Garrett Wayne Murphrey v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00185-CR
NO. 09-23-00186-CR
________________

GARRETT WAYNE MURPHREY, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause Nos. 21-08-11688-CR and 22-10-14418-CR
________________________________________________________________________

MEMORANDUM OPINION

Garrett Wayne Murphrey appeals his convictions for injury to a child and

assault family violence impeding breath or circulation. See Tex. Penal Code Ann. §§

22.01(b)(2)(B), 22.04(f). In four issues, Murphrey complains about the admission of

his recorded interview, denial of his motion for a mistrial, consideration of matters

not in evidence, and comments the trial judge made to the jury during deliberations.

For the reasons discussed below, we affirm the trial court’s judgments.

1
BACKGROUND

In August 2021, Murphrey’s twelve-year-old son, T.M.,1 arrived at school via

the school bus when special education instructor Angelica Dawson noticed an injury

to T.M.’s right eye. Dawson reported T.M.’s injury to an administrator and filed a

report with Child Protective Services (CPS). T.M. was then escorted to the nurse,

who observed bruises on T.M.’s neck that appeared to be choke marks and bruises

on his right eye, back, and shoulder. T.M. initially stated he was injured when he fell

out of bed, but later stated that Murphrey caused his injuries.

Upon receiving the report from law enforcement, CPS investigator, Makayla

Vargas, testified that she went to the school to investigate T.M.’s injuries. Vargas

took photos of T.M.’s injuries and determined that a forensic interview was

necessary. Vargas called Murphrey and explained that CPS had received a report of

allegations of abuse after T.M. arrived at school with injuries. Vargas requested

permission to transport T.M. for the forensic interview, and Murphrey denied

Vargas’s request and explained that the injuries could have been the result of their

wrestling.

1
We use initials to refer to the victim to conceal his identity. See Tex. Const.
art. I, § 30 (a)(1) (granting crime victims “the right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process[.]”).

2
Vargas interviewed T.M. at school. T.M. stated that Murphrey got upset with

him when he messed up on his homework. T.M. explained that he was sitting in a

chair when Murphrey hit him in the face and neck with an open hand, and that the

chair fell, angering Murphrey and causing Murphrey to choke T.M. against the

ground. T.M. stated that Murphrey hit him about five times, including hitting him in

the middle of his back with his fist. T.M. could not explain the visible scratches on

his body.

After interviewing T.M., Vargas interviewed Murphrey at his home. Vargas

indicated that based on the abuse allegations and Murphrey’s hostility over the

phone, at her request Detective Prudencio Ochoa and two uniformed deputies

accompanied Vargas to Murphrey’s home. According to Vargas, she interviewed

Murphrey first, and Detective Ochoa followed up with additional questions. Vargas

acknowledged that when she left the school to go to Murphrey’s home, Detective

Ochoa indicated that Murphrey would get arrested.

After Vargas’s interview of T.M., T.M. was transported to Children’s Safe

Harbor for a forensic interview. Once the forensic interview was completed, T.M.

was transported to St. Luke’s Hospital and then to Texas Children’s Hospital for a

strangulation exam and pediatric trauma services.

Detective Ochoa testified that he accompanied Vargas to interview Murphrey

so that he could investigate a crime. Detective Ochoa testified that Murphrey

3
allowed him inside the home to answer questions, and Detective Ochoa recorded the

interview. Detective Ochoa stated that when he asked Murphrey about T.M.’s

bruises, Murphrey reported they were roughhousing. Detective Ochoa testified that

he decided to arrest Murphrey for causing T.M.’s injuries because he did not believe

Murphrey’s story. He added that he and Vargas were not working in tandem, and he

conducted his own investigation for his own purposes.

At the conclusion of Murphrey’s interview, Murphrey was arrested and later

charged with the offenses of injury to a child and assault family violence. A jury

found Murphrey guilty of injury to a child and assault family violence impeding

breath or circulation. The trial court sentenced Murphrey to five years imprisonment

in both cases and ordered the sentences to run concurrently.

