                                                                          PD-0094-15
                      PD-0094-15                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 1/21/2015 5:21:35 PM
                                                         Accepted 1/28/2015 9:43:16 AM
                                  NO.                                      ABEL ACOSTA
                                                                                   CLERK

             IN THE COURT OF CRIMINAL APPEALS OF

                       OF THE STATE OF TEXAS

                             AT AUSTIN, TEXAS

_______________________________________________________________

                         No.14-14-00014-CR
                    IN THE COURT OF APPEALS
                             FOR THE
            FOURTEENTH SUPREME JUDICIAL DISTRICT
                           AT HOUSTON
__________________________________________________________________
JUAN SALGADO                        §          APPELLANT

     V.                                 §

STATE OF TEXAS                     §           APPELLEE
__________________________________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________



                                            J. SIDNEY CROWLEY
                                            214 Morton St.
                                            Richmond. Tx. 77469
                                            TBC No. 05170200
                                            Attorney for Appellant
          January 28, 2015
                              INTERESTED PARTIES


APPELLANT
Juan Salgado
Texas Department of Criminal Justice
Correctional Division

TRIAL COUNSEL
Gilbert Villareal
1419 Franklin St.
Houston, Texas 77002

Maverick Ray
1419 Franklin St.
Houston, Texas 77002

APPELLATE COUNSEL
J. Sidney Crowley
214 Morton St.
Richmond, Texas, 77469

STATE OF TEXAS
Devon Anderson
District Attorney, Harris County
1201 Franklin St.
Houston, Texas 77002

Amanda Jean Greer
Assistant District Attorney
Harris County, Texas




                                       2
                                          TABLE OF CONTENTS



INTERESTED PARTIES..........................................................................................2

LIST OF AUTHORITIES..........................................................................................4

STATEMENT REGARDING ORAL ARGUMENT................................................5

STATEMENT OF THE CASE..................................................................................6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE.....................7

GROUNDS FOR REVIEW.......................................................................................8

GROUND FOR REVIEW NUMBER ONE
    The Court of Appeals erred when that Appellant was not illegally
    arrested.............................................................................................................9

PRAYER FOR RELIEF...........................................................................................14

CERTIFICATE OF COMPLIANCE.......................................................................15

CERTIFICATE OF SERVICE................................................................................15

APPENDIX A. (OPINION BELOW).....................................................................16




                                                            3
                                          LIST OF AUTHORITIES

 Cases

 Bell v. State, 724 S.W.2d 780 (Tex.Crim.App. 1986)............................................12

Black v. State , 362 S.W.3d 626, 630 (Tex.Crim.App. 2012).................................10

Brown v. Illinois, 422 U.S. 590,604-05, 95 S.Ct. 2254 (1975)...............................11

Farmah v. State, 883 S.W.2d 674 (Tex.Crim.App. 1994).......................................12

Hardesty v. State, 667 S.W.2d 130, 133 (Tex.Crim.App. 1984)...............................10

Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705

       (1985)................................................................................................................9

Jackson v. State, 649 S.W.2d 317(Tex.App.-Amarillo 1983)...................................12

Reed v. State, 809 S.W.2d 940,944(Tex.App.-Dallas 1991)....................................10

Self v. State, 709 S.W.2d 602,666 (Tex.Crim.App.1986)........................................12

Weems v. State ,167 S.W.3d 350 (Tex.App.-Houston [14th Dist.] 2005, ref’d)........12




                                                            4
                STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral argument is not necessary in this case.




                                          5
                            STATEMENT OF THE CASE

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

   Appellant was convicted by a jury of the felony offense of indecency with a child.

The court assessed his punishment at confinement in the Texas Department of

Criminal Justice, Correctional Division , for a period of eighteen years years and a fine

of $5000.




                                           6
       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant’s appeal was affirmed in an published opinion of the First Court of

Appeals rendered December 23, 2014. No motion for rehearing was filed.




                                        7
                           GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

      The Court of Appeals erred when it held that Appellant was not illegally

arrested.




                                        8
                     GROUND FOR REVIEW NUMBER ONE

      The Court of Appeals erred when it held that Appellant was not illegally

arrested.

