                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-13-00820-CR

                              Jose Isabel MARTINEZ-HERNANDEZ,
                                            Appellant

                                                   v.

                                         The STATE of Texas
                                              Appellee

                     From the 406th Judicial District Court, Webb County, Texas
                                 Trial Court No. 2012CRU-010D4
                            Honorable Oscar J. Hale Jr., Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 17, 2015

AFFIRMED

           This appeal arises from the State’s indictment alleging Appellant Jose Isabel Martinez-

Hernandez committed aggravated sexual assault of an elderly individual and burglary of a

habitation with intent to commit a felony therein. The jury found Martinez-Hernandez guilty of

both offenses and assessed punishment at life imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. Martinez-Hernandez contends the trial court erred in

denying his motions to suppress his statements and DNA test results.           Because Martinez-

Hernandez’s Miranda and Article 38.22 rights were not violated, and Martinez-Hernandez
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consented to the collection of his DNA, we affirm the trial court’s order denying Martinez-

Hernandez’s motions to suppress.

                                                     BACKGROUND

A.         Factual Background

           On September 24, 2011, in the city of El Cenizo, Texas, a seventy-three year-old female 1

was viciously assaulted and raped at knife-point by an unknown perpetrator. After the attack, the

victim sought help from a friend and the offense was reported to the Webb County Sheriff’s

Department.

           1.        Identification of Martinez-Hernandez

           The victim was able to provide a description of the man who assaulted and raped her,

including a description of a tattoo on the perpetrator’s chest. Sergeant Sylvia Morales, the

investigating officer, also secured information on a gold van parked outside the elderly victim’s

home on the day of the assault.

           Sergeant Morales subsequently located the van parked on private property in El Cenizo

and identified Appellant Jose Isabel Martinez-Hernandez as the vehicle’s owner.                      When

questioned, the owner of the residence where the van was found told the officer that he purchased

the van from Martinez-Hernandez. He provided Sergeant Morales with a copy of Martinez-

Hernandez’s identification card and she identified the man in the picture as Martinez-Hernandez.

           The victim was presented with a photographic line-up, which included the photograph from

Martinez-Hernandez’s identification card, and identified Martinez-Hernandez as her rapist.




1
    Due to the nature of the offense, the victim’s identity is withheld from this opinion.

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        Martinez-Hernandez’s mother-in-law subsequently informed Sergeant Morales that

Martinez-Hernandez was in México. Sergeant Morales provided Martinez-Hernandez’s mother-

in-law with contact information and requested that she have Martinez-Hernandez contact her.

        2.       Martinez-Hernandez Returns to the United States for Interview

        As requested, Martinez-Hernandez called Sergeant Morales. She advised him that she was

conducting an investigation and that she believed he possessed information about the case.

Sergeant Morales requested Martinez-Hernandez meet her at the Lincoln-Juárez International

Bridge 2 in order to “clear things up.” Sergeant Morales arranged with the United States Customs

and Border Protection office for Martinez-Hernandez to be released to her custody for purposes of

an interview and then Martinez-Hernandez would be returned to USCBP office.

        On October 4, 2011, Martinez-Hernandez traveled to Nuevo Laredo, México and on his

arrival at the Lincoln-Juárez International Bridge, he called Sergeant Morales. She told him to

start walking toward the American side of the bridge and she would meet him at the United States

Customs and Border Protection office. Prior to Sergeant Morales’s arrival at the USCBP offices,

Martinez-Hernandez was processed and handcuffed by USCBP officers. Martinez-Hernandez was

released to Sergeant Morales and her partner without the handcuffs.

        Once in Sergeant Morales’s custody, Martinez-Hernandez was again handcuffed and

shackles were placed on his legs; Sergeant Morales opined this was for his own protection and the

safety of the officers transporting Martinez-Hernandez. Sergeant Morales denied Martinez-

Hernandez was under arrest at this time. To the contrary, Sergeant Morales asserted that she was

only performing an investigation and, upon completing her investigation, she was responsible for

ensuring Martinez-Hernandez’s return to the USCBP port of entry.


2
 The Lincoln-Juárez International Bridge is a United States custom’s port of entry between Nuevo Laredo, México
and Laredo, Texas.

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       3.      Questioning at the Webb County Sheriff’s Department

       Martinez-Hernandez was transported in a patrol car to the Webb County Sheriff

Department’s substation. Once there, Martinez-Hernandez was placed in an interview room which

was guarded, at all times, by at least one deputy. Although the safety of officers was no longer a

concern, Martinez-Hernandez remained handcuffed and shackled.

