                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                §
 FELICIA KAYE MURRAY, a/k/a                                     No. 08-11-00344-CR
 FELICIA KAYEK MURRAY, a/k/a                    §
 FELICIA K. MURRAY,                                               Appeal from the
                                                §
                             Appellant,                     Criminal District Court No. 1
                                                §
 v.                                                           of Tarrant County, Texas
                                                §
 THE STATE OF TEXAS,                                              (TC# 1225055D)
                                                §
                             Appellee.

                                          OPINION

       Felicia Murray appeals from the trial court’s judgment convicting her of aggravated

robbery with a deadly weapon and sentencing her to thirty years’ imprisonment – a sentence

enhanced pursuant to the habitual-offender statute. In a single issue, Appellant contends that the

trial court erred by denying her motion to suppress inculpatory statements made to police

detectives because she was in custody and had not been advised of her Miranda rights. For the

reasons that follow, we affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Following a robbery at gun point during which a witness observed the robber leave in a

vehicle driven by an African-American woman, a police officer spotted a vehicle matching the

description provided by the witness. The vehicle, registered to Appellant, was spotted in front of
the house inside of which police encountered Appellant and two males, one of whom was the

robber.

          Appellant was handcuffed and placed in the back of a patrol car. The police officer

testified that he did so for officer safety because he did not have an opportunity to search Appellant

for a weapon when one had been reported and she was suspected of being involved in the robbery.

Appellant remained handcuffed in the car for an indeterminate amount of time until Detective

Desmarais arrived and ordered the handcuffs removed. Appellant was then placed in Detective

Desmarais’ vehicle and driven to the police administration building for an interview. When

Appellant arrived at the police administration building, she was not in handcuffs. During her

interview with Detectives Desmarais and Ransford, Appellant was asked if she understood that she

was not under arrest and that she was there voluntarily. Appellant initially responded that she

understood, but then stated “Naw I didn’t know that, but now I know.” Detective Desmarais

reiterated that she was not under arrest. Seconds after uttering “Ok” in response to Detective

Desmarais pronouncement, Appellant stated “I didn’t know I came on my own free will . . . .”

Appellant continued to speak with the detectives. She admitted she was at the scene of the

robbery and knew the robber and had given him rides before, but denied she was his getaway

driver. Near the conclusion of the interview, Detective Desmarais informed Appellant that he

could arrest her then, but would not do so. After the 35-minute interview ended, Detective

Desmarais drove Appellant home.

                                CUSTODIAL INTERROGATION

          Appellant argues that she was in custody when she was left handcuffed in the patrol car for

an indeterminate period and, notwithstanding that the handcuffs were removed, remained in


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custody for the duration of her encounter with the police. We disagree.

                                        Standard of Review

       Because questions of custody present a mixed question of law and fact, we afford almost

total deference to a trial judge’s “custody” determination when the questions of historical fact turn

on credibility and demeanor. See Herrera v. State, 241 S.W.3d 520, 526-27 (Tex.Crim.App.

2007); see also Jeffley v. State, 38 S.W.3d 847, 853 (Tex.App.--Houston [14th Dist.] 2001, pet.

ref’d). When, however, the questions of historical fact do not turn on credibility and demeanor,

we review a trial judge’s “custody” determination de novo. See Herrera, 241 S.W.3d at 526-27;

Jeffley, 38 S.W.3d at 853. The defendant, not the State, carries the initial burden of establishing

that a statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526.

                                          Applicable Law

       Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of an

accused’s statement resulting from a custodial interrogation unless she was advised of her

Miranda rights and voluntarily waived those rights. TEX.CODE CRIM.PROC.ANN. art. 38.22,

§§ 2(a), 2(b), 3(a)(2)(West 2005); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966); see also Herrera, 241 S.W.3d at 526 (“Our construction of ‘custody’ for

purposes of Article 38.22 is consistent with the meaning of ‘custody’ for purposes of Miranda.”).

However, the warnings required by Article 38.22 and Miranda only apply when a suspect is in

custody. See Herrera, 241 S.W.3d at 526.

       A person is “in custody” if, under the circumstances, a reasonable person would believe her

freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v.

California, 511 U.S. 318, 322-24, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293 (1994); Dowthitt v.


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State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). We determine custody based on objective

circumstances, and any subjective intent of law enforcement officers or the person being

questioned are not controlling. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529.

       As the Court of Criminal Appeals noted in Dowthitt, Texas courts have identified four

general situations that may constitute custody: (1) when the suspect is physically deprived of her

freedom of action in a significant way; (2) when a law-enforcement official tells a suspect she

cannot leave; (3) when law-enforcement officers create a situation that would lead a reasonable

person to believe that her freedom of movement has been significantly restricted; and (4) if there is

probable cause to arrest and law-enforcement officials do not tell the suspect that she may leave.

Dowthitt, 931 S.W.2d at 255, citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985).

The restraint upon freedom in the first three situations must be equivalent with that associated with

an arrest as opposed to an investigative detention. See Dowthitt, 931 S.W.2d at 255. In the

fourth situation, the officer’s knowledge of probable cause must be manifested to the suspect, and

such manifestation, considered in the totality of the circumstances, must lead a reasonable person

to believe she is not free to leave. Id.