ANALYSIS

In his first issue, Murphrey argues that the trial court erred by denying his

motion to suppress and admitting his audio recorded interview with CPS and

Detective Ochoa. Murphrey argues that CPS and law enforcement were working in

tandem, and that during the interview, Vargas was acting as an agent of law

enforcement. Murphrey further argues that he was in custody during the interview

and Miranda warnings were required. According to Murphrey, because no Miranda

warnings were given before Vargas’s interview, the admission of the recorded

interview was reversible error.

4
We review a trial court’s ruling on a motion to suppress under an abuse of

discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.

1996); Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). At a

suppression hearing, the trial court is the exclusive trier of fact and judge of the

credibility of the witnesses. See Villarreal, 935 S.W.2d at 138. Appellate courts

afford almost total deference to a trial court’s determination of the historical facts

supported by the record, especially when the trial court’s findings are based on an

evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997); Monjaras v. State, 664 S.W.3d 921, 926 (Tex. Crim. App. 2022).

The appellate court also affords the same amount of deference to a trial court’s ruling

on “application of law to fact questions,” also known as “mixed questions of law and

fact,” if the resolution of those questions turns on the evaluation of credibility and

demeanor. Guzman, 955 S.W.2d at 89. The court reviews de novo those questions

not turning on credibility and demeanor. Id. We will uphold the trial court’s ruling

if it is reasonably supported by the record. Runyon v. State, 674 S.W.3d 624, 632

(Tex. App.—Beaumont 2023, pet. ref’d). In determining whether a trial court’s

decision is supported by the record, we consider only the evidence adduced at the

suppression hearing. Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App.

2013).

5
Generally, the procedural safeguards to warn in compliance with Miranda

apply to custodial interrogations by law enforcement or their agents. Wilkerson v.

State, 173 S.W.3d 521, 526-27 (Tex. Crim. App. 2005); see Miranda v. Arizona, 384

U.S. 436 (1966). State employment alone does not, by itself, make a person a state

agent for purposes of defining a custodial interrogation. Wilkerson, 173 S.W.3d at

528. The role of law enforcement is to “ferret out crime, investigate its commission,

arrest the perpetrator, and gather evidence for a possible prosecution.” Coleman v.

State, No. AP-75,478, 2009 WL 4696064, at *7 (Tex. Crim. App. Dec. 9, 2009) (per

curiam) (not designated for publication) (citing Wilkerson, 173 S.W.3d at 528). The

duty of CPS workers is to protect the welfare and safety of children in the

community. Id. The paths of police officers and CPS workers are separate, but

parallel. Id.

When investigating allegations of abuse, police conduct a criminal

investigation for an arrest, while CPS workers investigate to find a safe home and to

protect the involved children. Id. “When a state-agency employee is working on a

path parallel to, yet separate from, the police, Miranda warnings are not required.”

Id. That said, if the investigative paths of law enforcement and the state-agency

converge, and they are working in tandem to investigate a criminal offense, a

Miranda warning may be necessary. Id.

6
When determining if a person is in custody for Miranda purposes, a

“reasonable person” standard is considered. Dowthitt v. State, 931 S.W.2d 244, 254

(Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322, 325

(1994)). In other words, “[a] person is in ‘custody’ only if, under the circumstances

a reasonable person would believe that his freedom of movement was restrained to

the degree associated with a formal arrest.” Id.; see Stansbury, 511 U.S. at 325. An

examination of all the objective circumstances surrounding the questioning is

required in the inquiry of “custody.” Stansbury, 511 U.S. at 322-23, 325; Dowthitt,

931 S.W.2d at 255.

The trial court conducted a suppression hearing outside the jury’s presence

prior to admitting the forty-four-minute audio recording of Murphrey’s interview

with CPS and law enforcement. Detective Ochoa testified about his investigation

and explained that he understood the District Attorney’s office would accept charges

against Murphrey instantly and that Murphrey could go to jail depending on the

outcome of the investigation.

Detective Ochoa denied bringing the two additional officers because

Murphrey would be arrested. According to Ochoa he brought the additional officers

because Murphrey was hostile when Vargas spoke with him over the phone.

Detective Ochoa indicated that he did not decide to arrest Murphrey before the

interview because he was interested in Murphrey’s explanation of T.M.’s injuries.

