in criminating response to i nclude any r esponse the prose cution may s eek to introduce at trial. Id. at 301 n.5. The def endant in Inniswas arr ested for a shooting where police believed hehad discarded the murder weap on ne ar a school. While transporting Innis to the police sta t ion a fte r he h ad be en give n the warnin gs requ ired by Miranda , officers discussed theimportance of finding the gun before it was discover ed by schoolchildr

en. Id. at294-95. Innis told the of ficers to turn back and he would show them where the gun was. Id. at 295. Innis l ater argued the statement was the product of custodial inter rogat ion and inadmi ssi ble. The court r ejected that contention, holding the conversati on between the officer s was nei ther expre ss questio ning of Innis or its “functiona l4 During defense counsel’s voir di re examinati on of W ilson , he d escri bed the c onte xt of appellant’s s tatements in the w aiting ro om, stating, “He was n’t talking to me in general. He was speak ing out loud to, bas ically , anybody that would l isten to him. Ther e was another inmate in the roo m at that time and I think th e nurses were around as well.” 6 equival ent.” Id. at 302. Itfound the of ficers’ statements “of fhand remarks” not reaso nably likely to elicit an incriminat ing respons e. Id. at 303.
The record does n ot support appell ant’s conclus ion that Wilson shou ld ha ve kno wn the questions he asked were reasonably likely to elicit an incr iminating re sponse. A response to Wilson’ s fir st question would not be incriminati ng under the br oad definition of that term in Innis

. But see Etherid ge v. Johnson , 49 F.Supp.2d 963, 981-82 (S.D. Tex. 1999) ( arrest ing officer asked if defendant knew w hy he wa s being arr ested). That appellant

knew the charge a gainst him was not a fact the State would seek to introduce attrial. H ad Wilson asked what appell anthad done, rather than what he w as charged w ith, the question w

ould likely

have elic ited an incriminati ng response. See, e.g., U.S. v. Webb , 755 F.2d 382, 389 (5 th Cir. 1985) (booking o fficer asked “w hat . . . did yo u get yo urself into?”). The same is true for Wilson’s second question abo ut the location of events leadi ng to the charg e. B oth witnesses to the conversation who testified asse rted appellant’s statement concerni ng cocaine us e was not i n response to any question from Wilson. 4
We do not agree the facts p resented here are more s imilar to cases cited by appellant

where r eviewi ng courts have found police conduc t was the funct ional equival ent of express questioning . The disting uishing facto r is that in t hose cases the s tatements
were made to off icers who were investigating the offense for which the defendan t was in cust ody. In Wortham v. Stat e , 704 S.W.2d 586, 589 (Tex.App.–Austi n, 1986, no pet.), the7

statement

at issue occurred durin g a c onversati on between sher iff’s deputies and the defendant on the way

to jai l. The officers admitted th e conversat ion included q uestions aboutthe shooting they wer e investi gating, bu t contended the statementat issue was not in response to a question but “almost an aft erthought.” Id. at 588. The officers’ questions aboutthe s hoo ting s howed they were inv es tigating the offense and the court held the statement wasthe result of cu stodial interrogation. Id. at 589.
The Eastland Cour

t of Appeals followed Worthamin Baxter v. Stat e , 718 S.W.2d 28 (Tex.App.–Eas tland 1986, pet. r ef’d), holding statements made to off icers during their search of a tra iler contai ning a clandestine drug lab shortly after the def endant’s arrest
were the result of interrogation. On evidence the of ficers asked the defendant q uestions concerning the operations at the trailer, the court rejected the off icers’ claim the statements
were made in “general conversation.” Id. at 33. An investi gating officer ’s statements to a defendant in an emergency room that

another person involved in a traffic acc ident had died and the officer wanted to talk w ith the defendant about th e a ccident w er e found to constitute interrog ation in Clemm er v. State , 645 S.W.2d 918, 919 (Tex.App.–F ort Worth 1983, no pet. ). Following Innis , the court found the of ficer’s statements reason ably likely to elicit an incriminating response and reversed the co nvic tion. Id. at 920. See also Etheridge , 49 F.Supp.2d at 982 (arrestin g officer asked d efendant if he knew w hy he was under arrest); Castleberr

y v. State , 100 S.W.3d 400, 404 (Tex.App.–San Antonio 2002, no pet.) (post-arrest question by investi gating officer