                              Argument and Authorities

      The Court of Appeals held that Appellant was not under arrest when he was

transported from the restaurant where he worked to the police station in order to

determine whether he was the correct suspect. The court then held that the statement

Appellant gave was not the product of an illegal detention. The court of appeal’s

holding is simply not justified by the record.

A fair reading of the facts demonstrates that Appellant was involuntarily detained for

further investigation. Officer Martinez herself stated that Appellant was being

“detained”. Appellant was transported to the police station in handcuffs. Martinez

testified that if the complainant had not identified him he would have been released,

which indicates that Appellant was in fact not free to leave while at the police station.

The protection of the Fourth and Fourteenth Amendments is triggered when the police,

without probable cause or a warrant, forcibly remove a person from his home or place

where he is entitled to be and transport him to the police station, where he is detained,

although briefly, for investigative purposes. Hayes v. Florida, 470 U.S. 811, 816, 105

S.Ct. 1643, 1647, 84 L.Ed. 705 (1985). Such seizures, at least where not under judicial


                                           9
supervision, are sufficiently like arrests to invoke the traditional rule that arrests may

constitutionally be made only on probable cause. Id. at105 S.Ct. 1647. A detention for

investigatory purposes must be limited; it must be temporary and last no longer than

necessary to effect the progress of the stop. In Appellant’s case he was not merely

briefly questioned where he was but was taken to a police station so he could be

identified and he was not free to leave. These factors indicate that he was under arrest

at the time he was photographed. Reed v. State, 809 S.W.2d 940, 944 (Tex.App.-

Dallas, 1991).

      At the hearing on Appellant’s motion to suppress, there was no testimony

adduced from which the trial court could determine whether there was probable cause

for the arrest. When appellate courts are asked to determine whether the trial court

erred in overruling a pretrial motion the general rule is that the appellate court

considers only evidence adduced at the hearing on the motion and may not resort to

testimony subsequently elicited at trial because the ruling in issue was not based on

the latter. Black v. State, 362 S.W.3d 626, 630, fn 13 (Tex.Crim.App. 2012); Hardesty

v. State, 667 S.W.2d 130, 133 fn 6 (Tex.Crim.App. 1984). At the hearing Martinez

testified simply that she was investigating a case of aggravated sexual assault. She

related no facts of the alleged assault, the identity of the complainant, nor did she

inform the court any of information that she had received concerning the offense from


                                           10
the complainant or from anyone else, or facts that would even establish that an offense

had been committed. Her entire testimony concerned establishing Appellant’s identity.

Even if her trial testimony is considered, it is similarly lacking in information. She

stated that she reviewed the complainant’s recorded interview and interviewed the

complainant near the beginning of the investigation but never detailed what

information she learned from those sources prior to Appellant’s arrest. There was no

evidence in the record at the motion hearing or at trial from which the trial court could

have determined that Martinez had sufficient information to constitute probable cause

for the arrest. The arrest was clearly illegal.

             Appellant’s recorded statement to Martinez was the fruit of the illegal

detention. Evidence procured as the result of an initial illegality may be admitted if the

connection between the illegality and the means through which the evidence was

secured is so attenuated as to dissipate the taint. The United States Supreme Court, in

determining whether the taint infecting the evidence obtained after an illegal arrest is

sufficiently attenuated to permit use of the evidence at trial has identified four factors

to be considered: 1) whether Miranda warnings were given; 2) the temporal proximity

of the arrest and confession; 3) the presence of intervening circumstances; and 4) the

purpose and flagrance of the official misconduct. Brown v. Illinois, 422 U.S. 590, 604-




                                            11
05, 95 S.Ct. 2254, 45 L.Ed. 2d 416 (1975); Self v. State, 709 S.W.2d 662, 666

(Tex.Crim.App. 1986).

      Miranda warnings alone are not enough to purge the taint of an otherwise illegal

arrest. Bell v. State, 724 S.W.2d 780 (Tex.Crim.App. 1986). In Appellant’s case the

warnings were read only one time before the statement was given.