7
Detective Ochoa also explained that he made the decision to arrest Murphrey

because Murphrey could not provide a sufficient answer about how T.M. was

injured.

At the conclusion of the hearing, the trial judge noted that the interview

occurred in Murphrey’s home, Murphrey voluntarily allowed Vargas and law

enforcement inside, Murphrey did not ask to leave and was never told that he could

not leave, and that once probable cause was manifested, Murphrey was read his

Miranda warnings. The trial judge also noted that the interview lasted approximately

thirty-five minutes before the uniformed officers entered Murphrey’s home, and that

Murphrey was free to call his mother. The trial judge ruled that CPS and law

enforcement were working in tandem, but Murphrey was not in custody until

probable cause manifested, and then Miranda warnings were read. The trial judge

admitted the audio recording into evidence and denied Murphrey’s running

objection.

The audio recording shows that Murphrey invited Vargas and Detective

Ochoa inside his home to discuss T.M.’s injuries. Detective Ochoa introduced

himself and Vargas to Murphrey and explained that he and the two uniformed

officers outside were there for Vargas’s safety, which was standard protocol in

similar CPS investigations. Murphrey explained his CPS history, most of which

involved his substance abuse. Vargas provided Murphrey with information about

8
CPS’s involvement, and she questioned Murphrey about T.M.’s home life,

background information, and health history. Vargas then questioned Murphrey about

T.M.’s injuries, and Murphrey denied that T.M. had a meltdown that would have

required restraint and stated the injuries were from roughhousing. Vargas concluded

her interview and explained that she would speak with her supervisor about the next

steps.

The audio recording indicates that after Vargas completed her questioning,

Detective Ochoa began his interview by reading Murphrey his Miranda rights.

Murphrey then asked if he would be arrested, and Detective Ochoa responded that it

was a possibility. After reading Murphrey his Miranda rights, Detective Ochoa

questioned Murphrey about T.M.’s injuries and T.M.’s statement that Murphrey

punched and choked him out of frustration. Approximately thirty-five minutes into

the interview, the two uniformed officers came into the home, and Detective Ochoa

arrested Murphrey.

Based on the audio recording and viewing the evidence in the light most

favorable to the trial court’s ruling, and deferring to the trial court’s explicit and

implicit historical findings of fact, we conclude the trial court did not abuse its

discretion by finding that Murphrey was not in custody while being interviewed by

Vargas, who was carrying out her CPS duties, and that Miranda warnings were not

required during her interview. That said, the audio recording shows Murphrey was

9
in custody during his interview with Detective Ochoa and Miranda warnings were

properly read. See Stansbury, 511 U.S. at 325; Dowthitt, 931 S.W.2d at 254. Based

on the record, we also conclude the trial court did not abuse its discretion by denying

Murphrey’s motion to suppress. We overrule issue one.

In his second issue, Murphrey argues the prosecutor made incurable

statements during closing argument criticizing his decision not to testify, causing

severe harm. The State argues the trial court did not err by denying Murphrey’s

motion for mistrial because the prosecutor did not comment on Murphrey’s failure

to testify and was only discussing Murphrey’s explanation of T.M.’s injuries that

occurred during Detective Ochoa’s interview.

“To constitute reversible error, the argument must be manifestly improper or

inject new, harmful facts into the case.” Jackson v. State, 17 S.W.3d 664, 673 (Tex.

Crim. App. 2000). If a trial court sustains an objection to improper jury argument,

the complaining party must also request an instruction to disregard an

offending argument if such an instruction could cure the prejudice. See McGinn v.

State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice arising from an

erroneous jury argument is incurable, the complaining party must move for a

mistrial. Id. We review the trial court’s denial of a motion for mistrial for an abuse

of discretion, viewing the evidence in the light most favorable to the trial court’s

ruling, and considering only those arguments before the trial court at the time of the

10
ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold

the ruling if it was within the zone of reasonable disagreement. Id. In evaluating

whether a trial court abused its discretion by denying a defendant’s request for

a mistrial based on improper jury argument, appellate courts must balance several

factors, including “(1) the severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the judge), and (3) the

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction).” Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.

