                             NUMBER 13-08-00602-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                            Appellant,

                                             v.

CASIMIRO VASQUEZ,                                                               Appellee.


                    On appeal from the 138th District Court
                         of Cameron County, Texas.


                                     OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
                    Opinion by Chief Justice Valdez

       The State appeals a trial court’s order granting a motion to suppress that was filed

by appellee, Casimiro Vasquez. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(5) (Vernon

Supp. 2009) (providing that the State is entitled to appeal an order of a court in a criminal

case if the order grants a motion to suppress evidence). In two issues, the State contends

that the trial court erred by (1) finding that Vasquez invoked his right to counsel during a

custodial interrogation, and (2) implicitly finding that Vasquez was subjected to a custodial
interrogation rather than a non-custodial interview. We affirm.

                                       I. BACKGROUND

       On June 23, 2001, the body of Gerrado Garcia was found in Cameron County,

Texas. Foul play was suspected. Shortly after the murder, Guillermo Garcia and Vasquez

provided written statements to Cameron County Sheriff’s deputies. After Vasquez had

provided a written statement, he retained the law firm of Garcia & Sorola, P.L.L.C. to

represent him throughout the murder investigation. Gabby Garcia, a partner at the firm and

Vasquez’s primary attorney, gave oral and written notice to Manuel Trevino, an investigator

at the district attorney’s office, to arrange any further communications with Vasquez

through her because her law firm represented Vasquez. Thereafter, the case went cold

for four years.

       On June 20, 2005, sheriff’s deputies, who allegedly did not know that Vasquez was

represented by counsel, contacted Vasquez and secured a second written statement from

him despite the absence of Gabby Garcia, whose presence Vasquez had allegedly

repeatedly requested. Approximately two years later, Guillermo Garcia and Vasquez were

indicted for the murder of Gerardo Garcia. See TEX . PENAL CODE ANN . § 19.02 (Vernon

2003). Vasquez pleaded not guilty to the charge. Shortly after the indictment, Vasquez

moved to suppress his June 20, 2005 written statement on the grounds that it was taken

in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, article I, sections 9 and 10 of the Texas Constitution, and articles 1.05 and

38.23 of the Texas Code of Criminal Procedure. See U.S. CONST . amends. IV, V, VI, XIV;

TEX . CONST . art. I, §§ 9, 10; TEX . CODE CRIM . PROC . ANN . arts. 1.05, 38.23 (Vernon 2005).

The State did not respond in writing to Vasquez’s motion.

       On September 30, 2008, the trial court held a hearing on Vasquez’s motion to
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suppress.   At the hearing, the State called the following Cameron County Sheriff’s

Department deputies: Sergeant Andy Arreola, Captain Javier Reyna, and Lieutenant

Carlos Garcia. Vasquez called Manuel Trevino, Gabby Garcia, and himself.

A.     The State’s Witnesses

       1.     Sergeant Andy Arreola

       Arreola, an investigator, testified that he had only “minimum” involvement during the

initial 2001 investigation into Gerardo Garcia’s murder and that he had not met Vasquez

until 2005. In 2005, Reyna, Arreola’s supervisor, assigned the “cold case” to Arreola, and

Arreola reviewed the whole file, including the 2001 statements of Guillermo Garcia and

Vasquez.    Arreola noticed alleged discrepancies between Guillermo Garcia’s and

Vasquez’s statements and decided to speak to Vasquez.

       On June 20, 2005, Arreola, accompanied by another sheriff’s deputy, went to

Vasquez’s house and asked Vasquez if he would accompany them to the sheriff’s

department to talk about his 2001 statements regarding Gerrado Garcia’s murder.

According to Arreola, Vasquez cooperated and could have declined the invitation. When

the three arrived at the department, Reyna read Vasquez his Miranda rights, see Miranda

v. Arizona, 348 U.S. 436, 444 (1966), and Vasquez signed a waiver of those rights.

Arreola recalled that Reyna conducted most of the interview, and Reyna told Vasquez,

“You’re free to leave if you don’t want to answer, if you don’t want to talk to us.”

       On cross-examination by Vasquez’s counsel, Arreola acknowledged that he did not

call Vasquez when he discovered the alleged discrepancies, but instead, personally visited

him at home. Arreola denied hearing Reyna tell Vasquez that he was or was not

represented by counsel, and stated that he never saw Reyna attempt to call Vasquez’s

counsel on his cell phone. Arreola was present throughout the interview, but stepped out
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after the interview had concluded. Arreola also stated that the file did not indicate whether

Vasquez was represented by counsel.