       Several minutes after being escorted into the interview room, Sergeant Morales requested

Martinez-Hernandez’s handcuffs be removed because “he [was] going to need to write.” Sergeant

Morales then advised Martinez-Hernandez that she was conducting an investigation in which his

name was mentioned. She further explained that “before asking any questions or whatever” she

was required to read him his “rights.” Sergeant Morales asked Martinez-Hernandez if he would

speak with her; he nodded his head in agreement and then orally responded, “Yes.” Immediately

thereafter, Sergeant Morales asked Martinez-Hernandez for permission to take a DNA sample and

a fingerprint exemplar. Martinez-Hernandez acknowledged the officer’s explanation of the DNA

test and affirmatively agreed to submit to DNA testing and fingerprinting. Sergeant Morales then

asked Martinez-Hernandez to show her any tattoos that he may have and Martinez-Hernandez

raised his shirt to reveal tattoos on his chest, left forearm, and hand.

       After the DNA samples and the fingerprints were taken, Sergeant Morales informed

Martinez-Hernandez of his rights against incrimination,

       [Y]ou’ve got the right to remain silent and not make any statements and any
       statement you make can be used against you . . . any statement you make can be
       used as evidence against you before a court of law . . . you’ve got the right to have
       an attorney . . . present . . . to advise you before or during the questioning in your
       trial . . . if you don’t have the means to hire an attorney you’ve got the right that
       one be appointed for you to advise you before or during the questioning and you
       have the right to end this interview at any time . . . you understand your rights?

       Martinez-Hernandez responded affirmatively and indicated that he would “like to talk” to

Sergeant Morales.
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       Martinez-Hernandez began by telling Sergeant Morales that a friend advised him the police

were looking for him in relation to an assault and rape. Sergeant Morales confirmed the basis of

the investigation and further advised that the DNA was taken for a comparison to evidence

collected in the rape of an elderly female. Martinez-Hernandez then proceeded to orally confess

to the physical and sexual assault, providing specific details to Sergeant Morales.

       Following his oral confession, Sergeant Morales requested a written statement. Martinez-

Hernandez was provided with a form in Spanish containing the same warnings previously read by

Sergeant Morales. Martinez-Hernandez was left alone in the interview room to write his statement.

Martinez-Hernandez took his time to read the form and provide the requested information,

including initialing next to each warning. Martinez-Hernandez then proceeded to write his

statement in which he again confessed to the assault and rape in question.

       After confessing, Martinez-Hernandez was charged with aggravated sexual assault and

burglary of a habitation with intent to commit a felony therein and was processed by the Webb

County Sheriff’s Office. Martinez-Hernandez was then returned by Sergeant Morales to the

USCBP office to be processed for expedited removal proceedings.

       4.      Questioning at the United States Customs and Border Protection Office

       As part of the expedited removal process, USCBP Officer Juana Alvarez again read

Martinez-Hernandez his Miranda rights in Spanish. Martinez-Hernandez again indicated that he

understood his rights and signed a document confirming and waiving the same. Martinez-

Hernandez declined the services of an attorney and agreed to voluntarily answer Officer Alvarez’s

questions. Once again, Martinez-Hernandez confessed to committing an assault and rape on

September 24, 2011, in El Cenizo, Texas.

       At all times while being questioned and processed by USCBP, Martinez-Hernandez

remained handcuffed. Martinez-Hernandez was subsequently released back to Webb County
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Sheriff’s Department’s custody and was transported to the Webb County jail. Shortly thereafter,

Martinez-Hernandez was indicted for aggravated sexual assault of an elderly person and for

burglary of a habitation with the intent to commit a felony therein.

                                     MOTIONS TO SUPPRESS

       Alleging violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments and the Texas

Constitution, Martinez-Hernandez moved to suppress (1) his oral and written statements to the

Webb County Sheriff’s Department, (2) the video-recorded interview at the Webb County

Sheriff’s Office, (3) the DNA test results, (4) any fingerprint analysis based on fingerprints taken

at the Webb County Sheriff’s Office, and (5) the photo line-up identification by the victim. After

an evidentiary hearing, the court denied all motions.

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

           The court finds the statement was voluntarily made. Miranda rights were read
       to the defendant. The defendant voluntarily traveled hundred[s] of miles from
       México specifically with the intent to provide a statement to clarify accusations.
       Basing this on those facts, the Court finds there was [sic] voluntarily made
       statement. The defendant was not in custody, although there were some measures
       taken for safety purposes.
           The defendant gave consent to taking a DNA sample and/or the saliva sample,
       sample found by taking the evidence. Identification of the defendant was not as a
       result of suggested questioning; Court’s findings after the testimony presented.
           Those are my findings and conclusions of law.

       The case against Martinez-Hernandez proceeded to trial where the video recording, its

translation, Martinez-Hernandez’s statements, and DNA test results were admitted into evidence.

A jury found Martinez-Hernandez guilty on all counts, and assessed punishment at life

imprisonment. This appeal ensued.

