                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-11-00073-CR
                             _________________

          EDSON HEDIVALDO OLVERA-GARZA SR., Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 10-08-09235-CR
________________________________________________________________________

                          MEMORANDUM OPINION

      In this appeal, we address whether the trial court abused its discretion by

admitting a defendant’s oral and written confessions to a murder. The State

charged Edson Hedivaldo Olvera-Garza Sr. 1 with murdering Eugene Villaruel. See

Tex. Penal Code Ann. § 19.02 (West 2011). Before the trial began, Olvera asked

the trial court to suppress his oral and written confessions to the murder. Olvera’s

      1
       Appellant is also known as Edson Olvera. According to appellant, he
usually goes by Edson Olvera.
                                         1
motion to suppress asserts he was questioned by police while in their custody

before being warned of his rights. The trial court denied Olvera’s motion;

afterward, under a plea bargain, Olvera pled guilty. In carrying out Olvera’s plea

agreement, the trial court sentenced Olvera to twenty-five years in prison.

                              Custodial Interrogation

                                Standard of Review

      Generally, a Miranda warning is required if the police have taken a

defendant into custody. See Miranda v. Arizona, 384 U.S. 436, 444, 478-79, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring that police advise a person of his

rights prior to questioning if the person is in custody or has otherwise been

deprived of his freedom of action in any significant way); Herrera v. State, 241

S.W.3d 520, 525-26 (Tex. Crim. App. 2007). To use the responses the defendant

made during a custodial interrogation, the State must demonstrate that procedural

safeguards—such as warnings—were used, which allow a defendant the

opportunity to secure his privilege against self-incrimination. Miranda, 384 U.S. at

444; Wilkerson v. State, 173 S.W.3d 521, 526 (Tex. Crim. App. 2005).




                                         2
      On appeal, Olvera challenges the trial court’s finding that his pre-Miranda

interrogation was noncustodial. See Miranda, 384 U.S. at 445. 2 Olvera contends

that he was in custody when, before receiving his Miranda warnings, he orally

confessed to having been involved in Villaruel’s murder.

      A trial court’s ruling on a motion to suppress is reviewed to determine

whether the trial court abused its discretion in deciding to admit or exclude

evidence. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). To

determine whether the record supports the trial court’s evidentiary ruling, we

accord almost complete deference to the trial court’s determination of historical

facts, especially when that determination is based on the trial court’s assessment of

a witness’s credibility and demeanor. Id. at 89. If the trial court’s determination

involves mixed questions of law and fact that turn on the trial court’s evaluation of

credibility and demeanor, the appellate court applies that same standard of “almost

total deference[.]” State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Questions of law and fact that do not turn on credibility and demeanor are

reviewed de novo. Id.



      2
        The written warnings referred to in this opinion as Miranda warnings were
those given to Olvera by the police in carrying out the duties placed on them by
article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.
Ann. art. 38.22 § 2 (West 2005).
                                         3
                  Summary of Testimony from the Suppression Hearing

      On November 2, 2008, Harris County Deputy Sheriff Ben Russell went to an

apartment complex in Harris County to investigate a report that Villaruel was

missing. Members of Villaruel’s family told Deputy Russell that two men, Olvera

and Edgar Sazo, had information about Villaruel’s disappearance. While at the

complex, the officers spoke with Olvera and Sazo; both denied knowing

Villaruel’s whereabouts. After Olvera and Sazo provided police with information

that might be needed to contact them again, they were released.

      Less than two hours later, after Montgomery County officers recovered

Villaruel’s body, Harris County officers went to Olvera’s apartment. The officers

did not arrest Olvera. After a pat-down search, the officers placed Olvera in

handcuffs, put him in the backseat of a patrol vehicle, and took him to Villaruel’s

apartment complex, a distance of approximately four miles. According to Deputy

Russell, department policy required the officers to use handcuffs as a precaution

while transporting a person who was being detained in a police vehicle.

      When Olvera arrived at Villaruel’s apartment complex, Olvera’s handcuffs

were removed, and he was moved to the front seat of a detective’s unlocked SUV.

Detective Keith Echols, an officer employed by the Montgomery County Sheriff’s

Department, was standing outside the SUV. No one told Olvera he was under

                                        4
arrest while he waited to be questioned. Shortly after arriving at Villaruel’s

apartment complex, Olvera was joined in the SUV by Detective Paul Hahs,3

another officer with the Montgomery County Sheriff’s Department. Initially,

Olvera told Detective Hahs that he and Sazo had been with Villaruel that evening,

but he claimed they had dropped Villaruel off at Villaruel’s apartment around

10:00 p.m.

      As the interview developed, Detective Hahs challenged Olvera to explain

how Villaruel could have used his phone from Sazo’s vehicle if he was no longer

in Sazo’s car; asked Olvera to explain when he cut his hand; and advised Olvera

that they knew Villaruel had been murdered before telling Olvera that he believed

Olvera “was directly involved or, excuse me, directly in the middle of this

situation.” During the course of their conversation, Olvera retracted his claim that

he had no knowledge concerning Villaruel’s murder. Olvera told Detective Hahs

that “[Sazo] was planning to kill [Villaruel]” and he was “kind of trying to talk

[Sazo] out of it.”