        2.      Captain Javier Reyna

        That same day, Reyna asked Arreola to bring Vasquez to the department. Vasquez

was placed in Arreola’s office, which, according to Reyna, is not normally used for custodial

interrogations. Reyna testified that Vasquez did not say that he had a lawyer, and Reyna

claimed he did not call Gabby Garcia in reference to Vasquez.

        On cross-examination by Vasquez’s counsel, Reyna was asked why cell phone

records showed that there were two calls placed from a sheriff’s office phone to Gabby

Garcia at 11:04 a.m. and 2:38 p.m. on June 20, 2005. At 3:00 p.m. the same day, a call

from Reyna’s personal cell phone was made to Gabby Garcia’s cell phone.1 Reyna

confirmed that he could have called Gabby Garcia on other law enforcement matters

because, at the time of the interview, she was an assistant district attorney.

        3.      Lieutenant Carlos Garcia

        Carlos Garcia was present for parts of the interview with Vasquez. After Vasquez

signed the statement, Carlos Garcia called Gabby Garcia “because of the circumstances

that we had during this case that we were looking at.” After June 20, 2005, Henry Juarez,

an attorney, called the sheriff’s department and notified Carlos Garcia that he represented

Vasquez.

        On cross-examination by Vasquez’s counsel, Carlos Garcia testified that he did not

see Vasquez in handcuffs. He also stated that confessions are taken in interview rooms

and offices alike.
        1
        The cell phone records do not appear in the record, but they were referenced by Vasquez’s counsel
throughout the hearing, and no objection was m ade by the State.



                                                   4
B.     Vasquez’s Witnesses

       1.     Manuel “Manny” Trevino

       Trevino, an investigator with the district attorney’s office, testified that he assisted

in the 2001 investigation. Trevino was informed by Gabby Garcia that she represented

Vasquez and that any questions regarding Vasquez were to be addressed through her.

Trevino did not make a note in the file because Armando Maldonado was the “case agent.”

Trevino claimed he also informed Arreola of his conversation with Gabby Garcia because

Arreola had worked on the case.

       2.     Gabby Garcia

       Gabby Garcia worked for the Cameron County District Attorney’s office from March

1996 through July 1999. After 1999, she entered private practice until January 2005, when

she returned to the district attorney’s office; she left the district attorney’s office in August

2007. In 2001, the law firm of Garcia & Sorola, P.L.L.C. was retained to represent

Vasquez on a possible murder charge. Gabby Garcia, a partner in the firm and Vasquez’s

primary attorney, contacted Trevino and informed him in person and in writing that the firm

represented Vasquez. After this notice, there was no activity in the case. In 2005, when

Gabby Garcia became employed by the district attorney’s office, she did not notify Vasquez

that she could no longer represent him.

       Before 11:00 a.m. on June 20, 2005, Gabby Garcia received a voice mail on her

office line from someone at the sheriff’s department regarding Vasquez. She spoke to

Carlos Garcia and Reyna. After reviewing her June 2005 cell phone bill, Gabby Garcia

testified that she primarily spoke with Carlos Garcia about Vasquez.

       On cross-examination by the State, Gabby Garcia testified that she received another


                                               5
phone call from a sheriff’s deputy at 11:04 a.m., and it was in reference to whether she

represented Vasquez.

       3.     Casimiro Vasquez

       Vasquez testified that in 2005, two sheriff’s deputies approached him at home and

asked him to accompany them to the sheriff’s department for some questions, but they did

not say what the questions regarded. According to Vasquez, the officers did not inform him

that he could refuse to go. Vasquez testified that while sitting in Arreola’s office, he told

Reyna that Gabby Garcia was his attorney, to which Reyna responded, “[You don’t] have

a lawyer any more.” Vasquez rejoined by insisting that Gabby Garcia was his attorney.

According to Vasquez, after he repeatedly informed Reyna about Gabby Garcia being his

attorney, Reyna tried calling Gabby Garcia. Vasquez also stated that Reyna did not tell

him he was free to leave until after the statement was given. Contrary to Arreola’s

testimony, Vasquez claimed all three officers in the room asked questions.

       On cross-examination by the State, Vasquez testified that the sheriff’s deputies who

showed up at his house in 2005 “said [he] had to” go with them, but they did not handcuff

him. Vasquez acknowledged signing his Miranda warnings and speaking to the authorities,

but he claimed that he did so because they insisted on talking to him. Vasquez further

testified that he gave the statement because the deputies would not let him talk to his

attorney.

C.     Trial Court’s Disposition

       On October 1, 2008, the trial court granted Vasquez’s motion to suppress.

