Jeremiah Jerome Walker v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-24-00104-CR
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JEREMIAH JEROME WALKER, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F21-36521
________________________________________________________________________

OPINION

A jury convicted Jeremiah Jermone Walker of Possession of a Controlled

Substance in an amount of at least four grams but less than four hundred grams, a

second-degree felony, and sentenced him to twenty-five years of incarceration in the

Texas Department of Criminal Justice. 1 See Tex. Health & Safety Code Ann. §

481.116(a), (d). In a single issue on appeal, Walker argues that the trial court erred

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The judgment also lists Walker’s name as “JEREMIAH WALKER[.]”
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by not including a jury instruction on “General Voluntariness of Statements” under

article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

Ann. art. 38.22. We affirm.

Background

We limit the recitation of our background facts to the issue on appeal. See

Tex. R. App. P. 47.1 (requiring appellate courts to hand down an opinion as brief as

practicable that addresses all issues raised and necessary to appeal’s disposition). At

trial, Officer James William Knowles testified that he has been a patrol officer for

the Port Arthur Police Department for seven years. He described his educational and

professional background and stated that he was on patrol the night of June 27, 2020.

A little after midnight, he was dispatched to an apartment complex regarding a male

walking around the apartment complex exposing himself, who “was close to getting

hit by a car[.]” When he arrived, he identified a man matching the suspect’s

description and spoke to him. Knowles testified that the man appeared to be “highly

intoxicated” and that he could not provide basic information, other than his name.

Knowles identified Walker in court. According to Knowles, Walker was “pretty

unsteady[,]” and Knowles had him sit on the curb to speak to him further. Knowles

asked Walker if he had any identification, and while Walker was looking for his

identification, Knowles asked Walker three times if Knowles could check Walker’s

pockets, and on the third time, Walker said, “Yes.” In Walker’s front right pocket,

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Knowles found a Scope bottle containing a brown substance that Knowles believed

to be Phencyclidine, otherwise known as PCP. Knowles testified that he tested the

substance, and the test indicated the presence of PCP.

In a redacted body camera video which was shown to the jury, Walker can be

heard identifying himself to Knowles, but Walker could not identify his address,

how he got to the apartment complex, or what he was doing at the apartment complex

that night. Walker denies drinking, smoking, taking any pills or having any medical

issues. Knowles is then heard asking Walker if he has “anything… you are not

supposed to have?” He asks Walker if he has drugs or guns, and Walker states, “No

sir.” Knowles then asks Walker for his identification, and whether he has anything

else in his pocket. Knowles then can be heard asking Walker, “Do you mind if I

check your pockets?” He repeats this question two more times, asking a final time

“Can I check your pockets to make sure you ain’t got nothing you’re not supposed

to have?” Walker responds, “Yeah, sure.” Knowles then states, “I just want to make

sure you don’t got nothing you’re not supposed to have.” Knowles can then be seen

searching Walker’s pockets.

Walker testified in his own defense. He admitted to using PCP and denied that

he recalled the events that transpired that night. He described how PCP affects him,

stating that “basically it affects me mentally and all this, sir, because the things I was

going through at that time, the only way -- the only way to ease the pain in my mind

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to -- to not to trigger to -- in order to use PCP.” Walker denied that he voluntarily

consented to the search. During cross examination, Walker repeatedly testified he

did not recall the events of that night.

After both sides rested, defense counsel requested that the charge include an

instruction regarding whether Walker voluntarily consented to the search of his

pockets that yielded the Scope bottle containing PCP:

THE COURT: Make your motion, Counsel.

[DEFENSE COUNSEL]: Your Honor, I mean, I can get the specific
language of what I’m requesting; but I believe under Article 38.23 of
the Code of Criminal Procedure, we’ve raised an issue regarding a fact
that is necessary for the jury to pass on the admissibility of the evidence,
particularly the voluntariness and the existence of consent in this case,
whether consent was given. And then secondly, whether it was
voluntary if it were given. This is an issue of fact, and we’re requesting
an instruction to the jury under 38.23 that before they can consider the
evidence of PCP that they first have to believe beyond a reasonable
doubt that there was, in fact, consent given and that it was voluntary.
And I can get -- if you give me a minute, I can get the specific language
of what I’m --

THE COURT: Your objection is overruled. Your requested issue is
denied.