                                             Analysis

       Considering the totality of the circumstances, several factors tend to demonstrate that

Appellant was not in custody when she was interviewed by the detectives. The record does not

reflect that she was under formal arrest at any point during her encounter with the police. The

patrol officer who handcuffed her testified he did so for officer safety. Detective Ransford

testified that Appellant was not under arrest when he and Detective Desmarais interviewed her.

Although Detective Desmarais informed Appellant near the conclusion of the 35-minute interview


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that they had sufficient evidence to arrest her, in the same breath he told her that he was not going

to arrest her. And in fact, he did not.

       Nor does the record reveal that any officer communicated to Appellant that she was not

free to leave. There is no evidence that the patrol officer or the detectives informed her that she

was not free to leave. Indeed the facts are to the contrary. More importantly, at the outset of the

interview, Detectives Desmarais and Ransford advised Appellant that she was not under arrest and

that she was giving a voluntary statement. It is thus evident that the restraint upon Appellant’s

freedom of movement is not equivalent to that associated with an arrest. See Dowthitt, 931

S.W.2d at 255.

       Appellant maintains that the use of handcuffs is a significant factor, if not the key factor, in

concluding that she was in custody for purposes of Miranda. The State acknowledges that the use

of handcuffs “is an important factor in determining whether that person is in ‘custody’ for purposes

of [Miranda] . . .” but counters that, in and of itself, the use of handcuffs does not always constitute

a formal arrest or restraint to the degree associated with a formal arrest. None of the cases cited

by Appellant hold that placing a suspect in handcuffs automatically equates to custody. Indeed,

the Texas Court of Criminal Appeals has reiterated that the mere act of handcuffing, by itself, does

not establish custody, but is only one of a range of relevant factors in determining that a suspect is

in custody. State v. Ortiz , 382 S.W.3d 367, 374 (Tex.Crim.App. 2012); see Balentine v. State, 71

S.W.3d 763, 771 (Tex.Crim.App. 2002)(the placing of handcuffs on a defendant does not, in and

of itself, mean he is in custody). The other cases cited by Appellant have concluded that the use

of handcuffs is significant, but not decisive, in determining if a suspect is in custody. More

importantly, because the cases have additional, material facts not present here, they are inapposite.


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For example, in U.S. v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993), the court held that a

defendant questioned by an FBI agent while sitting handcuffed in the back of a police car was in

custody. Likewise, in United States v. Newton, 369 F.3d 659, 675-77 (2d Cir. 2004), the court

held that a suspect questioned by six officers while sitting in his apartment handcuffed and in his

underwear was in custody. In contrast to the defendants in Ortiz, Henley, and Newton, Appellant

was not questioned at the scene while handcuffed; she was questioned at the police administration

building without handcuffs.

       Appellant attempts to diminish the significance of having her handcuffs removed. First,

she argues that “once she was taken into custody, she remained in custody, since there was no

evidence that she was released from custody . . . .” In so arguing, she posits that the police

officer’s testimony that he removed her handcuffs before placing her in Detective Desmarais’

vehicle “is no evidence of a break in custody.” She cites no authority in support of this

proposition nor does she explain why this is necessarily so. Moreover, because the officer’s

testimony is a historical fact that turns on credibility and demeanor, we defer to the trial judge’s

implicit determination that the officer was a credible witness whose testimony supported the

conclusion that Appellant was not in custody. See Herrera, 241 S.W.3d at 526.

       Appellant next suggests that, when other facts are considered, “the fact that the handcuffs

were removed prior to any questioning becomes unimportant . . . .” She identifies these facts as:

(1) the interview occurred at the police administration building and it was accusatorial in nature;

(2) she was dependent on transportation to and from the interview; and (3) there is no evidence that

her handcuffs were removed before she accompanied Detective Desmarais to the interview. As

with her first argument, Appellant neither cites nor applies any law in support of this argument.


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More importantly, she fails to provide a reasoned explanation how these facts collectively

constitute custody given that each fact standing alone does not constitute custody. See Dowthitt,

931 S.W.2d at 255(station-house questioning does not automatically constitute custody); Meek v.

State, 790 S.W.2d 618, 621 (Tex.Crim.App. 1990)(being the focus of the investigation does not

equate to being in custody); Rodriguez v. State, 191 S.W.3d 428, 441-42 (Tex.App.--Corpus

Christi 2006, pet. ref’d)(person transported to a law enforcement facility by an officer in the course

of an investigation is not in custody if he voluntarily accompanied the officer upon the officer’s

invitation, request, or urging without the threat that he would be taken in a forcible manner).

       Appellant has failed to carry her burden of establishing that she was in custody when she

made her inculpatory statements. See Herrera, 241 S.W.3d at 526. It is clear that there was no

significant deprivation of freedom of movement, and a reasonable person would not consider

herself in custody in this particular situation. She spoke to the detectives for thirty-five minutes

and at the conclusion of the interview, she was permitted to leave. Finding no error, we deny

Appellant’s sole issue and affirm the judgment of the trial court below.



March 6, 2013
                                               ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J. (Not Participating)

(Do Not Publish)




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