1

NO. _______________

TO THE COURT OF CRIMINAL APPEALS OF TEXAS

Cliff Douglas Parker, Appellant 

v.

The State of Texas, Appellee

***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

***************

FROM THE COURT OF APPEALS

SECOND APPELLATE DISTRICT OF TEXAS

FORT WORTH, TEXAS

NO. 02-14-00044-CR

TARRANT COUNTY

TRIAL COURT NO. 1329800

R. Scott Walker

STATE BAR # 24004972 

222 W. Exchange Avenue

Fort Worth, TX 76164

(817) 478-9999

(817) 977-0163 FACSIMILE

Attorney for Appellant

ORAL ARGUMENT NOT REQUESTED

PD-0573-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/12/2015 3:48:30 PM

Accepted 5/12/2015 4:29:14 PM

ABEL ACOSTA

CLERK
2

IDENTITIES OF PARTIES, TRIAL JUDGE AND COUNSEL

The following is a complete list of all parties, as 

well as the names and addresses of all counsel. 

Appellant: CLIFF DOUGLAS PARKER 

Trial Judge: Elizabeth Berry 

Trial Counsel: David C. Jones 

Attorney at Law 

3001 W. 5th Street, 

Suite 200 

Fort Worth, Texas 76107 

Appellate Attorney R. Scott Walker 

for Appellant: Attorney at Law 

222 W. Exchange 

 Ave.

Fort Worth, Texas 76164 

Appellee: The State of Texas 

Trial Attorney for D. Miles Brissette & 

Appellee: Betty Arvin 

Tarrant County Assistant 

District Attorneys 

401 W. Belknap, 

Fort Worth, Texas 76196 

Appellate Attorney for Sharen Wilson

Appellee: Tarrant County 

District Attorney 

401 W. Belknap, 

Fort Worth, Texas 76196 
3

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . 2

TABLE OF CONTENTS. . . . . . . . . . . . . . . . 3

INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4

STATEMENT DECLINING ORAL ARGUMENT. . . . . . . . 5

STATEMENT OF THE CASE . . . . . . . . . . . . . . 6

STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . . 7

QUESTIONS PRESENTED . . . . . . . . . . . . . . . 7

STANDARD OF REVIEW. . . . . . . . . . . . . . . . 8

ARGUMENT (Whether the trial judge erred in denying 

Defendant’s Motion to suppress the in-car video 

and all evidence obtained against the Defendant 

as a result of the illegal interrogation depicted 

on the video . . . . . . . . . . . . . . . . . . 8

PRAYER . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 16
4

INDEX OF AUTHORITIES

CASES

Dowthitt v. State, 

 931 S.W. 2d 244 (Tex.Crim.App. 1996) . . . . 11

Garcia v. State, 

 829 S.W.2d 796 (Tex.Crim.App. 1992). . . 14, 15

Guzman v. State, 

 955 S.W.2d 85 (Tex.Crim.App. 1997). . . . . . 8

Morgan v. State, 

 688 s.W.2d 504 (Tex.Crim.App. 1985). . . . . . 7 

Nix v. Williams,

 467 U.S. 431 (1984) . . . . . . . . . . . . . 14

Rivera v. State, 

 808 S.W.2d 80 (Tex.Crim.App. 1991). . . . . . 8

Shiflet v. State,

 S.W.2d 622,629 (Tex.Crim.App. 1985) . . . 9, 11

Stansbury v. California, 

 511 U.S. 318 (1994). . . . . . . . . . . . . 10

State v. Daugherty, 

 931 S.W.2d 268 (Tex.Crim.App. 1996) . . . . . 12

STATUTES 

Texas Code of Criminal Procedure, 

 Art. 44.02 . . . . . . . . . . . . . . . . . . 7 

Texas Code of Criminal Procedure, 

 Art. 38.22 §2 (a). . . . . . . . . . . . . . 10
5

Texas Code of Criminal Procedure, 

 Art. 38.22 §5 . . . . . . . . . . . . . . . 10

Texas Code of Criminal Procedure,

 Art. 38.23. . . . . . . . . . . . . . . . . 12

STATEMENT DECLINING ORAL ARGUMENT

Oral argument of this case is not requested on 

behalf of Appellant, and is hereby waived.
6

All references to Texas statutes, rules, etc.

are references to the latest edition published by 

West Publishing Company, unless otherwise 

indicated.

