Affirmed and Memorandum Opinion filed October 6, 2016.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-15-00664-CR

               KENNARD RAYSHAWN JOHNSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 8
                          Harris County, Texas
                      Trial Court Cause No. 1999937

                 MEMORANDUM                     OPINION


      Appellant Kennard Rayshawn Johnson challenges his conviction for
possession of marijuana on the grounds that the trial court erred in admitting into
evidence statements he made to a responding police officer without being
administered Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 442–57
(1966). We affirm.
                                    BACKGROUND

      Deputy Jay D’Abbraccio of the Harris County Constable’s Office initiated a
traffic stop of appellant’s car for an expired registration sticker and failure to signal
before a turn. At the time of the stop appellant was alone in the car. The State
introduced an audio recording of D’Abbraccio’s conversation with appellant
during the traffic stop. Appellant objected to the recording on the grounds that the
statement was inadmissible absent a “full and complete Miranda warning as to his
rights and privilege[s].” The trial court overruled appellant’s objection, and
admitted the audio recording, which contained appellant’s statement.

      D’Abbraccio testified that he smelled marijuana as soon as he walked up to
the car. D’Abbraccio asked appellant questions about where he was going and
asked appellant to wait while he checked for warrants and wrote a citation. After
checking the computer, D’Abbraccio discovered appellant had an outstanding
warrant and told appellant about the warrant. Appellant denied any knowledge of
the outstanding warrant. D’Abbraccio asked appellant whether he had anything
illegal in the car including guns, drugs, or knives. D’Abbraccio asked appellant if
he smoked marijuana, noting the car smelled like marijuana. Appellant initially
denied marijuana use, but ultimately admitted he had marijuana in a bag in the car.
Appellant pointed out the bag of marijuana in the car. After finding the marijuana,
D’Abbraccio arrested appellant on the outstanding warrant and for possession of
marijuana. D’Abbraccio did not give Miranda warnings before appellant’s
admission that he had marijuana in his car.

      The trial court entered findings of fact and conclusions of law in which it
found that D’Abbraccio detained appellant for a motor vehicle infraction, and did
not arrest appellant at the time of the initial stop. The trial court concluded that the
totality of the circumstances showed that the encounter between D’Abbraccio and

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appellant was a temporary detention for the purpose of investigating the traffic
infraction, not an arrest. During the traffic violation encounter, D’Abbraccio
became aware of additional facts indicating that marijuana was in or near appellant
and his car. When D’Abbraccio asked appellant if he had anything in his car,
appellant admitted to being in possession of marijuana.

      Appellant was convicted of possession of marijuana and sentenced to 30
days in the Harris County Jail, probated for six months.

                                      ANALYSIS

      Appellant contends that the trial court erred in denying his motion to
suppress statements he made to D’Abbraccio on the grounds that the statements
were involuntary because appellant was in custody and was not provided with
Miranda warnings or warnings required by Texas Code of Criminal Procedure
Article 38.22, which governs when statements of an accused may be used in
evidence against him. At trial, appellant only objected on constitutional grounds,
not statutory grounds. Therefore, appellant waived his complaint with regard to the
administration of statutory warnings. See Tex. R. App. P. 33.1; Wilson v. State, 71
S.W.3d 346, 350 (Tex. Crim. App. 2002) (issue on appeal must comport with the
objection made at trial).

      This court reviews a trial court’s ruling on a motion to suppress under a
bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). At a suppression hearing, the trial court is the sole finder of fact and is
free to believe or disbelieve any or all of the evidence presented. Weide v. State,
214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to
the trial court’s determination of historical facts, especially when the trial court’s
fact findings are based on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. This court affords the same amount of deference to the trial court’s
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application of the law to facts if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. This court reviews de novo the trial
court’s application of the law to facts if resolution of the ultimate questions does
not turn on an evaluation of credibility and demeanor. Id.

