AFFIRMED; Opinion Filed October 20, 2015.




                                                           In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                     No. 05-14-01000-CR

                                       FREDERICK DON GADDIS, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                                 On Appeal from the 380th Judicial District Court
                                             Collin County, Texas
                                     Trial Court Cause No. 380-81994-2013

                                          MEMORANDUM OPINION
                                    Before Justices Fillmore, Stoddart, and Richter1
                                             Opinion by Justice Stoddart
          A jury convicted Frederick Don Gaddis of one count of aggravated sexual assault of a

child and sentenced him to twenty years’ confinement. The jury also convicted him of two

counts of indecency with a child and sentenced him to twelve years’ confinement for each

offense. In two issues on appeal, Gaddis asserts the trial court abused its discretion by denying

his motion to suppress his statements to law enforcement officials and by denying his motion for

new trial. We affirm the trial court’s judgment.




   1
       The Hon. Martin Richter, Justice, Assigned.
                                                      MOTION TO SUPPRESS

          Gaddis filed a pre-trial motion asking the trial court to suppress statements he made on

April 29, 2013, May 1, 2013, May 6, 2013, and May 14, 2013, to Detective Chris Jones of the

Plano Police Department. He also sought suppression of his statements to a polygraph examiner

on May 6, 2013. The trial court conducted a hearing on the motion and listened to recordings of

two of the conversations between Gaddis and Jones.

          Jones testified at the hearing that he was assigned to the Children’s Advocacy Center in

Plano, Texas, and he investigated the allegations against Gaddis. Jones first contacted Gaddis by

phone on April 29, 2013. During the phone call, Jones informed Gaddis that the complainant

alleged Gaddis inappropriately touched her. Gaddis agreed to an in-person interview with Jones.

          On May 1, 2013, Gaddis voluntarily met Jones at the Children’s Advocacy Center.

Gaddis was not transported to the center in police custody. The center is not part of the Collin

County jail, and does not include any jail cells or holding cells. However, the center has a secure

entrance and a person must be admitted to access rooms other than the reception area. Gaddis

and Jones met in the “family room” at the center.                       Gaddis was not handcuffed and was not

given the warnings required by Miranda2 or the code of criminal procedure.3 Jones testified: “As

a matter of fact, I told him that he would not be arrested today, however, I would still be

conducting an investigation.” Jones let Gaddis know he was free to leave, he did not have to

make a statement, and he could stop talking to Jones if he wanted to.

          On May 1, Jones told Gaddis about the complainant’s allegations. Jones also informed

Gaddis that Jones did not need to interview him and could have obtained a warrant for his arrest.

Gaddis denied the allegations during the interview.

   2
       See Miranda v. Arizona, 384 U.S. 436 (1966).
   3
       See TEX. CODE CRIM. P. ANN art. 38.22 (West Supp. 2014).



                                                                  –2–
       The second time Jones and Gaddis spoke in person was on May 6, 2013, after Gaddis had

undergone a polygraph examination. Gaddis drove himself to the polygraph examiner’s office.

Before Jones spoke to Gaddis on May 6, Jones spoke to the person administering the polygraph.

The polygraph examiner told Jones that Gaddis failed the polygraph.

       When Gaddis talked to the polygraph examiner and to Jones on May 6, he was not

handcuffed and he was told he was free to leave. Jones said to Gaddis: “Even though we are not

in a police room setting or whatever, if you don’t want to talk about it no [sic] more, you don’t

have to. You can leave at any time.” Gaddis did not leave, but instead talked to Jones and

admitted to inappropriate contact with the complainant. After the interview, Gaddis left in his

own car.

       Jones arrested Gaddis on May 14, 2013, and interviewed him at the Plano jail. Prior to

the interview, Jones Mirandized Gaddis and Gaddis executed a written statement showing he

waived his Miranda rights.       During the May 14 interview, Gaddis again admitted to

inappropriate sexual contact with the complainant.

       After hearing Jones’s testimony, two recordings of conversations between Jones and

Gaddis, and the arguments of counsel, the trial court concluded Gaddis had noncustodial

conversations with Jones on May 1 and May 6, and he had noncustodial conversations with the

polygraph examiner on May 6. After the May 1 and May 6 conversations, Gaddis was allowed

to leave, was not placed under arrest, and was not detained in any way. The trial court further

concluded the methods used to obtain Gaddis’s May 14 statement did not violate the constitution

or article 38.22 of the code of criminal procedure. The trial court denied Gaddis’s motion to

suppress.

       Gaddis later filed a motion for new trial arguing the trial court erred by admitting

Gaddis’s statements to Jones because Gaddis did not receive proper warnings.

                                              –3–
                                       STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial

court’s factual findings for an abuse of discretion, but review the trial court’s application of the

law to the facts de novo. Id. We give almost total deference to the trial court’s determination of

historical facts, particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Id. We give the same deference to the trial court’s conclusions with

respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz,

382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that

do not turn on credibility and demeanor as well as purely legal questions de novo. Id. As a

general rule, we view the evidence in the light most favorable to the trial court’s ruling and

afford the prevailing party the strongest legitimate view of the evidence, including all reasonable

inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex.