Specifically, the trial court concluded that:

       The Defendant, CASIMIRO VASQUEZ having previously declared his desire


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       to deal with the Cameron County Sheriff’s Office only through counsel was
       not subject to further interrogation until counsel had been made available to
       him, unless the Defendant, CASIMIRO VASQUEZ had initiated the
       communication, which he did not. Here the communication with Defendant,
       CASIMIRO VASQUEZ was at the insistence of the authorities, and his
       statement on June 20, 2005 made without having had access to counsel did
       not amount to a valid waiver and hence is inadmissible.

This appeal followed.

                 II. CUSTODIAL INTERROGATION OR “FRIENDLY INTERVIEW ”

       In its second issue, the State contends that the trial court erred by implicitly finding

that Vasquez was subjected to a custodial interrogation when the 2005 statement was

made. The State maintains that Miranda rights are inapplicable to the instant case

because, even though he was given a Miranda warning at the outset, Vasquez was not in

custody at the time he made his 2005 statement. See Miranda, 384 U.S. at 444.

According to the State, because Vasquez voluntarily participated in a “friendly non-

custodial interview,” sheriff’s deputies were not required to stop questioning him when he

asked to speak to his attorney. Vasquez counters by arguing that the 2005 statement was

elicited during a custodial interrogation because he did not feel free to leave until after he

gave the statement.

A.     Standard of Review

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

discretion, using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.

Crim. App. 1997). We give “almost total deference” to the trial court’s findings of historical

fact that are supported by the record and to mixed questions of law and fact that turn on

an evaluation of credibility and demeanor. Id. at 89. We review de novo the trial court’s

determination of the law and its application of law to facts that do not turn upon an


                                              7
evaluation of credibility and demeanor. Id. When the trial court has not made a finding on

a relevant fact, we imply the finding that supports the trial court’s ruling, so long as it finds

some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.

2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold

the trial court’s ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006).

B.       Hallmarks of a Custodial Interrogation

         “A person is in custody if, under the totality of the circumstances, a reasonable

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

with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt v. State,

931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996); Houston v. State, 185 S.W.3d 917, 920

(Tex. App.–Austin 2006, pet. ref’d).       “The ‘reasonable person’ test presupposes an

innocent person.” Florida v. Bostick, 501 U.S. 429, 438 (1991) (emphasis in original);

Dowthitt, 931 S.W.2d at 254. Moreover, the initial determination of custody depends on

the objective circumstances of the interrogation, not the subjective views of the police or

the person being questioned. Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254;

Houston, 185 S.W.3d at 920.

         When a person voluntarily accompanies officers to an interview, and he knows or

should know that the police officers suspect he may be implicated in the crime under

investigation, he is not “restrained of his freedom of movement” and is not in custody.

Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985). However, an interview that

begins as noncustodial may escalate into a custodial interrogation because of police



                                               8
conduct during the encounter. Dowthitt, 931 S.W.2d at 255.

       In determining whether a custodial interrogation, we examine the totality of the

circumstances in light of the four factors discussed in Dowthitt, which are: (1) if the

suspect is physically deprived of his freedom of action in any significant way; (2) if law

enforcement officers tell a suspect that he cannot leave; (3) if law enforcement officers

create a situation that would lead a reasonable person to believe that his freedom of

movement has been significantly restricted; or (4) if there is probable cause to arrest and

law enforcement officers do not tell the suspect that he is free to leave. Id.

       In this case, Vasquez was given Miranda warnings at some point before he

executed the 2005 statement. Some federal appellate courts have held that the reading

of Miranda warnings does not automatically transform a non-custodial setting into a

custodial interrogation. See United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir.

1998); Sprosty v. Buchler, 79 F.3d 635, 642 (7th Cir. 1996). However, those courts have

also held that the giving of Miranda warnings is a factor in the determination of whether a

reasonable person would believe that he is in custody. See Bautista, 145 F.3d at 1148;

Sprosty, 79 F.3d at 642.

C.     Analysis

       Viewing the evidence in the light most favorable to the trial court’s decision, we find

there is some evidence to support an implicit finding that Vasquez was physically deprived

of his freedom of action in a significant way by not being provided the retained counsel that

he repeatedly requested. At the suppression hearing, Vasquez testified that, while at

home, he was approached by Arreola and a sheriff’s deputy, and either Arreola or the



                                              9
sheriff’s deputy “said [he] had to” go to the sheriff’s department for questioning. Once at

the sheriff’s department, and while sitting in Arreola’s office, Reyna gave Vasquez Miranda

warnings.

