Opinion issued June 5, 2014.




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-12-00666-CR
                           ———————————
                    JUAN ANTONIO ZAPATA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1257504


                         MEMORANDUM OPINION

      A jury convicted Juan Antonio Zapata of capital murder and assessed

punishment at confinement for life. 1 In his sole issue on appeal, Zapata contends

that the trial court erred in overruling his motion to suppress statements he made

1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013) (defining capital
      murder and setting life confinement as possible sentence).
after he invoked his right to an attorney. We conclude that Zapata was not in

custody during his interview and, therefore, did not have a right to counsel.

Accordingly, we affirm.

                                   Background

      Jose Ojeda died of a gunshot wound to the back of the head, and his body

was found lying in a vacant lot. Several times on the night he died, Ojeda called

Zapata. Based on cell phone records listing calls between Ojeda and Zapata’s

phone numbers, Harris County Sheriff Deputy Detective A. Alanis called Zapata

and asked to talk to him about whether he knew what Ojeda was doing on the night

he died. Zapata agreed to talk to Detective Alanis. Detective Alanis picked up

Zapata at his home and Zapata rode with him in a police car to the police station.

When he picked up Zapata, Detective Alanis did not have a warrant for his arrest

and did not suspect Zapata was responsible for Ojeda’s murder. Zapata rode in the

front seat and was not handcuffed. Once they arrived at the police station,

Detective Alanis told Zapata that he was free to leave.

      At the police station, Zapata took a polygraph examination, during which he

reported that he saw Ojeda on the night that he was murdered. After offering

Zapata food, water, and an opportunity to use the restroom, Detective Alanis

informed Zapata of his Miranda rights. Detective Alanis then invited Zapata to

“give us all the information . . . an opportunity to say what happened [on the night



                                         2
Ojeda died],” and Zapata began to talk. Zapata confessed that “this man pushed me

and I took the gun from the other one . . . . And, well . . . that’s it. I popped

[motions right hand] and I got him [Ojeda].”

       After Zapata admitted to shooting Ojeda, Detective Alanis did not

immediately arrest Zapata. Detective Alanis knew that Zapata’s first statement was

contrived because his story did not match the evidence collected regarding Ojeda’s

death. Detective Alanis suggested that Zapata’s story was false and asked him to

tell the truth:

        ZAPATA:                       All I took was the gun and that,
                                      because . . . that’s the one I used. And
                                      I’m telling you . . . and I know who
                                      the other guy is. I got tired of looking
                                      for him, but I know his name and all.

       ALANIS:                        Okay. Okay. Here’s the problem: the
                                      same about pushing him—.

       ZAPATA:                        Uh-huh.

       ALANIS:                        - and shooting at him, is another lie.

       ZAPATA:                        Uh-huh.

       ALANIS:                        It’s not true.

       ZAPATA:                        Because—

       ALANIS:                        And I can prove it. Because in order
                                      to—

       ZAPATA:                        He was like this [motions right hand]
                                      and I just popped.


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Alanis then asked Zapata a series of questions, offering Zapata an opportunity to

change his statement. Here, Zapata first referenced a lawyer.

      ALANIS:                            Touching. It wasn’t, “I pushed you
                                         and shot you.”

      ZAPATA:                            Uh-huh.

      ALANIS:                            It was . . . . Bang! [touches Zapata’s right
                                         knee]

      ZAPATA:                            No. I didn’t hit him so close. Don’t
                                         give me that. That is it! Because
                                         then—okay. Then am I getting a
                                         lawyer or not or what’s the deal, or
                                         am I gonna keep on talking, just with
                                         you all . . . [motions both hands]?

      ALANIS:                            Well . . . it’s your chance to tell the
                                         truth.

While Zapata mentioned the word “lawyer,” he appeared to be thinking aloud. He

never stopped talking to Alanis and never requested to end the interrogation.

Because Zapata did not stop talking, Alanis continued the interrogation.

      Zapata made a second reference to a lawyer; however, he again continued to

talk and respond to Alanis’s questions. 2 Not once did Zapata ask to end the

interview or to have an attorney present at the interrogation. Instead, Zapata
2
      Even assuming Zapata had clearly invoked his right to counsel, he did not have a
      right to counsel because he was not in a custodial situation. Davis v. United States,
      512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994) (noting that Miranda v. Arizona,
      384 U.S. 436, 469–473, 86 S. Ct. 1602, 1625–27 (1966) provides right to counsel
      only in custodial situations and defendant’s invocation of that right must be
      unambiguous or unequivocal); see also Pecina v. State, 361 S.W.3d 68, 78–79
      (Tex. Crim. App. 2012) (same).