      Olvera went on to explain that he was driving Sazo’s car when Sazo stabbed

Villaruel. According to Olvera, Sazo asked him to help carry Villaruel’s body into

the woods, and he agreed to do so. After telling Detective Hahs that he helped Sazo
      3
          The detective’s name is misspelled in the reporter’s record as “Haas.”

                                            5
move Villaruel’s body, and that blood had gotten on his clothing, Detective Hahs

told Olvera that he would need his shoes. After taking Olvera’s shoes, Detective

Hahs asked: “Did [Sazo] make you stick [Villaruel] at all?” In response, Olvera

admitted “I did in fact stab . . . like once or twice” while Villaruel was still alive.

During the suppression hearing, Detective Hahs testified that he believed he had

probable cause to arrest Olvera when Olvera agreed to give him his shoes and

when Olvera admitted to having stabbed Villaruel.

      After Olvera told Hahs about his involvement in Villaruel’s murder,

Detective Hahs asked Olvera to give a written statement. Olvera agreed. At that

point, Detective Hahs asked Detective Echols for a “statement form[.]” Before

getting the form, Detective Echols indicated that he wanted to ask Olvera some

questions since he had not been present during the entire conversation. After

Detective Echols finished questioning Olvera, and before giving Olvera his

Miranda warnings, Detective Hahs asked Olvera if he had any blood on his

clothes; he then asked Olvera to write out his statement.

      During the suppression hearing, Olvera’s counsel asked Detective Hahs

when the interview became confrontational and when Olvera’s statements became

confessional. Detective Hahs stated he avoided using a confrontational tone when

he told Olvera that his story did not match the facts. According to Detective Hahs,

                                          6
his questions were designed to elicit truthful responses. Detective Hahs stated that

when he told Olvera that his statement did not match known facts, he believed

Olvera “was at the very least present when the murder occurred.” According to

Detective Hahs, the interview turned into a confession “[w]hen [Olvera] admitted

that he stabbed [Villaruel]” because Olvera “wasn’t admitting to any wrongdoing

before then of his own.” Detective Hahs stated he asked Olvera to provide a

written statement because “[a]t that point I wanted him to back up what he was

saying; and a lot of times people will say one thing, and when they put it on paper,

they’ll write something totally different, [giving] you inconsistencies to work

with.” Detective Hahs agreed that Olvera’s written statement is consistent with his

earlier oral statements.

                  Trial Court’s Findings of Fact and Conclusions of Law

      Trial courts are required to make written findings when a question is raised

regarding the voluntariness of an accused’s confession. Tex. Code Crim. Proc.

Ann. art. 38.22 § 6 (West 2005). Nevertheless, “[a] trial court satisfies the

requirements of Article 38.22 when it dictates its findings and conclusions to the

court reporter,” and the findings and conclusions are transcribed, filed with the

district clerk, and included in the appellate record. Murphy v. State, 112 S.W.3d

592, 601 (Tex. Crim. App. 2003).

                                         7
      The findings and conclusions the trial court dictated into the record at the

conclusion of the suppression hearing in this case state:

          • “[Olvera] was not in custody at the time that he gave his
            statement to the police[;]”

          • “a person is brought into contact with the police, acting only
            upon a request or urging the police, and”

          • “there is no threat expressed or implied that a statement was
            gonna be taken forcibly[,] when the statement’s taken[,] that
            the statement is valid[;]” and

          • “the statement was voluntary when it was given based upon the
            evidence of Detective [Hahs] and of the defendant.”

          • “So the statements [will] be allowed into evidence.”

      The trial court disregarded Olvera’s request for further written findings.

After the matter was appealed, Olvera complained the findings the trial court

dictated to the court reporter failed to adequately address the issues he desired to

raise on appeal. We remanded the case to the trial court, requiring that it make

written findings of fact and conclusions of law to address the issues Olvera wished

to raise in his appeal. See Tex. R. App. P. 44.4. Subsequently, the trial court made

written findings; among its findings, the trial court found that:

          • “Detectives [Hahs] and Echols are credible witnesses[;]”

          • “The interview took place in the passenger cabin of Echols’s
            marked patrol SUV[;]”

                                           8
• “The doors were not locked and [Olvera] was free to leave[;]”

•   “When [Hahs] began the interview, he did not believe [Olvera]
    was a suspect, but rather a witness[;]”

• “[Hahs] did not believe he had probable cause to arrest
  [Olvera], even after [Olvera] made incriminating statements[;]”

• “[Hahs’s] manner was conversational and the questions asked
  were not a hostile interrogation[;]”

• “Echols stood outside the passenger side door, but did not block
  a potential exit for [Olvera;]”