       There is conflicting testimony as to what exactly transpired during the allegedly

“friendly interview.” According to Arreola, Reyna told Vasquez, “You’re free to leave if you

don’t want to answer, if you don’t want to talk to us.” Vasquez then made the written

statement after being questioned by only Reyna. However, according to Vasquez, the

“you’re free to leave” statement did not occur until after he was questioned by Reyna,

Arreola, and another deputy, and after he had given his written statement. Additionally,

Vasquez claimed that when he asked for his attorney, Gabby Garcia, Reyna told him, “[You

don’t] have a lawyer any more”, and the interview continued. Faced with constant

questioning by three officers and Reyna’s refusal to allow Vasquez to speak to his attorney,

Vasquez spoke to the officers and provided a written statement.

       A reasonable, innocent person in Vasquez’s position who was: (1) approached at

home by two sheriff’s deputies and told that he “had to go” with them, without reference to

the matter in question, (2) taken to a sheriff’s department office, (3) Mirandized, (4)

questioned by three officers, (5) repeatedly told, against his belief, that he was no longer

represented by a retained counsel, and (6) questioned after his repeated requests for

retained counsel, would have believed that he was in custody. Even accounting for the

generally coercive nature of station-house questioning, see Mathiason, 429 U.S. at 495,

Reyna, Arreola, and the third deputy’s actions went beyond the pale of a non-custodial

encounter because they effectively deprived Vasquez of his “freedom” to contact his

retained counsel. The Seventh Circuit has noted that:



                                            10
        in the context of a prolonged detention where there is persistent, accusatory
        questioning by several officers, the fact that the police observed certain
        formalities of a custodial arrest[—such as Mirandizing a suspect—] without
        actually telling the [the suspect] that he was under arrest does provide some
        support for an inference that [the suspect] was in custody for the purposes
        of Miranda.

Sprosty, 79 F.3d at 642. Based upon the totality of the circumstances, and giving “almost

total deference” to the trial court’s findings of historical fact, see Guzman, 955 S.W.2d at

89, we hold that the trial court did not err by implicitly finding that Vasquez was subjected

to a custodial interrogation. The State’s second issue is overruled.2

                                 III. ASSERTION OF RIGHT TO COUNSEL

        In its first issue, the State contends that the trial court erred by finding that, because

Vasquez was not allowed to consult with his counsel before being questioned, Vasquez’s

statement should be suppressed. The State cites Edwards v. Arizona, 451 U.S. 477, 486

(1981) as the governing authority for its first issue. In Edwards, a suspect was given

Miranda warnings and questioned by police until he requested counsel. Id. at 479. The

interview then ceased, and the suspect was booked into jail. Id. The next day, police

visited the suspect in jail, asked to speak to him, re-Mirandized him, and obtained a

confession. Id. In holding that the suspect’s confession should have been suppressed,

the Court wrote that “it is inconsistent with Miranda and its progeny for the authorities, at

        2
            The State contends that our decision in Zavala v. State, 956 S.W .2d 715, 725 (Tex. App.–Corpus
Christi 1997, no pet.) dictates reversal. In Zavala, the appellant was convicted of capital m urder, and on
appeal, she challenged the trial court’s denial of her m otion to suppress several statem ents, including two pre-
arrest statem ents, on the ground that her term ination of the initial interview was an exercise of her Fifth
Am endm ent right to rem ain silent on all subsequent interviews. Id. at 722-23. W e held that, “[b]ecause
appellant was questioned with her consent, and was not a suspect initially, the police were not obligated to
give her Miranda warnings, and therefore her expression of her desire to term inate the interview [during the
initial interview] was not an invocation of a Fifth Am endm ent right which thereby obligated police to cease any
questioning.” Id. at 725. This case is distinguishable because Vasquez requested counsel during a custodial
interrogation and relented, by executing the 2005 statem ent, only after repeated questions. The appellant in
Zavala neither requested nor was denied the right to speak to an attorney during a custodial interrogation.
See id.



                                                       11
their [insistence], to reinterrogate an accused in custody if he had clearly asserted his right

to counsel.” Id. at 485. The State contends that the protections afforded by Edwards

somehow expired because the “re-interview” occurred four years after Vasquez’s initial

request for counsel.      Putting the State’s expiration argument aside, this case is

distinguishable from Edwards because the suspect in that case did not request counsel at

the re-interrogation, as Vasquez did.       Thus, Miranda, rather than Edwards, is the

appropriate Fifth Amendment authority to use in this case.

       Miranda dictates that the assertion of the right to counsel is a significant event and

that once exercised by the accused, “the interrogation must cease until an attorney is

present.” 384 U.S. at 474. In overruling the State’s second issue, we have already held

that Vasquez was subjected to a custodial interrogation. Thus, the deputies’ questioning

after Vasquez’s insistence on his attorney violated Miranda. The State’s second issue is

overruled.

                                       IV. CONCLUSION

       The trial court’s suppression order is affirmed.

                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice
Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed
the 10th day of December, 2009.




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