                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00157-CR

GENARO GARCIA,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 08-04560-CRF-272


                           MEMORANDUM OPINION


       Appellant Genaro Garcia was charged by indictment with one count of

aggravated sexual assault of a child under fourteen years of age, a first-degree felony,

and two counts of indecency with a child by contact, a second-degree felony. After a

jury trial, Garcia was sentenced to seventy years’ confinement on Count 1 and twenty

years’ confinement for Counts 2 and 3, to be served concurrently. In two issues, Garcia

argues that: (1) the trial court erred in denying his motion to suppress to his confession;

and (2) his trial counsel was ineffective. We will affirm.
        Garcia’s first issue argues that the trial court erred in refusing to suppress his

confession. Specifically, Garcia asserts that he, “a non[-]English speaking[,] insulin

dependent[,] diabetic[,] illiterate man who had been drinking prior to his confession,

did not believe he was free to leave [the police station] without confessing.” Because he

subjectively believed that he was not free to leave the police station, Garcia contends

that his confession should have been suppressed. The State counters that the trial court

did not err because Garcia was not in custody at the time he confessed.

        A trial court’s denial of a motion to suppress is reviewed for an abuse of

discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the

evidence in the light most favorable to the trial court’s ruling, see Gutierrez v. State, 221

S.W.3d 680, 687 (Tex. Crim. App. 2007), and we review the trial court’s ruling under a

bifurcated standard of review, giving 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 the evaluation of credibility and demeanor, and (2) application-of-the-

law-to-fact questions that turn on the evaluation of credibility and demeanor. Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). However, when application-of-law-

to-the-fact questions do not turn on the credibility and demeanor of the witnesses, we

review the trial court’s ruling on those questions de novo. Id. Furthermore, we review

the record to determine whether the trial court’s ruling is supported by the record and

correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d

401, 404 (Tex. Crim. App. 2003).

        Oral confessions of guilt or oral admissions against interest made by a suspect

Garcia v. State                                                                        Page 2
who is in custody are not admissible unless made in compliance with the provisions of

article 38.22 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.

38.22 (Vernon 2005); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985); see also

Narramore v. State, No. 06-05-00226-CR, 2007 WL 817302, at *4 (Tex. App.—Texarkana

Mar. 20, 2007, pet. ref’d) (mem. op., not designated for publication). However, if a

person makes an oral confession of guilt or an oral admission against interest while not

in custody, a different rule applies. See Shiflet, 732 S.W.2d at 623; see also Narramore, 2007

WL 817302, at *4.     Article 38.22, section 5 provides that:      “Nothing in this article

precludes the admission of a statement made by the accused . . . that does not stem from

custodial interrogation . . . .” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5. Thus, an oral

confession of guilt or an oral admission against interest that does not stem from

custodial interrogation, and is given freely, voluntarily, and without compulsion or

persuasion, is admissible evidence against the accused. See Shiflet, 732 S.W.2d at 623; see

also Narramore, 2007 WL 817302, at *4. Thus, the crux of this issue is whether Garcia was

in custody when he confessed to the charged offenses.

        Custodial interrogation is “questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of

action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612,

16 L.Ed.2d 694 (1966). 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 that he was not at liberty to leave. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.

Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 323-25, 114 S.Ct. 1526, 1529-

Garcia v. State                                                                         Page 3
30, 128 L.Ed.2d 293 (1994)); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

The determination of “custody” must be made on an ad hoc basis, after considering all

of the objective circumstances. Herrera, 241 S.W.3d at 526.1

        At least four general situations may constitute “custody”: (1) the suspect is

physically deprived of his freedom of action in any significant way; (2) a law

enforcement officer tells the suspect that he cannot leave; (3) 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) there is probable cause to arrest and

law enforcement officers do not tell the suspect that he is free to leave. Gardner v. State,

306 S.W.3d 274, 294 (Tex. Crim. App. 2009).                  In all four circumstances, the initial

determination of “custody” depends on the objective circumstances of the interrogation,

not on the subjective views of the interrogating officer or the person being questioned.

