                            NUMBER 13-11-00249-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOSE ANTONIO PIZANO,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 92nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza
      A jury convicted appellant, Jose Antonio Pizano, of capital murder committed in

the course of committing or attempting to commit aggravated robbery. See TEX. PENAL

CODE ANN. § 19.03(a)(2), (b) (West Supp. 2011). The trial court sentenced him to life

imprisonment without the possibility of parole. See id. § 12.31(a)(2), (b)(2) (West 2011).
By four issues, appellant contends: (1) the trial court erred in denying his motion to

suppress certain oral statements made during a custodial interrogation; (2) the trial

court erred in admitting certain DNA evidence because the search warrant authorizing

the DNA evidence was not based on sufficient probable cause; and (3) the evidence is

legally and factually insufficient to support his conviction. We affirm.

                                           I. BACKGROUND

       On April 9, 2009, around 9:30 p.m., Alberto Marin (“Marin”), his wife, Nora Elia

Zuniga, and other family members returned home from a church service. Upon entering

their home, they were confronted by an armed masked man demanding money. Shortly

thereafter, a second masked man entered the house through a kitchen window. Both

men wore gloves and carried guns; they asked for money and demanded to know the

location of the safe. The men took Marin into a bedroom and forced the other family

members to stay in the living room. A few moments later, the family heard shots from

the bedroom. The two intruders ran out of the house. Marin staggered out of the

bedroom and fell to the floor.

       A police officer, responding to an emergency call regarding the home invasion,

approached the neighborhood in his vehicle. He observed a man in black clothing

running across the road.          The officer lost sight of the man, but shortly thereafter

encountered another man, later identified as Alberto Pizano (“Alberto”), appellant’s

brother.     Alberto, who had blood stains on his shoes and clothing, was arrested.

Pursuant to information obtained over the next several weeks, appellant was arrested.

                                         II. THE EVIDENCE1


       1
           We have summarized only the testimony most pertinent to the issues raised. See TEX. R. APP.


                                                   2
A. Carlos Garcia

           Carlos Garcia, an investigator with the McAllen Police Department, assisted

Officer Isaac Tamez with the investigation of the case.      Officer Garcia interviewed

Zuniga and Marin’s brother, Oscar Duque Marin (“Oscar”). Officer Garcia learned from

Oscar that Alvaro DeArmas had rented a room from Oscar for the past two to three

years. Officer Garcia requested that Oscar and DeArmas come to the station to be

interviewed. They arrived together; Oscar was interviewed first. When Officer Garcia

returned to the lobby to interview DeArmas, however, DeArmas had left the station and

did not return. DeArmas did not return to Oscar’s house to retrieve his possessions.

Attempts to locate him were unsuccessful. The police later issued a warrant for his

arrest, but DeArmas was never apprehended.

           On April 10, 2009, the day after the invasion, Officer Garcia visited with

appellant’s sister, Esperanza Perez. Perez directed Officer Garcia to appellant, who

lived next door. Officer Garcia and Detective Tony Carrizales contacted appellant at his

residence. Appellant told the officers that around 6:30 that morning, he had reported his

van was stolen. The officers asked appellant about Alberto; appellant said he had not

seen Alberto for several days and that they did not spend much time together. Officer

Garcia asked appellant if he had a cell phone number; appellant said he did not.

           On April 14, 2009, Officers Garcia and Tamez interviewed appellant a second

time at the supermarket where he was employed. The officers showed appellant a

photograph of DeArmas and asked if appellant recognized him. Appellant said he did

not.


P. 47.1.


                                            3
      Officer Garcia noticed that a pair of Wells Lamont gloves recovered from the

crime scene appeared to be new. Sergeant Xavier Garcia learned that the Wal-Mart in

Palmhurst—near appellant’s residence—had recently sold two pair of the same brand

and style of gloves. One of the sales occurred shortly before April 9 and the second

sale occurred after April 9. Officers Garcia and Tamez met with security personnel at

the Palmhurst Wal-Mart. After viewing the store’s video surveillance recording of the

pre-April 9 glove purchase, the officers discovered that Alberto and appellant purchased

a pair of the Wells Lamont gloves on March 29, 2009.