                                            4
continued talking and eventually gave a new version of Ojeda’s death, blaming

another man for the murder: Zapata said that he and J. Nava planned to rob Ojeda,

but Nava “went too far” and killed Ojeda.

      ALANIS:                        This is your—your opportunity.
                                     Remember, you’re talking about your
                                     life.

      ZAPATA:                        But if—if . . . Right, but I know—I
                                     know that I’m—my life is in my
                                     hands, to save myself, but . . . I need
                                     somebody to—to advise me, and
                                     that’s it. I’m not just gonna run my
                                     mouth and I don’t have money to pro-
                                     provide myself with a lawyer. It’s
                                     better that, if you all have one,
                                     because . . . and if I’m the one who
                                     messes-up, I’m the one in trouble,
                                     right? Because I even know who has
                                     the gun and . . . and I know who has
                                     the magazines.

      ALANIS:                        Well, there it is, that’s your salvation.
                                     If you didn’t kill him, and you
                                     cooperate, finding who killed him,
                                     and the gun, is your salvation. But if
                                     you start saying “I don’t want to say
                                     anything” [unintelligible overlapping
                                     voices].

      ZAPATA:                        No, but the—the probl- the- no, the
                                     problem is that, if I save myself, then
                                     I will get f[—]d outside. That’s the
                                     problem, that . . . not because of that.
                                     That’s why I’m telling you, I lose on
                                     both side[s], here and out there.
                                     That’s why.



                                        5
Detective Alanis did not arrest Zapata after the first or second statement. Instead,

Detective Alanis continued the interview, arresting Zapata only after the district

attorney accepted the proposed charges against him.

      Before trial, Zapata moved to suppress his second statement, arguing that he

had unambiguously invoked his right to counsel and Detective Alanis had

unconstitutionally continued to question him. At the hearing on the motion, Alanis

testified that Zapata appeared to understand the questions and willingly continued

to talk after telling his first version of Ojeda’s murder. Alanis also stated that

Zapata was not under arrest after giving the first version of Zapata’s death, but that

Alanis would not have let Zapata walk out, even if Zapata had requested to do so.

Alanis, however, never told Zapata that he planned to arrest him or that he was not

free to leave.

      The trial court denied the motion and admitted the entire transcript of

Zapata’s statement into evidence. A jury convicted Zapata of murder and assessed

punishment at confinement for life.

      Zapata timely appealed.

                                Motion to Suppress

      Zapata challenges the trial court’s denial of his motion to suppress his

second statement following his mention of the word “lawyer.” He contends that he

was in police custody when he made the statement admitting to the murder, that he



                                          6
unambiguously invoked his right to counsel, and that Alanis continued the

interview even though he had invoked his right to counsel. The State responds that

Zapata was not in custody when he confessed, he did not invoke his right to

counsel, and the trial court properly denied the motion to suppress.

A.    Standard of review

      We review a trial court’s ruling on a motion to suppress for an abuse of

discretion. Ervin v. State, 333 S.W.3d 187, 202 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). We review a trial court’s denial of a motion to suppress under a

bifurcated standard: we grant almost total deference to a trial court’s

determinations of historical facts and mixed questions of law and fact that rely on

credibility and demeanor. Id. We review de novo all other mixed questions of law

and fact that do not fall within that category. State v. Kerwick, 393 S.W.3d 270,

273 (Tex. Crim. App. 2013); see Ervin, 333 S.W.3d at 202 (applying standard set

forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

      We give near total deference to a trial court’s custody determination because

it presents a mixed question of law and fact that depends upon credibility and

demeanor. Herrera v. State, 241 S.W.3d 520, 525–27 (Tex. Crim. App. 2007); see

also Ervin, 333 S.W.3d at 203. We defer to the trial court’s determination that

Detective Alanis was a credible witness. Ervin, 333 S.W.3d at 203. When

reviewing a trial court’s denial of a motion to suppress and the trial court enters no



                                          7
fact findings, we view the evidence in the light most favorable to the trial court’s

ruling. Herrera, 241 S.W.3d at 527. We imply all necessary findings of fact that

are supported by the record. Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000)).