Dowthitt, 931 S.W.2d at 255. The subjective intent of law enforcement officers to arrest is

irrelevant, unless that intent is somehow communicated or otherwise manifested to the

suspect. Stansbury, 511 U.S. at 323-25, 114 S.Ct. at 1529-30; Herrera, 241 S.W.3d at 525-26.

        A person is not in “custody” if he “voluntarily accompanies police officers, who

are then only in the process of investigating a crime, to a certain location, and he knows

or should know that the police officers suspect he may have committed or may be

implicated in committing the crime.” Turner v. State, 252 S.W.3d 571, 580 (Tex. App.—

Houston [14th Dist.] 2008, pet. ref’d) (citing Dancy v. State, 728 S.W.2d 772, 778-79 (Tex.



        1In Herrera, the court concluded that the construction of “custody” with respect to article 38.22 is
consistent with the meaning of “custody” for purposes of Miranda. Herrera, 241 S.W.3d at 526.

Garcia v. State                                                                                      Page 4
Crim. App. 1987)).     “Once the circumstances show the person is acting upon the

invitation, urging[,] or request of police officers, and not the result of force, coercion[,]

or threat, the act is voluntary and the person is not then in custody.”           Id. (citing

Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987). However, an initial

consensual encounter with police can be transformed into a custodial detention where

the police procedures become qualitatively and quantitatively so intrusive with respect

to a person’s freedom of movement. See Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843,

1847, 155 L.Ed.2d 814 (2003).

        A trial judge’s ultimate “custody” determination “presents a ‘mixed question of

law and fact.’” Herrera, 241 S.W.3d at 526 (citing Thompson v. Keohane, 516 U.S. 99, 112-

13, 116 S.Ct. 457, 465-66, 133 L.Ed.2d 383 (1995)). Therefore, we afford almost total

deference to a trial judge’s “custody” determination when the questions of historical

fact turn on credibility and demeanor; otherwise, we review the trial judge’s “custody”

determination de novo.      Id.   Furthermore, when a trial judge denies a motion to

suppress and does not enter findings of fact, as is the case here, the evidence is viewed

“in the light most favorable to the trial court’s ruling,” and we “assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are

supported by the record.” Id.

        In the instant case, Garcia first interacted with law enforcement on August 1,

2008, when his house was searched pursuant to a warrant. At that time, Garcia agreed

to come to the police station to make a statement regarding his involvement in this

matter. Kelley Caldwell, a Bryan police officer, testified that Garcia arrived at the police

Garcia v. State                                                                        Page 5
station at 9:30 a.m. on August 8, 2008, to make his statement.          Garcia was first

interviewed by Sabino Martinez Jr., who was then a sergeant with the Texas

Department of Public Safety and a polygraph expert.         This initial interview was

regarded as a pre-polygraph examination interview. During this interview, Sergeant

Martinez spoke to Garcia in Spanish, and Sergeant Martinez began the interview by

reading Garcia his Miranda rights. Sergeant Martinez noted that before he interviews

anyone, he reads them their Miranda rights, even if the individual is not in custody or

under arrest. Sergeant Martinez testified that Garcia appeared to understand his rights

and that he agreed to continue the interview.       Shortly into the interview, Garcia

discussed some of the facts involved in this case, and Sergeant Martinez asked Officer

Caldwell to join the interview. Once Officer Caldwell entered the room, she began

recording the interview, and Sergeant Martinez read Garcia his Miranda rights once

again. Garcia again waived his rights and agreed to make a statement.

        After waiving his rights, Garcia admitted that he voluntarily came to the police

station to make a statement and that no one had forced, coerced, or made promises to

him in exchange for any statements made to police.         Garcia then admitted being

involved in the charged offenses, but he blamed K.M., the seven-year-old child victim in

this case. Garcia told Sergeant Martinez and Officer Caldwell the following:

               Basically that he had—that some of the information about the
        sexual abuse was true, but that the child was the one that wanted him to
        touch him [sic]. The child—I’m sorry, the child was the one that wanted
        him to touch her, and pretty much was blaming the child throughout the
        whole interview.

        Garcia spoke to Sergeant Martinez and Officer Caldwell for approximately thirty

Garcia v. State                                                                    Page 6
minutes until he ended the interview by saying “That is all I have to say.” Garcia then

left the police station on his own accord. Sergeant Martinez did not administer the

polygraph test because Garcia confessed to the crimes charged.

