Josephus Demetrius Garrett v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00104-CR
No. 10-22-00105-CR

JOSEPHUS DEMETRIUS GARRETT,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 66th District Court
Hill County, Texas
Trial Court Nos. F132-19 and F133-19

MEMORANDUM OPINION

In one proceeding, Josephus Demetrius Garrett was convicted of two separate

offenses of burglary of a habitation, enhanced, and sentenced to 95 years and 15 years in

prison, respectively. See TEX. PENAL CODE §§ 30.02; 12.42. Because Garrett was not

harmed by the introduction into evidence of an oral admission to one of the offenses, the

trial court’s judgment is affirmed.
BACKGROUND

In the early morning hours of January 28, 2019, Hill County Sheriff’s Office

deputies responded to incidents at two separate residences on the same highway in Blum,

Texas. Both incidents were reported close in time to each other, and the residences were

approximately 2.5 miles from each other. Deputy Thurston responded to the incident at

the Laurence residence (appellate case number 10-22-00105-CR) while Deputy Spigener

responded to the incident at the Sanders residence (appellate case number 10-22-00104-

CR).

When Thurston arrived at the Laurence residence, he found that the residence had

been entered and completely ransacked. Furniture and appliances in the house were

turned over; other items were strewn everywhere; dishes were smashed; windows were

broken; and dog kennels with dogs in them were tossed outside. A brick was thrown

through a pickup windshield outside, and the headlights were smashed. The damage to

the house was estimated at a little less than $30,000.

At the Sanders residence, Deputy Spigener found the relatives of the homeowners

detaining a man, at gunpoint, who had entered the house by breaking in the back door.

The man had also been stabbed with a serrated bread knife by the homeowners’ 12-year-

old daughter after the man broke into the house. Spigener identified the man as Garrett.

He knew Garrett had recently been in jail and was surprised at Garrett’s presence in the

Sanders’s home.

Knowing an incident had also occurred at the Laurence residence, but not

knowing exactly what had happened, and knowing Garrett knew the Laurence

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homeowner, Spigener asked Garrett if Garrett “knew what happened over there [at the

Laurence residence].” 1 Garrett replied, “I did it; I tore up the house.” Spigener testified

that at that time, he placed Garrett into custody.

ORAL STATEMENT

In his sole issue on appeal, Garrett contends the trial court improperly admitted

Garrett’s oral statement to Deputy Spigener that he “did it;” he “tore up the” Laurence

residence because, Garrett alleges, the statement was made while Garrett was in custody.

Prior to trial, a hearing was held on the State’s intent, pursuant to article 38.22,

section 5 of the Texas Code of Criminal Procedure, to admit Garrett’s oral statement to

Spigener. Spigener was the only witness at the hearing and testified to the circumstances

surrounding Garrett’s admission to damaging the Laurence home. The trial court took

the matter under advisement and, later the same day, determined Garrett was not in

custody when he made the statement.

Oral confessions of guilt or oral admissions against interest made by a suspect who

is in custody are not admissible unless made in compliance with the provisions of article

38.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 38.22; see

also Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985). However, if a person

makes an oral confession of guilt or an oral admission against interest while not in

custody, a different rule applies. See Shiflet, 732 S.W.2d at 623. Article 38.22, section 5

provides that: "Nothing in this article precludes the admission of a statement made by

1
This was a paraphrase of the question. The deputy did not recall exactly how he asked Garrett the
question, and Garrett did not testify at the guilt/innocence phase of the trial.

Garrett v. State Page 3
the accused . . . that does not stem from custodial interrogation . . . ." TEX. CODE CRIM.

PROC. art. 38.22, § 5. Thus, an oral confession or an oral admission against interest that

does not stem from custodial interrogation, and is given freely, voluntarily, and without

compulsion or persuasion, is admissible evidence against the accused. See Shiflet, 732

S.W.2d at 623.