                                  ARGUMENTS OF THE PARTIES

       On appeal, Martinez-Hernandez contends the trial court erred in denying his motion to

suppress (1) oral, written, and recorded statements because the statements were taken while

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Martinez-Hernandez was subjected to custodial interrogation and without the proper Miranda

warnings, and (2) the DNA sample was taken while Martinez-Hernandez was subjected to

custodial interrogation and without having first received Miranda rights.

         The State argues Martinez-Hernandez was not in custody at the Webb County Sheriff’s

Office and his statements were voluntary. The State likewise contends Martinez-Hernandez gave

his consent to take a DNA sample and, therefore, no constitutional violations occurred. 3

                                             STANDARD OF REVIEW

         The parties disagree on the applicable standard of review. The State asserts the standard

is abuse of discretion; Martinez-Hernandez contends a de novo standard applies.

         A bifurcated standard applies when we review a trial court’s ruling on a motion to suppress

based on an alleged Miranda violation. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App.

2012); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); see also State v. Moore, Nos.

04–11–00636–CR, 04–11–00637–CR, 2013 WL 520047, at *3 (Tex. App.—San Antonio Feb. 13,

2013, pet. ref’d) (op. on reh’g) (mem. op., not designated for publication). An appellate court must

first afford “almost total deference [to] the trial judge’s rulings on questions of historical fact and

on application of law to fact questions that turn upon the credibility and demeanor, and it reviews

de novo the trial court’s rulings on application of law to fact questions that do not turn upon

credibility and demeanor.” Alford, 358 S.W.3d at 652–53; (citing Ripkowski v. State, 61 S.W.3d

378, 381–82 (Tex. Crim. App. 2001)); accord State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim.

App. 2013).




3
  In its cross-appeal, the State asserts the appeal should be abated and the cause remanded for entry of further written
findings of fact as to the voluntariness of Martinez-Hernandez’s confession. Because we affirm the trial court’s order,
we need not address this issue.


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       A determination on when custody attaches and whether custodial questioning constitutes

interrogation under Miranda is a mixed question of law and fact. Saenz, 411 S.W.3d at 494–95;

Alford, 358 S.W.3d at 653. When, as in the present case, the resolution of an issue does not rest

on credibility and demeanor, “whether a set of historical facts constitutes custodial interrogation

under the Fifth Amendment is subject to de novo review because that is an issue of law: it requires

application of legal principles to a specific set of facts.” Alford, 358 S.W.3d at 653 (citing

Ripkowski, 61 S.W.3d at 381–82).

                              MOTION TO SUPPRESS STATEMENTS

       We first address whether Martinez-Hernandez was under custodial interrogation at the time

of his oral and written confessions to the Webb County Sheriff’s Department and whether he was

properly warned of his rights under Miranda and article 38.22 of the Texas Code of Criminal

Procedure.

A.     Arguments of the Parties

       Martinez-Hernandez argues the trial court erred in denying his motion to suppress the oral

statements, the recorded statements, and the written statements in violation of his rights under the

Fifth Amendment, Miranda, and article 38.22 of the Texas Code of Criminal Procedure. In

support, Martinez-Hernandez argues that when he confessed, he was subjected to custodial

interrogation and any warnings given by Sergeant Morales were defective because Sergeant

Morales failed to inform Martinez-Hernandez of his right to have a lawyer present to advise him

prior to and during any questioning. Martinez-Hernandez concludes that Sergeant Morales’s

defective warning prevented him from making a knowing, voluntary, and intelligent waiver of his

rights and that any statements obtained thereafter were tainted.

       The State counters that Martinez-Hernandez was not in custody during Sergeant Morales’s

interview because the interview began at Martinez-Hernandez’s own bidding. Alternatively, the
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State argues, even if Martinez-Hernandez was in custody, Sergeant Morales read the warnings in

a manner that was substantially in compliance with article 38.22 and Miranda. Additionally, the

State contends that no harm resulted because Martinez-Hernandez provided the same information

to the USCBP officers and the USCBP statements were separate and distinct from any potential

taint caused by any improper warnings provided by Sergeant Morales.

B.     Applicable Law

       Miranda warnings are required when a person is subjected to custodial interrogation. See

Miranda v. Arizona, 384 U.S. 436, 444 (1966); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)

(West Supp. 2014) (requiring warnings only when interrogation is custodial); see also Herrera v.

State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (explaining Miranda warnings “safeguard an

uncounseled individual’s constitutional privilege against self-incrimination during custodial

interrogation”). “[C]ustodial interrogation . . . mean[s] 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, 384 U.S. at 444; accord Herrera, 241 S.W.3d at 525. Thus,

the concerns raised by failing to comply with Miranda only arise when the individual is subject to

both (1) custody by a law enforcement officer and (2) an interrogation. Miranda, 384 U.S. at 444;

accord Warren v. State, 377 S.W.3d 9, 17 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

       1.      When is a Person in Custody?

       A person may be in custody under any of these four general situations:

       (1) when the suspect is physically deprived of his freedom in any significant way,
       (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law
       enforcement 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 law enforcement officers do not tell the suspect
       he is free to leave.