      On April 18, 2009, Officers Garcia and Tamez visited appellant at his residence

and asked that he come to the police station for an interview. Officer Garcia stated that

appellant was a “person of interest,” but was not in custody or under arrest. At the

station, the officers showed appellant a photo of the Wells Lamont gloves recovered

from the crime scene.     Appellant did not recognize the gloves.       The officers told

appellant about the video showing him and Alberto purchasing the gloves at the

Palmhurst Wal-Mart. The video shows appellant and Alberto entering the store, going

directly to the glove-display area, and then proceeding directly to the register. They did

not purchase any other items. Appellant paid for the gloves at the register, and the two

men left the store. After appellant was told about the video, he insisted that he did not

recall purchasing the gloves. During the interview, appellant became upset with Officer

Tamez because Officer Tamez kept asking questions about Alberto.

      Officer Garcia asked appellant to provide a buccal swab as a DNA sample, but

he refused. Officer Carrizales stayed with appellant at the station while Officers Garcia

and Tamez obtained a search warrant authorizing the taking of a blood sample from



                                            4
appellant. The officers escorted appellant to the hospital where a blood sample was

obtained. The officers then took appellant home. During the interview, appellant did not

ask to leave and was not handcuffed.

      Officer Garcia subpoenaed cell phone records from various members of Marin’s

family, as well as DeArmas. DeArmas’s cell phone records showed that on April 9,

2009, the day of the invasion, DeArmas received two calls from a cell phone number

that was later identified as appellant’s number. According to Officer Garcia, he did not

have probable cause to arrest appellant until he learned that appellant called DeArmas

twice on April 9, about three hours before the home invasion.        After obtaining this

information, a warrant was issued for appellant’s arrest, and he was arrested on May 1,

2009. Appellant’s cell phone records show that he requested to close the cell phone

account on April 10, 2009, the day after the murder, but the account was actually closed

a month later, on May 10, 2009.

      On June 18, 2009, appellant’s van was found in McAllen.           After obtaining a

search warrant, Officer Garcia found several items in the van, including black zip ties

very similar to ones found at the crime scene, gray duct tape similar to that found at the

crime scene, and a hooded blue jean jacket.

      On cross-examination, defense counsel established that DeArmas’s cell phone

records show that DeArmas did not answer the first call appellant made to him; rather,

the call was forwarded because DeArmas was using the phone at that time. Counsel

also established that when appellant went to the police station on April 18, the officers

did not tell him that he was not required to come. Officer Garcia stated that it was not

necessary to advise appellant of his rights because he was not in custody. If appellant



                                            5
had asked to be taken home, Officer Garcia would have taken him home.

B. Isaac Tamez

      Isaac Tamez, an investigator with the McAllen Police Department, testified that

he investigated the crime scene and followed up on the arrest of Alberto. On April 14,

Officer Tamez and Officer Garcia questioned appellant at his workplace regarding

Alberto’s associates. Appellant said he did not spend time with Alberto and did not

know Alberto’s friends. On April 17, Officers Garcia and Tamez viewed the Wal-Mart

video showing appellant and Alberto purchasing the gloves on March 29. The video

shows appellant purchasing the gloves and handing the bag to Alberto.

      On April 18, Officers Tamez and Garcia picked appellant up at his residence and

took him to the police station for questioning. The officers showed appellant a picture of

the gloves; appellant said he did not recognize them. Appellant also said he did not

recall purchasing the gloves at Wal-Mart with Alberto. During the questioning, Officer

Tamez suggested that appellant was not being honest. Appellant became upset and

said he would continue talking to Officer Garcia, but did not want to continue talking to

Officer Tamez. Officer Tamez left the room, and Officer Garcia continued the interview.

