                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-16-00559-CR

                                         Stanley Foster BAKER,
                                                Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                   Trial Court No. 15-1755-CR-A
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: March 21, 2018

AFFIRMED

           Stanley Foster Baker was convicted by a jury of continuous sexual abuse of a child and

indecency with a child by sexual contact. The sole issue presented on appeal is whether the trial

court abused its discretion in denying Baker’s motion to suppress. Baker sought to suppress

statements he made during an interview with two law enforcement officers in his hospital room,

asserting the interview was a custodial interrogation and he did not receive the required Miranda

warnings. Because we hold the interview was not a custodial interrogation, we affirm the trial

court’s judgment.
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                                            BACKGROUND

       Jackie Barrios, a nurse manager of a hospital trauma unit, was the first witness to testify at

the suppression hearing. Barrios testified Baker was hospitalized because he attempted suicide by

jumping off a bridge. Baker was first admitted to the intensive care unit on May 12, 2015, and

then transferred to the trauma unit on May 23, 2015. Barrios described Baker as being alert,

oriented, and able to understand questions. Barrios testified police officers called her on a daily

basis requesting information regarding Baker’s estimated date of discharge.

       On May 27, 2015, the day the law enforcement officers interviewed Baker, Barrios stated

Baker was alert and oriented. Barrios testified Baker was not in police custody in the hospital, but

a hospital employee observed him twenty-four hours a day because of his suicide attempt.

       On cross-examination, Barrios testified Baker reported having a history of depression.

Barrios described Baker’s injuries and the treatment he had been receiving. Barrios testified Baker

was never in any restraints in the trauma unit, and no law enforcement officers were stationed

outside of Baker’s door.

       Detective Jerry Grubbs, the lead detective assigned to Baker’s case on May 11, 2015, was

the only other witness to testify at the suppression hearing. After law enforcement officers located

Baker, who had been admitted to the hospital, another detective was assigned to monitor Baker’s

condition on a daily basis. Detective Grubbs testified a decision was made to interview Baker on

May 27, 2015, based on the report given by the charge nurse that Baker was in good spirits, talking,

and coherent. Law enforcement was not guarding Baker’s room, and Baker was never placed in

handcuffs before or during the interview.

       Detective Grubbs testified Ranger Keith Pauska accompanied him to the hospital for the

interview, and after they introduced themselves, they asked Baker if he wanted to have a discussion

with them. Detective Grubbs recalled asking Baker several times if he needed anything during the
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interview, which lasted no longer than forty-five minutes. Detective Grubbs described Baker as

being engaged in the conversation and occasionally correcting some of the information Detective

Grubbs “put out there.”

       On cross-examination, Detective Grubbs testified he went to Baker’s house on May 11,

2015, because a child protective services investigator asked him to accompany her on her initial

visit. The visit was the result of outcries three girls made that Baker, their stepfather, had molested

them. The purpose of the initial visit was for the investigator to drop off a packet for the children’s

mother.

       Detective Grubbs testified that the following day, May 12, he and the investigator returned

to Baker’s house to have a conversation with the children’s mother. The children’s mother was

not home, but Baker told them where she was. Detective Grubbs and the investigator made contact

with the children’s mother, informed her about the reason for the investigation, and arranged

forensic interviews for the children that same day. Detective Grubbs testified he observed the

forensic interviews from outside the room and believed the children’s statements were true. Later

that same day, the children underwent sexual assault examinations; however, Detective Grubbs

was not present during those examinations.

       Before interviewing Baker on May 27, Detective Grubbs testified he reviewed the

videotapes of the forensic interviews and spoke with the sexual assault nurse examiner, who

informed him of her findings and provided him with her documentation. Detective Grubbs also

was present during a search of the residence during which an item of evidence was recovered

corroborating one of the children’s statements. When he interviewed Baker, Detective Grubbs

agreed Baker was a suspect in the case, but he had not obtained a warrant because he did not feel

“confident to swear out the warrant.” Although Detective Grubbs believed Baker “had done

something with [the] children,” he was not sure about the specifics. With regard to whether Baker
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asked for an attorney, Detective Grubbs testified Baker asked whether an attorney should be

present, and he told Baker they were just having a conversation and “it was up to him.” He also

told Baker if he was not comfortable in answering the questions, they could stop at any time.

Detective Grubbs testified he prepared the affidavit to obtain an arrest warrant a couple of days

after the interview when he was informed that Baker was going to be discharged from the hospital.

Detective Grubbs stated Baker would have been free to leave the hospital on May 27 or May 28,

but he would have made additional efforts to obtain the warrant and to find Baker’s location so

Baker could be served with the warrant. Detective Grubbs did not recall whether he told Baker he

was free to leave the hospital.

       Following the witnesses’ testimony, the trial court watched and listened to video and audio

recordings of the interview which were admitted into evidence. A transcript of the interview also

was admitted into evidence. After hearing the testimony and the recordings, the trial court denied

Baker’s motion to suppress stating:

              THE COURT: All right. The following will be the ruling of the Court. I
       make the following findings of fact and conclusions of law:
              The defendant, during this statement, appeared to be alert and oriented as to
       time and circumstances. He was not under arrest or in custody. He freely and
       voluntarily made the statement that was offered, and the motion to suppress is
       overruled, except as to two portions. One, where he was questioned about other
       victims and the Ranger made the statement that there’s never not others, which
       would be approximately Page 43, Line 10 to Line 22, and then when he was
       questioned about child pornography and he denied it, which would be
       approximately Page 44, Line 6, to Page 44, Line 25, and when he was — the Officer
       Grubbs made the statement that he was going to remember more stuff in time,
       which is Page 46, Line 22 to 25.