[DEFENSE COUNSEL]: Okay. I’m going to need a minute to get the
language, though, that I’m requesting.

THE COURT: I think you’ve made it -- made it clear what you’re
requesting.

[DEFENSE COUNSEL]: I have to request the specific language,
though, I think, Your Honor; and I’d like to -- if I could have a second
to get the instruction.

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THE COURT: No. That’s denied. You’ve made an adequate motion,
and I’ve denied it.

[DEFENSE COUNSEL]: Well, let me recite it the best I can into the
record.

THE COURT: All right.

[DEFENSE COUNSEL]: Your Honor, we would request that the
following instruction be given to the jury: That before you consider any
evidence of P -- the PCP in this case that you have to believe beyond a
reasonable doubt that the defendant provided knowing and effective
consent to the search. Unless you so find or unless you have a
reasonable doubt thereof, you shall not consider the evidence of PCP
seized in this case.

THE COURT: And I --

[DEFENSE COUNSEL]: And if you find beyond a reasonable doubt
that the defendant provided effective knowing and voluntary consent,
you shall go on to consider whether the defendant was in knowing
possession of the -- of the PCP and determine what -- determine the
guilt or not guilt of the defendant.

THE COURT: All right. That requested instruction is denied.

[DEFENSE COUNSEL]: And again, that’s requested under 38.23.

THE COURT: All right.

[DEFENSE COUNSEL]: And then we would -- also, Your Honor, I
would reurge my motion to suppress before I rest, too, because I think
there’s been additional evidence regarding the lack of consent, that the
State’s relying on consent. I think that we’ve elicited additional
evidence from the defendant that there was no consent provided in this
case. There’s no voluntary consent provided in this case; and that,
therefore, would render the search illegal.2

In his pretrial motion to suppress, appellant had urged, “The evidence seized
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pursuant to the warrantless search/seizure upon which the indictment is predicated
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THE COURT: All right. That’s denied.

[…]

[DEFENSE COUNSEL]: Your Honor, I think on the record, too, in
order to properly preserve error, I need to go ahead and object to the
Court’s failure to include that charge and get a ruling on that.

THE COURT: That you what?

[DEFENSE COUNSEL]: That I object to the Court’s failure to give the
charge as requested on -- under 38.23 as to the -- the jury -- it being
necessary for the jury first to find as a factual issue that there was
effective and voluntary consent. I need to object to the failure of that to
be included.

THE COURT: I think you’ve made that objection, but --

[DEFENSE COUNSEL]: Well, I have to object; and I think it has to be
overruled. But I object to the --

THE COURT: And it’s overruled.

Walker does not argue on appeal that the trial court erred in refusing an article

38.23 instruction regarding whether Walker voluntarily consented to the search of

his pockets, nor that the trial court erred in overruling his objection to the charge for

failing to include such an instruction. Instead, Walker characterizes his giving of

consent to search as a “statement” and complains that the charge did not include a

“general voluntariness” instruction under article 38.22 that the jury should not

should be suppressed pursuant to [Texas Rule of Criminal Procedure Article]
38.23(a) as the product of an illegal search and/or seizure.”
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consider his “statement” for any purpose unless the jury believed beyond a

reasonable doubt that the “statement” was voluntarily made.3

Analysis

Article 38.22, section 3 of the Texas Code of Criminal Procedure prescribes

rules for the admissibility of oral statements made by an accused in a criminal

proceeding. Moore v. State, 882 S.W.2d 844, 846 (Tex. Crim. App. 1994); Tex.

