                                  MEMORANDUM OPINION
                                          No. 04-10-00367-CR

                                        Troy Lee SULLIVAN,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-3974
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 13, 2011

AFFIRMED

           In his sole issue on appeal, Troy Lee Sullivan challenges the trial court’s denial of his

motion to suppress his videotaped statement. We affirm.

                                                BACKGROUND

           Sullivan was indicted on thirty counts of aggravated sexual assault of a child and

indecency with a child by contact. He filed a pre-trial motion to suppress his videotaped

interview with police. After a hearing, the trial court denied the motion to suppress, finding
                                                                                        04-10-00367-CR


Sullivan was not in custody and his statement was made freely and voluntarily. Sullivan then

pled no contest to several of the counts as part of an open plea. The court imposed a sentence of

thirty years’ confinement on each of the multiple counts, with such sentences to run

concurrently. Sullivan now appeals.

                                               ANALYSIS

           Sullivan asserts the trial court abused its discretion in denying his motion to suppress his

statement because it was made during a custodial interrogation and he was not given his

Miranda 1 warnings, in violation of the Fifth and Fourteenth Amendments to the United States

Constitution, Article I, section 10 of Texas Constitution, and article 38.22, section 2, of the

Texas Code of Criminal Procedure. U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 10; TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 2 (West 2005). We review a trial court’s denial of a

motion to suppress under a bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.

Crim. App. 2010).           We afford almost total deference to the trial court’s determination of

historical facts supported by the record, especially when the findings are based on assessment of

a witness’s credibility and demeanor. Id.; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same

deferential standard when reviewing the court’s ruling on “application of law to fact questions”

or “mixed questions of law and fact” if resolution of those issues turns on an evaluation of

credibility. Amador, 221 S.W.3d at 673. We review de novo the court’s application of the law

to the facts, and resolution of mixed questions of law and fact, that do not depend upon

credibility assessments. Id. When, as here, the trial court makes express findings of fact, we

view the evidence in the light most favorable to the court’s ruling and determine whether the

evidence supports the fact findings. Valtierra, 310 S.W.3d at 447.
1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   -2-
                                                                                   04-10-00367-CR


       At the suppression hearing, the trial court stated it had previously reviewed the DVD of

Sullivan’s videotaped interview.    Detective Bruce Thomas Wilson testified that he called

Sullivan and invited him to come down for an interview to “give his side of the story” on a case.

Wilson conceded that Sullivan was the focus of the investigation, but characterized their meeting

as an interview, not an interrogation, explaining it was not “adversarial” but “very low key.”

Wilson stated he did not give Sullivan the Miranda warnings because he was not in custody.

Instead, Wilson gave Sullivan the Beheler admonishment, which informs a suspect that he is not

under arrest and is free to leave at any time. See California v. Beheler, 463 U.S. 1121, 1121-22

(1983). Wilson stated he told Sullivan twice that he was free to leave and did not have to speak

to him; he had to interrupt Sullivan to give him the admonishment because Sullivan had already

started talking. Sullivan drove himself to the police station, was not handcuffed, was free to

leave at any time during the two-hour interview, and drove himself home. Sullivan was seated

closest to the door in the interview room, had a Coke during the interview, and used his cell

phone several times; Wilson stepped out of the room when Sullivan spoke to his wife on the

phone. Wilson testified that Sullivan was “matter of fact,” not scared or nervous, and he did not

coerce or threaten Sullivan in any way; to the contrary, Wilson described Sullivan as fully and

voluntarily engaged in the conversation. Sullivan never indicated he wanted to leave. The next

day, Wilson walked through an arrest warrant and called to inform Sullivan of the warrant; he

permitted Sullivan to turn himself in the next day, which he did. Detective Wilson testified that

prior to the interview he did not have sufficient probable cause “that he was comfortable with” to

arrest Sullivan. Sullivan testified at the hearing that if he had known he had the right to remain

silent and the right to an attorney during the interview, he would have invoked those rights.




                                               -3-
                                                                                    04-10-00367-CR


Sullivan stated he did not believe he could simply get up and walk away during the interview; he

thought he would be arrested if he tried to walk out.

       The trial court made fact findings in accordance with Detective Wilson’s testimony as set

forth above. Based on those fact findings, the court concluded that Sullivan was not in custody

or under arrest, or substantially deprived of his freedom by the conduct of the officers and the

circumstances surrounding the giving of his statement. The court also noted, “In fact, if one

carefully observes the DVD, it is clear to the Court that Detective Wilson is almost trying to get

rid of Mr. Sullivan who wants to continue talking.”         The court concluded that Sullivan’s

statement was made freely and voluntarily, and was not coerced or enticed. Based on its fact

findings and conclusions of law, the court ruled that Sullivan’s statement was admissible.

       It is a fundamental principle of our justice system that when a person is in custody and is

not warned of his Miranda rights before being subjected to questioning, any evidence obtained

as a result of such questioning is not admissible at trial. See Miranda v. Arizona, 384 U.S. 436,

479 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); Hernandez v. State,

107 S.W.3d 41, 47 (Tex. App.—San Antonio 2003, pet. ref’d) (Miranda and article 38.22 apply

to custodial interrogations only). Miranda warnings are not required, however, when a person

voluntarily comes to the police station for questioning, and, although considered a suspect, is not

arrested and is permitted to leave after the interview. Beheler, 463 U.S. at 1125; Meek v. State,

790 S.W.2d 618, 621 (Tex. Crim. App. 1990). A consensual interview that begins as non-

custodial may, however, escalate into a custodial interrogation due to police conduct during the

encounter. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). In determining

whether a person was “in custody” at the time of questioning, we examine the totality of the

circumstances to determine whether a reasonable person would believe his freedom of movement



                                                -4-
                                                                                     04-10-00367-CR


was restrained to the degree associated with a formal arrest.         Beheler, 463 U.S. at 1125;

Stansbury v. California, 511 U.S. 318, 322-23 (1994); Dowthitt, 931 S.W.2d at 254 (custody

determination is entirely based on objective circumstances). There are four situations which may

constitute 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 he cannot leave; (3) when

officers create a situation that would lead a reasonable person to believe his freedom of

movement has been significantly restricted; and (4) when there is probable cause to arrest and

officers do not tell the suspect he is free to leave. Dowthitt, 931 S.W.2d at 255.

       Here, there is no evidence that any of the four custody situations arose during the

interview. Sullivan was never handcuffed or otherwise physically deprived of his freedom.

Detective Wilson explicitly told Sullivan two times that he was not under arrest, was free to

leave, and was under no obligation to talk to him; Wilson explained the door to the interview

room was shut for privacy reasons only and Sullivan could walk out at any time. Sullivan’s

subjective belief that he was not in reality free to leave is not relevant as the custody

determination is objectively based. Stansbury, 511 U.S. at 322-23. Sullivan’s freedom of

movement was not significantly restricted because he arrived and left in his own vehicle; he was

permitted to make phone calls and to speak to his wife in private during the interview; and he

was not arrested until a warrant was obtained the next day, at which time he was permitted to

turn himself in. Finally, the fourth situation did not arise, even if Wilson had probable cause to

arrest Sullivan during the interview, because Wilson consistently told Sullivan he was free to

leave and in fact Sullivan drove himself home after the interview. See Dowthitt, 931 S.W.2d at




                                                -5-
                                                                                      04-10-00367-CR


255. The record is clear that Sullivan’s interview with Wilson was consensual, not custodial;

therefore, the trial court did not abuse its discretion in denying Sullivan’s motion to suppress.


                                                  Phylis J. Speedlin, Justice


DO NOT PUBLISH




                                                -6-