The trial court subsequently entered written findings of fact and conclusions of law containing the

first three sentences of its verbal ruling. Baker appeals, arguing he was in custody while being

interviewed; therefore, he was entitled to his Miranda warnings.




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                                       STANDARD OF REVIEW

        We review a trial court’s denial of a motion to suppress under a bifurcated standard of

review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Alford v. State, 358 S.W.3d

647, 652 (Tex. Crim. App. 2012). We afford almost complete deference to the trial court’s

determination of historical facts, especially when those determinations are based on assessments

of credibility and demeanor, but we review de novo the trial court’s application of the law to fact

questions that do not turn on credibility and demeanor. Furr, 499 S.W.3d at 877; Alford, 358

S.W.3d at 652. “The decision as to whether custodial questioning constitutes ‘interrogation’ under

Miranda is a mixed question of law and fact, and we defer to the trial court’s fact findings that

turn on an evaluation of credibility and demeanor.” Alford, 358 S.W.3d at 653. “If credibility and

demeanor are not necessary to the resolution of an issue, 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.” Id.

                             APPLICABLE LAW REGARDING CUSTODY

        The United States Supreme Court has held that an individual is “in custody” for Miranda

purposes if, under the circumstances, a reasonable person would believe “[his] freedom of action

is curtailed to a ‘degree associated with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420, 440

(1984). The custody determination must be made on an ad hoc basis after considering all of the

objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

        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,




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           (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.

Id.; Martinez-Hernandez v. State, 468 S.W.3d 748, 757–58 (Tex. App.—San Antonio 2015, no

pet.). “The first three situations require that the restriction on a suspect’s freedom of movement

must reach ‘the degree associated with an arrest’ instead of an investigative detention.” State v.

Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (quoting Dowthitt, 931 S.W.2d at 255). “The

fourth situation requires an officer’s knowledge of probable cause to be manifested to the suspect.”

Id. “Such manifestation could occur if information substantiating probable cause is related by the

officers to the suspect or by the suspect to the officers.” Dowthitt, 931 S.W.2d at 255. “Custody,

however, is not established by the fourth situation unless the manifestation of probable cause

combined with other circumstances of the interview, such as duration or factors of the exercise of

police control over a suspect, would lead a reasonable person to believe that he is under restraint

to the degree associated with an arrest.” Saenz, 411 S.W.3d at 496 (internal quotations omitted).

                                            ANALYSIS

       Baker argues he was in custody because he could not leave the hospital room and “the

officers gave no indication that they were willing to leave his room.” Baker also focuses on

Detective Grubbs’s admission that he believed Baker had done something with the children and

argues the officers had probable cause to arrest him.

       With regard to Baker’s first argument, “police questioning of a defendant while they are

being treated in a hospital, without more, does not automatically rise to the level of a custodial

interrogation.” LaCarbonera v. State, No. 08-13-00262-CR, 2015 WL 2437862, at *3 (Tex.

App.—El Paso May 20, 2015, no pet.) (not designated for publication); see also Joyner v. State,


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No. 04-16-00677-CR, 2017 WL 4158086, at *6 (Tex. App.—San Antonio Sept. 20, 2017, no pet.)

(not designated for publication) (holding detectives’ questioning of gunshot victim in hospital did

not constitute custody); Martinez v. State, 496 S.W.3d 215, 219-20 (Tex. App.—Houston [14th

Dist.] 2016, pet. filed) (holding restraint on appellant’s freedom did not constitute custody

“because the physical deprivation of Appellant’s freedom was due to medical treatment, not the

actions of law enforcement”); Yarborough v. State, 178 S.W.3d 895, 901-02 (Tex. App.—

Texarkana 2005, pet. ref’d) (“Yarborough’s movement was restrained only to the extent that he

was receiving medical treatment for his stab wounds.”). Furthermore, even if we assume the

officers’ knowledge of probable cause was manifested to Baker, the record must demonstrate that

“other circumstances of the interview, such as duration or factors of the exercise of police control

over a suspect, would lead a reasonable person to believe that he is under restraint to the degree

associated with an arrest.” Saenz, 411 S.W.3d at 496 (internal quotations omitted). As the United

States Supreme Court has held the “compulsive aspect of custodial interrogation, and not the

strength or content of the government’s suspicions at the time the questioning was conducted”

determines whether a suspect is in custody. Stansbury v. California, 511 U.S. 318, 323 (1994).

       In this case, Baker points to no evidence that would lead a reasonable person to believe he

was under restraint to a degree associated with an arrest. The interview lasted only about forty-

five minutes. The officers repeatedly told Baker they were simply trying to obtain his version of

the events. Initially, Ranger Pauska told Baker they wanted to know why he attempted to take his

own life. Even after Baker admitted he “did some things sexual in nature” to the children, Ranger

Pauska reiterated that the interview was “all voluntary. You’re not under arrest.” Detective

Grubbs reinforced the voluntary nature of the interview, telling Baker “You’re not under arrest.

You’re not in custody. But like the ranger was talking about, there’s always two or three sides to

the story. And we got the girls’ side, now — now I want to hear your side. Okay? That — that’s
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all we’re doing is having a conversation.” The officers also told Baker that he could terminate the

interview at any time. Specifically, Detective Grubbs told Baker “if we start talking about

something that you don’t want to talk about, just tell us to stop. Okay?” Finally, upon the

completion of the interview, the officers thanked Baker and left his room. Having reviewed the

record as a whole and considering all of the objective circumstances, we hold Baker was not in

custody while being interviewed by the officers. Therefore, the trial court did not err in denying

Baker’s motion to suppress.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Irene Rios, Justice

DO NOT PUBLISH




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