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Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); accord Saenz, 411 S.W.3d at 496.

When evaluating situations one through three, “the restriction upon freedom of movement must

amount to the degree associated with an arrest as opposed to an investigative detention.” Dowthitt,

931 S.W.2d at 255 (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). If a person

voluntarily agrees to accompany law enforcement officers to a different location to answer

questions about an incident, the officer advises the person that he will be handcuffed for officer

safety during transport, he is handcuffed during transport, but the handcuffs are removed on arrival

at the location, this alone does not invoke custody. Turner v. State, 252 S.W.3d 571, 580–81 (Tex.

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

Crim. App. 1987)). But if after transport, the person continues to be physically restrained and “‘a

reasonable person would believe that his freedom of movement was restrained to the degree

associated with a formal arrest,’” he is in custody. See Herrera, 241 S.W.3d at 525 (quoting

Dowthitt, 931 S.W.2d at 255).

       2.      What Constitutes Interrogation?

       In addition to custody, before warnings are required, there must be interrogation of the

suspect by an investigating officer. See Miranda, 384 U.S. at 444; Warren, 377 S.W.3d at 17.

Interrogation arises when “express questioning as well as words or actions by the police, other

than those normally attendant to arrest and custody, that police ‘should know are reasonably likely

to elicit an incriminating response.’” State v. Ortiz, 346 S.W.3d 127, 134 (Tex. App.—Amarillo

2011) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)), aff’d, 382 S.W.3d 367 (Tex.

Crim. App. 2012). “The term ‘incriminating response’ refers to any response that the prosecution

may seek to introduce at trial.” Id. (quoting Innis, 446 U.S. at 301 n.5). It applies to “any

inculpatory or exculpatory statements that the prosecution might wish to introduce.” Jones v.



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State, 795 S.W.2d 171, 176 n.7 (Tex. Crim. App. 1990) (citing Innis, 446 U.S. at 301 n.5); accord

Herrera, 241 S.W.3d at 535 (Johnson, J., dissenting).

        We note, however, that police practices “seek[ing] only physical evidence, not testimonial

confessions of guilt” are excluded from the scope of incriminating responses. Jones, 795 S.W.2d

at 175. “[R]outine inquiries, questions incident to booking, broad general questions such as ‘what

happened’ on arrival at the scene of a crime, and questions mandated by public safety concerns are

not interrogation.” Ortiz, 346 S.W.3d at 134–35 (citing Jones, 795 S.W.2d at 174 n.3).

        3.       Required Warnings

        Miranda prescribes four warnings that must be provided prior to any custodial

interrogation:

        He must be warned prior to any questioning that he has the right to remain silent,
        that anything he says can be used against him in a court of law, that he has the right
        to the presence of an attorney, and that if he cannot afford an attorney one will be
        appointed for him prior to any questioning if he so desires. Opportunity to exercise
        these rights must be afforded to him throughout the interrogation. After such
        warnings have been given, and such opportunity afforded him, the individual may
        knowingly and intelligently waive these rights and agree to answer questions or
        make a statement. But unless and until such warnings and waiver are demonstrated
        by the prosecution at trial, no evidence obtained as a result of interrogation can be
        used against him.

Miranda, 384 U.S. at 479; accord Kupferer v. State, 408 S.W.3d 485, 489 (Tex. App.—Houston

[1st Dist.] 2013, pet. ref’d).

        Article 38.22 of the Texas Code of Criminal Procedure incorporates the Miranda warnings

with additional procedural safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22; Henson v. State,

440 S.W.3d 732, 742 (Tex. App.—Austin 2013, no pet.). Section 2 of article 38.22 bars admission

of a defendant’s written statement unless, inter alia, the statement’s face shows the defendant has

been warned of the following:

        (1) he has the right to remain silent and not make any statement at all and that any
            statement he makes may be used against him at his trial;
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       (2) any statement he makes may be used as evidence against him in court;
       (3) he has the right to have a lawyer present to advise him prior to and during any
           questioning;
       (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed
           to advise him prior to and during any questioning; and
       (5) he has the right to terminate the interview at any time . . . .

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2; accord Herrera, 241 S.W.3d at 526; see Dowthitt,

931 S.W.2d at 257–58. Courts have repeatedly held that there is not one singularly correct form

of the required warnings; to the contrary, substantial compliance with article 38.22 and Miranda

is sufficient. E.g., Bible v. State, 162 S.W.3d 234, 240–41 (Tex. Crim. App. 2005); see also

Florida v. Powell, 559 U.S. 50, 60 (2010). Because an incomplete or incorrect warning may be

sufficient if it substantially complies with article 38.22 and Miranda, Texas courts look to whether

any alleged defect in the warning “falls within the bounds of an incomplete or incorrect warning,

rather than one which is completely omitted.” Rutherford v. State, 129 S.W.3d 221, 224–25 (Tex.