      The statement was taken approximately an hour after Appellant’s arrest, with

no significant intervening circumstances. The fact that the complainant identified his

photo prior to the statement does not mitigate the taint since the photo of Appellant

was itself the fruit of the illegal arrest. See. Jackson v. State, 649 S.W.2d 317

(Amarillo, 1983). Appellant was not warned by a magistrate before he confessed. The

second and third factors militate against the admissibility of the statement. The facts

in Appellant’s case are very similar to those of Weems v. State, 167 S.W.3d 350

(Tex.App.-Houston [14th Dist.] 2005, ref’d). In Weems, a case involving an arrest on

an invalid warrant, this Court held that the first confession obtained shortly after the

arrest was insufficiently purged of the taint of the arrest where the confession was

taken two and a half hours after the arrest and there were no intervening

circumstances. Appellant’s statement was similarly tainted and inadmissible. See also,

Farmah v. State, 883 S.W.2d 674 (Tex.Crim.App. 1994).




                                          12
       Under a fair reading of the testimony adduced at the hearing and at trial, a

reasonable person in these circumstances would believe his freedom of movement was

restrained to the degree associated with a formal arrest. The Court of Appeals

disregarded a common sense evaluation of all the indicators of an involuntary

detention that was associated with Appellant’s statement.




                                        13
                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this Petition for Discretionary Review, that the case be set for submission; that

after submission this Court reverse the judgement of the Court of Appeals and remand

for a new trial.

                                     Respectfully submitted,

                                       /s/ J. Sidney Crowley

                                       J. Sidney Crowley
                                        214 Morton St.
                                        Richmond, Tx. 77469
                                        (281)232-8332
                                         TBC No. 05170200




                                          14
                       CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document contains 1599 words, generated by

computer.

                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument has been e-

served to the Harris County District Attorney’s Office, and to Lisa C. McMinn, State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, this the 21st day of

January, 2015.

                                                        /s/ J. Sidney Crowley




                                        15
Affirmed and Memorandum Opinion filed December 23, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00014-CR

                         JUAN SALGADO, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Cause No. 1348922

                MEMORANDUM                      OPINION


      Appellant Juan Salgado appeals his conviction for indecency with a child on
the ground that the trial court erred in overruling his motion to suppress his
recorded statement. We affirm.

                                 I. BACKGROUND

      Prior to trial appellant filed a motion to suppress his statement in which he
argued that his recorded statement was obtained by an illegal arrest, and with no
knowing and intelligent waiver of his rights. The trial court held a hearing at which
Officer Miraida Martinez and appellant testified. At the conclusion of the hearing
the trial court denied appellant’s motion to suppress.

      Appellant, a distant relative of the complainant and her mother, was living in
the front room of a duplex where the complainant lived. Appellant occasionally
picked up the complainant from school and drove her to a babysitter’s home where
the complainant stayed until her parents finished work for the day. On one of those
occasions appellant took the complainant to his room in the duplex where they all
lived. When they entered the room appellant lowered his zipper and told the
complainant to pull down her pants. The complainant testified that appellant got on
top of her, and “pulled out his thing and he put it in mine.” Afterward the
complainant cleaned herself in the bathroom, and appellant took her to the
babysitter’s house. The complainant did not immediately tell anyone what
happened, but later made an outcry to a teacher’s assistant at her school.

      Officer Martinez was assigned to investigate after the complainant’s outcry,
and was given appellant’s name as a suspect. The mother told Martinez that
appellant worked at a nearby restaurant she thought was named “Brenda’s.” The
mother also described appellant as having tattoos and silver teeth. During her
investigation, Martinez determined that appellant might work at Brennan’s
restaurant. She went to Brennan’s and asked for appellant, but the manager told her
no one named Juan Salgado worked there. Martinez later learned that appellant
might be using the name Jose Najera at Brennan’s.

      Martinez and another officer went to the restaurant and asked the manager
for Jose Najera. The manager pointed out an employee and Martinez approached




                                          2
him calling him, “Juan.”1 The employee, later identified as appellant, responded,
saying, “Que paso?” Martinez noticed the employee had silver teeth, and tattoos
that had been described to her earlier in the investigation. Martinez explained that
she was investigating a sexual assault case, and asked if appellant was willing to
come to the police station to determine whether he was the suspect she was
seeking. Appellant agreed to accompany her. Martinez explained to appellant that
he would be transported in a patrol car in handcuffs per police department policy.
They waited approximately 15 minutes for a patrol car to arrive and transport
appellant to the police station.

