                           NUMBER 13-12-00698-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                      Appellant,

                                          v.

JUAN LANDEROS,                                                             Appellee.


               On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides and Longoria
                Memorandum Opinion by Justice Benavides
      Appellee Juan Landeros was charged with family violence assault.       See TEX.

PENAL CODE ANN. § 22.01 (West 2011).     By a single issue, the State contends that the

trial court erred in granting Landeros’s motion to suppress because Landeros was not in

custody when he made the self-incriminating statement that was later used against him.

We affirm.
                                    I. BACKGROUND

      On July 1, 2012, Officer Meer responded to a rollover accident and saw Landeros

sitting on the curb with M.L., his wife. While medics were treating Landeros, Officer

Meer spoke with M.L. who told him that she was not in the vehicle when the rollover

accident occurred. When Officer Meer asked her how she got injured, she answered

that Landeros struck her face when she arrived at the scene.               Officer Meer

subsequently asked her if she would fill out an assault victim statement and allow him to

photograph her injuries.   At that point, M.L. stopped cooperating.

      After Landeros was medically cleared, Officer Meer approached him to ask how

M.L. came to be injured.   Before Officer Meer asked a single question, Landeros asked

what was going to happen to him.       Officer Meer answered Landeros by saying that

Landeros was going to be arrested.          Landeros testified to the following at the

suppression hearing:

      Q:     When [Officer Meer] came up to you, did you feel like you were free
             to leave?

      A:     No.

      Q:     Why not?

      A:     Because he asked me how it happened. I say that I don’t know, I
             just got in an accident, and he told me—and he did not even tell me
             my rights because I asked him if—what was going to happen with
             me. He told me I was under arrest, and I tell him why, and he say
             it’s because it’s under investigation.

      Q:     So he informed you you were going to be arrested?

      A:     Yes.

      Q:     When he informed you you were going to be arrested, did you feel
             free to leave?


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       A:     No.

       Q:     And at that point he questioned you, is that right?

       A:     Yes.

Landeros subsequently confessed to Officer Meer that he had struck M.L. in the face.

He was immediately placed under arrest for family violence assault. See id. The trial

court granted Landeros’s motion to suppress after concluding that Landeros was in

custody when he made the self-incriminating statement. The trial court further ruled

that Officer Meer needed to Mirandize him in order for the State to use the statement

against Landeros.    See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); see also

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966).         This appeal

followed.

                       II. CHALLENGE TO THE RULING ON CUSTODY

       The State argues the trial court erred when it granted Landeros’s motion to

suppress because Officer Meer did not need to Mirandize Landeros, who was not in

custody and did not have to admit that he struck M.L. in the face.

   A. Standard of Review and Applicable Law

       A trial court’s ruling on a motion to suppress evidence is reviewed on appeal

under a bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). Almost total deference is accorded to a trial court’s determination of

the facts that the record supports.   Id. When applying the law to the facts, appellate

courts review the trial court’s ruling on those questions de novo.   Id.

       The prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates the use of


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procedural safeguards effective to secure the privilege against self-incrimination.

Miranda, 384 U.S. at 444; Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012).

The four general situations which indicate a person is in custody for Miranda purposes

are when one is:    (1) physically deprived of freedom; (2) told he is not free to leave; (3)

in a situation in which a reasonable person is led to believe his freedom of movement

has been significantly restricted; and (4) in a situation in which there is probable cause to

arrest and law enforcement officers do not tell the suspect he is free to leave.    Dowthitt

v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).

       Whether a person has been detained to the degree associated with arrest is

determined on a case-by-case basis.      State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.

App. 2012). Courts look only at the objective factors surrounding the detention and not

the subjective beliefs of the detaining officer in determining whether a person is in

custody.   Id. If the officer manifests his belief to the detainee that he is a suspect, then

that officer’s subjective belief becomes relevant to the determination of whether a

reasonable person in the detainee’s position would believe he is in custody.              Id.

Absent that, “any undisclosed subjective belief of the suspect that he is guilty of an

offense should not be taken into consideration” as the “reasonable person standard

presupposes an ‘innocent person.’”     Id.

       An officer’s questioning does not, by itself, constitute custody.           State v.

Rodriguez, 986 S.W.2d 326, 329 (Tex. App.—El Paso 1999, pet. ref’d).          However, the

conduct of the police during the encounter may cause a consensual inquiry to escalate

into custodial interrogation.   Id.

   B. Discussion


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       In this case, it is clear that Landeros was in custody because Officer Meer told him

that he was about to be arrested prior to making the self-incriminating statement.

Dowthitt, 931 S.W.2d at 254.     In other words, a reasonable person would believe he is

in custody when a police officer affirmatively tells him that he is about to get arrested.

Id.

       The State argues a reasonable person would not think himself under arrest or its

equivalent when Officer Meer merely approached Landeros and asked him a question

about M.L.’s injury.   We agree that questioning itself does not constitute custody.

Rodriguez, 986 S.W.2d at 329.         However, almost immediately after approaching

Landeros and before Landeros gave the self-incriminating statement, Officer Meer told

Landeros that he was going to arrest him for family violence assault family violence.   By

doing so, Officer Meer manifested his intention to detain Landeros, which caused the

consensual questioning to escalate into custodial interrogation.   See Ortiz, 382 S.W.3d

at 372. Thus, the procedural safeguards required under Miranda should have been

utilized.   See Miranda, 384 U.S. at 444; Dowthitt, 931 S.W.2d at 254.         As soon as

Officer Meer manifested his intention to place him under arrest before asking any

questions, we conclude that Landeros was in custody.      See id. at 254–55.

       The State cites State v. Stevenson as support for its argument that Landeros was

not in custody when he made the statement.        See 958 S.W.2d 824, 829 (Tex. Crim.

App. 1997).    Stevenson, however, is distinguishable from this case.    The defendant in

Stevenson admitted that he was the driver in a one-car accident before the officer

Mirandized him.    Id. at 825.   However, the defendant was clearly not detained at the

time because the self-incriminating statement was made at the initial stage of


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investigation when the officer asked who the driver was.            Id.   Here, the entire

conversation between Officer Meer and Landeros rested on M.L.’s injury, rather than the

rollover accident.    Even though Officer Meer first reported to the scene to investigate

the rollover accident, he went straight to ask Landeros about his wife’s injury.        In

addition, Landeros’s vehicle was overturned by the side of the highway and rendered

inoperable, while Officer Meer blocked the roadway with his police car when he arrived

at the accident scene.      Finally, as discussed above, Officer Meer specifically told

Landeros that he was about to be arrested.         In short, a reasonable person in the

present case would have believed his freedom has been significantly restricted under the

circumstances.       Dowthitt, 931 S.W.2d at 254.       Officer Meer violated the Miranda

requirement and the Texas Code of Criminal Procedure article 38.22 when he took his

statement without first reading Landeros his rights.    See Miranda, 384 U.S. at 444; TEX.

CODE CRIM. PROC. ANN. art. 38.22 (West 2005). Accordingly, the State’s sole issue is

overruled.

                                      III. CONCLUSION

       We affirm the trial court’s granting of Landeros’s motion to suppress.




                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice

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

Delivered and filed the
18th day of July, 2013.



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