• “Detectives never told [Olvera] that he was not free to leave,
  although they never told him that he was free to leave, either[;]”

• “[Hahs’s] questions were calculated to get [Olvera] to implicate
  Sazo in the murder of Villaruel, not to get [Olvera] to implicate
  himself[;]”

• “Detectives believed they developed probable cause to arrest
  [Olvera] after he admitted to stabbing Villaruel[;]”

• “[Hahs] did not arrest [Olvera] after developing probable cause
  because [Hahs] believed the decision to arrest lay with
  Echols[;]”

• “After developing probable cause, [Hahs] continued speaking
  with [Olvera], but not about issues related to the case[;]”

• “[Hahs] read [Olvera] his Miranda rights and had [Olvera]
  execute a written [article] 38.22 waiver before taking his
  written statement. At that point, officers communicated to
  [Olvera] that they believed they had probable cause for his
  arrest and that he would be arrested[;]”

                               9
   • “Officers did not inform [Olvera] that he was not bound by his
     oral statement before making his written statement[;]”

   • “The total length of the interview was approximately one hour
     and fifteen minutes.”

The trial court’s conclusions of law include the following:

   • “[Olvera] was not in custody when [Hahs] began to interview
     him in the police vehicle because the interview was not unduly
     long, he was not restrained in his movements to the degree
     associated with a formal arrest, and officers did not have
     probable cause to arrest him at the time. See Stansbury v.
     California, 511 U.S. 318, 322 (1994)[;]”

   • “[Olvera] was not in custody when he made incriminating
     statements to the detectives about his involvement in the
     murder of Villaruel. Id.[;]”

   • “[Olvera] was in custody when officers asked him to provide a
     written statement[;]”

   • “[Hahs] did not deliberately employ a ‘question first, warn
     later’ approach to questioning because he did not deliberately
     begin a conversational, non-confrontational interview with
     [Olvera] with the intent of securing a confession without
     affording the appellant the protections of Miranda and [article]
     38.22. See Carter v. State, 309 S.W.3d 31, 40-41 (Tex. Crim.
     App. 2010)[;]”

   • “Echols did not deliberately employ a ‘question first, warn
     later’ approach to interviewing [Olvera]. He did not ask
     questions of [Olvera] with the intent of securing a confession
     without affording [Olvera] the protections of Miranda and
     [article] 38.22. See Carter, 309 S.W.3d at 40-41[;]”


                                  10
         • “The Miranda/[article] 38.22 warnings, when given, were
           effective at apprising [Olvera] of his rights and ensuring that
           those rights were protected. See Martinez v. State, 272 S.W.3d
           615, 624 (Tex. Crim. App. 2008)[;]”

         • “The officers did not employ any of the curative measures
           discussed in Missouri v. Seibert, 542 U.S. 600 (2004), because
           the officers did not believe that [Olvera] was in custody until he
           was asked to give a written statement[;]”

         • “Because the officers did not deliberately use a ‘question first,
           warn later’ approach, curative measures were not necessary. See
           Ervin v. State, 333 S.W.3d 187, 213 (Tex. App.—Houston [1st
           Dist.] 2010, pet. ref’d)[;]”

         • “The officers did not violate [Olvera’s] Fifth Amendment rights
           in taking either his unwarned, oral statement, or his warned,
           written confession[;]”

         • “[Olvera] was not entitled to the suppression of either
           statement.”

                                 Challenged Findings

      Olvera specifically challenges the trial court’s findings that “[w]hen [Hahs]

began the interview, he did not believe [Olvera] was a suspect, but rather a

witness[,]” and “[Hahs] did not believe he had probable cause to arrest [Olvera],

even after [Olvera] made incriminating statements.” These challenged findings are

based on the trial court’s judgments regarding Detective Hahs’s and Detective

Echols’s credibility. Because trial courts have a first-hand opportunity to judge the

demeanor of witnesses who appear in suppression hearings, appellate courts afford

                                         11
“almost total deference” to the trial court’s explicit findings of fact “as long as the

record supports them[.]” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim.

App. 2011).

      In Olvera’s case, the record contains evidence supporting the finding that

Detective Hahs did not view Olvera as a suspect at the outset of the interview.

Detective Hahs testified that Olvera was not in custody when the interview began

and he interviewed Olvera to find out what happened because he thought Olvera

might have some information about the murder. As the interview developed,

Olvera advised Detective Hahs that he was with Sazo and Villaruel when Sazo

murdered Villaruel, but in that account, Olvera took the position that he was

merely a bystander who had not participated in Villaruel’s murder. Thus, Detective

Hahs could reasonably view Olvera’s statements about having been with Villaruel

when he was murdered as statements that did not incriminate Olvera in the crime.

      Nevertheless, Detective Hahs acknowledged that he thought probable cause

for an arrest developed during the interview when Olvera admitted that he had

blood on his shoes and admitted that he had stabbed Villaruel. To the extent the

trial court’s finding reflects that Detective Hahs did not believe he had probable

cause to arrest Olvera after Olvera gave Detective Hahs his shoes and admitted to




                                          12
having stabbed Villaruel, the trial court’s finding is not supported by the transcript

of the hearing.

