                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-449-CR


DERRICK LANARD FORD                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Derrick Lanard Ford appeals his conviction for murder. In a

single issue, Ford argues that the trial court erred by admitting his oral

confession because it did not comply with the requirements of article 38.22 of

the Texas Code of Criminal Procedure. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
                           II. F ACTUAL B ACKGROUND

      On August 10, 2000, Billy Teel died after suffering a subdural hematoma

as the result of being pushed out of a moving vehicle. The two men who had

been in the truck with Teel fled from the scene of the crime. A ball cap was

recovered near the scene of the crime, but no one was arrested in connection

with Teel’s murder.

      Almost six years later, Officer Matthew Hardy, an officer with the City

of Fort Worth Police Department, was assigned the cold case. He obtained a

search warrant to collect a buccal swab from Ford so that he could compare it

to DNA from the ball cap that had been recovered in 2000. Officer Hardy

attempted to locate Ford and eventually found that he was living with his sister

at a mobile home park. Officer Hardy had a telephone conversation with Ford

and eventually met him at the mobile home park where Ford was living.

      Ford moved to suppress the conversation that took place during that

meeting, and the trial court held a hearing on Ford’s motion to suppress. The

following is the testimony given at the suppression hearing.

      A.    Officer Hardy’s Version of the Events

      When Officer Hardy arrived at Ford’s sister’s, Ford’s niece or another

female relative answered the door. Ford later came out and talked with Officer




                                       2
Hardy on the porch.2    Officer Hardy told Ford that he needed to execute a

search warrant for a buccal swab and that Ford was not under arrest. Ford

asked what this was about, and Officer Hardy explained that it was in reference

to an investigation of an event that had happened several years ago and said

that he would answer Ford’s questions after he executed the search warrant.

Officer Hardy asked Ford to step into his unmarked police vehicle so he could

execute the search warrant without the buccal swab being contaminated. Ford

complied by getting in the car.

      After Officer Hardy obtained the buccal swab from Ford, Officer Hardy

explained that the investigation was in reference “to a man who had come out

of a vehicle” about six years ago. Ford immediately began talking. He said that

he did not mean to hurt the man. Officer Hardy asked what had happened, and

Ford continued by telling Officer Hardy that

      he and another person named David Jackson had met this -- or had
      -- had observed this man walking towards a truck in some
      apartments west of Como, past the Ridglea area of Fort Worth, and
      that he had a weapon with him and he described . . . that it was
      the weapon that he later got arrested with later that morning on
      the day of the offense. And he said that they were going to jack
      the man, which means, based on my experiences, to rob the man,
      and that they did not intend to hurt him. That [Ford’s] car had


      2
       … Officer Hardy testified that he did not want to talk to Ford inside the
mobile home partly because of “officer safety” and partly because he wanted
privacy so there would not be any interruptions.

                                       3
      broken down and he only wanted to get a ride home, he had no
      money.

            ....

             And so they got into the car -- into the truck and stated that
      the -- the man was driving. He described him as an older, white
      male. He said that David Jackson was in the middle seat, in the
      front seat, and that he was on the far right side in the front seat on
      the passenger side. And stated that they were going down the
      road and the man was talking like “Don’t hurt me. I’ve got a
      family.” And that they were telling him “We’re not going to hurt
      you. We just want your truck.” And then the man came out of the
      truck.

Ford told Officer Hardy that the man came out of the truck after Ford displayed

a weapon.

      After Ford told Officer Hardy this information, Officer Hardy asked Ford

if he would agree to provide an audiotaped statement. Ford said that he did not

know whether or not he wanted to give his statement without an attorney, and

Officer Hardy responded that it was his right to have an attorney.             Ford

thereafter kept saying that he did not mean for the man to get hurt. And then

Ford agreed to make his statement. He asked whether David Jackson had

admitted being involved in any way and stated, “I would never hurt anybody.

I might threaten, but I would never hurt anybody.” During the taping, Ford

equivocated on whether he should have an attorney. Officer Hardy ultimately

pushed Ford to make a decision, and Ford said that he wanted an attorney.


                                        4
      Officer Hardy told Ford that the investigation would continue, and Ford

left the vehicle and walked toward the house. Officer Hardy testified that he

did not smell any alcohol on Ford as he talked to him, nor did Ford appear to

exhibit any signs of intoxication. Officer Hardy also stated that Ford was not

ever under arrest during the entire time that they were in the car, that the doors

of the unmarked car were not locked, that Ford was never handcuffed, that

Ford was seated in the front of the vehicle with Officer Hardy, that Ford was

never detained, that Ford was never threatened with a weapon or verbally, that

Ford was never promised anything, and that Ford never asked to leave. Ford

was not arrested until January 12, 2007.

