                                     NO. 07-08-0419-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                        JUNE 16, 2010

                           ______________________________


                          SAMUEL R. MERMELLA, APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2006-414,684; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      Following pleas of not guilty, Appellant, Samuel R. Mermella, was convicted by a

jury of two counts of sexual assault.1 Punishment was assessed by the jury at twenty

years confinement and a fine of $10,000 for each count. Upon the State's motion, the

trial court ordered the periods of confinement to run consecutively. We affirm.



1
Tex. Penal Code Ann. § 22.011(a)(2) (Vernon Supp. 2009).
                                     Factual Background


       The victim was born on October 30, 1990. When she was in the seventh or

eighth grade and approximately thirteen or fourteen years old, she met Appellant2 and

they engaged in sexual relations.           According to the victim's testimony, she and

Appellant were not dating nor otherwise romantically involved and two years passed

without any involvement between them. Then by chance their paths crossed and on

May 12, 2006, when the victim was fifteen years old and in the ninth grade, she ended

up at Appellant's house with Appellant, his younger brother, and two of her female

friends. According to the victim, when Appellant's brother and the two females walked

to a nearby convenience store for food, Appellant persuaded her to engage in sexual

relations.


       After Appellant's brother and the two females returned from the store, one of the

females left with another friend.       Appellant, his brother, the victim, and her friend

remained at Appellant's house. Later that night, the victim and Appellant went into his

bedroom where, according to the victim, they again engaged in sexual relations during

the early morning hours of May 13, 2006, before they both fell asleep.


       The victim awoke to screams and yells by a young woman who had turned on

the bedroom lights. The woman was Appellant's wife. Mrs. Mermella threw the victim's

shoes out of the house, located a baseball bat, and with the assistance of a female

friend commenced to beat the victim on her head, face, and body. When the victim was



2
 Appellant was born on February 23, 1985. Therefore, at this time, Appellant was either eighteen or
nineteen years old.

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able to get away she walked to a nearby convenience store where the attendant on duty

offered her a phone and she called her mother.


       When her mother arrived, police were called to the convenience store to

investigate an assault. Officer Shane Bledsoe was dispatched to the convenience store

while other officers were dispatched to Appellant's residence. During Officer Bledsoe's

interview with the victim, she told him she had engaged in sexual relations with

Appellant on that night and also two years earlier. After being questioned, she was

taken to the hospital by ambulance and Officer Bledsoe proceeded to Appellant's

residence.


       At this point the assault investigation against Mrs. Mermella merged with a

sexual assault investigation involving Appellant.           According to the evidence, Officer

Green administered Miranda warnings to Appellant.3                  Thereafter, Officer Bledsoe

questioned Appellant about his having had sexual relations with the victim. At that time,

Appellant gave a statement that he had engaged in sexual relations with her two years

earlier, but he denied having done so on that night.


       Following the investigation, Appellant was charged by indictment with one count

of aggravated sexual assault, allegedly committed in 2004 when the victim was under

age fourteen, and two counts of sexual assault, one alleged to have occurred on May

12, 2006, and the other on May 13, 2006, when the victim was over age fourteen. The

jury convicted Appellant in count one of the lesser included offense of sexual assault,

acquitted him in count two, and convicted him of sexual assault in count three. After the


3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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jury assessed a sentence of twenty years confinement and a fine of $10,000 as to each

offense, this appeal followed.


                                             Analysis


       Appellant challenges the trial court's ruling on his oral motion to suppress his

statement by four issues in which he contends the evidence is "legally or factually

insufficient" to show (1) his statement was voluntary, (2) he was properly warned, (3) he

waived the right to remain silent and the right to counsel, and (4) his statements were

obtained in compliance with article 38.22 of the Texas Code of Criminal Procedure.

Although Appellant's complaints are couched as challenges to the sufficiency of the

evidence and his cited authorities relate to such complaints,4 essentially, he is

challenging the trial court's denial of his motion to suppress. By his fifth issue, Appellant

questions whether the trial court erred in failing to submit a jury instruction regarding the

voluntariness of his statement.


I. Motion to Suppress


       A. Standard of Review


       A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Hudson v. State, 247

S.W.3d 780, 783 (Tex.App.–Amarillo 2008, no pet.). Almost total deference is given to

a trial court’s determination of historical facts, especially when the trial court’s fact

findings are based on an evaluation of the credibility and demeanor of a witness. St.

4
 Sufficiency of the evidence complaints are directed toward elements of an offense. Voluntariness of a
statement and subsidiary issues which flow therefrom are not elements of an offense.