2011).

A mistrial is the appropriate remedy when the objected-to events are so

emotionally inflammatory that curative instructions are not likely to prevent the jury

from being unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d

65, 71 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances

when the prejudice is incurable because it “is of such character as to suggest the

impossibility of withdrawing the impression produced on the minds of the

jurors.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Because a mistrial

is an extreme remedy, “a mistrial should be granted ‘only when residual prejudice

remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884-

85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).

11
It is improper for the prosecutor to comment on the failure of an accused to

testify. See Griffin v. California, 380 U.S. 609, 613 (1965); Bustamante v. State, 48

S.W.3d 761, 764 (Tex. Crim. App. 2001). A comment regarding an accused’s failure

to testify “violates the privilege against self-incrimination and the freedom from

being compelled to testify contained in the Fifth Amendment of the United States

Constitution and Article 1, § 10, of the Texas Constitution.” Bustamante, 48 S.W.3d

at 764.

To violate the right against self-incrimination, the offending language
must be viewed from the jury’s standpoint and the implication that the
comment referred to the defendant’s failure to testify must be clear. It
is not sufficient that the language might be construed as an implied or
indirect allusion. The test is whether the language used was manifestly
intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify. In
applying this standard, the context in which the comment was made
must be analyzed to determine whether the language used was of such
character.

Id. at 765 (internal citations omitted).

The record shows that during closing argument, the prosecutor argued:

. . . the defendant put himself in such a terrible box, we need something.
We were roughhousing. Yeah, I see those injuries. Yep. Oh, I guess we
probably got too rough. That is what he said. And don’t you know if
the truth was, I had to hold [T.M.] down because he had a meltdown
and maybe I accidentally hurt him, he would have said that.

Murphrey objected that the prosecutor’s improper comment violated his

constitutional right not to testify, and he requested an instruction.

12
The trial court sustained Murphrey’s objection, allowed the prosecutor to

clarify, and instructed the jury not to consider “any reference to what Mr. Murphrey

would have said, [] could have said, [and] should have said. . . . He has an absolute

right not to testify, not to say anything. So, anything that you hear in closing about

that should be stricken.” Based on the instruction that Murphrey believed was

insufficient, Murphrey requested a mistrial, which the trial court denied. The

prosecutor then clarified to the jury that it should not consider that Murphrey did not

testify or find it as any evidence of his guilt. The prosecutor explained to the jury

that during Detective Ochoa’s interview, Murphrey stated that he and T.M. were

roughhousing and never stated that he had to restrain T.M. from hurting himself.

We presume the jury followed the trial court’s instruction to disregard the

complained-of argument. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App.

2005). Here, the prejudicial effect of the prosecutor’s argument did not likely cause

the jury to ignore the trial court’s instruction. See Archie, 340 S.W.3d at 739.

Additionally, the trial court allowed the prosecutor to clarify her comment to the

jury, and the prosecutor’s clarification showed that she was not referring to

Murphrey’s failure to testify but to his responses during Detective Ochoa’s

interview. Having considered the entire record, we conclude the trial court’s denial

of Murphy’s motion for mistrial did not constitute an abuse of discretion. See Ocon,

284 S.W.3d at 884. We overrule issue two.

13
In his third issue, Murphrey argues that during punishment, the trial court

considered factors not in evidence and that he is entitled to a new punishment

hearing. Specifically, Murphrey argues the trial court considered allegations of drug

treatment and tax dollars or other money expended on Murphrey through

rehabilitation programs or drug classes even though his Pre/Post Sentence

Investigation Report did not include evidence of prior drug treatment. According to

Murphrey, the only reference to tax dollars was by a witness who testified during

punishment about being a taxpayer paying for his trial and how there was no benefit

to putting him in jail. The State argues that Murphrey failed to preserve his complaint

for our review. We agree.