      B.    Ford’s Version of the Events

      Ford also testified at the suppression hearing. He had been arrested in

August 2000 for unlawfully carrying a weapon and had been taken to a line up

where he asserted his right to an attorney and did not make a statement.

      Six years passed, and Ford received a telephone call in December 2006

from Officer Hardy, stating that he wanted to show Ford some pictures. Ford

said that he asked Officer Hardy what it was about and told him that he did not

“want to be a part of anything.” Ford said that it was a bad time because he

was watching his niece and nephew and that Officer Hardy left him no choice




                                        5
but to meet with him because Officer Hardy said that he was right around the

corner.

      After Ford got off the phone, he went outside to smoke a cigarette, and

Officer Hardy was sitting in his vehicle outside Ford’s home. Ford stood on the

porch and smoked a cigarette while Officer Hardy sat in his vehicle. When

Officer Hardy left his vehicle and approached Ford, Officer Hardy asked Ford to

“come and get in the car” so that Officer Hardy could show Ford some pictures.

Ford told Officer Hardy that he did not feel comfortable getting in the car. Ford

also said that he wanted a lawyer.3     Officer Hardy told Ford that he had a

search warrant for the swab. Ford asked to see the search warrant, and Officer

Hardy showed it to him. Ford thereafter agreed to comply with the search

warrant and asked if the swab could be done in the house. Officer Hardy told

Ford to come to his car so that he could get a “better testing because out here

it’s real airy.” Ford ultimately went to the car.

      Ford testified that Officer Hardy told him that he was not under arrest,

and Ford said that he felt like he was free to leave while he was outside the

car. When Officer Hardy started questioning Ford, he felt like Officer Hardy

“was trying to hold [him],” so Ford kept telling him that he wanted his attorney.


      3
      … On redirect, Ford said that the first time he mentioned wanting a
lawyer was the first time Officer Hardy came to the door of his house.

                                        6
      Ford’s attorney asked him what transpired after he sat down in the car,

and Ford said that Officer Hardy gave him “the Miranda right papers” and said

that he needed to go through them before he gave Ford the test. Ford said that

he did not feel like he could leave at that point. He said that Officer Hardy

questioned him about people he knew. Ford answered those questions but

eventually stopped because he felt like Officer Hardy was “trying to get [him]

in trouble for something [he had not] even done.” Ford testified that he was

never shown any pictures, that he did not make any of the declarations that

Officer Hardy testified about, and that he had asked for an attorney before

Officer Hardy turned on the tape recorder. Ford stated that Officer Hardy never

mentioned anything about a robbery and possible homicide that was committed

in August 2000.

      At the end of the audiotaped conversation, Ford asked if he could leave,

and Officer Hardy told him that he could. Ford asked Officer Hardy to “pop the

lock” because the door was locked, but Ford admitted that he did not know

that the door was locked until he was ready to leave.

      Ford said that he was “highly intoxicated” that day because he had been

drinking brandy for “a good couple of hours.” Ford told Officer Hardy that he

had been drinking and asked him if it would affect the swab. In spite of his




                                      7
alleged intoxicated state, Ford admitted that he knew what was going on and

that he was capable of taking care of his sister’s children.

      On cross-examination, Ford reiterated that Officer Hardy had told him that

he was not under arrest. Ford, however, said that he felt pressured when

Officer Hardy started talking. Ford admitted that he was not handcuffed, that

he had free use of his hands, that he had not been patted down, and that he

had not been treated in any way like he was under arrest. 4 Ford was adamant

that he did not say any of the things that Officer Hardy mentioned. The State

replayed the portion of the audiotape in which Ford said, “Have you talked to

David, man, he must have said he had something to do with it.” Ford tried to

explain his statement by saying that Officer Hardy had started pressuring him

and had mentioned that “type of stuff.” The prosecutor then questioned Ford

about the consistency of his statement on the tape with what Officer Hardy had

testified:

             Q. [Prosecutor:] Matt Hardy says that you admitted to a
      robbery but said you didn’t mean to hurt the man. What you said
      there is consistent with what he says you said, that you threatened
      the man when you robbed him, but you didn’t mean to hurt him.
      Isn’t that consistent?




      4
      … Ford admitted that he knew how the police treated people when they
were under arrest because Ford had been arrested approximately ten times.

                                       8
             A. No, it’s not. Because that had nothing to do with -- the
      man never did even question me about that stuff. He was talking
      to me about some stuff and some robberies that had been going on
      in the area. That’s why I said that about David.

Due to the detailed testimony Ford gave, the prosecutor ultimately asked Ford

whether he had a pretty good recollection of the circumstances that had

occurred inside the car, and he replied, “Not really.”

