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                                 MEMORANDUM OPINION

                                         No. 04-08-00287-CR

                                        Veronica HERRERA,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007CR10131
                            Honorable Bert Richardson, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: June 10, 2009

AFFIRMED

           Veronica Herrera was convicted by a jury of murdering her boyfriend’s three-year-old son.

Herrera presents three issues on appeal asserting the trial court erred by: (1) denying her pre-trial

motion to suppress because her statement to the police was involuntary; (2) denying her motion to

suppress when she re-urged it during trial on the basis that her statement was a product of custodial
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interrogation obtained without the safeguards provided by article 38.22 of the Texas Code of

Criminal Procedure and Miranda v. Arizona;1 and (3) denying her motion for a mistrial based on a

substitution of the trial judge presiding over her trial. We affirm the trial court’s judgment.

                                    VOLUNTARINESS OF STATEMENT

       In her first issue, Herrera contends the trial court erred in denying her motion to suppress the

videotaped statement she gave to police because it was involuntary.

       When a defendant moves to suppress a statement on the ground of “involuntariness,” the due

process guarantee requires the trial court to hold a hearing on the admissibility of the statement

outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

At the hearing, the trial court is the sole judge of the weight and credibility of the evidence, and the

trial court’s finding may not be disturbed on appeal absent a clear abuse of discretion. Id.; Martinez

v. State, 131 S.W.3d 22, 35 (Tex. App.—San Antonio 2003, no pet.). The prosecution bears the

burden of proof at the hearing on admissibility and must prove by a preponderance of the evidence

that the defendant’s statement was given voluntarily. Alvarado, 912 S.W.2d at 211; Martinez, 131

S.W.3d at 35.

       The voluntariness of a statement is determined by examining the totality of the

circumstances. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). The ultimate question

is whether the defendant’s will was “overborne” by police coercion. Creager v. State, 952 S.W.2d

852, 856 (Tex. Crim. App. 1997); Weaver v. State, 265 S.W.3d 523, 534 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d). In answering this question, we may consider various relevant factors,

including the length of detention, incommunicado or prolonged detention, denying a family access



       1
           … 384 U.S. 436 (1966).

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to a defendant, refusing a defendant’s request to telephone a lawyer or family, and physical brutality.

Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds, State v.

Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999); Licon v. State, 99 S.W.3d 918, 924 (Tex. App.—El

Paso 2003, no pet.). An accused’s mentality is also a factor to be considered but is not conclusive

of involuntariness. Delao, 235 S.W.3d at 239-40.

       Detective Curtis Walker and Detective Raymond Roberts went to the hospital to investigate

a suspicious death of a three-year-old child. Prior to speaking with Herrera, the detectives knew that

the EMS technicians disbelieved that the child had drowned. They also knew that the redness or

burn on the child’s face was not present when his father, who was Herrera’s boyfriend, left for work

the morning the child drowned. Detective Roberts described the child as having second-degree

burns covering the side of his face, around his forehead, and down around his mouth and ears. A

doctor informed Detective Roberts that the burn could not have been caused by a recent sunburn

because the skin would have needed time to blister and come off.

       When Detective Walker approached Herrera, Herrera first told the detectives that the child

hit his head at the pool and drowned, and the redness was a sunburn from the previous day. Herrera

then told the detectives that she left the child on the stairs of the pool to see how much a soda would

cost and found him under the water when she returned to the pool. Herrera also told the detectives

that the child kept looking up at the sun and was scraping his face against the cement at the pool,

causing the redness.

       Detective Walker asked Herrera if she would accompany them to the station to talk about

what happened while it was still fresh on her mind. Detective Walker explained that they were

talking to everybody that knew anything. Initially, Herrera asked if she could go to the station the



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following day. Although Detective Walker told her the following day would be fine, Detective

Roberts suggested it might be more fresh on her mind if she went that day. In response to the

suggestion, Herrera agreed to go.

        Herrera was transported to the station in an unmarked administrative car. Detective Walker

drove, Herrera rode in the front passenger seat, and Detective Roberts rode in the back. Nothing was

said about the case on the way to the station. In response to whether she was taking any medications,

Herrera informed the detectives that she was taking Depakote and Strattera. Detective Walker stated

that if Herrera had refused to accompany the officers to the station, she would have been free to

leave, and she would have been recontacted the following day.

        Upon arriving at the station, Herrera was taken to an interview room, and Detective Roberts

started the recording equipment. After Herrera completed a form with her identifying information,

Detective Walker began taking her statement. Detective Walker testified that he told Herrera three

times during the course of taking the statement that she was not required to talk to him. Both

detectives stated that they did not corece, force, or threaten Herrera and did not promise her anything.

