        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-01-00711-CR


                                  The State of Texas, Appellant

                                                 v.

                                    Eric Jerome Lacy, Appellee


      FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
           NO. 9164, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                Charged with sexual assault of a child, appellee Eric Jerome Lacy moved to suppress a

statement he made to a Texas Department of Public Safety (ADPS@) employee at the conclusion of a

polygraph examination. After a hearing, the district court granted his motion. The State appeals.

See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2002). We will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

                Lacy was indicted on February 27, 2001, for the aggravated sexual assault of AMS-01,@

the six-year-old female child of his ex-girlfriend. After his arrest, the district court appointed an

attorney for him. Because of a parole violation, Lacy remains incarcerated in the Burnet County jail

without bond.
                The State offered Lacy an opportunity to take a polygraph examination. Against the

advice of his court-appointed attorney, Lacy agreed to the examination. Melloney Myers, an

employee of the DPS, Criminal Law Enforcement Special Crimes Service, administered the polygraph

examination, which took place at the Marble Falls Police Department. A law enforcement officer

transferred Lacy from Burnet to Marble Falls and later returned him to Burnet. Lacy wore handcuffs

during the transfer.

                Lacy=s attorney met with Myers at the Marble Falls Police Department before the

examination. Myers informed the attorney that the results of the examination would not be

admissible in court and that Lacy would need to sign two forms prior to the examination. The first, a

waiver-of-rights form, detailed Lacy=s Miranda rights. 1 The second, entitled APolygraph Examination

Consent and Written Authorization to Inspect Polygraph Records,@ stated that the examination was

voluntary and could be stopped at any time. The attorney recommended to Lacy that he should not

take the polygraph examination. He explained that the examination results would not be admissible


   1
       AMiranda rights@ refer to warnings that must be read to suspects in custody. Officers must warn an
accused that (1) he has the right to remain silent and not make any statement at all; (2) any statement he
makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise
him prior to and during questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the
interview at any time. Miranda v. Arizona, 384 U.S. 436, 467-74 (1966); see also Tex. Code Crim.
Proc. Ann. art. 15.16(a) (West Supp. 2002), art. 38.22, ' 2 (West 1979).




                                                      2
in court; however, he noted that they could be very harmful to Lacy because prosecutors would see

the result. Lacy insisted on the examination. However, he signed a waiver stating that he had been

advised not to proceed, but that he voluntarily wished to take the examination.

                Myers then conducted the examination. Although Myers had been employed by DPS

and obtained the rank of sergeant, her present position does not have a Arank@ associated with it.

Consistent with her position at the time of the examination, she did not conduct the examination

while wearing a DPS uniform. Lacy=s handcuffs were removed for the examination, and although he

was permitted to voluntarily leave the examination room, he could not leave the police station.

Myers testified that Lacy was not in her custody during the examination because he was permitted to

leave her presence. The examination showed that there was significant criteria normally associated

with deception pertaining to knowledge of and participation in the offense. During a post-

examination interview, as required by law,2 Myers advised Lacy of her conclusions and afforded him

an opportunity to explain why his answers reflected a Adeception indicated@ result.3 Lacy then made a

statement to Myers admitting sexual contact with the child.4


   2
       22 Tex. Admin. Code ' 395.10 (a) (2002) (Examining Boards) (AA polygraph examiner shall advise
the examinee of the results of the examination prior to the termination of the polygraph examination. The
results will be conveyed to the examinee as: (1) deception indicated; (2) no deception indicated; (3)
inconclusive; or (4) no opinion@).
   3
      Id. ' 393.7(a)-(b) (defining polygraph examination as comprising all or any part of (1) pre-test, (2)
testing phase, (3) chart analysis phase, (4) post-test phase); 22 Tex. Admin. Code ' 395.10 (b) (2002)
(Examining Boards) (giving examinee opportunity to explain relevant question results).
   4
      Lacy responded Ano@ when asked, during the polygraph examination, Adid your penis touch >MS-01=s
vagina,@ Adid your penis touch >MS-01=s vagina like she alleged@ and Adid you have any sexual contact with
>MS-01.=@ He explained the Adeception indicated@ result by admitting to inserting his finger, on two
occasions, into the child=s vagina until she bled.