      Olvera suggests the trial court was required to infer that Detective Hahs

thought Olvera was a suspect in the murder at the outset of the interview. Viewing

the interview from that point of view, which is one the trial court did not share,

Olvera draws the conclusion that Detective Hahs conducted the interview

intending to elicit an un-warned confession before administering Miranda

warnings. Olvera directs us to a statement that Detective Hahs made before

Olvera’s interview began, which he contends indicates that Detective Hahs thought

Olvera was present when Villaruel was murdered. But, we have explained that one

of the positions that Olvera took in the course of his interview was that he was

present but not a participant in Villaruel’s murder. Based on the evidence, the trial

court’s determination that Hahs found that account believable is reasonable.

      Olvera also points to the fact that Detective Hahs testified he did not believe

Olvera’s account about what happened on the night of Villaruel’s murder.

However, the fact that an officer has a hunch that a witness might have additional

information than he had divulged does not necessarily mean the officer must also

believe the witness is a suspect. The trial court found Detective Hahs did not view

Olvera as a suspect at the outset of the interview, and we must apply a deferential

                                         13
standard to our review of that finding. For instance, during the entire interview,

Olvera and Detective Hahs spoke to each other calmly and in a conversational

tone. Even though Detective Hahs pressed Olvera on inconsistencies and raised

questions about Olvera’s explanations, that technique was employed before Olvera

divulged his involvement in Villaruel’s murder. Also, pressing a witness on

inconsistencies may be merely an attempt to get a witness to divulge all of the non-

incriminatory information the witness knows. The trial court could reasonably

view the interview as consistent with efforts to get Olvera to disclose Sazo’s, not

Olvera’s, involvement in Villaruel’s murder. In the light favorable to the trial

court’s role as factfinder, the trial court’s conclusions that Olvera was not in

custody when the interview began and that he was not in custody when he admitted

being with Villaruel when Sazo stabbed him are supported by the record.

      The question of what an officer intends by continued questioning after

having been given incriminatory statements is subject to a “highly deferential

review[.]” Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010). Based on

that standard, the record before the trial court allowed the trial court to conclude

that Detective Hahs did not deliberately use a “question first, warn later” approach

in questioning Olvera. The officers were involved in an interview process that

moved fluidly from a noncustodial interrogation to one that became custodial when

                                        14
Olvera incriminated himself in the murder. The trial court’s finding that Hahs’s

questions were designed to get Olvera to implicate Sazo, not to get Olvera to

implicate himself, as well as its conclusion that Detective Hahs did not employ a

“question first, warn later” approach also find support in the record.

                                Application of Law to Facts

      Olvera challenges the trial court’s rulings to admit both his oral and his

written statements. With respect to his oral statement, Olvera contends the trial

court should have suppressed his entire oral statement as a pre-Miranda custodial

statement. Determining when police have placed a defendant in custody is to be

determined “on an ad hoc basis, after considering all of the (objective)

circumstances.” Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)

(citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). In making

that determination, courts are to determine whether a reasonable person, given all

of the objective circumstances, would have perceived the detention to have been a

restraint on movement “‘comparable to . . . formal arrest[.]’” State v. Ortiz, 382

S.W.3d 367, 372 (Tex. Crim. App. 2012) (quoting Berkemer v. McCarty, 468 U.S.

420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

      Nevertheless, if the answers of the person being interviewed by police give

the police probable cause to arrest the person being interviewed, an interview that

                                         15
began as an investigative detention can change into a custodial interrogation. See

Dowthitt, 931 S.W.2d at 255. Additionally, a noncustodial interrogation can

become a custodial interrogation if, during the interview, the suspect’s freedom to

leave is restricted to the degree associated with an arrest and the restrictions on the

suspect’s movements are created by law enforcement officers, the suspect is told

he cannot leave, or the police create a situation that would make a reasonable

person who was innocent believe that his freedom of movement is significantly

restricted. Id.

       Olvera claims the police placed him in custody by handcuffing him, placing

him in a police vehicle, and taking him to Villaruel’s apartment complex. If not in

custody when police initially took him to Villaruel’s apartment complex, Olvera

argues that the trial court should have found that he was in custody when he

conceded that that he lied about the “events of the night of Villaruel’s murder.”

       Olvera directs us to Kaupp v. Texas, arguing the facts involved in that case

are similar to the facts in his case. See 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d

814 (2003). In Kaupp, a suspect implicated Kaupp in a murder; after being refused

a search warrant, police went to Kaupp’s home and awoke the seventeen-year-old

Kaupp from his bed at 3:00 a.m. by shining a flashlight in his face. Id., 538 U.S. at

628. After awakening Kaupp in his bedroom, the police told him: “‘[W]e need to

                                          16
go and talk.’” Id. Then, handcuffed and clothed only in his underwear, Kaupp was

taken by police to the crime scene and then to the police station, where he was

placed in an interrogation room and questioned. Id. On these facts, the Court held

“[i]t cannot seriously be suggested that when the detectives began to question

Kaupp, a reasonable person in his situation would have thought he was sitting in

the interview room as a matter of choice, free to change his mind and go home to

bed.” Id. at 632.