at scene about ow nership of we apon was interro gation, p recluding admission of the defendant’ s response in his prosecut ion for weapons offense ).5 Questione d dur ing his voir dire examination about his reaction to appellant ’s

statements, Wilson testi fied, “When ever he made tha t statement it – I didn’t know what effect it woul d have on the case or I didn’ t know w hat kind of evidence they had or anything like that. A lot of times they may talk abou t their cases out loud.” 8 By contrast, ev idence shows Wilson had no involvement in the investi gation of the charges aga inst appe llant. 5 The sta tementsto w hich Wilson testi fied were mad e some eighteen months a fter the May 2002 death of the bicyclist.
In Innisthe Court r

ecognize d that an officer’s intent may have a bearing on whether he should have known his words or actions were reasonably likely to elicit an incriminat ing response. Innis , 446 U.S. at 301 n.7. See also Wilkerson v. S tate , 173 S.W.3d 521, 528- 30 (Tex.Cri m.App. 2005 ) (d isc ussi ng a ppli cati on of Mirandaand art. 38.22 to questi ons by state agent not participati ng in cri minal inves tigation) . The jailer i n Webb placed himself into the law enfor

cement role by

admitting he “saw hi s own rol e as one of helping in the FBI's investi gation in w hatever w ay he cou ld,” and by

informing inv

estigators

of the defendant ’s statement. 755 F. 2d at 389. The cir cumstances of appellant’s statements in the waiting room of the clini c an d Wilson ’s failure to record the statement or repor t it to investigators or the prosecutor fur ther indic ate h e had no in tent to ac t in a n inve stiga tive capa city. The record supp orts a findi ng appellant’s s tatement was no t the result of interrogat ion. We overrule appell ant’s first and third points of error. Appellant’s second point as serts admiss ion of the statement v iolated his S ixth Amendmentright to counsel . Pro tection of that ri ght prohibi ts police from el iciting incriminati ng stat ements from a defendant concer ning the pendi ng chargeafter the defendant ’s r ight to counsel attac hes, whic h occurs on commencement of adversar ial6 Appellant’s indictment for aggravated assault appearing in the appellate record is dated in January

2004, after his N ovember 2003 conversat ion with deputy Wilson. Wilson and Brian Cantr

ell testified appellant’s s tatementduring that conversat ion was tothe effect he had been indicted f or “intoxicated manslaughter.” Nothing in the recor d makes clear whether appel lant’s earl ier indict ment included the a ggravated assault cha rge. 9 proceedings. Fellers v

. U.S. , 540 U.S. 519, 523, 124 S.Ct. 1019, 157 L.Ed.2 d 1016 (2004); Kirby v. Illinois , 406 U.S. 682, 688-90, 92 S.Ct . 1877, 32 L.Ed.2d 411 (1972). Cus tody of a defendant is not neces sary to a Sixth Amendment v iolation. Innis , 446 U.S. at 300. Appellant

relies on t he argument advanced under his first point to establish W ilson’s conduct was designed to elicit incriminating statements in violati on of his Sixt h Amendment right to counsel. The State’s bri ef contains no dis cussion of appell ant’s Six th Amendment claim

. We initially note the Sixth Amendment right to counsel is offense- specific. Texas
v. Cobb , 532 U.S. 162, 121 S.C t. 133 5, 149 L.Ed.2d 321 ( 2001); Romo v. S tate , 132 S.W.3d 2, 3 (Tex.App.–Amarillo 2003 , no pet.). Even if W ilso n’s conversat ion with appellant

were reasonably

likely to elicit an incriminat ing statement, it concerned t he charge of

intoxication manslaugh ter. Admission of that e vidence in his trial for aggrav ated assault, for which he apparently had not yet been i ndicted, 6 would not b e barred under the Sixth Amendment. Id. Moreover , for the reasonsdiscu ssed, the record supports a conclusion that W ilson’s questions to appellant were notdesigned or reasonably

likely to elicit inc riminating information. We overrule a ppellant’s thi rd point. Appellant’s fourth point of err or complains o f the State’s failur e to timely disclose his st atement to the defense. He ar gues evi dence of the statement sh ould have been excluded because it was not disclosed to defense coun sel until the second day of trial in10

violatio n of a pretrial order issued under article 39. 14 of the Code of Criminal Procedure (Vernon 2005). The trial court order required disclosure of, inter alia , “all oral confessions, admissions and statements made by Defendant to the state in connection with thi s case, which were not el ectronicall y record ed[,] offense reports, police repor ts [and] repor