B.    The trial court did not abuse its discretion in denying Zapata’s motion
      to suppress

      The United States Supreme Court’s decision in Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966), provides that a suspect has the right to remain

silent, to have an attorney present during custodial interrogation, and to be

informed of these rights before any custodial interrogation. See id. at 478–79, 86 S.

Ct. at 1630; see Ervin, 333 S.W.3d at 225–26. Article 38.22 of the Texas Code of

Criminal Procedure statutorily incorporates those rights. TEX. CODE CRIM. PROC.

ANN. art. 38.22 (West 2012).

      Once a suspect is informed of his rights, he may waive his rights by

speaking “freely and voluntarily without any compelling influences.” Miranda,

384 U.S. at 478, 86 S. Ct. at 1630. If a suspect in custody exercises his right to

counsel, and the police nevertheless proceed with the interrogation, any statement

made by the suspect is inadmissible. Id. at 479, 86 S. Ct. at 1630. If the suspect is

not in custody and demands counsel, law enforcement officials have no obligation

to honor a request to end the questioning. Estrada v. State, 313 S.W.3d 274, 296

(Tex. Crim. App. 2010) (holding that police officers were not required to end


                                         8
questioning when suspect was given premature Miranda warnings and had invoked

right to counsel in noncustodial interrogation).

      Before trial began, Zapata argued that his statement should be suppressed

because he was in custody and was denied access to counsel. Detective Alanis

testified that Zapata voluntarily appeared for an interview, was not in custody, and

was told that he was free to leave. Both Zapata and the State questioned Alanis

regarding Zapata’s statement. The trial court determined that Zapata’s statements

were admissible. At trial, Zapata again objected to the admissibility of his

statement. While we typically limit our review of a pre-trial motion to suppress to

the evidence presented at that hearing, when the issue is re-litigated at trial, we

review all of the presented evidence. Ervin, 333 S.W.3d at 203; see also Gutierrez

v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Accordingly, we consider

the entire record in reviewing the trial court’s ruling. Gutierrez, 221 S.W.3d at 687.

      We first consider whether Zapata was in custody when he confessed. 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.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)

(citation omitted); see also Herrera, 241 S.W.3d at 525–26. “The construction of

‘custody’ is the same for both Miranda and article 38.22 purposes.” Richard v.

State, No. 01–11–00945–CR, 2013 WL 4676129, at *6 (Tex. App.—Houston [1st



                                          9
Dist.] Aug. 27, 2013, no. pet.) (mem. op., not designated for publication) (citing

Herrera, 241 S.W.3d at 526.). “The defendant bears the initial burden of proving

that a statement was the product of a custodial interrogation.” Id. (citing Gardner

v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009)).

      We determine custody on a case-by-case basis, only after considering all of

the objective circumstances. Dowthitt, 931 S.W.2d at 255; Herrera, 241 S.W.3d at

525. Even though an interrogation may begin as noncustodial, it may later become

custodial. Dowthitt, 931 S.W.2d at 255. Police conduct during the questioning may

escalate the circumstances into a custodial interrogation. Id. When determining

whether a custodial situation arose, we consider whether the suspect voluntarily

arrived for the interrogation, the length of the interrogation, whether the suspect’s

requests to see relatives and friends were refused, and the degree of control

exercised over the suspect. Ervin, 333 S.W.3d at 205. We next address each of

these factors.

      1.         Voluntariness of arrival at police station

      First, we consider the circumstances of Zapata’s arrival at the police station.

Zapata argues that he was in custody after giving his first version of Ojeda’s

murder because Detective Alanis testified that, after Zapata said that he shot Ojeda,

“he would not have allowed him to leave.” For this factor, however, our review




                                           10
examines “whether the suspect arrived at the place of interrogation voluntarily.”

Ervin, 333 S.W.3d at 205. He did.

      According to Detective Alanis, Zapata was the last person who saw Ojeda

before his body was found. When Detective Alanis requested to ask Zapata

questions about Ojeda, Zapata willingly rode with Alanis to the police station for

an interview. Detective Alanis testified that he did not have a warrant for Zapata’s

arrest at that time and he did not make any attempt to arrest him. Detective Alanis

told Zapata that he was free to leave. And Zapata was not placed under any

physical restraints during the interview. The trial court could have reasonably

concluded that Zapata voluntarily participated in the interrogation. See Ervin, 333

S.W.3d at 205–6 (holding defendant not in custody when she consented to ride

with officers to station, consented to search, and officers told her that she was not

under arrest and could leave at any time); see also Oregon v. Mathiason, 429 U.S.

