### IN THE

TENTH COURT OF APPEALS

No. 10

- 19

- 00258

- CR

CEDRIC CHARLES NUGENT

, Appellant

v.

THE STATE OF TEXAS

, Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 15

- 05253

- CRF

- 361

MEMORANDUM OPINION

The jury convicted Cedric Nugent of the offense of evading arrest with a vehicle.

The trial court found the enhancement paragraphs to be true and assessed punishment

at 30 years confinement. We affirm.

A DMISSION OF S TATEMENTS

In the first and second issues on appeal, Nugent complains that the trial court

erred in admitting incriminating statements he made to law enforcement. On Oct oberNugent v. State Page 2

12, 2015, Bryan Police Officer Aaron Arms initiated a traffic stop for failure to signal

within 100 feet of an intersection. Officer Arms engaged the overhead lights in his patrol

car, but the vehicle did not stop. Officer Arms pursued the vehicle b ut ended the pursuit

when the vehicle ran a stop sign. Officer Arms obtained the license plate number of the

fleeing vehicle and determined it was registered to Shantre Watson.

Officer Arms testified that the fleeing vehicle was a black, Ford SUV, and tha t

information was made available to other officers. Officer Daniel Amaya testified that he

heard the information about the attempted traffic stop. While on patrol, Officer Amaya

observed a group of men near a black, Ford SUV. Officer Amaya thought the v ehicle

might be involved in Officer Arms’ evading case, and he ran the license plate to confirm

that it was the vehicle. The men left the black SUV and went into an apartment. Marshal

Albert Reeder arrived to assist Officer Amaya. Officer Amaya and Mars hal Reeder

knocked on the apartment door, but no one answered. After approximately fifteen

minutes, Nugent opened the door and went outside. Marshal Reeder handcuffed Nugent

for officer safety.

Officer Arms arrived at the scene and identified the blac k SUV as the one involved

in the evading case. The officers learned that Nugent had outstanding warrants. Marshal

Reeder testified that he asked Nugent if he was the one driving the vehicle, and Nugent

indicated that he was the driver. Officer Arms also testified that Nugent told him he was

the driver of the vehicle and that he did not stop because he had outstanding warrants.Nugent v. State Page 3

Nugent argues in the first issue that the that the trial court erred in admitting the

custodial incriminating statement he made to Marshal Reeder prior to any warning being

given. In the second issue, Nugent argues that the trial court erred in admitting the

custodial incriminating statement he made to Officer Arms without being properly

admonished and waiving his rights. Nugent filed a motion to suppress the statements

he made to Officer Arms and Marshal Reeder.

A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of

discretion. State v. Cortez , 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). The record is

viewed in the light most favorable to the trial court's determination, and a trial court's

ruling should be reversed only if it is arbitrary, unreasonable, or outside the zone of

reasonable disagreement. Id .; State v. Story , 445 S.W.3d 729, 732 (Tex. Cr im. App. 2014).

Because the trial court is the sole trier of fact, we will give almost total deference to the

trial court's determination of historical facts. State v. Story , 445 S.W.3d at 732; State v.

Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Th e trial court's application of the law

to those facts, however, is reviewed de novo. Id

. We will sustain the trial court's decision

if we conclude that the decision is correct under any applicable theory of law. State v.

Cortez , 543 S.W.3d at 203.

At a pre

- trial hearing, the State indicated it did not intend to introduce the

statements into evidence unless the “defense opens the door to the statement.” The trialNugent v. State Page 4

court noted that the statements would not be admissible unless the defense opened the

door.

D uring the cross

- examination of Officer Arms, defense counsel questioned him on

the identity of the driver of the black, Ford SUV and whether he could describe the

appearance of the driver. Counsel asked if he located the passenger of the vehicle and

also questioned him on other possible suspects. Counsel further asked questions on the

investigation such as whether he took any fingerprints from the vehicle or attempted to

obtain any DNA evidence. Officer Arms testified on cross

- examination that he did not

recommend the case go to the criminal investigation division for further investigation.

After the cross

- examination of Officer Arms, the State argued that the defense had

opened the door to the admission of Nugent’s statements. The State contends that the

defense put in front of the jury that Nugent was not the one driving the vehicle and that

they were allowed to rebut that defensive theory with Nugent’s statements. The trial

court found that the defense had opened the door to the statements by presen ting the

defensive theory that Nugent was not the one driving the vehicle.