App.—Dallas 2004, no pet.); see also Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001)

(reiterating that warnings need only “substantially comply” with article 38.22).

       4.      Knowing, Intelligent, and Voluntary Waiver

       The State must prove by a preponderance of the evidence that any waiver was knowing,

intelligent, and voluntary under Miranda and article 38.22. See Miranda, 384 U.S. at 475; Leza v.

State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex.

Crim. App. 2010). Courts look to whether the voluntary relinquishment was “‘the product of a

free and deliberate choice rather than intimidation, coercion, or deception.’” Joseph, 309 S.W.3d

at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Additionally, the waiver must be

“‘made with full awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it.’” Id. (quoting Moran, 475 U.S. at 421). Only when the totality of

the circumstances surrounding the interrogation, including the defendant’s experience,


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background, and conduct, show an “uncoerced choice” was made with full awareness of the nature

of the right and the consequences of abandoning that right may a court properly conclude that the

Miranda rights were knowingly, intelligently, and voluntarily waived. 4 Id. (quoting Moran, 475

U.S. at 421); see also Coffey v. State, 435 S.W.3d 834, 842 (Tex. App.—Texarkana 2014, pet.

ref’d) (“Only if the totality of the circumstances surrounding the interrogation reveals both an

uncoerced choice and the requisite level of comprehension may a court may properly conclude

that the Miranda rights have been waived.”).

C.       Analysis

         We first address the issue of custody and then focus our inquiry on whether the line of

questioning to which Martinez-Hernandez was subjected, prior to being given any warnings,

constituted interrogation. We then turn to whether the warnings were sufficient and whether

Martinez-Hernandez waived his rights.

         1.       Was Martinez-Hernandez in Custody?

         A review of the totality of the objective circumstances surrounding Martinez-Hernandez’s

detention shows that at all times of his detention, Martinez-Hernandez was physically deprived of

his freedom in a significant way. Although he voluntarily traveled to the United States to answer

Sergeant Morales’s questions, Martinez-Hernandez was not a resident and did not possess entry

documentation.          Therefore, per USCBP procedures, he was immediately handcuffed.

Notwithstanding the USCBP handcuffs were removed when Sergeant Morales took custody of

Martinez-Hernandez, the Webb County Sheriff’s Department immediately replaced the handcuffs




4
  Martinez-Hernandez did not argue that the totality of the circumstances surrounding his interrogation fail to show
any waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it. Therefore, we do not address the issue. See TEX. R. APP. P. 38.1(i) (briefing waiver); cf.
Nickerson v. State, 312 S.W.3d 250, 258 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (deciding briefing waiver
did not apply because appellant “cited to the record and provided [the] court with authority to support his [argument]”).

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and added leg shackles. The evidence supports that (1) these precautions were for the safety of

both the officer and Martinez-Hernandez during his transport to the Webb County Sheriff’s station

and (2) Sergeant Morales was under the obligation to return Martinez-Hernandez to the USCBP

offices.

           At the Webb County Sheriff’s station, his handcuffs were removed, but the shackles

remained on his legs at all times. Martinez-Hernandez was not allowed to leave the interview

room alone. He was the only non-law enforcement person in the interview room, and an armed,

uniformed guard stood at the room’s only doorway at all times. For these reasons, we find that a

reasonable person in Martinez-Hernandez’s situation would believe his freedom of movement was

restrained and, thus, Martinez-Hernandez was in custody for purposes of Miranda and article

38.22. 5 See Herrera, 241 S.W.3d at 525; Dowthitt, 931 S.W.2d at 254–55.

           2.      Was Martinez-Hernandez Timely Warned?

           Although in custody, for Miranda and article 38.22 to apply, Martinez-Hernandez also had

to be subjected to interrogation. Reading Martinez-Hernandez’s brief liberally, we first address

the line of questioning before Sergeant Morales gave Martinez-Hernandez the required warnings.

           The Webb County Sheriff Department’s line of questioning before the warnings were

conveyed to Martinez-Hernandez was limited to routine questions and no questions elicited

incriminating information. See Jones, 795 S.W.2d at 174. Specifically, the inquiries included

questions such as confirming Martinez-Hernandez’s identification and residence, the officer’s

request for a fingerprint exemplar, an explanation of how a DNA sample is taken, whether

Martinez-Hernandez had any tattoos, and whether he wanted a glass of water or to use the

restroom.



5
    We do not decide whether Martinez-Hernandez was in custody while at the USCBP port of entry.

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        Because the questions were either routine questions incident to booking or they sought

physical evidence, and not testimonial confessions of guilt, the questions did not elicit

incriminating testimonial responses. See Jones, 795 S.W.2d at 174; Ortiz, 346 S.W.3d at 134–35.