        During the interview, both Sergeant Martinez and Officer Caldwell wore civilian

clothes, and both denied that Garcia was in custody or formally arrested at the time he

made his confession. Garcia was never handcuffed, deprived of water or restroom

breaks, or deprived of his right to counsel. Sergeant Martinez explained to Garcia that

he could terminate the interview at any time. On cross-examination, Sergeant Martinez

acknowledged that Garcia told him that he had surgery about a month before the

interview, and Garcia did tell him that he had high blood pressure and had consumed

“seven to eight beers” the night before the interview. Sergeant Martinez testified that

these factors could have affected the polygraph examination, but a preliminary

examination to determine what effect, if any, these factors would have had on the

polygraph examination was never conducted because Garcia confessed. With regard to

Garcia’s purported medical issues, Officer Caldwell recalled Garcia merely stating that

“he was diabetic and couldn’t get an erection.” Officer Caldwell testified that Garcia

did not appear to be ill on the day he gave his confession. Furthermore, Sergeant

Martinez denied that Garcia was promised anything in exchange for his confession.

        Garcia also testified at the hearing on his motion to suppress. His wife took him

to the police station on August 8, 2008 to make a statement, and he said that Sergeant

Martinez did not read him any warnings before starting the interview. Garcia told

Sergeant Martinez that he was not feeling well. He testified that Sergeant Martinez read

Garcia v. State                                                                    Page 7
Garcia his Miranda rights only after discussing the facts of the case and that Sergeant

Martinez raised his voice at him during the interview. Garcia said that he is diabetic;

that he had not eaten anything on the morning of the interview; and that he had

consumed beer the night before the interview.         Regarding his confession, Garcia

testified that he made the statements only because Sergeant Martinez told him that he

could leave the police station if he confessed; he only told Sergeant Martinez and

Officer Caldwell what they wanted to hear so that he could leave.

        At the hearing, Garcia recanted his confession and denied all of the allegations

against him. He also testified that he was nervous talking to police at first, but he later

admitted that he was not scared of Sergeant Martinez and Officer Caldwell. On cross-

examination, Garcia admitted that Sergeant Martinez told him that he could stop the

interview at any time and that he could leave.        Garcia also admitted that neither

Sergeant Martinez nor Officer Caldwell promised him anything; that he was voluntarily

present at the police station; and that Sergeant Martinez had informed him of his

Miranda rights.

        The evidence does not support a finding that Garcia was in custody at the time

he made his confession.     Garcia voluntarily came to the police station to make a

statement, and he was never restrained, handcuffed, or formally arrested. Garcia was

not deprived of water, restroom breaks, or the right to counsel. Garcia was informed

that he was free to terminate the interview at any time, and Garcia did, in fact,

terminate the interview by stating, “That is all I have to say.” He then left the police

station on his own accord, further demonstrating that he was free to leave at any time.

Garcia v. State                                                                      Page 8
Given this evidence, we conclude that, in viewing the evidence in the light most

favorable to the trial court’s ruling, Garcia was free to leave at any time during the

interview; thus, he was not in police custody at the time he confessed. See Herrera, 241

S.W.3d at 526; see also Turner, 252 S.W.3d at 580.

        Nevertheless, Garcia argues that Sergeant Martinez promised him he could leave

only if he confessed and that he did not understand his rights because of his medical

issues and his illiteracy.2 But both Sergeant Martinez and Officer Caldwell testified that

Garcia appeared to understand his rights and that he did not appear to be ill when he

confessed. In denying Garcia’s motion to suppress, the trial court obviously accepted

their testimony and rejected Garcia’s testimony. The trial court is the sole judge of the

credibility of the witnesses and the weight to be accorded to their testimony. See St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Campos v. State, 977 S.W.2d

458, 465 (Tex. App.—Waco 1998, no pet.). The trial court may believe or disbelieve any

or all of the testimony, including that of the accused. See Green v. State, 934 S.W.2d 92,

98 (Tex. Crim. App. 1996); Campos, 977 S.W.2d at 465. We will not disturb the trial

court’s ruling absent a clear abuse of discretion.                Campos, 977 S.W.2d at 465.