                                                  4
George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Guzman v. State, 955

S.W.2d 85, 89 (Tex.Crim.App. 1997). The same level of deference is also afforded to a

trial court’s ruling on application of law to fact questions or mixed questions of law and

fact if the resolution of those questions also turns on an evaluation of credibility and

demeanor.       Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App. 2006).

However, if mixed questions of law and fact do not fall within these categories, appellate

courts may conduct a de novo review of the trial court’s ruling. Guzman, 955 S.W.2d at

87.


         The trial court is the sole factfinder at a suppression hearing, and it may believe

or disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855

(Tex.Crim.App. 2000).       The trial court may make reasonable inferences from the

evidence presented.       State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.

2008).


         When, as here, no findings of fact were requested nor filed, we view the evidence

in the light most favorable to the trial court’s ruling and assume the trial court made

implicit findings of fact supported by the record. Ross, 32 S.W.3d at 855-56. The trial

court's ruling will be upheld if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418

(Tex.Crim.App. 2008).


         B. Analysis of Issues One, Two, Three, and Four


         Following voir dire but prior to the State's opening argument, the State and

defense counsel conducted voir dire examination of Officer Bledsoe to determine the

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admissibility of Appellant's statement that he had engaged in sexual relations with the

victim two years before the night she was beaten.          Officer Green did not testify,

however, according to Officer Bledsoe, who used his police report to refresh his

memory, Officer Green issued Appellant Miranda warnings before he was questioned

about a possible sexual assault. When Appellant gave his statement, he was not under

arrest or handcuffed. Although Officer Bledsoe could not recall whether he was present

when Appellant was Mirandized, he was confident that Officer Green administered the

warnings prior to questioning or it would not have been memorialized in his report.

Officer Bledsoe could not, however, recall if Appellant indicated that he understood his

rights or whether he affirmatively waived those rights.


       Defense counsel argued that Appellant was considered a sexual assault suspect

and because he was not properly Mirandized, his oral statement should be suppressed.

The State countered that it didn't matter whether Appellant was properly Mirandized

because Appellant's statements were not the result of a custodial interrogation. The

court agreed, finding that the evidence was "uncontradicted that the defendant's

Miranda rights were read to him."


       Notwithstanding the court's position, defense counsel additionally contended that

Appellant's statements were inadmissible because they were involuntary. The trial court

explained that Appellant's statement did not rise to the level of "the character of a

voluntary statement." The court added:


       As to the voluntariness of any confession or anything like that, I don't think
       we're talking about that. I think we're talking about a simple statement
       made to a police officer as a witness at the scene.


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      Defense counsel responded:


      No, Your Honor, I'm not -- I'm not trying to make -- argue that it was
      involuntary or anything like that. I'm just trying to say, Your Honor, the
      focus of the investigation was on my client at that particular time and --



      The court responded: "And he was given his Miranda warnings." The court

overruled his objection, Appellant's statements were eventually admitted into

evidence, and the court granted him a running objection to Officer Bledsoe's testimony

regarding the issue.


      The warnings required by Miranda and § 3(a)(2) of article 38.22 of the Texas

Code of Criminal Procedure are intended to safeguard a person's privilege against self-

incrimination during custodial interrogation. Herrera v. State, 241 S.W.3d 520, 525

(Tex.Crim.App. 2007).     Therefore, unwarned statements obtained as a result of

custodial interrogation may not be used as evidence by the State in a criminal

proceeding during its case-in-chief. Id. at 525. It is, however, the defendant's burden

to prove that a statement was the product of a custodial interrogation. Id. at 526.


      The Supreme Court has defined custodial interrogation as "questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way." Id., citing Miranda v. Arizona,

384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When considering "custody"

for Miranda purposes, the reasonable person standard is utilized, i.e., a person is in

custody if, under the circumstances, a reasonable person would believe his freedom of


                                            7
movement was restrained to the degree associated with a formal arrest. Herrera, 241

S.W.3d at 525. In that regard, at least four general pre-arrest situations have been

identified as constituting custody: (1) when the suspect is physically deprived of his

freedom of action in any significant way, (2) when a law enforcement officer tells the

suspect that he cannot leave, (3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has been

significantly restricted, and (4) when there is probable cause to arrest and law

enforcement officers do not tell the suspect that he is free to leave. Dowthitt v. State,

931 S.W.2d 244, 255 (Tex.Crim.App. 1996).


      Here, Appellant was not under arrest nor was his freedom of movement

restrained or otherwise restricted by law enforcement when questioned about his

sexual relationship with the victim. There is nothing in the record to suggest that

Appellant was in any of the situations which would constitute custody.        Appellant

contends he was a suspect when questioned and "Miranda attached."                Officer

Bledsoe's subjective belief about whether he was a suspect does not factor into a

custody determination unless that belief was somehow conveyed to Appellant.