ts of third parties . . . involving the alleged facts of the of fense.”
Article 39.14(a) a ut horizes a trial court to order the State to produce do cuments, writte n s tatements of the defendant and tang ible objects under the contr

ol of the State which are relevant to the action. Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon 2005). An order unde r

that articl e “shall sp ecify the ti me, place and manner of making the inspection[.]” Id. ; Kinnamon v. State , 791 S.W.2d 84, 92 (Tex.Cr im.App. 1990), overruled on other grounds, Cook v. State , 884 S.W.2d 485 (Tex.Crim.App. 1994). Appellan t’s motion did not as k the trial court to set a time for producti on and th e court did not d o so. See Kinnamon , 791 S.W.2d at 92 (court does not err in failing to s et date when there is no reque st). The record shows Wi lson’s state ment concerning the event was prov ided to defense coun sel the F rid ay b efor e tr ial . In the a bsen ce of a deadline setby the cour t, di sclo sure on th e eve o f tri al ha s bee n fo und time ly. Kirksey v. State , 132 S.W.3d 49, 54 (Tex.App.–Beaumont 2004, no pet.), citing Murray v. State , 24 S.W.3d 881, 893 (Tex.A pp.–Waco 2000, no pet.). The facts here ar e ind istingui sha ble from thos e of Murray. There the prosecutor r eceived a w itness statement at5:35 p.m. on the Friday before trial. Id. at 893. She forwarded the statement to defense counsel thi rty minutes late r. The trial started the foll owing M onday and the w itness was called on7 Trial defense couns el’s objecti on to Erwi n’s testimony referred to Rule 401, which defines relevant evidence. It is Rul e of Evidence 402 that makes evi dence whic h is not relevant i nadmissible.

8 Appellant’s expert t estif ied benzoy lecgonine i s normally present for tw

o or three days, but that some repor ted cases found detect ible amounts aft er two or three weeks in chronic cocaine users.

9 She said that among its eff ects, cocaine “keeps you awake.” 11 W edn esda y. Id. The Waco Court of Appeals found no viol ation of the discov ery order and affirmed. Id. Finding that holding dispositive, we ov errule appell ant’s fourth point

. Appellant’s nex

t three pointschallenge t he admission of expert w itness testi mony concerning the pr

esenceof a coc aine me tabol ite in his b lood and the effect of cocai ne withdrawal. He argues the evidence was admitted in violati on of Rules of Evi dence 401 7 (point five), 702 ( point six ), and 403 (poi nt seven). The disputed ev idence wasthe testimony

of Depar

tme nt of Publ ic Safety chemi st Kathy Er win, w ho analyz ed the blood collected from appellant. She found it containe d .36 milligr ams per liter

of benzoyle cgonine. This chemical is produced w hen the body metabol izes cocaine. Benzoylecgon ine has no effect on the body but indicates cocain e had been p resent. Accor ding to Erw in the presence of benzo ylecgoni ne does not indicate how or w hen the cocaine w as ingested. 8 Erwin went on to testify that cocaine is a potent stimulant w hich can lead to a “crash phase”
or “crash effect” during withdrawal where the user can experience fatigue an d sleepiness and a gene ral la ck ofener gy. 9 The effect can exis t even when the cocaine is no longer present.12

E rwi n was not as ked for an opinion whether appel lant had exper ienced cocaine crash or withdrawal. Except for her identif ication of appellant’s b lood sample and her recitation of the procedures utilized in the DPS l ab and resul ts o f her analysis, Erwin’s testimony w

as not related directly

to appellant.
The defense presen ted expert testimony from toxicologist James Boo ker. His testimony

was cons ist ent w ith that

of Erwin on th e source of benz oylecgon ine and the general scientific r

ecognition o f a cocaine cras h or cocaine withdraw al. He agr

eed that effect can last from several hours to several days, but opined an occasional user of small amounts of cocaine woul d not suffer a wi thdrawal effect. When asked what information
was neede d to det ermine the ef fect o f a drug o n a person, he replied that f or cocaine it would require information on when it was used, how much was use d and the means by which it was admini stered, adding that information w as not avail able in this case.
Followi ng the plain lang uage of Rule 401, appellant argues by his fifth point Erwin’s testimony