Considering all of the evidence regarding the circumstances surrounding the taking of

Garcia’s statement, including the fact that Garcia was not in police custody at the time

he confessed, we find that the trial court’s denial of Garcia’s motion to suppress was not

an abuse of discretion. Accordingly, we overrule Garcia’s first issue.



        2The record indicates that Garcia was informed of his Miranda rights on at least two occasions
during the interview and that he signed waivers of those rights each time.

Garcia v. State                                                                                Page 9
        In his second issue, Garcia asserts that his trial counsel was ineffective. Garcia

contends that “there are several deficiencies when considered in their totality amount to

ineffective assistance of counsel.” In particular, Garcia alleges that trial counsel was

ineffective because: (1) he allowed a potential juror to exit the courtroom without

objecting and allowed voir dire to continue without any mention of whether the

potential juror had returned; (2) he failed to challenge for cause or exercise a

peremptory challenge against a juror whose college roommate had been the victim of

sexual assault; (3) he failed to make an opening statement; (4) he failed to object to

bolstering evidence the State allegedly presented to explain why a child might lie or

cover up sexual abuse; (5) he failed to object to the admission of an expert report that

allegedly contained hearsay; (6) he failed to secure the testimony of Jane Riley, the

pediatric nurse who conducted the sexual assault examination of K.M.; (7) he violated

the State’s motion in limine by referring to Garcia’s immigration status; and (8) he failed

to cross-examine K.M.

        The United States Constitution, the Texas Constitution, and article 1.051 of the

Code of Criminal Procedure guarantee an accused the right to reasonably effective

assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE

CRIM. PROC. ANN. art. 1.051 (Vernon Supp. 2010); see also Strickland v. Washington, 466

U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d

830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, Garcia must

show that:        (1) trial counsel’s representation fell below an objective standard of

reasonableness, based on the prevailing professional norms; and (2) there is a

Garcia v. State                                                                     Page 10
reasonable probability that, but for trial counsel’s deficient performance, the result of

the proceeding would have been different. See Strickland, 466 U.S. at 687-95, 104 S.Ct. at

2064-69; Dewberry v. State, 4 S.W.3d 735, 737 (Tex. Crim. App. 1999). Whether this test

has been met is to be judged on appeal by the totality of the representation, not by

isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.

1995).    Garcia has the burden of proving ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).

         Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if Garcia overcomes the strong presumption that his

counsel’s conduct fell within the range of reasonable professional assistance.           See

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The right to “reasonably effective assistance

of counsel” does not guarantee errorless counsel or counsel whose competency is

judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).

Moreover, the acts and omissions that form the basis of Garcia’s claims of ineffective

assistance must be supported by the record. Thompson, 9 S.W.3d at 814. A silent record

that provides no explanation for counsel’s actions usually will not overcome the strong

presumption of reasonable assistance.       Id. at 813-14.   To warrant reversal without

affording counsel an opportunity to explain his actions, “the challenged conduct must

be ‘so outrageous that no competent attorney would have engaged in it.’” Roberts v.

State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).

         Here, Garcia did not raise the issue of ineffective assistance of counsel in his

Garcia v. State                                                                       Page 11
motions for new trial. Thus, his trial counsel was not afforded an opportunity to

explain his trial strategy or address the numerous complaints Garcia makes on appeal.

In situations where trial counsel has not been afforded an opportunity to explain his

actions, an appellate court will usually reject the complaint in a summary fashion. See

Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Hervey v. State, 131

S.W.3d 561, 564 (Tex. App.—Waco 2004, no pet.) (“[T]rial counsel should ordinarily be

afforded an opportunity to explain the actions taken or not taken, as the case may be,

before being condemned as unprofessional and incompetent.”). Because the record is

silent as to trial counsel’s trial strategy and because Garcia has not adequately explained

how trial counsel’s actions were so outrageous that no competent attorney would have

engaged in them, we cannot say that the record supports a finding that trial counsel

was ineffective. See Roberts, 220 S.W.3d at 533. We overrule Garcia’s second issue.

        Having overruled Garcia’s two issues, we affirm the judgment of the trial court.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2011
[CRPM]




Garcia v. State                                                                     Page 12