Garrett argues on appeal that because Garrett was held at gunpoint and knifepoint

by relatives of the homeowners when Deputy Spigener arrived, Garrett was not free to

go. At that point, Garrett had been injured and was sitting on the floor. Thus, Garrett

contends, he was in custody when Deputy Spigener asked what had happened at the

Laurence residence.

The State argues Deputy Spigener’s question did not amount to custodial

interrogation because the question regarding an event of which the deputy had no

specifics was broad, Garrett was not injured badly enough to be unable to leave, and

Garrett was not being held by law enforcement, but rather by relatives of the

homeowners.

Assuming without deciding the trial court erred in its determination that Garrett

was not in custody, we turn to whether the admission of the statement caused Garrett

harm.

HARM

Where a harm analysis is appropriate, the general rule requires that claims of

constitutional error are subject to a constitutional harm analysis and all other claims of

error are subject to a non-constitutional harm analysis. See TEX. R. APP. P. 44.2; Jacobs v.

Garrett v. State Page 4
State, 560 S.W.3d 205, 209 (Tex. Crim. App. 2018). Constitutional error requires reversal

unless the reviewing court "determines beyond a reasonable doubt that the error did not

contribute to the conviction or punishment." TEX. R. APP. P. 44.2(a). Non-constitutional

error requires reversal only if the error affects an appellant's substantial rights—i.e.,

reversal is required when the error has a substantial and injurious effect or influence in

determining the jury's verdict. Id. (b); Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim. App.

2023). In other words, a substantial right is not affected if we have fair assurance from an

examination of the record as a whole that the error did not influence the jury, or had but

a slight effect. Sandoval v. State, 665 S.W.3d 496, 516 (Tex. Crim. App. 2022). If a

defendant’s statement is admitted in violation of Miranda 2 or due process, we apply the

constitutional harm analysis. Id. at 515. If it has been admitted only in violation of a

statute, then we apply the non-constitutional harm analysis. Id.

Although Miranda was mentioned in his brief, Garrett did not assert a violation of

Miranda or due process, which would require an application of the constitutional harm

analysis, in either his brief or at the hearing regarding the State’s intent to admit the

statement. Sandoval v. State, 665 S.W.3d 496, 515 (Tex. Crim. App. 2022). Rather, Garrett’s

issue, as was his argument at the pre-trial hearing regarding the introduction of his oral

statements, is couched in terms of a violation of article 38.22 of the Texas Code of Criminal

Procedure. The State’s notice of its intent to introduce Garrett’s statement was filed

2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

Garrett v. State Page 5
pursuant to article 38.22; no motion to suppress was filed. A hearing was requested 3 and

held specifically on the State’s notice; not on a motion to suppress. Further, no argument

was made that Miranda or Garrett’s right to due process was violated. Therefore, we

review the question of harm pursuant to rule 44.2(b) of the Texas Rules of Appellate

Procedure, the non-constitutional harm analysis, which requires reversal only if the error

affects an appellant's substantial rights. See TEX. R. APP. P. 44.2(b).

As stated earlier, non-constitutional errors require reversal only if they affect an

appellant's substantial rights—i.e., when they have a substantial and injurious effect or

influence in determining the jury's verdict. Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim.

App. 2023). In making this determination, the following nonexclusive factors are

considered: the character of the alleged error and how it might be considered in

connection with other evidence; the nature of the evidence supporting the verdict; the

existence and degree of additional evidence indicating guilt; whether the State

emphasized the complained-of error; the trial court's instructions; the theory of the case;

and, relevant voir dire. Id.

Laurence Offense

Because the State had received a favorable ruling on the admission during pretrial,

the State naturally presented testimony regarding the admission during the guilt/

innocence phase of the trial. The State also mentioned the admission during its close of

the guilt/innocence phase. But so did Garrett’s counsel; and during counsel’s close, he

3
The request was not made a part of the appellate record.

Garrett v. State Page 6
argued that under the evidence, Garrett did not confess; he only admitted to being at the

residence. The admission was not mentioned in voir dire or in opening statements.