CLIFF DOUGLAS PARKER, Appellant-Applying for Review

V.

THE STATE OF TEXAS, Appellee

************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

************

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF 

TEXAS:

STATEMENT OF THE CASE

This appeal has resulted from a criminal 

prosecution for capital murder. A suppression 

hearing was held that began on the 6th day of 

January, 2014, and concluded on the 13th day of 

January, 2014. (R.R., Vol. 3 p.87). The 

suppression motion was partially granted and 

partially denied. (R.R., Vol. 3, p. 81-82). On 

the 14th day of January, 2014, a jury was selected. 

(R.R., Vol. 4). On the 15th day of January, 2014, 
7

after the ruling on the suppression motion, the 

trial commenced. (R.R., Vol. 5). On the 18th day 

of January, 2014, the jury found Appellant guilty 

of the lesser included offense of manslaughter. 

The next Wednesday, the jury set punishment at 

imprisonment for life. (R.R., Vol. 8, p.119). 

STATEMENT OF PROCEDURAL HISTORY OF THE CASE

The Court of Appeals rendered its decision and 

delivered its written non-published memorandum 

opinion on April 16, 2015. The deadline for filing 

a Petition for Discretionary Review is May 16, 

2015.

QUESTION PRESENTED FOR REVIEW

The trial judge erred in denying Defendant’s 

Motion to suppress the i- car video and all 

evidence obtained against the Defendant as a result 

of the illegal interrogation depicted on the video. 

STANDARD OF REVIEW

The Texas Court of Criminal Appeals set forth 

the standard of review for a denial of a motion to 

suppress under an abuse of discretion standard. 
8

Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App. 

1991). The evidence is viewed in the light most 

favorable to the trial court’s findings. Almost 

total deference is given to findings of fact that 

have support in the record. However, when a 

determination of a fact issue cannot be determined 

by looking to the credibility or demeanor of the

witness, the trial court’s determination of the law 

and the application of the law to the facts are 

reviewed de novo. Guzman v. State, 955 S.W.2d 85, 

89 (Tex.Crim.App. 1997).

ARGUMENT

The Court of Appeals held that Cliff Parker’s 

statements, which were made while he was in the 

back seat of a police cruiser in what is commonly 

referred to as ‘the cage,’ were admissible because 

Mr. Parker was free to leave at any time. However, 

as the opinion states, a person is in custody when 

law enforcement officers create a situation that 

would lead a reasonable person to believe that his 

freedom of movement has been significantly 

restricted. Court of Appeals Opinion, p. 5., 
9

Shiflet v. State, S.W.2d 622,629 (Tex.Crim.App. 

1985). Cliff Parker was placed in ‘the cage’ for 

one hour and sixteen minutes. The majority of that 

time, a police officer had the door open, was 

kneeling in front of the door, and was 

interrogating Mr. Parker. The officer certainly 

did not tell Cliff Parker that he could leave. Any 

reasonable person in that situation would believe 

that his freedom of movement had been significantly 

restricted.

The trial judge erred in denying Defendant’s 

Motion to suppress the in-car video and all 

evidence obtained against the Defendant as a result 

of the illegal interrogation depicted on the video. 

The trial judge made it clear that she did believe 

statements depicted on the video were in response 

to police interrogation. (R.R. Vol. 3, p. 79). 

Therefore, her only reason for denying the motion 

was her belief that Cliff Parker was not in custody 

while placed in the backseat of a police car with 

no means of escape for one hour and sixteen 

minutes. She specifically stated that she was 
10

denying the motion to supress the video because 

Cliff was not in custody at the time of the 

statement. (R.R. V. 3, p. 81). 

Article 38.22 of the Texas Code of Criminal 

Procedure provides that no statement of an accused 

made as a result of custodial interrogation shall 

be admissible against the accused in a criminal 

proceeding unless the accused is warned of his 

rights during the recording but before making the 

statement, and the accused knowingly, intelligently, and voluntarily waives any rights set out 

in the warning. Crim. Proc. Art. 38.22, §2(a). 