       When Martinez and appellant arrived at the police station, Martinez took a
picture of appellant and generated a photo array to show the complainant. Martinez
drove approximately 15 minutes to the complainant’s location. Appellant waited at
the police station while Martinez visited the complainant. When Martinez showed
the photo array to the complainant, the complainant identified appellant as the
person who had sexually assaulted her.

       After the complainant identified appellant, Martinez drove back to the police
station, and decided to question appellant. Prior to questioning appellant, Martinez
read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444–45 (1966),
and article 38.22 of the Texas Code of Criminal Procedure. Appellant indicated he
understood his rights and waived them prior to making a statement. Martinez did
not obtain an arrest warrant prior to the interview because she had reason to
believe appellant would flee if he were released. She based this conclusion on the
facts that appellant had previously fled to Mexico, and had used multiple identities
in the past.

       1
        The record reflects that appellant only speaks Spanish. When speaking with appellant
Martinez also spoke Spanish.

                                             3
       Appellant’s videotaped statement was then played at the hearing. In his
statement appellant admitted that the complainant’s babysitter had asked him to
pick the complainant up from school approximately three times. Appellant
admitted taking the complainant into his bedroom, and rubbing his penis on the
complainant’s leg.

       At the hearing, appellant testified that he was handcuffed while in the
restaurant, and placed in a car for more than an hour while waiting for the patrol
car. Appellant testified that despite telling Martinez that he understood his rights,
he did not understand his rights at the time he made his statement. At the
conclusion of the hearing the trial court denied appellant’s motion to suppress.

       After the trial court denied appellant’s motion to suppress, he pleaded not
guilty and proceeded to trial on the charge of aggravated sexual assault of a child.
At trial, the State presented the testimony of the teacher’s assistant to whom the
complainant made outcry, the forensic interviewer who interviewed the
complainant, the physician who examined the complainant, the complainant’s
mother, and the complainant. Martinez testified to her investigation and the taking
of appellant’s statement. The State also admitted appellant’s statement over his
objection.2 The jury found appellant guilty of the lesser-included offense of
indecency with a child, and the trial court sentenced appellant to eighteen years in
prison.

       The trial court made the following pertinent findings of fact and conclusions
of law:

       Findings of Fact
       7. Officer Martinez traveled to Brennan’s where she once again spoke

       2
          The videotaped statement is in Spanish. The trial court admitted a translated transcript
of the statement into evidence.

                                                4
to the manager who directed her to an employee known as Jose
Najera.
8. As Officer Martinez approached the defendant at the restaurant, she
called out, “Juan” and the defendant asked “Que paso?” and smiled,
showing silver teeth.
9. Officer Martinez detained the defendant in an effort to determine if
he was in fact the perpetrator in the case under investigation. Officer
Martinez transported the defendant to an HPD office in a patrol car.
10. Officer Martinez took a photo of the defendant, put it in a photo
spread, and showed it to the complainant while the defendant waited
in an office.
11. After the complainant positively identified the defendant as the
man who raped her, Officer Martinez read the defendant his rights and
recorded her interview with the defendant.
12. The defendant was under arrest after Officer Martinez observed
the complainant identify the defendant as the person who sexually
assaulted her.
13. Officer Martinez believed the defendant would escape or abscond
immediately were she to allow him to leave, due to his having used at
least three different names, having gone to Mexico immediately after
sexually assaulting the complainant, and his lack of legitimate
identification and/or legal status in the United States.
14. The defendant stated he understood his rights and wanted to speak
with Officer Martinez about the investigation.
15. The defendant was not denied any basic necessities and was, in
fact, offered a soda.
16. The defendant never invoked his right to counsel, nor did he ever
attempt to cease the interview.
17. The Court finds the State’s witness, Officer Martinez, credible and
accepts her testimony as true.
Conclusions of Law

1. Initially, the Court rules that the statement of the defendant was
freely and voluntarily made.
2. The Court finds that the requirements of 38.22 were fulfilled.

                                   5
      3. Lastly, the Court finds that statement of the defendant is admissible.

      In a single issue on appeal appellant argues that at the time he was placed in
the patrol car at Brennan’s he was under arrest without a warrant or probable
cause. As a result of that arrest, appellant argues his statement was tainted and
inadmissible. The trial court therefore erred in denying appellant’s motion to
suppress the statement.