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                The district court granted Lacy=s motion to suppress the statement. The State now

appeals the district-court order.


                                             DISCUSSION

                The State contends that the statement made to Myers was not a product of a custodial

interrogation. As a result, the State argues that the district court erred in granting the motion to suppress

Lacy=s statement. In granting Lacy=s motion to suppress, the district court found that Lacy was Ain custody@

when Myers asked him to explain the indication of deception.

                An oral confession of guilt or an oral admission against interest made by one in custody is

inadmissible evidence as the statement is likely to be misunderstood, easily fabricated, and hard to

contradict. See Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985) (citing Gay v. State, 2

Tex. Ct. App. 127 (1877); Riley v. State, 4 Tex. Ct. App. 538 (1878)). An accused=s oral statement

during a custodial interrogation is inadmissible in a criminal proceeding against him unless an electronic

recording of the statement is made after the accused has been given and waived the Miranda warnings.

Tex. Code Crim. Proc. Ann. art. 38.22 ' 3 (West Supp. 2002); see also Butler v. State, 493 S.W.2d

190, 191 (Tex. Crim. App. 1973) (Aprohibition against the use of oral confessions is a mater of a state

statute@). Here, it is undisputed that Lacy=s statement to Myers was not recorded. Therefore, if Lacy was

in custody when he made his statement, the district court was correct in suppressing it.


Standard of Review




                                                     4
                 The district court concluded that Lacy was in custody. We review de novo Amixed

questions of law and fact@ that do not turn on credibility and demeanor. See Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (citing Villarreal v. State, 935 S.W.2d 134, 139-41 (Tex. Crim.

App. 1996) (McCormick, P.J. concurring)). We will review de novo the district court=s legal determination

that Lacy was in custody at the time of his post-polygraph statement.


Custodial Interrogation

                 A custodial interrogation is the questioning by law-enforcement officers after taking a person

into custody or otherwise depriving him of his freedom in a significant way. Cannon v. State, 691 S.W.2d

664, 671 (Tex. Crim. App. 1985) (citing Miranda v. Arizona, 384 U.S. 436 (1966)). In determining

whether an individual was in custody, courts examine all the circumstances surrounding the interrogation to

answer the ultimate inquiry: whether there was a formal arrest or restraint of movement to the degree

associated with a formal arrest. See California v. Beheler, 463 U.S. 1121, 1125 (1983) (citing Oregon

v. Mathiason, 429 U.S. 492, 495 (1977)); Meek v. State, 790 S.W.2d 618, 621 n.2 (Tex. Crim. App.

1990). In Texas, the standard used to answer this inquiry is clear: Aa 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.@ Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App.

1996) (citing Stansbury v. California, 511 U.S. 318, 322-24 (1994)). Here, Lacy was under formal

arrest resulting from parole violations. Indeed, he was incarcerated. Although allowed to end the

examination and leave the examination room, his freedom was restrained consistent with formal detention.

We hold that his statement was obtained while in custody.

                                                       5
                The State argues that but for the fact that Lacy was incarcerated due to previous parole

violations, the fact that he voluntarily accompanied law-enforcement officers to a police station for a

polygraph examination administered by a DPS employee would not have amounted to custody. See

Shiflet, 732 S.W.2d 622; Rodriguez v. State, 939 S.W.2d 211 (Tex. App.CAustin 1997, no pet.) (op.

on reh=g). Both Rodriguez and Shiflet, applying the reasonable-person standard, found that when a person

voluntarily accompanies officers to a location and he knows or should know that he is a suspect in the crime

the officers are investigating, the person is not in custody. Shiflet, 732 S.W.2d at 628. However in Shiflet,

the court said that custody can occur if a person is led to believe, as a reasonable person, that he is

deprived of his freedom of movement. Id. Lacy, however, had been formally arrested and incarcerated.

Under such circumstances, no reasonable person could believe he was not in custody. That Lacy

voluntarily submitted to the polygraph examination has no bearing on the restrictions that the State had

placed on his general freedom.


                                             CONCLUSION

                Because Lacy=s statement was not recorded in compliance with the code of criminal

procedure, we hold that the district court did not err in granting the motion to suppress the statement

and affirm the district court=s order.




                                                  Lee Yeakel, Justice



                                                     6
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: June 13, 2002

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