did not have any tendency to make a fact of consequenceto the determinat ion of the action more or less pr obable because i t did “not establi sh that he was under the in fluence of cocaine wh en he struck t he decedent.” This argument misap prehe nds th e State’s theory

at trial and the purpose of Er win’s testimony. I t was not the State’s theory thatappellant was under the influe nce of cocaine at th e time of the coll ision, but that

he
was fatigued and sleepy because he was suffering withdrawal from cocaine. This the ory was within the indictment al legation t hat appellant oper ated a motor v ehicle “w ithout10 Because the use of co caine was alleged in the indictment, evidence of that use

was not an extr

aneous offense. Manning v. State , 114 S.W.3d 922, 927 (Tex.Cri m.App. 2003).
11 Erwin w

as not direct ly asked i f appellant had us ed cocaine. She testified appellant’s blood sam ple contained the metabol ite benzoy lecgonine and that benzoyle cgonine is produced i n the body onl y follow ing cocain e use. She agr eed with the prosecutor

that, from the presen ce of benzoylecgonine in a person’s body, she could te ll that cocaine “was used.” 13 sufficient sleep, as a r

esult of the intr

oduction of cocaine into his body[. ]” 10 Erwin’s tes timony

was rel eva nt be caus e it

est abli shed sci enti fic a ccep tanc e of t he eff ects o f cocaine withdraw

al. It also showed appellant had consumed cocaine i n the recent past. That the testim ony did no t establish when the cocaine was consumed o r conclusively establish appellant ex perienced cocai ne withdraw al at the time of the collision did not m ake itinadmissibl e. As the Cour t of Criminal Appeals has ex plained, t he ins uffic ienc y of a particular

item of evidence, standing al one, to prove a fact does not make itinadmissibl e. Manning , 114 S.W.3d at 927. We overrule appellant’s fifth point.
In his six th point appella nt challenge s admission of Erwin’s testimony because the State failed to establish the reliabil ity of that tes timony. When a party offers testimony of
an expert witness, it is the trial court’s responsibility to determine if the evidence is sufficiently reliable to ass ist the jury. Sexton v. State , 93 S.W.3d 96, 99 (Tex.Crim. App. 2002). Appellant

argues the State “failed to shou lder its burden of showing that [E]rwin’s technique applying the cocaine cr ash theory was va lid and that the t echnique had been properlyapplied in th is case.” As noted, however, Erw in’s testi mony did not appl y the cocaine crash theory

to appellant. Before the jury , she was not asked if appe ll ant had experienced cocaine crash or withdrawal. 1114

T he State showed Erw in had bachelor’s and master’ s degrees i n chemistry , had taken additional graduate courses in fo rensic toxicology and had over 20 years experience in the field of chemistry, with five of those in the DPS cri me laboratory . She also ide ntified literature reporting studies on the effects of cocaine use. Appellant presents no challen ge to th e re liability

of Erwin’ s testimony

about her analy

sis of his blo od, that concerni ng the metabolite benzoyl ecgonine, or that describ ing the effects on t he body of cocaine use and cocaine withdrawal. His challenge is to testimony that Erwin did not give. We overrule appellant’s s ixth point

. In his final point of error appe llant argues that even if the evidence of the presence of benzoyl ecgonine was releva nt, it should have been excluded because thep robativ e value was substantiallyoutweig hed by the dang er of unfair prejud ice. See Tex. R. Evid. 403. In rev iewing an objection toevidence unde r Rule 403, a court should consider, but is not l imit ed to , the foll owi ng factors: (1) the probative value of the ev idence; (2) the potential to impress the jury in some irr ational, y et indelible, way; (3) the time needed to develop the evidenc e; and (4) the proponent's need for the evidence. Prible v. S tate , 175 S.W.3d 724, 73 3 (Tex .Cri m. App. 20 05); Manning , 114 S.W .3d at 926. Appellant’s argument

reiterates the contentions r egarding relevancy

urged in support of his fifth poi nt. Hi s argum ent c hall enge s the Court of Cr imin al Ap pea ls’ an alysis of si mila r evi dence i n Manning , and its conclusion the failure to exclude such evidence under Rule 403 was not
error. We find the analysis and hol ding in Manning dispositiv

e an d overrul e appellant’s seventh point

.15

Having overrul ed appellant’s points of error , we affirm the trial court’ s judgment.

James T. Campbell Justice

Do not publish

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