Code Crim. Proc. Ann. art. 38.22, § 3. These rules not only “incorporate the

requirements of Miranda[]” but also require that the accused “knowingly,

intelligently, and voluntarily waived” the rights set out in the Miranda warnings.

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Walker’s arguments on appeal are based solely on article 38.22, but in the
concluding paragraph of his brief he asserts, “Defendant should have been allowed
a jury instruction of General Voluntariness pursuant to Article 38.23, Texas Code of
Criminal Procedure[.]” Since article 38.23 does not deal with general voluntariness,
it is unknown whether the reference to article 38.23 was inadvertent. In any event,
this sentence is the brief’s only reference to article 38.23; the brief does not explain
how or why article 38.23 applies, nor does it cite any authority in support of the
concluding paragraph’s bare assertion that it does. Although we treat an issue as
including “every subsidiary question that is fairly included[,]” an appellant’s brief
“must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(f)(i); see
Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015). A brief does
not adequately comply with this rule “if we must speculate or guess about the
appellant’s issues.” Golden v. Milstead Towing & Storage, Nos. 09-21-00043-CV,
09-21-00044-CV, 09-21-00045-CV, 2022 Tex. App. LEXIS 2988, at *4 (Tex.
App.—Beaumont May 5, 2022, no pet.) (mem. op.). Waiver may result from an
appellant’s “[f]ailure to provide citations or argument and analysis as to an appellate
issue[.]” Ross, 462 S.W.3d at 500 (citation omitted). Because we conclude general
voluntariness under article 38.22 is the only issue adequately briefed on appeal, our
opinion addresses only that issue.
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Oursbourn v. State, 259 S.W.3d 159, 171-172 (Tex. Crim. App. 2008) (citing

Miranda v. Arizona, 384 U.S. 436 (1966)); Tex. Code Crim. Proc. Ann. art. 38.22,

§ 3(a). When the evidence raises a question about whether an accused’s statement

was voluntarily made and “the trial judge is notified of the voluntariness issue (or

raises it on his own)[,]” section 6 of article 38.22 triggers “a chain of other

requirements” including a hearing outside the jury’s presence to determine whether

the statement is admissible, and if so, the inclusion of a “general voluntariness”

instruction in the charge, instructing the jury that “‘unless the jury believes beyond

a reasonable doubt that the statement was voluntarily made, the jury shall not

consider such statement for any purpose nor any evidence obtained as a result

thereof.’” Oursbourn, 259 S.W.3d at 174-75 (quoting Tex. Code Crim. Proc. Ann.

art. 38.22, § 6).

Walker argues the evidence raised an issue of voluntariness because he

“appeared to be intoxicated to the point or level he was deemed a danger to

himself[]” and “testified he did not remember what occurred or giving consent to

law enforcement to search his person for illegal drugs.” Evidence that a person “was

‘high’ on drugs at the time he gave his statement” may raise a question regarding

whether the statement was voluntarily given. Id. at 176.

The State argues Walker failed to preserve his article 38.22 issue for appellate

review because although Walker requested an article 38.23 instruction regarding

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whether he voluntarily consented to the search, he never requested an article 38.22

instruction regarding whether his “statement” was voluntary, nor did he object on

the basis the charge did not include such an instruction. See Tex. R. App. P. 33.1(a)

(requiring preservation of issues by timely objection, request or motion and a ruling

by the trial court); Oursbourn, 259 S.W.3d at 173 (distinguishing between “(1) a

‘general’ Article 38.22, § 6 voluntariness instruction; (2) a ‘general’ Article 38.22,

§ 7 warnings instruction (involving warnings given under § 2 and § 3); and (3) a

‘specific’ Article 38.23(a) exclusionary-rule instruction.”). Although we agree

Walker never raised the article 38.22 “general voluntariness” issue in the trial court,

we are nevertheless required to analyze the issue on appeal. This is because we

review a claim of charge error using a two-step process in which we first determine

whether error in the charge exists, and if so, we then analyze whether the defendant

was harmed by the error. Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App.