492, 495, 97 S. Ct. 711, 714 (1977) (holding defendant not in custody when he

voluntarily went to police station, officers told him he was not under arrest, and he

was free to leave). This factor favors the conclusion that Zapata was not in

custody.

      Zapata asks us to focus our review on whether his subsequent participation

in the interrogation became involuntary. We review that question under the next

three Ervin prongs.



                                         11
      2.    Length of interrogation

      The next factor considers the length of the interrogation. Zapata does not

argue that the length of the interrogation supports a conclusion that he was in

custody. See, e.g., Meek v. State, 790 S.W.2d 618, 622 (Tex. Crim. App. 1990)

(holding no custody when suspect voluntarily attended interview, was free to leave,

had unsupervised access to his car, and was allowed to leave “a few hours” later);

Ervin, 333 S.W.3d at 208–09 (holding four hours at police station does not give

rise to reasonable belief of custody), cf. Dowthitt, 931 S.W.2d at 256–57 (holding

six hours of interrogation prior to statement is important factor in determining

whether custody occurred before formal arrest). The interview transcript is short:

the time stamp on the transcript indicates the interview lasted less than one hour

and fifteen minutes. Accordingly, the length of the interrogation does not support a

conclusion that Zapata would have had a reasonable belief that he was in custody.

      3.    Access to friends or family

      We next consider whether law enforcement restricted Zapata’s access to

friends, family, or a lawyer. See Ervin, 333 S.W.3d at 205. A suspect’s ability to

access friends and family supports a conclusion that the suspect is not in custody.

See Ervin, 333 S.W.3d at 208–09. Zapata did not request to speak with or visit his

friends or family. Nor did Alanis deny him access to his friends or family. Zapata

also did not request to speak with a lawyer or to have a lawyer present during the



                                        12
interrogation. Although Zapata twice mentioned the word “lawyer,” he did not

request and police did not deny him access to counsel. The fact that Zapata was not

denied access to friends or family or a lawyer supports a conclusion that he was not

in custody during the interrogation.

      4.      Degree of control exercised

      Lastly, we consider the degree of control that law enforcement officers had

over Zapata. Whether a law enforcement officer exercises control over a person

such that it amounts to custody depends on whether “a reasonable person would

have believed he could not leave freely.” Herrera, 241 S.W.3d at 528. In Dowthitt,

the Court of Criminal Appeals held that the law enforcement officers exercised a

custodial level of control over the defendant when they accompanied him to the

bathroom and ignored his complaints about headaches and his requests to see his

wife. 931 S.W.2d at 256–57. Zapata does not raise similar claims, nor did he make

similar requests. By contrast, Alanis, at least twice, offered Zapata food and water

and the opportunity to access a restroom. During the entire time Zapata was

interrogated, Alanis did not restrain or handcuff Zapata or limit Zapata’s ability to

leave the police station.

      Zapata does not contend the police control exercised over him; accordingly,

this factor also favors the conclusion that he was not in custody during the

interrogation.



                                         13
      Having considered the four Ervin factors, we conclude that the facts do not,

on balance, suggest that a reasonable person in Zapata’s circumstances would have

believed that he was under restraint to the degree associated with arrest, and,

therefore, Zapata was not in custody.

C.    Probable cause to arrest

      Zapata contends that while he voluntarily appeared for the interview, it

became a custodial situation after he admitted to the first version of Ojeda’s

murder. He argues that after he told the first version of the murder, Detective

Alanis had probable cause to arrest him and that Detective Alanis would not

thereafter have allowed him to leave freely. See Dowthitt, 931 S.W.2d at 257

(holding that once defendant admitted to being present during murders that he was

in custody).

      A police officer’s informing the suspect of probable cause does not

“automatically establish custody; rather, custody is established if the manifestation

of probable cause, combined with other circumstances, would lead a reasonable

person to believe that he is under restraint to the degree associated with an arrest.”

Id. at 255. The “‘reasonable person’ standard presupposes an innocent person.” Id.

at 254. The inquiry examines the words or actions of law enforcement officials

and focuses entirely on objective circumstances. Id.