Therefore, the line of questioning by Sergeant Morales before the warnings does not constitute

interrogation for Miranda and article 38.22 purposes.

        We turn now to whether the warnings were adequate.

        3.       Were the Miranda and Article 38.22 Warnings Adequate?

        Martinez-Hernandez contends that any statement given after Sergeant Morales’s warnings

should be suppressed because the warnings were deficient. Consequently, Martinez-Hernandez

contends his waiver of rights was ineffective. We disagree.

        Sergeant Morales gave Martinez-Hernandez the following verbal warnings:

        . . . [Y]ou’ve got the right to remain silent and not make any statements and any
        statement you make can be used against you . . . any statement you make can be
        used as evidence against you before a court of law . . . you’ve got the right to have
        an attorney . . . present to advise you before or during the questioning in your trial
        . . . if you don’t have the means to hire an attorney you’ve got the right that one be
        appointed for you to advise you before or during the questioning and you have the
        right to end this interview at any time . . . you understand your rights?

Following these verbal warnings, Sergeant Morales began asking Martinez-Hernandez questions

pertaining to the assault and rape. The parties do not dispute that this line of questioning

constituted interrogation.

        After Martinez-Hernandez confessed to the assault and rape, Sergeant Morales provided

Martinez-Hernandez with a form she identified as a “Spanish Voluntary Written Statement.” This

form contained the same warnings in Spanish as those orally given by Sergeant Morales: 6



6
 The translation of these warnings are part of Sergeant Morales’s trial testimony, which was admitted into evidence
without objection. Because the record does not contain a certified written translation of the “Spanish Voluntary
Written Statement,” we rely only on the trial translation.

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       1.      I have the right to remain silent and not make any statement and whichever
               statement I may make, can be used against me.
       2.      Any statement that I may make may be used against me in a courtroom as
               evidence.
       3.      I have the right to have an attorney present during and at the time of the
               interrogation in a trial.
       4.      I don’t have—if I don’t have the right or the means—if I don’t have the
               means to hire an attorney, I have the right to be assigned to one to advise
               me during the interrogations.
       5.      I have the right to finish with this interview at any time.

       Martinez-Hernandez argues the oral and written warnings were deficient because they

failed to advise him of his right to counsel before and during Sergeant Morales’s questioning and

were limited to the right to have counsel present at trial. In support, Martinez-Hernandez relies on

Coffey v. State, 435 S.W.3d 834 (Tex. App.—Texarkana 2014, pet. ref’d). In Coffey, the court

concluded the warnings given to the defendant did not comply with Miranda and article 38.22

because the right to counsel warning failed to inform Coffey of the “‘right to have a lawyer present

to advise him prior to and during any questioning.’” Id. (quoting article 38.22 and concluding

that a warning omitting the right to the assistance of counsel prior to and during any questioning

was ineffective). But the constitutional requirement pertaining to Miranda warnings relates to the

substance of the warnings rather than the specific wording. Id. at 841 (explaining that as long as

the substance of the warnings are adequately communicated, “‘the failure to give the warnings

precisely as set forth in Miranda does not invalidate a subsequent confession’” (quoting Hutchison

v. State, 424 S.W.3d 164, 175 n.7 (Tex. App.—Texarkana 2014, no pet.))).

       Here, unlike Coffey, the warnings read by Sergeant Morales advised Martinez-Hernandez

of his right to have an attorney present to advise him before or during questioning in his trial and

have an attorney appointed to advise him before or during the questioning. Cf. id. at 842. Further,

based on the repeated warnings given by Sergeant Morales, we conclude the combination


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effectively communicated to Martinez-Hernandez his right to have an attorney present before and

during the questioning and his right to stop the interview at any time. See id. Thus, Martinez-

Hernandez was afforded his Miranda and article 38.22 rights. See id.

       We next consider the issue of waiver.

       4.      Did Martinez-Hernandez Waive His Rights?

       Martinez-Hernandez asserts three grounds to show the State failed to meet its burden to

show his statements were given voluntarily: he was in a “coercive environment” and he felt

obligated to respond to Sergeant Morales’s questions, the warnings were defective and he could

not have voluntarily waived rights he did not know he had, and the totality of circumstances show

his statements were not made voluntarily. We address each ground in turn.

               a.      Coercive Environment

       Martinez-Hernandez contends that his twenty-hour trip to the U.S. border, his detention

and physical restraints by USCBP, and his physical restraints and custodial supervision in the

Webb County Sheriff’s facilities show he was in a coercive environment.

       We agree that Martinez-Hernandez was in custody throughout his stay at the Webb County

Sheriff’s station. But Martinez-Hernandez does not show how his voluntary decision to travel to

the United States to answer law enforcement’s questions about an incident changes the nature of

his custody into a coercive environment. Contra Alvarado v. State, 912 S.W.2d 199, 211 (Tex.

