                                     MEMORANDUM OPINION
                                               No. 04-11-00407-CR

                                               Roy Lee MONTEITH,
                                                     Appellant

                                                       v.

                                               The STATE of Texas,
                                                     Appellee

                       From the 399th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2010CR1858
                         Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:        Catherine Stone, Chief Justice

Sitting:           Catherine Stone, Chief Justice
                   Phylis J. Speedlin, Justice
                   Steven C. Hilbig, Justice

Delivered and Filed: May 2, 2012

AFFIRMED

           The sole issue presented in this appeal is whether the trial court abused its discretion in

denying Roy Lee Monteith’s motion to suppress by erroneously concluding that he was not in

custody when he gave his statement to the police. We affirm the trial court’s judgment.

           Monteith contends the trial court erred in denying his motion to suppress because he was

in custody when he gave his statement, but was not given the requisite Miranda 1 warnings. A

trial court’s ruling on a motion to suppress is reviewed for abuse of discretion under a bifurcated
1
    Miranda v. Arizona, 384 U.S. 436 (1966).
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standard of review. Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011). A trial

court’s determination of whether an accused is in custody presents a mixed question of law and

fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Under the bifurcated

standard of review, we afford almost total deference to a trial court’s custody determination

when questions of historical fact turn on credibility and demeanor, but we apply a de novo

standard when the trial court’s ruling does not depend on credibility determinations. Id. at 526-

27.    When considering “custody” for Miranda purposes, we apply a “reasonable person”

standard, i.e., 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. at 525.

        The facts in this case are similar to those considered by the Texas Court of Criminal

Appeals in Estrada v. State, 313 S.W.3d 274, 294-95 (Tex. Crim. App. 2010). In Estrada, the

court cited a United States Supreme Court case that determined a defendant was not in custody

when he gave an incriminating statement to the police during questioning at a police station

where: (1) the defendant voluntarily went to the police station in response to a request by the

police; (2) the police immediately informed the defendant that he was not under arrest; (3) the

defendant gave the incriminating statement after a one-half hour interview; and (4) the defendant

was allowed to leave the police station after the interview. Id. at 294 (examining Oregon v.

Mathiason, 429 U.S. 492, 493-96 (1977)).        Although the interrogation in Estrada lasted

approximately five hours, which was longer than the interrogation in Oregon, the court was

“unable to conclude that a reasonable person would believe that he was not free to leave.” Id. at

295.




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       In the instant case, Monteith voluntarily arrived at the police station for questioning after

twice re-scheduling the interview.     Detective Manuel Perez, who conducted the interview,

testified that he informed Monteith that he was conducting an investigation into allegations that

he sexually abused his three granddaughters. Detective Perez informed Monteith that he was not

required to speak to him, he could stop speaking and walk out of the interview at any time, he

was not under arrest, and he would be free to leave at the conclusion of the interview. The

interview lasted approximately three hours; however, Monteith made his first incriminating

statements approximately one hour into the interview. After he made his first incriminating

statements, Detective Perez offered Monteith water and allowed him to use the restroom. When

Detective Perez had to leave the room to take a phone call, Detective Perez told Monteith to

“hang on” because he would be right back. Although Monteith requested to smoke toward the

end of the interview, Detective Perez told him he could not smoke in the building and asked him

to wait since they were almost finished to which Monteith responded, “alright.”             At the

conclusion of the interview, Detective Perez told Monteith to “go ahead and take off.”

       Based on the evidence presented, the trial court did not abuse its discretion in

determining that Monteith was not in custody when he gave his statement. See Estrada, 313

S.W.3d at 294-95. Accordingly, the trial court’s judgment is affirmed.

                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH




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