                                  MEMORANDUM OPINION
                                         No. 04-11-00351-CR

                                         Bert Travis GARCIA,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 79th Judicial District Court, Brooks County, Texas
                                   Trial Court No. 10-09-10594-CR
                            Honorable J. Manuel Banales, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 14, 2011

AFFIRMED

           After the trial court denied appellant Bert Travis Garcia’s motion to suppress, Garcia pled

guilty to burglary of a habitation. The trial court sentenced Garcia to seven years’ imprisonment

in the Texas Department of Criminal Justice—Institutional Division.              On appeal, Garcia

contends the trial court erred by denying his motion to suppress his written confession and

statements because they were obtained as a result of an illegal arrest. We affirm the trial court’s

judgment.
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                                          BACKGROUND

       Sergeant Alberto Gonzalez testified at the suppression hearing. He testified that as he

was investigating a burglary, he received information that Garcia might have been involved.

Sergeant Gonzalez testified he then made contact with Garcia at Joe Morales’s home. Sergeant

Gonzalez told Garcia he needed to speak with him about a burglary Garcia may have been

involved in, and Sergeant Gonzalez asked Garcia if he would speak to him at the police station.

Sergeant Gonzalez testified he did not tell Garcia he was under arrest, and that Garcia went

voluntarily to the police station with him.

       Sergeant Gonzalez testified that at the police station, he read Garcia his Miranda rights.

Sergeant Gonzalez stated Garcia understood these rights, agreed to waive them, and signed a

document to that effect. Sergeant Gonzalez did not believe Garcia was under the influence of

drugs or alcohol. While speaking to Garcia, Sergeant Gonzalez testified Garcia did not, at any

time, ask for a lawyer or ask to stop the interview. Sergeant Gonzalez also stated he did not

coerce or threaten Garcia, did not make promises to Garcia, and did not deny Garcia the right to

use the restroom or drink water.

       Once Sergeant Gonzalez began questioning Garcia, Garcia verbally admitted he had

committed the burglary and agreed to provide a written statement. Garcia then asked Sergeant

Gonzalez to write the statement, and Garcia signed the statement after it was written. Once the

statement was completed, Sergeant Gonzalez obtained an arrest warrant and arrested Garcia.

       Joe Morales testified he had given Sergeant Gonzalez permission to enter his home and

because he was outside at the time, he did not see what went on in the house between Garcia and

Sergeant Gonzalez.




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         Garcia also testified at the suppression hearing. Garcia testified Sergeant Gonzalez

approached him for the first time outside of Joe Morales’s home. Garcia told Sergeant Gonzalez

he would go to the police station in a couple of minutes with his mom. Garcia then testified that

Sergeant Gonzalez came back to Joe Morales’s home fifteen to twenty minutes after their initial

conversation. Garcia testified Sergeant Gonzalez, dressed in his uniform, entered the home,

grabbed Garcia’s arm, and took Garcia to the police station in his patrol car. Garcia testified he

felt as if he was in custody and was not free to leave. Garcia stated Sergeant Gonzalez told him

if he confessed to the burglary, he would be free to leave. On cross-examination, Garcia

admitted he had gone to the police station before to make voluntary statements to Sergeant

Gonzalez on other matters, and during those times, Sergeant Gonzalez was dressed as he was the

day in question, in his uniform. Garcia also admitted Sergeant Gonzalez did not handcuff him.

         After hearing the above evidence, the trial court denied Garcia’s motion to suppress.

Garcia subsequently pled guilty and was sentenced to seven years’ imprisonment. Garcia then

perfected this appeal.

                                           ANALYSIS

         Garcia contends the trial court erred by denying his motion to suppress his written

confession and statements because they were obtained as a result of an illegal arrest. Garcia

argues the arrest was illegal because Sergeant Gonzalez did not have a warrant or probable cause

to arrest Garcia. The State contends Garcia was not in custody at the time of questioning. We

agree.

         We must review a ruling on a motion to suppress for an abuse of discretion under a

bifurcated standard. See Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010). First,

we will give almost total deference to the trial court’s determination of historical facts, and



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second, the trial court’s application of the law to those facts is reviewed de novo. See id. at 458.

Because the trial court is the sole trier of fact, the trial court may believe or disbelieve any or all

of a witness’s testimony. Id. We must then examine the evidence in the light most favorable to

the trial court’s ruling. See id.

        The voluntariness of Garcia’s confession only becomes an issue if his confession was

obtained while he was in custody at the time of the questioning. See Bradley v. State, 960

S.W.2d 791, 801 (Tex. App.—El Paso 1997, pet. ref’d). Therefore, Garcia’s contentions revolve

around one issue: whether he was in custody at the time he confessed to Sergeant Gonzalez. “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.” Dowthitt

v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S.

318, 322 (1994)). There are four situations in which a suspect may be in 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. Because Sergeant Gonzalez never told Garcia he could not leave, and it was within the trial

court’s purview to believe one witness over another, the second situation may be dismissed.

        As for the first situation, Garcia was never handcuffed, and while at the police station, he

was not refused the right to use the restroom and drink water. Again, Sergeant Gonzalez never

told him he could not leave. As for the third situation, although Garcia testified he thought he

was in custody, it is not a subjective belief, but an objective, reasonable belief. Although

Sergeant Gonzalez was in uniform at the time, Garcia voluntarily went to the police station.

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Garcia was never handcuffed, told he could not leave, or denied the right to use the restroom.

There was also testimony that Garcia had voluntarily made statements at the police station

before, to Sergeant Gonzalez in uniform, and was always free to leave. We hold the foregoing

would lead a reasonable person to believe they were not in custody at the time of questioning.

       As for the fourth situation, we must consider whether Garcia voluntarily arrived at the

police station, the length of the interrogation, whether Garcia was forbidden from seeing family

or friends, how much control was exercised over Garcia, and whether a “pivotal admission

established custody.” Espinoza v. State, 185 S.W.3d 1, 3 (Tex. App.—San Antonio 2005, no

pet.) (quoting Xu v. State, 100 S.W.3d 408, 413 (Tex. App.—San Antonio 2002, pet. ref’d)).

Garcia voluntarily went to the police station. There was no testimony during the suppression

hearing to indicate that the length of the interview was improper. During Garcia’s testimony,

Garcia did not indicate that he asked to see his family at any time, or that he was forbidden from

seeing friends or family. Garcia was also never handcuffed or told he could not leave or use the

restroom. Finally, once Garcia made a pivotal admission that would establish probable cause for

an arrest, Sergeant Gonzalez immediately obtained an arrest warrant.

       We hold the trial court did not err in denying Garcia’s motion to suppress because Garcia

was not in custody at the time of his confession. Because Garcia was not in custody at the time

of questioning, whether Sergeant Gonzalez had an arrest warrant or probable cause to arrest

Garcia is irrelevant. Therefore, the trial court did not abuse its discretion in denying Garcia’s

motion to suppress his confession.




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                                        CONCLUSION

       Based on the foregoing, we overrule Garcia’s contentions, and therefore, affirm the trial

court’s judgment.

                                                       Marialyn Barnard, Justice


DO NOT PUBLISH




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