Herrera was not handcuffed. During the interview, she was given water to drink. The door to the

room where Herrera was being questioned was closed but not locked. Detective Walker testified that

Herrera understood the questions being asked and promptly answered them. The interview lasted

just over two hours. Neither detective believed Herrera had a mental deficiency.

        During the interview, Detective Walker admitted raising his voice when Herrera told him that

the redness to the child’s face could have been caused when the child was playing by himself in the

bathtub under hot water. Detective Walker testified that Herrera’s explanation frustrated him




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because Herrera was stating that the child had caused the redness himself. Herrera later told the

detectives that she had held the baby under the hot water.

        Also during the interview, Herrera asked for her “mommy” on one occasion, and Detective

Walker responded that the child wanted his mommy too. Detective Herrera understood the request

to be a childlike response and not an actual request by Herrera to see her mother.

        After the interview was finished, Herrera was allowed to speak with her mother in the

interrogation room. She then left with her mother. Detective Walker obtained a warrant for

Herrera’s arrest later that night.

        Wallace Ross, a certified psychologist, testified that he examines and makes determinations

regarding individual’s mental retardation on a regular basis. Mr. Ross explained the tests and criteria

used in making such a determination. Pursuant to a court order, Mr. Ross examined Herrera and

determined that she is in the mild range of mental retardation and functions on the level of an eight-

year-old. Mr. Ross also reviewed Herrera’s videotaped statement. Mr. Ross testified that Herrera

had the capacity to make the statement at the police department; however, she did not have the

mental capacity to stop giving the statement during the interview. Mr. Ross stated that Herrera did

not have the capacity to determine that she could or should leave the interview room. Mr. Ross

testified that whether the statement was voluntary, however, was beyond the scope of his expertise.

        On cross-examination, Mr. Ross admitted that he observed a small degree of malingering by

Herrera during the testing. Mr. Ross acknowledged that he had reviewed a report prepared by Dr.

Tennison, who had tested Herrera for competency to stand trial. He acknowledged Dr. Tennison’s

concerns with regard to Herrera’s malingering given that she claimed that she could not read or write

despite her videotaped statement which showed her ability to complete the identification information



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requested on the form she was presented and a letter she had written to her boyfriend. Mr. Ross

acknowledged that Herrera was a certified nurse’s assistant and had been employed at a retirement

community in that capacity.

       Dr. Joann Murphey, a clinical psychologist, also examined Herrera and concluded that she

suffers from mild mental retardation with an IQ of 63. Dr. Murphey testified that Herrera had the

mental capacity to agree to give a statement to the police but did not have the mental capacity to stop

giving the statement and was highly susceptible to suggestion during the questioning. Dr. Murphey

stated that the detectives were using words during the questioning that Herrera did not understand.

Dr. Murphey opined that Herrera did not voluntarily give her statement. Dr. Murphey also opined

that Herrera was competent to stand trial.

       On cross-examination, Dr. Murphey stated that she had not reviewed Dr. Tennison’s report

but “certainly” had concerns about malingering by Herrera because there is a natural tendency when

a person is being tested in connection with a criminal matter to downplay their abilities. Dr.

Murphey referred to testing on collateral sources in which other people are questioned regarding

Herrera’s abilities; however, she admitted that the other people questioned were Herrera’s friends

and family.

       In this case, the detention lasted approximately two hours. The first hour was a fairly non-

confrontational discussion of the events of the day in chronological order. The second hour was

more confrontational when the detectives began to challenge Herrera on her original version of the

events and her failure to explain the burns on the victim’s face. Herrera was reminded on several

occasions that she was voluntarily present. Although Detective Walker did not respond to Herrera’s

statement that she wanted her “mommy,” he did not consider the statement to be a request to speak



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to her mother. Morever, although Herrera was mildly mentally retarded and Dr. Murphey opined

that the statement was not voluntary, concerns were raised with regard to Herrera’s malingering

during the testing. The ultimate question for the trial court was whether Herrera’s will was

“overborne” by police coercion. Creager, 952 S.W.2d at 856; Weaver, 265 S.W.3d at 534. Having

reviewed the videotaped statement and considering the totality of the circumstances, we hold that

the trial court did not abuse its discretion in finding Herrera’s statement was voluntary.

                                   CUSTODIAL INTERROGATION

       In her second issue, Herrera asserts that the trial court erred in denying her motion to suppress

her statement after she re-urged it during trial on the basis that she was not given the warnings

required by Miranda and article 38.22 before her statement was taken.

       The warnings required by Miranda were established 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). The warnings required by article 38.22 are virtually

identical to the Miranda warnings and are required to be given only when there is custodial

interrogation. Id. at 526.