                                         14
      Zapata likens his circumstances to those addressed in Ruth v. State, in which

the Court of Criminal Appeals held that when a suspect admitted to shooting the

victim, explained his motive, and reenacted the offense, the interrogation became

custodial because a law enforcement officer had probable cause to arrest him. Ruth

v. State, 645 S.W.2d 432, 435 (Tex. Crim. App. 1979). The Court considered the

law enforcement officer’s subjective intent, the suspect’s subjective belief, the

investigation’s focus, and whether there was probable cause for arrest. Id. at 436.

The law enforcement officer did not give Miranda warnings and “inten[ded] to

restrain the appellant until he made a statement.” Id. This intention gave rise to the

suspect’s “subjective belief that he was required to answer [the questions]” and

there was probable cause to arrest the suspect. Id. Based on the totality of these

circumstances, the Court held that the suspect was in custody following the

statement. Id.

      The facts in this case significantly differ from those in Ruth. Unlike the

suspect in Ruth, Zapata was told he could leave and that he was not in custody. In

Ruth, the suspect believed he was required to stay and answer the officers’

questions. No comparable evidence exists in this case.

      Moreover, the law has changed since Ruth. After Ruth, the Court of Criminal

Appeals interpreted Stansbury as requiring a modification of the test for

determining custody. Dowthitt, 931 S.W.2d at 255 (citing Stansbury v. California,



                                         15
511 U.S. 318, 114 S. Ct. 1526 (1994)). The Court of Criminal Appeals deleted two

of the four inquiries used at the time of Ruth—the subjective beliefs of the officer

and suspect—and modified the probable cause inquiry to focus on whether there

was a manifestation by the officers that they had probable cause. Id.

      Thus, the inquiry we must conduct under the probable cause basis for

establishing custody is two-fold: (1) whether Detective Alanis had probable cause

to arrest Zapata after he first confessed to shooting Ojeda and (2) whether a

reasonable person who was innocent would have had a reasonable belief under the

circumstances that he was in custody. See Dowthitt, 931 S.W.2d at 255; Ervin, 333

S.W.3d at 205; see also State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.—El

Paso 1999, pet. ref’d) (holding probable cause alone was insufficient to establish

custody, officers must tell suspect that they have probable cause).

      We assume that when Zapata first confessed to shooting Ojeda, Detective

Alanis had probable cause to arrest him. See Dowthitt, 931 S.W.2d at 256 (noting

police had probable cause to arrest suspect once he admitted that he was present

during the murder); see also Ruth, 645 S.W.2d at 436. We turn, therefore, to the

second inquiry of whether Detective Alanis “communicated or otherwise

manifested” to Zapata that he had probable cause to arrest him. Dowthitt, 931

S.W.2d at 254.




                                         16
      Zapata argues that he was in custody because Detective Alanis testified at

the hearing on the motion to suppress that “he would not have allowed him to

leave” after the first time Zapata admitted to the shooting. However, “the

subjective intent of law enforcement officials to arrest is irrelevant unless that

intent is somehow communicated or otherwise manifested to the suspect.”

Dowthitt, 931 S.W.2d at 254; see also Stansbury, 511 U.S. at 324, 114 S. Ct. at

1530 (noting “one cannot expect the person under interrogation to probe the

officer’s innermost thoughts . . . . [A]n officer’s evolving but unarticulated

suspicions do not affect the objective circumstances of an interrogation or

interview”). There was no evidence that Detective Alanis communicated to Zapata

that he had probable cause to arrest him or that Zapata could not leave.

Accordingly, we conclude that Zapata’s interview did not become custodial when

Zapata first took responsibility for shooting Ojeda. While probable cause may have

existed after Zapata’s first statement, Detective Alanis never communicated that

fact to Zapata. We, therefore, hold that the record supports the trial court’s

determination that Zapata was not in custody when he gave his second statement

accounting for Ojeda’s death.

      Because Zapata was not in custody, he did not have a right to an attorney

and Detective Alanis was not obligated to stop the interview. Therefore, we




                                       17
conclude that the trial court did not abuse its discretion in denying Zapata’s motion

to suppress.

      We overrule Zapata’s sole issue.

                                    Conclusion

      We affirm.




                                                Harvey Brown
                                                Justice


Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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