      Appellant asserts that the trial court erred in denying his motion to suppress
statements he made to D’Abbraccio because D’Abbraccio interrogated him without
providing him the benefits of warnings set out by the United States Supreme Court
in Miranda v. Arizona, 384 U.S. at 442–57. It is a violation of an individual’s
Fifth-Amendment right against self-incrimination for the State to use unwarned
statements obtained as a result of custodial interrogation in a criminal proceeding
during its case-in-chief. Id. at 444. Miranda warnings are required only if the
person is “in custody.” See Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

      Generally, a person is not in custody during a routine traffic stop. State v.
Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). A traffic stop may escalate
from a non-custodial detention into a custodial detention when formal arrest ensues
or a detainee’s freedom of movement is restrained to the degree associated with a
formal arrest. Id. A person is in custody only if “a reasonable person would believe
that his freedom of movement was restrained to the degree associated with a
formal arrest.” Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). In
making the custody determination, the primary question is whether a reasonable
person would perceive the detention to be a restraint on his movement comparable
to formal arrest, given all the objective circumstances. Ortiz, 382 S.W.3d at 372.
This inquiry is made on an ad hoc, or case-by-case, basis. Id.

      At trial appellant argued that admission of the statements violated his
constitutional rights under the Texas and United States Constitutions. On appeal
appellant does not argue that the concept of custody differs under these two types

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of claims. Because appellant’s only developed argument about custody related to
his federal constitutional claim, we will analyze the issue from a federal
constitutional perspective. See Herrera, 241 S.W.3d at 526. (holding that the
meaning of “custody” is the same for purposes of Miranda and the state statutory
scheme).

      The record reflects that D’Abbraccio detained appellant at the scene, rather
than another location, for approximately twenty minutes. D’Abbraccio noted that
he smelled marijuana and that appellant was nervous. D’Abbraccio told appellant
he had an outstanding warrant, and asked appellant whether that was why he was
so nervous. D’Abbraccio patted appellant down for potential weapons.
D’Abbraccio asked appellant whether he had anything illegal in his car and asked
if he could search appellant’s car. Appellant did not give consent to search, but
also did not unequivocally tell D’Abbraccio that he could not search the car.
Appellant initially denied smoking marijuana, but eventually admitted he had
marijuana in his car, and showed D’Abbraccio where it was.

      Appellant does not identify at which point he alleges he was in custody. He
also does not allege any specific activity by D’Abbraccio that led him to believe he
was in custody. Appellant cites no authority in his brief in support of the
proposition that he was in custody at the time of the questioning. Appellant was not
handcuffed, which militates against a finding of custody. Cf. Ortiz, 382 S.W.3d at
373 (finding custody when the defendant had been patted down and handcuffed).
Appellant had been patted down, but D’Abbraccio explained that he patted down
appellant for weapons because appellant was acting nervous and appellant’s
actions caused D’Abbraccio to be concerned for his safety. The pat-down was
merely an investigative detention justified by D’Abbraccio’s safety concern. See
O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000) (“[O]fficer need not

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be absolutely certain that the individual is armed. The issue is whether a
reasonably prudent person would justifiably believe that his safety or that of others
was in danger.”); see also Keaton v. State, 755 S.W.2d 209, 210 (Tex. App.—
Houston [1st Dist.] 1988, pet. ref’d) (concluding that placing a motorist in a patrol
car did not amount to a custodial arrest so as to require Miranda warnings, despite
the officer’s testimony that the motorist was not free to leave during the traffic
stop).

         Applying the foregoing legal standard to this case, the trial court did not err
in concluding that appellant was not in custody at the time he made the statements
to D’Abbraccio. See State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim. App.
1997) (holding that appellant was not in custody when he made statements during
roadside driving while intoxicated investigation). The trial court did not err in
denying appellant’s motion to suppress appellant’s statement on the grounds that
he did not receive Miranda warnings.

                                      CONCLUSION

         The trial court did not err in denying appellant’s motion to suppress
statements made to the police officer because appellant was not in custody at the
time appellant made the statements. Accordingly, we overrule appellant’s sole
issue.

         The trial court’s judgment is affirmed.


                                         /s/       Kem Thompson Frost
                                                   Chief Justice


Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).


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