Although while deliberating guilt/innocence, the jury asked in a note to have Garrett’s

admission read back to them, the trial court refused to do so.

But, separate and apart from Garrett’s admission, other evidence tied him to the

crime at the Laurence house. Laurence and her son testified that Garrett had been a

problem at a gathering at the house the night before. Laurence shut down the gathering

because of Garrett’s behavior and told everyone there to go home. Laurence also left her

residence to take someone else home; and when she returned in the early morning hours

the next day, she discovered her house was destroyed. Laurence’s son returned to his

mother’s house and went through the house. In the midst of the destruction, he found

Garrett’s cell phone. He also discovered Garrett’s name written on the wall in his

daughter’s room along with his daughter’s name. 4 He took Garrett’s phone, made a

video of the damage to the house and Garrett’s name on the bedroom wall, and, posing

as Garrett, posted the video to Garrett’s social media page. A copy of the video posted

was shown to the jury. Although a deputy going through the house and taking photos

of the damage did not see or take a picture of Garrett’s name written on the wall, he did

not go into the daughter’s room because he only took pictures of what was “damaged.”

At trial, when viewing a photo the deputy took of the hallway leading up to the

daughter’s room and when the photo was zoomed in, the deputy could see something

4
Laurence’s granddaughter sometimes stayed with Laurence and had her own room.

Garrett v. State Page 7
marked on the wall of the daughter’s bedroom.

Thus, when reviewing the record as a whole, we do not find the error in admitting

Garrett’s statement, if it was error, affected Garrett’s substantial rights as to the Laurence

offense.

The Sanders Offense

There is no dispute that Garrett broke into the Sanders’s house. Thus, Garrett

asserts his substantial rights were affected as to punishment in that case. The jury

recommended punishment at 95 years in prison. Garrett’s statement about causing the

damage at the Laurence house had been admitted for all purposes, even for the Sanders

incident. But the jury had also heard that Garrett broke into the house, breaking down

the back door and destroying the door jam, in the early morning hours while Mrs.

Sanders and her two daughters were inside. Mr. Sanders, who was a local school

principal, was out of town. Mrs. Sanders repeatedly yelled at Garrett to get out. He

would not. He insisted on seeing his mother and getting some water to drink. Mrs.

Sanders called her father-in-law and brother-in-law who lived just down the road while

she was still ordering Garrett out of the house. She told her youngest daughter to hide;

but rather than hiding, the daughter ran around the outside of the house, came in behind

Garrett, and stabbed him in the back with a bread knife. Her relatives arrived shortly

thereafter to hold Garrett at gunpoint and knifepoint.

Other information the jury heard is also worth mentioning in our review of the

record. Using profanity, Garrett refused medical treatment for his injuries. EMS believed

he was intoxicated. Garrett cussed at Deputy Spigener once Garrett was placed in the

Garrett v. State Page 8
patrol car. The Sanders’s youngest daughter was traumatized by her attempt to defend

her house by stabbing Garrett in the back.

The Sanders offense was enhanced by a prior felony, a robbery; and the jury heard

about Garrett’s criminal history: a juvenile adjudication, four state-jail felony convictions

including a conviction for forgery, and three misdemeanor convictions including a

criminal trespass conviction, the confinement for which Garrett had just been released.

And because the offense was a home invasion, the punishment range started at a higher

minimum of years in prison than the Laurence offense; 15 years versus 5 years.

Thus, when reviewing the record as a whole, we do not find the error in admitting

Garrett’s statement, if it was error, affected Garrett’s substantial rights as to the Sanders

offense.

CONCLUSION

Having found Garrett’s substantial rights were not affected by the admission of

his oral statement, we conclude Garrett was not harmed, and his sole issue is overruled.

We affirm the trial court’s judgment.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed January 25, 2024
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