Article 38.22 does not preclude admitting 

statements that do not stem from custodial interrogation. Crim. Proc. Art. 38.22 § 5.

A person is in custody for purposes of Article 

38.22 if there is restraint of freedom of movement 

to the degree associated with a formal arrest. 

Stansbury v. California, 511 U.S.318, 322 (1994)

(per curiam). As stated earlier, a person is in 

custody when law enforcement officers create a 

situation that would lead a reasonable person to 
11

believe that his freedom of movement has been 

significantly restricted. Court of Appeals 

Opinion, p. 5., Shiflet v. State, S.W.2d 622,629 

(Tex.Crim.App. 1985). The determination of custody 

is made on an ad hoc basis after considering all of 

the objective circumstances. Dowthitt v. State, 931 

S.W.2d 244, 255 (Tex.Crim.App. 1996).

Cliff Parker was placed in a police car for one 

hour and 16 minutes, believing that he was not free

to leave. (R.R. Vol. 3, 78). The doors on the 

police car do not open from the inside, and there 

is a plexi-glass wall between the front and back 

seat. (R.R. V. 5, p. 253 and 255). When any 

reasonable person is in a situtation where it is 

impossible to leave, that person would certainly 

not believe he can just walk away at any minute he 

chooses. Officer Minter patted Cliff down prior to 

putting him in the car. (R.R. Vol. 5, p. 251). 

The officer then reached up and pointed the in-car 

camera toward Cliff Parker. (R.R. Vol. 5, p. 253). 

Under these circumstances, there was certainly 

restraint of freedom of movement to the degree 
12

associated with a formal arrest. Cliff Parker was 

in custody for purposes of 38.22. 

Causation and the Exclusionary Rule

The common law exclusionary rule has been 

codified in Texas. The applicable portion of the 

statute reads:

No evidence obtained by an officer or other 

person in violation of any provisions of the 

Constitution or laws of the State of Texas, 

or of the Constitution or laws of the United 

States of America, shall be admitted in evidence against the accused on the trial of any 

criminal case. Tex. Code Crim. Proc. Ann. 

Art. 38.23.

“Once the illegality and its causal connection to 

the evidence have been established, the evidence 

must be excluded.” State v. Daugherty, 931 S.W.2d 

268, 270 (Tex.Crim.App. 1996). Therefore, all 

evidence in the instant case obtained due to police 

illegally interrogating Cliff in the back of the 

police car without reading Miranda warnings should 

have been suppressed.
13

There is a direct causal connection between the 

illegal interrogation depicted on the in-car video 

and the subsequent interrogations, one of which 

contains a partial confession. After talking to 

officers at the scene which had talked to Cliff 

while he was in the backseat of the police car, 

Dectective Boetcher decided to immediately 

interrogate Cliff at the station (R.R. Vol.6, p. 

113). Then, after the custodial interrogation at 

the police station, the detectives tried to 

interview Cliff on a daily basis. They could not 

do so due to the fact that Cliff was in the 

hospital. After about two weeks, the interrogation 

took place in which Cliff gave a partial 

confession. (R.R. V. 6, p. 136). It is likely 

that the partial confession would have never 

happened absent the illegal interrogation depicted 

in the in-car video. 

The State would like to argue that even had the 

officers not interrogated Cliff in the police car, 

they would have possibly decided to legally 

interrogate Cliff at some later date and the 
14

partial confession would have happened then,

bringing about the inevitable discovery of the 

evidence through legal means, and that the evidence 

would, therefore, not be subject to the 

exclusionary rule. However, the Texas Court of 

Criminal Appeals has foreclosed the fruitfulness of 

that argument. Garcia v. State, 829 S.W.2d 796, 

800 (Tex.Crim.App. 1992). Under the federal 

exclusionary rule, such an argument would prevail. 

The doctrine is called the inevitable discovery 

doctrine. The doctrine would require that when 

evidence has been obtained by illegal means, and 

the evidence would have been legally obtained had 

the illegality not occurred, then the evidence is 

not subject to the exclusionary rule. Nix v. 