The record shows that during the punishment phase before the trial court

sentenced Murphrey, he failed to object when the trial court explained it did not

consider probation because “the VA has given you ample opportunities to break all

of your addictions, and we[] have spent multiple hundreds of thousands of dollars

for you. Yet, you have not been able to fix it.” To preserve a complaint for appellate

review, a party must present a timely objection to the trial court, state the specific

grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); see Medina

v. State, No. 14-17-00638-CR, 2018 WL 4869504, at *2 (Tex. App.—Houston [14th

Dist.] Oct. 9, 2018, no pet.) (mem. op., not designated for publication) (stating

defendant was required to preserve error on his complaint that the trial court

14
considered evidence outside the record when imposing his sentence); Elizondo v.

State, 541 S.W.3d 271, 274-75 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)

(same); Waldrep v. State, Nos. 09-12-00299-CR, 09-12-00300-CR, 2013 WL

589008, at *1 (Tex. App.—Beaumont Feb. 13, 2013, no pet.) (mem. op., not

designated for publication) (same). Since Murphrey failed to object to the trial

court’s consideration of evidence outside the record, we conclude Murphrey failed

to preserve his complaint for our review. See Medina, 2018 WL 4869504, at *2;

Elizondo, 541 S.W.3d at 274-75. We overrule issue three.

In his fourth issue, Murphrey argues that the trial court made comments to the

jury during deliberations that constitute a comment on the weight of the evidence

which is prohibited by Article 38.05 of the Texas Code of Criminal Procedure.

Murphrey argues that he was denied his right to a fair and impartial jury due to the

trial court’s comments which conveyed the opinion of the judge as to Murphrey’s

guilt.

Article 38.05 prohibits a trial judge, prior to return of the verdict, from making

“any remark calculated to convey to the jury his opinion of the case[]” at any stage

of the proceeding. Tex. Code Crim. Proc. Ann. art. 38.05. Trial court judges have

been cautioned not to comment on the weight of the evidence and not to imply to the

jury the court’s opinion of any fact issues before the jury. See id.; see also Jones v.

State, 788 S.W.2d 834, 835 (Tex. App.—Dallas 1990, no pet.). To constitute

15
reversible error, a comment by the court in violation of article 38.05 must be

reasonably calculated to prejudice the defendant’s rights or to benefit the State. See

Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017); Valladarez-

Martinez v. State, No. 09-23-00049-CR, 2024 WL 953230, at *2 (Tex. App.—

Beaumont Mar. 6, 2024, no pet.) (mem. op., not designated for publication).

The record shows that during deliberations, the jury informed the trial court

that they had reached a verdict on one case but were deadlocked on the other case.

The trial court conferred with all counsel to discuss how the trial court should

address the jury’s concern about the deadlocked case, and defense counsel agreed to

instructing the jury that “[s]ufficient time has not elapsed. Keep working.” While

instructing the jury to continue with deliberations, the trial court commented: “Based

on the severity of the crime, based on the level of the offense, based on all those

factors that I have to look at, I am now -- do not want to reveal and do not reveal

who the foreperson is to me. I am going to give you a verbal order that I’m going to

ask that you continue to work on the deadlock case at this time.” Defense counsel

did not object to the trial court’s comment.

Although defense counsel failed to object to the trial court’s comment while

instructing the jury, his complaint can be made for the first time on appeal. See

Anderson v. State, No. 09-19-00206-CR, 2020 WL 6749940, at *5 (Tex. App.—

16
Beaumont Nov. 18, 2020, no pet.) (mem. op.) (not designated for publication) (citing

Proenza, 541 S.W.3d at 801).

We reject Murphrey’s argument that the comment of the trial court deprived

Murphrey of a fair trial or a substantial or fundamental right. In the context in which

it was given, in order to instruct the jury to continue deliberations, there was nothing

said that was prejudicial to the defense nor beneficial to the state. We conclude there

is no reversible error because the comment was not reasonably calculated to benefit

the State or prejudice the defendant’s rights. See Proenza, 541 at 791; Valladarez-

Martinez, 2024 WL 953230, at *2; see also Robinson v. State, 971 S.W.2d 96, 98-

99 (Tex. App.—Beaumont 1998, pet. ref’d). Accordingly, we overrule issue four.

Having overruled all of Murphrey’s issues, we affirm the trial court’s

judgments.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on August 20, 2024
Opinion Delivered September 18, 2024
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

17