       Kaupp involved significantly different facts from the facts before us in

Olvera’s case, and we conclude it is easily distinguishable. In Olvera’s case, the

record reflects that earlier that same day, he was questioned about Villaruel’s

whereabouts and then released. Later, when police wanted to discuss the matter

further, Olvera was not wakened by police in his home; instead, police called him

while he was home; while fully clothed, he waited for the police outside his

apartment. While Kaupp was interviewed in a police interrogation room, Olvera’s

was interviewed in the front seat of an unlocked vehicle.

      Giving appropriate deference to the trial court’s findings, the trial court’s

finding that Olvera was not in custody during his initial interview with Detective

Hahs is supported by the record. The trial court could reasonably believe the

testimony of Deputy Russell, who testified that Department policy required

                                        17
persons being detained to be handcuffed while being driven to another destination

for questioning. The trial court’s conclusion that Olvera was not in custody when

initially handcuffed is further reinforced by testimony that (1) Olvera’s handcuffs

were removed shortly after arriving at Villaruel’s apartment complex, (2) the doors

to the SUV Olvera occupied were not locked during the course of the interview,

and (3) Olvera was not told while at his apartment complex or after arriving at

Villaruel’s complex that he was being arrested. We conclude the record supports

the trial court’s conclusion that Olvera’s movement was not significantly restricted

to the degree associated with an arrest when his interview with Detective Hahs

began. See State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008)

(explaining that the use of handcuffs does not automatically convert a temporary

detention into a Fourth Amendment arrest).

      We also are not persuaded that custody arose when Olvera contradicted his

statement that he dropped Villaruel off around ten o’clock that evening. Although

Olvera and Sazo were the immediate focus of the investigation, Detective Hahs

told Olvera early during his interview that police were in the process of gathering

information, and Detective Hahs testified that he did not have probable cause for

an arrest when his interview with Olvera began. The record also does not

demonstrate that Detective Hahs communicated the existence of probable cause to

                                        18
Olvera when the interview began. Even though Olvera and Sazo were the focus of

the investigation during their interviews, being the focus of an investigation,

without more, is not sufficient to elevate an investigative detention to a custodial

interrogation; the suspect’s freedom of movement must still be restricted to the

degree associated with a formal arrest. Gardner v. State, 306 S.W.3d 274, 293-94

(Tex. Crim. App. 2009), cert. denied, 131 S.Ct. 103, 178 L.Ed.2d 64, 79 U.S.L.W.

3197 (2010). We conclude the trial court, on the record before it, could reasonably

conclude that Olvera’s interview began as an investigative detention rather than as

a custodial interrogation.

      Alternatively, Olvera argues that custody attached in the course of his

interview with Detective Hahs. Sometimes, depending on the circumstance, a

consensual inquiry may escalate into custodial interrogation. See Dowthitt, 931

S.W.2d at 255 (“[T]he mere fact that an interrogation begins as noncustodial does

not prevent custody from arising later; police conduct during the encounter may

cause a consensual inquiry to escalate into custodial interrogation.”). Although the

manifestation of probable cause does not automatically establish custody, “custody

attaches if the manifestation of probable cause, combined with other

circumstances, would lead a reasonable person to believe that he is under restraint

to the degree associated with an arrest.” Garcia v. State, 237 S.W.3d 833, 837

                                        19
(Tex. App.—Amarillo 2007, no pet.). Circumstances relevant in determining

whether a person is “in custody” include (1) the location where the person is

questioned, (2) the duration of the questioning, (3) the statements that are made

during the interview, (4) the presence or absence of physical restraints when the

person is questioned, and (5) whether the person is released at the end of the

interview. Howes v. Fields, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17, 80 U.S.L.W.

4154 (2012).

      Like the objective facts that were before the Court in Dowthitt, Olvera’s case

includes a pivotal admission. See Dowthitt, 931 S.W.2d at 256; see also Ruth v.

State, 645 S.W.2d 432, 435 (Tex. Crim. App. 1979) (determining that suspect was

in custody from the moment he admitted to committing the shooting); Xu v. State,

100 S.W.3d 408, 414 (Tex. App.—San Antonio 2002, pet. ref’d). In Olvera’s case,

Olvera’s pivotal admission revealed that he had been a participant in Villaruel’s

murder. When Olvera admitted he moved Villaruel’s body, Olvera was inside a

patrol car, he was within short distance of several police officers, and he was at a

location several miles from his home. Additionally, when Olvera admitted facts

indicating he had become involved in Villaruel’s murder, a detective was

positioned near the SUV. When Olvera’s pivotal admission occurred, Detective

Hahs did not tell Olvera that he was free to terminate the interview and leave.