Williams, 467 U.S. 431, 444 (1984).

However, the inevitable discovery doctrine is 

not applicable to the statutory exclusionary rule 

in Texas. Garcia v. State, 829 S.W.2d 796, 800 

(Tex.Crim.App. 1992). The holding was based on 

statutory construction principles. The Court 

stated, “Because article 38.23 is an enactment of 
15

our legislature, it represents the democratic will 

of Texans, not merely an evidentiary adjustment 

made by the courts to remedy violations of the 

law.” Garcia v. State, 829 S.W.2d 796, 798 

(Tex.Crim.App. 1992). The legislature has met 

several times since the Garcia case was decided, 

and has not amended the statute to include an 

inevitable discovery exception. Therefore, it can 

be reasonably inferred that the democratic will of 

the people is to not allow evidence to be admitted 

in criminal prosecutions in Texas under the 

inevitable discovery doctrine, regardless of any 

possible repugnant effects of such an application 

of law. All the evidence obtained after the 

illegal acts of police in the instant case has a 

direct causal connection to illegal acts of the 

police and must be excluded as a matter of law.

PRAYER

WHEREFORE, PREMISES CONSIDERED, CLIFF DOUGLAS 

PARKER, Appellant, prays that this Petition for 

Discretionary Review be granted; that this case be 

submitted to the Court; that the Court of Appeals
16

decision be reversed and for such other relief for 

which he shows himself entitled.

Respectfully Submitted,

/s/ R. Scott Walker

By: R. SCOTT WALKER

222 W. Exchange Ave.

Fort Worth, Texas 76164

(817) 478-9999

(817) 977-0163 Fax

Attorney for Appellant

CERTIFICATE OF SERVICE

A copy of this petition was served by first 

class mail to the Office of Criminal District 

Attorney, Tarrant County Courthouse, 401 W. 

Belknap, Fort Worth, Texas 76196 and to the State 

Prosecuting Attorney at P.O. Box 12405, Austin, 

Texas 78711 on the 12th day of May, 2015.

/s/ R. Scott Walker

R. SCOTT WALKER

CERTIFICATE OF COMPLIANCE

I certify that this document complies with the 

length requirements as set forth by the Texas Rules 

of Appellate Procedure in that this document 

contains 2400 words, and that the document is in 14 

point type.

/s/ R. Scott Walker

R. SCOTT WALKER
17

APPENDIX
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00044-CR

CLIFF DOUGLAS PARKER APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 1329800R

----------

MEMORANDUM OPINION1

----------

Appellant Cliff Douglas Parker was charged by indictment with capital 

murder. The jury convicted him of the lesser included offense of manslaughter 

and assessed his punishment at life imprisonment. The trial court sentenced him 

accordingly. In a single issue, Appellant contends that the trial court reversibly 

erred by denying his motion to suppress his interview with a lieutenant of the fire 

 1

See Tex. R. App. P. 47.4.
2

department and all evidence stemming from the interview. Because the trial 

court did not err in denying Appellant’s motion to suppress, we affirm the trial 

court’s judgment.

Brief Facts

Officers Lindsey Stewart and Carson Bell were dispatched to a house fire. 

The officers could see the flames “all the way down the block.” They arrived

before any other officers or firefighters. When they arrived at the scene, a

woman screamed that someone was still inside the burning house. Stewart and

Bell ran to the house. They saw Appellant standing on the porch, “nonchalantly”

smoking a cigarette. The officers ignored Appellant and kicked the door open.

As the officers entered the house, they saw an unconscious woman (Betty

Roberts) lying face down on the floor.

As the officers attempted to remove Roberts from the burning house,

Appellant came inside and put his hands on Stewart’s back, blocking her

progress and causing her to drop Roberts. Stewart pushed Appellant and

resumed her attempt to remove Roberts from the burning building. Again,

Appellant blocked Stewart, causing her to drop Roberts a second time. Out of

concern for Bell’s, Roberts’s, and her own safety, Stewart pushed Appellant as

hard as she could. He fell outside onto the porch. The officers were then able

to remove Roberts from the house.

Once outside, the officers tried to move Roberts to a safer location.