      C.    Outcome of the Suppression Hearing

      After hearing the above testimony, as well as testimony from Ford’s wife

that Ford’s voice on the tape sounded like he was intoxicated, the trial court

stated,

            All right. Defendant’s Motion to Suppress the statement falls
      under 38.22. And specifically 38.22, Section 3 (a), where it
      states: No oral or signed language statement of an accused made
      at a custodial interrogation shall be admissible against an accused
      in a criminal proceeding unless there’s an electronic recording or
      motion picture videotape, et cetera.

            The crucial language of 38.22 Section 3 (a) is, of course,
      custodial interrogation. And the Court must first find that the
      Defendant, Mr. Ford, was in custody. Based upon the testimony
      of both Mr. Ford and Officer Hardy, the Court’s going to find that
      Mr. Ford was not in custody at the time that he gave a statement.
      Therefore, 38.22 does not fall into play.

The trial court thereafter denied Ford’s motion to suppress.




                                       9
      D.    The Evidence at Trial

      Officer Hardy gave testimony at trial similar to the testimony that he gave

at the suppression hearing. Additional evidence elicited at trial corroborated

Ford’s statements that he had committed the offense with David Jackson

because a witness identified Jackson and because the results from Jackson’s

DNA sample revealed that he could not be excluded as a match for the DNA

found on the cap.

      E.    The Verdict

      After hearing the evidence, the jury found Ford guilty of murder and

recommended a punishment of twenty years’ confinement.              The trial court

sentenced Ford in accordance with the jury’s recommendation, and this appeal

followed.

                            III. S TANDARD OF R EVIEW

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

                                        10
witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

                                        11
We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819.

      When the record is silent on the reasons for the trial court’s ruling, or

when there are no explicit fact findings and neither party timely requested

findings and conclusions from the trial court, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the

light most favorable to the trial court’s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede,

214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless

the implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).




                                        12
             IV. A RTICLE 38.22 A PPLIES O NLY TO S TATEMENTS M ADE
                       W HILE IN C USTODIAL INTERROGATION

      In his only issue, Ford argues that the trial court erred by admitting his

oral confession because it did not comply with the requirements of article 38.22

of the Texas Code of Criminal Procedure. The State responds that the trial

court did not abuse its discretion by overruling Ford’s motion to suppress

because Ford was neither in custody nor under interrogation when he made the

statements at issue.

      Texas Code of Criminal Procedure article 38.22, section 3(a)(1) states

that “[n]o oral or sign language statement of an accused made as a result of

custodial interrogation shall be admissible against the accused in a criminal

proceeding unless: (1) an electronic recording, which may include motion

picture, video tape, or other visual recording, is made of the statement.” Tex.

Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).

      When considering “custody” for Miranda purposes, we apply a

“reasonable person” standard—“[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.”

Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (also stating

that “[o]ur construction of ‘custody’ for purposes of Article 38.22 is consistent


                                       13
with the meaning of ‘custody’ for purposes of Miranda”).           Our “custody”

inquiry also includes an examination of all of the objective circumstances

surrounding the questioning. Id. The subjective belief of law enforcement

officials about whether a person is a suspect does not factor into our “custody”

determination unless an official’s subjective belief was somehow conveyed to

the person who was questioned. Id. at 525–26.

      Here, the record reveals that Officer Hardy made it clear that Ford was

not under arrest, and Ford even testified that he knew he was not under arrest.

Although Ford stated that he did not feel that he was free to leave once he

entered the vehicle, there was no evidence to support his feeling: according to

Officer Hardy, the doors of the unmarked car were not locked, Ford was never

handcuffed, Ford was seated in the front of the vehicle with Officer Hardy, Ford

was never patted down nor detained, Ford was never threatened with a

weapon or verbally, Ford was never promised anything, and Ford never asked

to leave. According to Officer Hardy, he was not interrogating Ford at the time

that Ford made his statement; instead, Ford made his unsolicited statement

after Officer Hardy explained what he was investigating.           Reviewing the

evidence in the light most favorable to the trial court’s ruling, we hold that Ford

was not in custody at the time he made his statement to Officer Hardy. See

id.; Lopez v. State, No. 02-02-00096-CR, 2003 WL 1849206, at *2–3 (Tex.

                                        14
App.—Fort W orth Apr. 10, 2003, pet. ref’d) (mem. op., not designated for

publication) (holding that appellant was not in custody when he made

statements because he was not handcuffed, he was not under arrest, he was

told by officer that he was trying to ascertain appellant’s identity, and appellant

initiated conversation by asking what officer was investigating. The trial court,

therefore, did not err by denying Ford’s motion to suppress. We overrule Ford’s

sole issue.

                                 V. C ONCLUSION

      Having overruled Ford’s sole issue, we affirm the trial court’s judgment.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 22, 2009




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