Herrera, 241 S.W.3d at 525-26, citing Stansbury v. California, 511 U.S. 318, 323-25,

114 S.Ct. 1526, 128 L.Ed.2d 293 (1994).        Nothing in the record reflects that the

officers conveyed to Appellant that he was a suspect in a sexual assault investigation

at the time he gave his statement to Officer Bledsoe. The court found that Appellant

gave a "simple statement" to a police officer "as a witness at the scene."


      The trial court's ultimate "custody" determination presents a mixed question of

law and fact. Herrera, 241S.W.3d at 526, citing Thompson v. Keohane, 516 U.S. 99,

                                           8
112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Therefore, we afford almost total

deference to the trial court's determination of questions of historical fact turning on

credibility and demeanor. Herrera, 241 S.W.3d at 526.


      Officer Bledsoe's testimony regarding the circumstances surrounding Appellant's

statement and his being Mirandized were uncontradicted.        During the suppression

hearing, the trial court found that at the time of his statement Appellant was not in

custody, his statement was not coerced, and Appellant had indeed been given his

Miranda warnings by Officer Green. Accordingly, we conclude that § 3(a)(2) of article

38.22, was not implicated by the facts of this case. Applying the level of deference we

are required to give in reviewing a suppression ruling, we conclude the trial court did

not abuse its discretion in denying Appellant's motion to suppress his statement that he

had engaged in sexual relations with the victim two years earlier. Issues, one, two,

three, and four are overruled.


II. Jury Instruction on Voluntariness of Appellant's Statement


      A. Article 38.22, §§ 6 and 7


      By his fifth issue, Appellant challenges the voluntariness of his statement and

whether he was properly warned of his rights and competently waived those rights.

Article 38.22, § 6 provides that "[i]n all cases where a question is raised as to the

voluntariness of a statement of an accused, the court must make an independent

finding in the absence of the jury as to whether the statement was made under

voluntary conditions. Article 38.22, § 7 provides that "[w]hen the issue is raised by the

evidence, the trial judge shall appropriately instruct the jury, generally, on the law

                                           9
    pertaining to such statement." Tex. Code Crim. Proc. Ann. art. 38.22, §§ 6 and 7

    (Vernon 2005).


          In Oursbourn v. State, 259 S.W.3d 159, 175-76 (Tex.Crim.App. 2008), the Court

    held that when the evidence raises an issue of the '"voluntariness" of a defendant's

    statement under article 38.22, the trial court shall give a general instruction under

    sections 6 and 7 because it is the law applicable to the case. (Emphasis added).

    "The issue" refers to compliance with the statutory warnings set out in both articles

    15.17 and 38.22, sections 2 and 3 of the Texas Code of Criminal Procedure, and the

    voluntariness of the defendant's waiver of his rights.5 Id.


          Article 15.17 imposes a duty on an arresting officer to take an arrested person

before a magistrate to provide certain warnings.                 Tex. Code Crim. Proc. Ann. art.

15.17(a) (Vernon Supp. 2009). Appellant was not arrested on the night in question;

thus, no "issue" was raised by the evidence requiring compliance with the statutory

warnings of article 15.17(a). Article 38.22, section 3 applies to oral statements of an

accused made as a result of custodial interrogation. Tex. Code Crim. Proc. Ann. art.

38.22, § 3 (Vernon 2005). We have previously determined that the oral statement given

by Appellant to Officer Bledsoe was not the result of custodial interrogation; thus, the

requirements for admissibility enumerated in section 3(a) do not apply. Moreover, as

the State points out, defense counsel's position regarding the voluntariness of

Appellant's statement was, "I'm not trying to make -- argue that it was involuntary or

anything like that."



5
Article 38.22, section 2 applies to written statements and does not apply in this case.

                                                    10
       Accordingly, we conclude that based on the record before us, Appellant's

statement was not the result of custodial interrogation requiring compliance with certain

warnings and admonitions. Thus, we need not address whether Appellant voluntarily

waived his rights. We hold the trial court did not err in failing to instruct the jury on the

voluntariness of Appellant's statement. Issue five is overruled.


                                        Conclusion


       Having overruled Appellant's five issues, the trial court's judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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