Appellant straddled Roberts and held her against the ground, blocking the
3

officers’ efforts. The officers grabbed him by the shoulders and pulled him off of

Roberts, and eventually they were able to move Roberts to the yard.

Stewart asked Appellant if anyone else remained in the house. He did not

answer. Stewart demanded that Appellant tell her if anybody was still in the

house. Finally, Appellant told her that someone was still in the back bedroom.

As the officers prepared to re-enter the house, the fire department arrived.

Stewart told them that someone was still in the house. The firemen entered the

house and retrieved the second person.

Another officer brought Appellant to Officer James Minter. Because of the

chaos of the still-active fire scene, Minter asked Appellant to wait in the back of

his police cruiser, and Appellant complied. Minter testified that he did not place

Appellant under arrest. He did not handcuff Appellant; he did not tell Appellant

that he was under arrest; he did not tell Appellant that he could not leave; and he

would have allowed Appellant to leave had Appellant asked to do so.

About twenty-three minutes after Minter directed Appellant to wait in the

police cruiser, Lieutenant Steve Larison of the Fort Worth Fire Department

interviewed Appellant. In an attempt to learn details that might help his

investigation and identify residents of the burning house, Larison talked to

Appellant for about twenty minutes. At this point, Larison had yet to determine

the cause of the fire. The cruiser’s video camera recorded the interview. After 

more investigation, Appellant was charged with arson.
4

Roberts later died from injuries she suffered during the fire. Appellant was 

then re-indicted for arson-based capital murder. The trial court determined that 

Appellant was not in custody when the interview occurred and that the video of

the interview was therefore admissible as a matter of law.

Admissibility of the Statement

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

bifurcated standard of review.2

 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.3

Appellant argues that Miranda warnings were required because he was

subjected to custodial interrogation.4 Additionally, code of criminal procedure

article 38.22 generally precludes the use of statements resulting from custodial

interrogation absent compliance with its procedural safeguards.5

 2

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).

3

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).

4

See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).

5

Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West Supp. 2014).
5

As the State points out, the Texas Court of Criminal Appeals has outlined

four general situations which 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.6

The State argues that the questioning of Appellant was not custodial

interrogation because, although Appellant was sitting in the back of Minter’s

police cruiser in what is commonly referred to as “the cage,” no one had

suggested that he was not free to leave; he was not handcuffed; if he had asked

to leave, he would have been allowed to leave; and police and firefighters were

trying to protect people and keep them safe in a chaotic, active fire scene. As

Judge Cochran has explained in describing the community caretaking function,

“[A police officer] is . . . expected to aid individuals who are in danger of physical

harm, to assist those who cannot care for themselves, and to provide other

services on an emergency basis.”7

 6

Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985).

7

Corbin v. State, 85 S.W.3d 272, 280 (Tex. Crim. App. 2002) (Cochran, J.,

concurring) (internal quotation marks and citations omitted).
6

Twenty-three minutes after Appellant entered the cruiser, Larison opened

its back door, knelt in front of the cruiser’s open door, and interviewed Appellant

as a witness to the fire. Larison inquired about Appellant’s description of the

events and facts known to him that might lead to additional information about the

cause of the blaze and about the identification of the residents of the burning

house. At that time, Appellant was not an arson suspect, and, as far as Larison

knew, Appellant was free to go when Larison left the interview. Indeed, at the

time of the interview, no arson investigation had begun.

We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling.8

 The trial court’s determination that Appellant was

not in custody when he made his oral statements to Larison is supported by the

record.9

 We therefore hold that the trial court did not err by denying Appellant’s

motion to suppress, overrule his sole issue, and affirm the trial court’s judgment.

 8

State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); 

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 

541 U.S. 974 (2004).

9

See Dowthitt v. State, 931 S.W.2d 244, 254–56 (Tex. Crim. App. 1996).
7

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

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

DELIVERED: April 16, 2015
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00044-CR

Cliff Douglas Parker

v.

The State of Texas

§

§

§

§

§

From Criminal District Court No. 2

of Tarrant County (1329800R)

April 16, 2015

Opinion by Justice Dauphinot

(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

By _/s/ Lee Ann Dauphinot______________

 Justice Lee Ann Dauphinot