                             II. STANDARD OF REVIEW

      We review a trial court’s denial of a motion to suppress for abuse of
discretion. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas
v. State, 297 S.W.3d 458, 459 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
We review the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court is
the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). We afford almost total
deference to the trial court’s determination of historical facts supported by the
record, especially when the trial court’s findings are based on an evaluation of
credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). We afford the same amount of deference to the trial court’s ruling on
mixed questions of law and fact if the resolution of these questions turns on an
evaluation of credibility and demeanor. Id. We review questions not turning on
credibility and demeanor de novo. Id. If the trial court’s decision is correct under
any theory of law applicable to the case, the decision will be sustained. Estrada v.
State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

      In reviewing a trial court’s ruling, we generally consider only evidence
adduced at the suppression hearing because the ruling was based on it rather than

                                          6
evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.
1996). This general rule, however, does not apply when, as in this case, the parties
consensually relitigate the suppression issue during the trial on the merits. Id.

                             III. MOTION TO SUPPRESS

      Appellant argues that the trial court erred in denying his motion to suppress
the statement he made to Officer Martinez because he was in custody at the time he
was detained at the restaurant, but was not read his rights until after the
complainant identified him. He contends his statement made after receiving
notification of his rights is the fruit of an illegal detention at the restaurant.
Appellant asserts that because he did not receive these warnings until after the
complainant identified him, all of his statements were inadmissible, and should
have been suppressed. See Tex. Code Crim. Proc. Ann. art 38.22; Miranda, 384
U.S. at 444–45; see also Missouri v. Seibert, 542 U.S. 600, 609–11 (2004)
(plurality op.) (discussing admissibility of statements made when “mid-stream”
Miranda warnings are given).

      Miranda warnings are given to “safeguard an uncounseled individual’s
constitutional privilege against self-incrimination during custodial interrogation.”
Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). Additionally,
article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of
statements made by an accused during custodial interrogation. Tex. Code Crim.
Proc. Ann. art. 38.22; see also Herrera, 241 S.W.3d at 526. As with Miranda
warnings, article 38.22 warnings are required only when the interrogation is
custodial. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 3(a), 5; Herrera, 241 S.W.3d
at 526.

      “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
                                           7
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)). Our
custody inquiry includes an examination of all objective circumstances
surrounding the questioning. Herrera, 241 S.W.3d at 525. 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, 579 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d). “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. at 580.

      In this case, there is evidence that appellant left Brennan’s freely with
Martinez. According to Martinez, appellant met the description of the suspect and
responded to the name of the individual Martinez was investigating. Because she
did not have positive identification, Martinez asked appellant to go to the police
station, and appellant agreed. Martinez permitted appellant to sit in the backseat of
her unmarked car until a patrol car arrived to transport him. Appellant testified that
he did not understand his rights, and that he was handcuffed for over an hour
before the patrol car arrived. While appellant’s testimony differs from that of
Martinez, the trial court was in the best position to evaluate the credibility of the
witness and was free to disbelieve appellant’s testimony. See Mason, 116 S.W.3d
at 256. In its findings of fact, the trial court found Martinez credible and accepted
her testimony as true.

      The placing of handcuffs on a defendant does not, in and of itself,
automatically mean he is in custody. See Balentine v. State, 71 S.W.3d 763, 771

                                          8
(Tex. Crim. App. 2002) (holding appellant was not under arrest when officer
placed him in handcuffs because while officer was conducting an investigation into
shots being fired, officer learned the suspect had lied in response to previous
questions and there was no bulletproof partition between the front and back seat);
Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App. 1997) (holding
appellant was not under arrest because officer handcuffed suspect while his partner
was chasing second suspect in a high crime area at night). Martinez explained to
appellant that she “had an investigation going on” and was not sure if she “had the
right person.” Martinez asked appellant if he was willing to come to the police
station to make sure she had the right person, and appellant “said okay.” Martinez
further testified that she handcuffed appellant for officer safety and explained to
appellant that she typically handcuffed people she put in the backseat of a patrol
car for officer safety.

       Based on all of the evidence, we hold the trial court did not abuse its
discretion in concluding appellant was not in custody prior to receiving his
Miranda and article 38.22 warnings. Accordingly, appellant’s statement was not
the product of an illegal arrest. We overrule appellant’s sole issue and affirm the
trial court’s judgment.




                                      /s/       John Donovan
                                                Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).



                                            9