Evidence that is otherwise inadmissible may be admitted to correct a false

impression left by the questioning of a witness. See Wheeler v. State

, 67 S.W.3d 879, 885

(Tex. Crim. App. 2002) ; Haywood v. State

, No. 01

- 13

- 00994

- CR, 2014 Tex. App. L EXIS 13312

*9 (Tex. App.

— Houston [1 st Dist.] December 11, 2014, pet. ref’d) (not designated for

publication). Inadmissible evidence may be admitted if the party against whom theNugent v. State Page 5

evidence is offered opens the door, provided the evidence does not stray beyond t he

scope of the invitation. Schutz v. State

, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) ; Haywood

v. State

, 2014 Tex. App. L EXIS 13312 *9. This is true even of statements that are

inadmissible because they constitut e custodial interrogations obtained

without Miranda warnings. See Harris v. New York

, 401 U.S. 222, 224

- 25, 91 S. Ct. 643, 28

L. Ed. 2d 1 (1971) ; Haywood v. State

, 2014 Tex. App. L EXIS 13312 *9.

In Haywood

, defense counsel questioned the officer on how he conducted the

investigation including why the officer did not bag the defendant’s hands or obtain

search warrants. Haywood v. State

, 2014 Tex. App. L EXIS 1331 2 *10. The court found that

the officer was unable to explain to the jury that there was no need for such investigation

because the defendant admitted firing the gun. Id

. The court concluded that defense

counsel’s questions opened the door for the State to admit the defendant’s oral

statements. Id

.

Nugent’s counsel questioned Officer Arms on whether or not he conducted further

investigation including fingerprints and DNA evidence from the vehicle. As in

Haywood, the officer was unable to explain to t he jury that there was no need for that

evidence because Nugent stated he was driving the vehicle. Counsel also questioned

Officer Arms placing the identity of the driver of the vehicle in question. We find that

the trial court did not abuse its discreti on in admitting the statements Nugent made to

Officer Arms and Marshall Reeder. We overrule the first and second issues.Nugent v. State Page 6 J UROR I NFORMATION

In the third issue, Nugent argues that the trial court erred in refusing to allow him

to access juror contact information to develop an issue raised in a motion for new trial.

In his motion for new trial, Nugent alleged juror misconduct prevented him from having

a fair trial. Nugent attached the affidavit of Jennifer Whitcomb to the motion. In the

affidavit, Wh itcomb stated that defense counsel questioned the jurors on whether they

had driven or Googled the route of the chase, and Juror O’Brien indicated she Googled

the locations and drive

- time estimates. Nugent filed a motion to obtain the juror contact

inform ation to adequately prepare for the motion for new trial or, alternatively, to

question the jurors at the hearing on the motion for new trial.

The trial court held a hearing and denied both the motion for juror contact

information and the motion for new tr ial. The trial court found that assuming Juror

O’Brien said she Googled the drive

- time estimates, there is no evidence that it “influenced

or provided information that was related to an issue at the trial, which was did or did not

the defendant use a vehi cle to evade a stop by a police officer.”

Article 35.29 of the Code of Criminal Procedure provides that juror contact

information is confidential and may not be disclosed by the court except on a showing of

good cause. See T EX

. C ODE C RIM

. P ROC

. A NN

. art .35.29 (a) (b) (West Supp. 2019). What

constitutes good cause must be based upon more than a mere possibility that juryNugent v. State Page 7

misconduct might have occurred; it must have a firm foundation. Taylor v. State

, 461

S.W.3d 223, 230 (Tex. App.

— Houston [1 st Dist.] 2015, pet. ref’d).

The trial court found that assuming Juror O’Brien conducted an internet search of

the drive

- time estimate, that would be an outside influence under McQuarrie v. State

, 380

S.W.3d 145, 154 (Tex. Crim. App. 2012). However, the trial court found that it was not an

improper outside influence because it was unrelated to any factual or legal issue at trial.

See Colyer v. State

, 428 S.W.3d 117, 130 (Tex. Crim. App. 2014). We agree. The route of

the chase and the drive

- time estimates were not contested issues at trial. The trial court

did not abuse its discretion in refusing to allow Nugent to access juror contact

information. We overrule the third issue.

C ONCLUSION

We affirm the trial court’s judgment.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

Affirmed

Opinion delivered and filed December 30, 2020

Do not publish

[CRPM]