Crim. App. 1995) (noting that it is “‘[coercive] police conduct causally related to the confession’”

that makes a statement involuntary (alteration in original) (emphasis added) (quoting Colorado v.

Connelly, 479 U.S. 157, 164 (1986))); accord Lane v. State, 933 S.W.2d 504, 511–12 (Tex. Crim.

App. 1996) (same).

       In reviewing an allegation of coercive police conduct to determine whether a defendant’s

will was overborne such that his statement was involuntary, we consider factors such as “length
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of detention, incommunicado or prolonged interrogation, denying a family access to a defendant,

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

v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other grounds by Mosely v.

State, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1998).

       Here, the video recording shows Martinez-Hernandez was brought into the interview room,

and before he received his Miranda or Article 38.22 warnings, he gave his consent to disclose his

tattoos and to provide fingerprint and DNA samples. During this time when the officers were

seeking physical evidence, Martinez-Hernandez was not asked any questions seeking to elicit an

incriminating response. See Ortiz, 346 S.W.3d at 134–35 (citing Jones, 795 S.W.2d at 174 n.3).

       Martinez-Hernandez was able to understand and comply with the instructions for each

procedure, and these matters were concluded in just under forty minutes. At that time, Sergeant

Morales and Martinez-Hernandez were alone in the interview room and both appeared to be seated

comfortably. Morales read Martinez-Hernandez his Miranda and article 38.22 rights, another

officer briefly entered the room to bring Martinez-Hernandez a cup of water, and Martinez-

Hernandez agreed to answer Morales’s questions. Morales questioned Martinez-Hernandez with

a matter-of-fact tone and did not threaten or use any physical force. Within approximately ten

minutes after Sergeant Morales began questioning him, Martinez-Hernandez began admitting he

sexually assaulted the victim. Martinez-Hernandez never asked to terminate the interrogation and

did not ask for an attorney before answering any questions. The record does not show Martinez-

Hernandez was denied access to communicate with a family member or an attorney. Cf. Lane,

933 S.W.2d at 512 (coercive factors); Armstrong, 718 S.W.2d at 693 (same).

       Before he provided the written statement, Morales explained the form to Martinez-

Hernandez and then left him alone in the room. Martinez-Hernandez read the form, initialed it in

the appropriate places, and wrote his statement without assistance or direction.
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       The length of the interview, the tone of Morales’s questions, the time before Morales began

confessing, the officers’ care for Martinez-Hernandez’s physical needs, and his ability to

understand and respond to verbal and written questions and instructions are all evidence showing

an absence of coercive police conduct. See Lane, 933 S.W.2d at 512; Armstrong, 718 S.W.2d at

693.

               b.      Allegedly Inadequate Warnings

       Martinez-Hernandez also argues his statements could not have been given voluntarily

because his warnings were inadequate or defective. We have already concluded that the warnings

were adequate to protect Martinez-Hernandez’s Miranda and Article 38.22 rights, and we need

not repeat our analysis here.

               c.      Totality of the Circumstances

       In his final ground, Martinez-Hernandez argues the totality of the circumstances show his

statements were not made voluntarily. He argues that his long drive, his physical restraints, and

the alleged failure to advise him he could have an attorney present with him prior to and during

his custodial interrogation are circumstances that show his statements were not made voluntarily.

Martinez-Hernandez was not asked questions seeking to elicit an incriminating response before he

was warned. See Jones, 795 S.W.2d at 175. He was not subject to coercive police conduct causally

related to his statements. See Lane, 933 S.W.2d at 512; Alvarado, 912 S.W.2d at 211. And the

warnings afforded him his Miranda and Article 38.22 rights. See TEX. CODE CRIM. PROC. ANN.

art. 38.22; Miranda, 384 U.S. at 475.

D.     Denial of Motion to Suppress Statements

       Before Sergeant Morales verbally advised Martinez-Hernandez of his Miranda and Article

38.22 rights, he was in custody but was not interrogated. After he was warned, Martinez-

Hernandez was subjected to custodial interrogation by Sergeant Morales. The warnings Martinez-
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Hernandez received preserved his Miranda and Article 38.22 rights. Nevertheless, Martinez-

Hernandez voluntarily, knowingly, and intelligently waived those rights. See Coffey, 435 S.W.3d

at 842. Therefore, the trial court did not err in denying Martinez-Hernandez’s motion to suppress

any pre- or post-warning statements given to the Webb County Sheriff’s Office. 7

         Next, we address the motion to suppress any DNA evidence.

                                  MOTION TO SUPPRESS DNA EVIDENCE

         We next address whether the DNA sample taken by the Webb County Sheriff’s Department

violated Martinez-Hernandez’s Fourth Amendment rights.