                                        20
Olvera’s admission that his participation included moving Villaruel’s body is an

objective circumstance showing that, at that point in the interview, no reasonable

person would still believe he remained free to leave.

      Immediately after advising Detective Hahs that he helped move Villaruel’s

body, police failed to give Olvera his Miranda warnings. At that point, because

Olvera told police his involvement included moving Villaruel, probable cause was

manifest. For Fifth Amendment purposes, we conclude that Olvera was in custody

when he told Detective Hahs that he helped Sazo move Villaruel’s body. See

Dowthitt, 931 S.W.2d at 256-57.

                                Delayed Warnings

      Olvera contends his written statement should have been suppressed even

though he made it after receiving Miranda warnings. According to Olvera,

Detective Hahs deliberately delayed giving Miranda warnings to secure a written

confession. See Missouri v. Seibert, 542 U.S. 600, 608-09, 124 S.Ct. 2601, 159

L.Ed.2d 643 (2004) (plurality opinion). The State argues the trial court could

reasonably find that any Miranda violation resulted from Detective Hahs’s

mistaken belief that Olvera was not in custody until the warning was given; the

State concludes that Olvera’s written confession remains one that he gave police

voluntarily. See Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d

                                         21
222 (1985) (holding that a person who provides incriminating information may, in

certain circumstances, still provide a voluntary confession after receiving Miranda

warnings).

      Olvera’s argument relies on Seibert, which applies to two-step interrogations

involving deliberate police misconduct. Carter, 309 S.W.3d at 37-38. If an officer

intended to employ a “question first, warn later” interrogation technique in a

deliberate effort to circumvent a suspect’s Miranda protections, the effectiveness

of a mid-stream Miranda warning is evaluated from a totality-of-the-circumstances

inquiry, and from the perspective of a reasonable person in the suspect’s shoes,

irrespective of the officer’s intent. Id. at 37. When conducting the review required

by Seibert, a highly deferential review is applied in reviewing the trial court’s

determination on the question of whether an officer deliberately employed a

“question first, warn later” technique to circumvent a suspect’s right to be warned

of his constitutional right against self-incrimination. Id. at 39-40.

      When officers use a two-step interrogation technique in a calculated way to

undermine Miranda warnings, the post-warning statements must be excluded

unless curative measures are taken before the post-warning statement is made. See

Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008) (citing Seibert,

542 U.S. at 619 (Kennedy, J., concurring)). According to Olvera, Martinez

                                           22
supports his claim that the trial court should have suppressed his written

confession. In Martinez, police arrested Martinez on a warrant, and he then gave

both of the statements at issue at the police station. Id. at 617-18. Under those

facts, the Texas Court of Criminal Appeals concluded that the absence of Miranda

warnings at the beginning of Martinez’s interrogation was not the result of a

mistaken belief that he was not in custody. Id. at 617-18, 626-27.

      Olvera’s case is distinguishable. Olvera was not interviewed at the station.

Although Detective Hahs communicated his view that he believed Olvera was

“right smack in the middle of it,” that statement occurred before Villaruel was in

police custody. Our facts also involve numerous trial court findings, entitled to

deference, that favor the view that Detective Hahs did not consider Olvera to be in

police custody during the majority of the interview. Additionally, in this case, after

Olvera admitted his involvement in Villaruel’s murder, Detective Hahs presented

Olvera with a written confession form and warned him that he had certain rights,

such as the right to counsel. While some interrogation occurred between the point

that custody attached and the point that Olvera received his Miranda warnings, and

that part of the questioning constitutes a violation of Olvera’s Miranda rights, a

Miranda violation, in and of itself, does not require a trial court to automatically




                                         23
suppress a statement made subsequent to the suspect being provided Miranda

warnings. See Carter, 309 S.W.3d at 36.

      However, that portion of the interview that occurred after Olvera admitted

his involvement in the murder and before Olvera was given his Miranda warnings

are required to be suppressed. After probable cause arose for Olvera’s arrest,

Detectives Hahs and Echols questioned Olvera for approximately six minutes

before warning Olvera about his right to remain silent. Nevertheless, during that

six minute period, the interview remained conversational, Olvera remained calm

and cooperative, and the detectives did not direct any aggressive or threatening

behavior toward him. See id. at 40.

      After warning Olvera of his Miranda rights, Detective Hahs asked that

Olvera write down what Olvera told him about the matter. The trial court could

reasonably view Detective Hahs’s request as a request and not a command; that

interpretation of Detective Hahs’s request is consistent with the fact that Detective

Hahs left Olvera while he wrote out his statement and the fact that Olvera’s written

statement contains significant additional detail to the information Olvera had

disclosed to the detectives orally.