2022); Ngo v. State, 175 S.W.3d 738, 743–744 (Tex. Crim. App. 2005). Whether the

defendant properly preserved charge error, either by requesting an instruction or

objecting to the charge, affects only the second step of our analysis in which we

consider whether any harm resulting from the error warrants reversal. Pickens v.

State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005) (“the question of whether the

defendant has preserved jury-charge error is relevant only if there is a determination

that error actually occurred”); see also Oursbourn, 259 S.W.3d at 174.

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“Article 36.14 provides in part that the trial court shall include in the jury

charge ‘the law applicable to the case.’” Huizar v. State, 12 S.W.3d 479, 483 (Tex.

Crim. App. 2000) (citing Tex. Code Crim. Proc. Ann. art. 36.14). The question is

whether a general voluntariness instruction under article 38.22, § 6 is “law applicable

to the case.” Tex. Code Crim. Proc. Ann. art. 36.14. The statute applies “[i]n all cases

where a question is raised as to the voluntariness of a statement of an accused[.]”

Tex. Code Crim. Proc. Ann. art. 38.22, § 6. Walker asserts the statute applies in this

case because there was evidence he was intoxicated during his interaction with

Officer Knowles and testified at trial that he could not remember giving him consent

to search his pockets. But Walker’s arguments do not address whether his

affirmative response to Knowles’ request for consent to search qualifies as a

“statement” covered by article 38.22. We conclude that it does not.

While article 38.22 does not define “statement,” section 3 indicates it applies

to statements “made as a result of custodial interrogation[,]” and section 5 states,

“Nothing in this article precludes the admission of… a statement that does not stem

from custodial interrogation[.]” See id. §§ 3, 5. Therefore, the Texas Court of

Criminal Appeals has held that “in the context of Article 38.22, the question of

‘voluntariness’ applies only to statements made in response to custodial

interrogation[.]” Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996).

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An officer’s request for consent to search is not an interrogation. See Jones v.

State, 7 S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); McGinty

v. State, 723 S.W.2d 719, 722 (Tex. Crim. App. 1986) (officer’s request that a

defendant submit to a blood-alcohol test is not an interrogation) (citing South Dakota

v. Neville, 459 U.S. 553, 564 n.15 (1983) (“In the context of an arrest for driving

while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol

test is not an interrogation within the meaning of Miranda.”)); Phommyvong v. State,

No. 07-17-00437-CR, 2018 Tex. App. LEXIS 10183, at *5 (Tex. App.—Amarillo

Dec. 11, 2018, no pet.) (mem. op., not designated for publication) (“[The officer’s]

request for appellant’s consent to search was not custodial interrogation and

Miranda does not apply to appellant’s statement made after [the officer’s] request.”).

Because Knowles’s request for consent to search was not an interrogation,

article 38.22 does not apply to Walker’s affirmative response granting consent. See

Magee v. State, No. 14-23-00396-CR, 2024 Tex. App. LEXIS 6482, at *33 (Tex.

App.—Houston [14th Dist.] Aug. 29, 2024, pet. ref’d) (mem. op., not designated for

publication) (“The procedural safeguards of article 38.22, including jury instructions

on questions of fact, do not apply to this case because consent to search is not an

interrogation within the meaning of Miranda.”); Williams v. State, No. 2-05-355-

CR, 2006 Tex. App. LEXIS 6362, at *3 (Tex. App.—Fort Worth July 20, 2006, no

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pet.) (mem. op., not designated for publication) (“the requirements of article 38.22

do not apply to consents to search”).

We conclude article 38.22 was not “the law applicable to the case.” See Tex.

Code Crim. Proc. Ann. art. 36.14. Therefore, the jury charge was not required to

include an instruction regarding the “general voluntariness” of Walker’s statement

granting Knowles consent to search his pockets. We overrule Walker’s sole issue on

appeal, and we affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on August 22, 2025
Opinion Delivered January 14, 2025
Publish

Before Johnson, Wright and Chambers, JJ.

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