A.       Parties’ Arguments

         Martinez-Hernandez argues the trial court erred in not suppressing the DNA evidence

because the DNA samples were not voluntarily given. He argues they were taken while he was

unlawfully seized, in custody, and his submission to authority was not his voluntary consent. He

contends that as a consequence, his Fourth and Fourteenth Amendments were violated.

         The State argues that the taking of buccal swab DNA samples did not violate the Fourth

Amendment, and even if it did, Martinez-Hernandez cannot show constitutional harm because of

his subsequent confession to USCBP.

B.       Applicable Law

         If the State seeks to take a DNA sample from a person, it does not violate the person’s

Fourth Amendment right to be free from an unreasonable search if it first obtains the person’s

voluntary consent. See Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012); Carmouche

v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). “In order to be valid, the consent must ‘not


7
 In two sentences in his brief, Martinez-Hernandez acknowledges he “does not address the constitutionality of the
oral and written statements provided to customs agents,” but asks this court to exclude his statements to USCBP based
on the “fruit of the poisonous tree” doctrine. Because we determine the statements to the Webb County Sheriff’s
Department were admissible, this issue is moot.

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be coerced, by explicit or implicit means, by implied threat or covert force.’” Carmouche, 10

S.W.3d at 331(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). If the defendant

challenges the voluntariness of the consent, the State has the burden to prove “by clear and

convincing evidence that the consent was freely given.” Id.; accord Fienen v. State, 390 S.W.3d

328, 333 (Tex. Crim. App. 2012). The defendant’s “acquiescence to a claim of lawful authority”

is not voluntary consent, Paulus v. State, 633 S.W.2d 827, 850 (Tex. Crim. App. [Panel Op.] 1981),

but “[t]he ultimate question is whether the suspect’s will was overborne” by the officer’s actions.

Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

C.     Standard of Review

       In reviewing the trial court’s denial of Martinez-Hernandez’s motion to suppress the DNA

evidence, we apply the bifurcated Guzman standard as described above. See Alford, 358 S.W.3d

at 652–53 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We give “almost

total deference to a trial court’s determination of the historical facts that the record supports

especially when the trial court’s fact findings are based on an evaluation of credibility and

demeanor,” but we review de novo questions of law and mixed questions of law and fact not

turning on credibility and demeanor. Guzman, 955 S.W.2d at 89. We examine the voluntariness

of consent based on the “totality of the circumstances from the point of view of an objectively

reasonable person, including words, actions, or circumstantial evidence.” Tucker, 369 S.W.3d at

185; see Creager, 952 S.W.2d at 856. “We will sustain the trial judge’s ruling if that ruling is

reasonably supported by the record and is correct on any theory of law applicable to the case.”

State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011) (internal quotation marks omitted);

accord Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).




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D.     Analysis

       The trial court found that Martinez-Hernandez consented to providing the DNA sample,

and we give great deference to its findings such as this that turn on credibility and demeanor if

they are supported by the evidence. See Weaver, 349 S.W.3d at 525; Guzman, 955 S.W.2d at 89.

The video recording shows that, before he was warned but while he was shackled and in custody,

Martinez-Hernandez was asked to give a DNA sample. He was asked in Spanish by Sergeant

Morales and the other deputy, and both used non-threatening and low key voices. Neither officer

told Martinez-Hernandez that he was obligated to comply or that he could not refuse the request

for a sample. The recording does not show that Martinez-Hernandez was threatened, that he was

subjected to coercion or duress by Sergeant Morales or the other deputy, or that he indicated he

was unwilling to give the sample. The translated statement further shows that Martinez-Hernandez

understood what a DNA test involved, specifically that the officer was collecting a scrape of saliva,

and not a sample of blood.

E.     Denial of Motion to Suppress DNA

       Having reviewed the totality of the circumstances, we conclude the trial court’s

determination that Martinez-Hernandez voluntarily consented to the DNA test is supported by the

record. We, therefore, conclude the trial court did not err in its determination that Martinez-

Hernandez freely and voluntarily consented to provide a DNA sample.

                                           CONCLUSION

       On his arrival at the Webb County Sheriff’s office, Martinez-Hernandez was in custody.

The oral and written warnings given to Martinez-Hernandez were adequate and timely because the

officers did not seek to elicit incriminating responses before Martinez-Hernandez was warned.

Therefore, the trial court did not err when it denied Martinez-Hernandez’s motion to suppress his

oral, written, and recorded statements at the Webb County Sheriff’s office.

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       We also conclude the record supports the trial court’s determination that Martinez-

Hernandez voluntarily consented to the buccal swipe for DNA testing. Therefore, we will not

disturb the trial court’s ruling denying the motion to suppress the DNA evidence.

       The trial court’s judgment is affirmed.

                                                    Patricia O. Alvarez, Justice

PUBLISH




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