      Although a six minute custodial interrogation is longer than the one before

the Court of Criminal Appeals in Carter, that Court also stated that “[w]here the

                                          24
totality of these facts fall on the Elstad-Seibert continuum, though, is a question on

which reasonable minds may disagree.” Id. at 41. We conclude that reasonable

minds may disagree given the circumstances before the court here; nevertheless,

the trial court’s determination, given the fact that the trial court is in a better

position to evaluate whether the officers intended to undermine Olvera’s Miranda

rights, is a matter on which the trial court is entitled to our deference. In this case,

the trial court found that Olvera was not in custody before he received Miranda

warnings. Although we disagree with the trial court’s legal conclusion about the

precise moment when custody attached, the trial court also found that Detective

Hahs did not deliberately employ a question first and warn later approach. See

Tucker v. State, 369 S.W.3d 179, 184 (Tex. Crim. App. 2012) (“In reviewing a trial

court’s ruling on a motion to suppress, appellate courts must afford great deference

to the trial court’s findings of historical facts as long as the record supports those

findings.”). The trial court also found that Detectives Hahs was a credible witness,

and given the fact that the trial court had an opportunity to observe the witnesses

who testified during the hearing, the trial court’s findings that revolve around

questions of credibility are “especially relevant to a deliberateness determination.”

Carter, 309 S.W.3d at 40. After carefully reviewing the record, we cannot say that

the trial court’s rejection of Olvera’s argument that police deliberately attempted to

                                          25
prevent Olvera’s effective exercise of his Miranda rights is implausible, or that the

trial court’s decision is unsupported by the record. Id. at 41.

       Olvera also challenges the trial court’s decision to admit his written

statement. He contends that his warned written statement must be suppressed as

involuntary. See Elstad, 470 U.S. at 316-18. “Once a determination has been made

that the pre-warning questioning was not part of a deliberate plan to undermine a

suspect’s Miranda protections, it is still necessary to determine if appellant’s post-

warning statements were voluntarily made.” Carter, 309 S.W.3d at 41.

       A Miranda violation alone does not establish that a statement made after the

suspect receives belated Miranda warnings is involuntary. The United States

Supreme Court has stated: “It is an unwarranted expansion of Miranda to hold that

a simple failure to administer the warnings, unaccompanied by any actual coercion

or other circumstances calculated to undermine the suspect’s ability to exercise his

free will, so taints the investigatory process that a subsequent voluntary and

informed waiver is ineffective for some indeterminate period.” Elstad, 470 U.S. at

309.

       Many of the trial court’s unchallenged findings support the conclusion that

Olvera’s written statement, made after he was given Miranda warnings, was

voluntary. Olvera does not challenge the trial court’s findings that (1) “[Hahs’s]

                                          26
manner was conversational and the questions asked were not a hostile

interrogation[;]” (2) “Echols stood outside the passenger side door, but did not

block a potential exit for [Olvera;]” (3) “Detectives never told [Olvera] that he was

not free to leave, although they never told him that he was free to leave, either[;]

(4) “[Hahs’s] questions were calculated to get [Olvera] to implicate Sazo in the

murder of Villaruel, not to get [Olvera] to implicate himself[;]” and (5) “there is no

threat expressed or implied that a statement was [going to] be taken forcibly[.]” As

the record of the hearing supports these findings, they are entitled to our deference.

Tucker, 369 S.W.3d at 184.

      In support of his argument that his written statement should be suppressed,

Olvera relies on Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003). In Jones,

the Court of Criminal Appeals distinguished Elstad and suppressed a written

confession that police took in an uninterrupted and continuous process after they

obtained an unwarned custodial oral statement. Id. at 775. The Court of Criminal

Appeals noted that Jones did not make a second statement, but simply signed a

written statement that he dictated to the officer before he was warned. Id. Here,

after being warned about his rights, Olvera provided police with a statement

written in his own hand, adding details of the murder to those details he previously

provided orally. In our opinion, Jones is distinguishable by the totality-of-the-

                                         27
circumstances that surround how police obtained Olvera’s warned statement. See

id.

      Because Olvera was given Miranda warnings before giving his written

statement, the facts before us are more like the facts before the Court in Carter. In

upholding the trial court’s determination that pre-warning custodial interrogation

did not require suppression of a post-warning statement, the Court of Criminal

Appeals held that “‘[a] subsequent administration of Miranda warnings to a

suspect who has given a voluntary but unwarned statement [may] suffice to

remove the conditions that precluded admission of the earlier statement.’” Carter,

309 S.W.3d at 42 (citing United States v. Nunez-Sanchez, 478 F.3d 663, 669 (5th

Cir. 2007)). In Carter, the officer administered appropriate warnings prior to

further questioning. See id. The Court of Criminal Appeals held the defendant’s

confession, given after he received warnings, satisfied the Elstad standard

notwithstanding the earlier Miranda violation. Id.