Crim. App. 2013).

       We review a trial court’s denial of a motion for new trial under an abuse of discretion

standard. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). When a trial court

denies a motion for new trial, it abuses its discretion “only when no reasonable view of the

record could support the trial court’s ruling.” Id.

                                           LAW & ANALYSIS

       Gaddis argues the trial court erred by denying his motions to suppress and for new trial

because he made statements to law enforcement officials without receiving proper warnings and,

therefore, the admission of his statements violated article 38.22 of the Texas Code of Criminal

Procedure and his constitutional rights.




                                                –4–
       The constitutionally required Miranda warnings and the warnings mandated by article

38.22 are intended to safeguard a person’s privilege against self-incrimination during custodial

interrogation. Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009); Herrera v. State,

241 S.W.3d 520, 526 (Tex. Crim. App. 2007). A person is in custody only if, under all the

objective circumstances, a reasonable person would believe his freedom of movement was

restrained to the degree associated with an arrest. Dowthitt v. State, 931 S.W.2d 244, 254-55

(Tex. Crim. App. 1996). The determination of custody is made on an ad hoc basis and depends

entirely on the objective circumstances. Id.

       The court of criminal appeals outlined four general situations that may constitute custody:

(1) when the suspect is physically deprived of his freedom of action in any significant way; (2)

when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement

officers create a situation that would lead a reasonable person to believe that his freedom of

movement has been significantly restricted; and (4) when there is probable cause to arrest and

law enforcement officers do not tell the suspect that he is free to leave. Id. at 255. The first three

situations require that the restriction on a suspect’s freedom of movement must reach “the degree

associated with an arrest” instead of an investigative detention. Id. The fourth situation requires

that the officer’s knowledge of probable cause be manifested to the suspect. Id.

       The record shows Gaddis was not in custody when he spoke to Jones on April 29, 2013,

May 1, 2013, and May 6, 2013. He also was not in custody when he spoke to the polygraph

administrator on May 6, 2013. Therefore, he was not entitled to Miranda warnings or warnings

pursuant to article 38.22.

       Gaddis’s first conversation with Jones was by telephone. Nothing in the record indicates

Gaddis was in custody during the telephone call, and the simple act of talking to an officer on the

telephone does not constitute a custodial interrogation. See Gardner, 306 S.W.3d at 294-95; see

                                                 –5–
also Bolton v. State, No. 08-10-00091-CR, 2011 WL 241970, at *2 (Tex. App.—El Paso Jan. 26,

2011, no pet.) (not designated for publication); Poitinger v. State, No. 14-07-00155-CR, 2008

WL 1838981, at *7-8 (Tex. App.—Houston [14th Dist.] Apr. 24, 2008, no pet.) (mem. op., not

designated for publication) (appellant not in custody when officer spoke to him on the phone and

no Miranda warnings were required).

       Likewise, when Gaddis met with Jones and the polygraph examiner in person, he was not

in custody. During these meetings, Gaddis was not physically deprived of his freedom of action

in any significant way and neither Jones nor the polygraph examiner created a situation that

would lead a reasonable person to believe that his freedom of movement had been significantly

restricted. Rather, Gaddis drove himself to both meetings, was not handcuffed, was told he was

free to leave, and did leave on his own at the end of the meetings. There was no restraint on the

freedom of his movements. See Dowthitt, 931 S.W.2d at 254-55.

       Because Gaddis was not in custody on April 29, 2013, May 1, 2013, or May 6, 2013,

when he spoke to Jones and the polygraph examiner, Gaddis was not entitled to warnings under

the constitution or the code of criminal procedure. See Herrera, 241 S.W.3d at 526 (citing TEX.

CODE CRIM. PROC. ANN. art. 38.22). We conclude the trial court did not err by denying Gaddis’s

motion to suppress these statements.

       As to the May 14 interview, Gaddis argues that the statements he made on April 29, May

1, and May 6 were tainted and “any of the same or substantially the same statements

subsequently made by Appellant [on May 14] ought to have been deemed equally and fully as

[sic] tainted as well.” He does not assert he was not properly warned on May 14. However,

because we conclude Gaddis was not entitled to warnings on April 29, 2013, May 1, 2013, and

May 6, 2013, and Gaddis did receive warnings before making his May 14, 2013 statement—at

which time he was under arrest and in custody—we conclude the trial court also did not err by

                                              –6–
denying the motion to suppress the May 14 statements. For the same reasons, we conclude the

trial court did not abuse its discretion by denying his motion for new trial on the same grounds.

       We overrule Gaddis’s first and second issues.

                                           CONCLUSION
       We affirm the trial court’s judgment.




                                                     /Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
141000F.U05




                                               –7–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

FREDERICK DON GADDIS, Appellant                    On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas
No. 05-14-01000-CR        V.                       Trial Court Cause No. 380-81994-2013.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 20th day of October, 2015.




                                             –8–