       “Custodial interrogation” is defined as 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. Id. at 525. A “reasonable person” standard is applied in determining whether a

person is in custody. Id. 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. Id. A “custody” inquiry includes an examination of all of the objective circumstances

surrounding the questioning. Id.



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        In Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996), the Texas Court of

Criminal Appeals outlined four general situations that might 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 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. See also Espinoza v. State, 185 S.W.3d 1, 3 (Tex.

App.—San Antonio 2005, no pet.). Some of the factors to be considered in determining whether a

person is in custody include: (1) whether the suspect arrived at the place of interrogation voluntarily,

(2) the length of the interrogation, (3) whether the suspect’s requests to see relatives and friends are

refused, (4) the degree of control exercised over the suspect, and (5) whether a “pivotal admission

established custody.” Espinoza, 185 S.W.3d at 3.

        At trial, the defendant bears the initial burden of proving that a statement was the product of

“custodial interrogation.” Id. at 326. We afford almost total deference to a trial court’s “custody”

determination when the questions of historical fact turn on credibility and demeanor. Id. at 327.

Conversely, when the questions of historical fact do not turn on credibility and demeanor, we will

review a trial court’s “custody” determination de novo. Id.

        In her brief, Herrera focuses on the testimony of an officer who questioned Herrera at the

hospital prior to the arrival of the detectives and the testimony of Willard Fox, the victim’s

grandfather, in arguing that the trial court erred in denying her re-urged motion to suppress. Upon

arriving at the hospital and requesting to see his grandson, Fox was told that his grandson was in one

room, his son was in another room, and Herrera was in a third room. Fox was instructed to have a



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seat in the waiting room. Although Fox’s testimony is some indication that Herrera was being kept

separate from the others, Fox did not testify that he requested to see Herrera, and there is no evidence

in the record that Herrera made any request to see Fox.

        Officer James Foster testified that he read Herrera her rights before speaking with her. In his

report, Officer Foster stated that he read the rights to Herrera slowly. Officer Foster testified that he

always read the rights slowly but admitted that he did not always record that description in his report.

Officer Foster stated that he could not tell that Herrera was slow when speaking with her. Officer

Foster stated that Herrera was not under arrest, but he read her the rights as a precaution. Officer

Foster spoke with Herrera for two or three minutes. Officer Foster testified that he believed Herrera

was being detained and was not free to leave.

        With regard to Officer Foster’s testimony that Herrera was being detained, we note that an

investigatory detention is not a custodial arrest. State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim.

App. 2008). Moreover, Officer Foster’s subjective belief is not relevant because there is no evidence

that his belief was somehow communicated or otherwise manifested to Herrera. Dowthitt, 931

S.W.2d at 254. Furthermore, the detectives’ subsequent request that Herrera voluntarily accompany

them to the police station supports the trial court’s ruling. Given that Herrera requested that she be

permitted to go to the station the following day and was told by Detective Walker that she could, the

trial court did not abuse its discretion in concluding that Herrera was not in custody when she

accompanied the detectives to the station.




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                                   SUBSTITUTION OF TRIAL JUDGE

        In her final issue, Herrera contends that the trial court erred in overruling her motion for

mistrial when a second trial judge substituted for the first trial judge during the trial. The second trial

judge was substituted after the mother of the first trial judge was hospitalized.

        “Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable

errors.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A trial court’s denial of a

motion for mistrial is reviewed for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004).

        Herrera’s attorney moved for a mistrial alluding to the pretrial hearings on the voluntariness

of Herrera’s confession and the second trial judge’s reliance on representations made by the first trial

judge. In response to the second trial judge’s response that the first trial judge already ruled on that

issue, Herrera’s attorney never further explained how the substitution of the second trial judge

prejudiced Herrera with regard to that issue. In her brief, Herrera asserts, “Appellant will never

know if the second judge would have ruled differently.”

        When Herrera moved for a mistrial, the issue before the trial court was whether the

substitution of the second trial judge was prejudicial to Herrera’s case since the first trial judge had

already ruled and resolved the suppression issue. Speculating with regard to whether the second trial

judge might have ruled differently on the suppression issue does not explain how the substitution

falls within the “narrow class of highly prejudicial and incurable errors” given that the suppression

issue had been fully heard and resolved by the first trial judge. Wood, 18 S.W.3d at 648. Herrera

“does not assert why or how the change in the trial judge denied [Herrera her] constitutionally

guaranteed rights to a fair trial and due process.” Jimenez v. State, 838 S.W.2d 661, 666 (Tex.



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App.—Houston [1st Dist.] 1992, no pet.). Moreover, Herrera “has not shown [s]he was harmed by

the substitution in a meaningful way.” Id. Accordingly, we cannot conclude that the trial court

abused its discretion in denying the motion for mistrial.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                        Marialyn Barnard, Justice

DO NOT PUBLISH




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