      Here, the trial court’s finding that Detective Hahs did not deliberately

employ a “question first, warn later” interrogation technique is supported by the

record and Detective Hahs administered appropriate Miranda warnings prior to

further questioning. The record of the suppression hearing also supports the trial

court’s finding that threat and coercion were not used in procuring Olvera’s

                                         28
confession. On the facts in this case, the officer’s failure to administer warnings

earlier than they administered them, unaccompanied by circumstances that were

calculated to undermine Olvera’s exercise of his free will, did not so taint the

investigatory process that it made the warnings he received ineffective; thus,

Olvera’s subsequent written confession was both voluntary and informed. Elstad,

470 U.S. at 309. On this record, we conclude the trial court was free to find that

Olvera’s post-warning written statement was admissible. See id; Carter, 309

S.W.3d at 42.

                       Unwarned Oral Custodial Statement

      Although we have concluded the trial court ruled correctly that Olvera’s

post-warning written statement was admissible, we reach a different conclusion

regarding Olvera’s unwarned custodial statements taken in violation of Miranda.

Statements taken in violation of Miranda are presumptively inadmissible. See

Elstad, 470 U.S. at 307. The trial court determined that custody commenced at the

point when Detective Hahs asked Olvera if he would give a written statement;

however, in our opinion, Olvera was in custody from the point he told Detective

Hahs that he had helped Sazo move Villaruel’s body. See Dowthitt, 931 S.W.2d at

256-57. After that point, Olvera stated blood had gotten on his clothing, and he

admitted that he had stabbed Villaruel. After Detective Hahs asked Olvera if he

                                        29
would give a written statement, and still before warning him of his rights, Olvera

told police that he and Sazo were the only two people involved in the murder,

identified the car he had been driving, denied having gone to a party on the night of

the murder, informed the detectives of his whereabouts that night, and described

the clothing he had been wearing. Although the trial court found that these matters

were not issues related to the case, the record demonstrates otherwise. As these

statements were made after Olvera was in custody and before he was given

Miranda warnings, the trial court was required to grant Olvera’s request to

suppress them. See Elstad, 470 U.S. at 307 (“[U]nwarned statements that are

otherwise voluntary within the meaning of the Fifth Amendment must nevertheless

be excluded from evidence under Miranda.”)

                                       Harm

      Having found that it was error to admit some of the testimony at issue, the

standard of review requires that we reverse the judgment unless we determine,

beyond a reasonable doubt, that the constitutional error did not contribute to

Olvera’s conviction or punishment. See Tex. R. App. P. 44.2(a). We do not focus

on the propriety of the outcome, but calculate as much as possible the probable

impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29

S.W.3d 103, 119 (Tex. Crim. App. 2000). In the context of a plea-bargain case, we

                                         30
consider whether the erroneous ruling contributed in some measure to the State’s

leverage in the plea bargaining process. See Holmes v. State, 323 S.W.3d 163, 174

(Tex. Crim. App. 2010) (op. on reh’g). Nevertheless, a conviction following a

guilty plea should not be overturned “when the evidence was of little importance in

obtaining the conviction.” State v. Chupik, 343 S.W.3d 144, 148 (Tex. Crim. App.

2011) (citing Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998);

Kraft v. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988); McGlynn v. State,

704 S.W.2d 18, 21 (Tex. Crim. App. 1982) (op. on reh’g)).

      Additionally, in assessing harm, we consider whether the improperly

admitted evidence was cumulative of other, properly admitted evidence. See Clay

v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). For instance, in Townsend

v. State, the defendant pled guilty after the trial court overruled the defendant’s

motion to suppress both the in-court and out-of-court identifications. 853 S.W.2d

718, 720 (Tex. App.—Houston [1st Dist.] 1993, no pet.). The Court of Appeals

held the error, if any, in denying the motion to suppress the out-of-court

identification was harmless in light of the properly admitted in-court identification.

Id.

      Here, most of the evidence challenged by Olvera’s motion to suppress was

admissible. Olvera accepted the State’s plea bargain offer and pled guilty on the

                                         31
strength of his oral and written confessions. Olvera received effective Miranda

warnings before giving his written statement, and Olvera’s written statement

described in more precise detail the information Olvera gave police in his

unwarned custodial oral statement. Had the statements Olvera made after he told

Detective Hahs that he helped move Villaruel’s body been suppressed, the State

could still have used Olvera’s detailed written statement, as well as all of Olvera’s

oral statements up to the point that he was in custody during any subsequent trial.

      We conclude that the admissible evidence available to the State in Olvera’s

case was sufficient to secure Olvera’s conviction. We further conclude that the

inadmissible statements were of little importance with regard to the State’s

leverage in obtaining the plea bargain at issue. Because the inadmissible evidence

did not contribute to the State’s bargaining position, we conclude, beyond

reasonable doubt, that the trial court’s failure to grant the motion to suppress

Olvera’s unwarned custodial oral statements did not contribute to Olvera’s

conviction or to his punishment. See Townsend, 853 S.W.2d at 720. We overrule

the appellant’s issues and affirm the trial court’s judgment.




                                          32
      AFFIRMED.




                                            ________________________________
                                                    HOLLIS HORTON
                                                        Justice

Submitted on September 28, 2012
Opinion Delivered April 24, 2013
Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.




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