      On cross-examination, Officer Tamez stated that he prepared the probable cause

affidavit supporting the search warrant authorizing the taking of a blood sample from

appellant. When Officer Tamez left the police station to obtain a judge’s signature on

the search warrant, he asked Detective Carrizales to “keep an eye” on appellant.

C. Larry Tineo

      Officer Larry Tineo stated that he responded to a report of the home invasion. As




                                            6
he approached the area, he saw a man in black clothing running across the road. 2

Officer Tineo lost sight of the man, but encountered a second man, later identified as

Alberto. When Officer Tineo brought Alberto back to the crime scene, he noticed that

he had red stains on his shoes and clothing.

D. Maria Esperanza Del Angel

       Maria Esperanza Del Angel, then a crime scene investigator with the McAllen

Police Department, testified regarding evidence collected from the crime scene. Among

other items, a Wells Lamont glove was found in the back yard of the residence at the

crime scene. The matching Wells Lamont glove was found in a nearby irrigation ditch.

Maria Del Angel also identified photographs of appellant’s van after it was recovered.

Close-up photographs of the van’s keyholes were admitted to show that there was no

evident keyhole damage suggesting a break-in. Officer Del Angel also testified that

duct tape and black zip ties were found in the van.

E. Roberto Del Angel3

       Roberto Del Angel, also a crime scene investigator for the McAllen Police

Department, testified regarding various items collected from the crime scene and

nearby locations. Several items were collected in a nearby construction yard, including

a roll of tape, a white shirt, and a brown Stanley glove. Several more items were

collected from a nearby irrigation ditch, including security ties, a black shirt, a cell phone

holster, a screwdriver, a Stanley glove, a Wells Lamont glove, and a hoodie-type mask.

F. Edna Lissette Zavala
       2
          When Officer Tineo saw the man running across the road, his vehicle’s video recorder was
activated. The video was introduced into evidence.
       3
         Roberto Del Angel was asked if he was related to Maria Esperanza Del Angel; he said “yes,”
but was not asked to elaborate.


                                                7
      Edna Lissette Zavala, a forensic scientist in the DNA and serology section of the

Texas Department of Public Safety Crime Lab, testified generally regarding DNA testing

and how it is conducted. Ms. Zavala testified that the DNA profile of scrapings obtained

from State’s Exhibit 8-A—the Wells Lamont glove found in the irrigation ditch—was

consistent with a mixture of appellant’s DNA and that of an unknown individual.

Although the scrapings from Exhibit 8-A contained a mixture of DNA, appellant’s DNA

was present in larger quantities and constituted the “major component” of the DNA

profile. Ms. Zavala also testified that the DNA profile obtained from State’s Exhibit 28-

A—the matching Wells Lamont glove found at the crime scene outside the kitchen

window—was consistent with appellant’s DNA profile. The DNA profile obtained from a

hoodie-type mask found in the irrigation ditch was consistent with a mixture of DNA

which included appellant, Alberto, Marin, and an unknown individual.

      On cross-examination, Ms. Zavala admitted that appellant’s DNA, found on the

Wells Lamont glove recovered from the crime scene, could have been deposited on the

glove on March 29, 2009, when the gloves were purchased.

G. Oscar Duque Marin

      Oscar testified that DeArmas lived in his home for approximately a year and a

half. In the six months before his death, Marin went to Oscar’s house almost every day

for discussions about the Bible.     Marin often talked about his businesses when

DeArmas was present. Marin had a real estate business and had owned a jewelry

business in the past. DeArmas knew that Marin owned a safe because he and Oscar

had helped move the safe from a jewelry store to Marin’s garage.

      On the evening of April 9, Oscar and other family members returned from church



                                           8
to Marin’s house. The other family members entered the house first. When Oscar got

to the door, he saw someone inside with a gun in his hand. Oscar ran to a neighbor’s

house next door; the neighbor retrieved a weapon, and the men went back to Marin’s

house. When they reached the door, however, they heard gunshots; frightened, the

neighbor returned home. Oscar saw two men running from Marin’s house, one taller

than the other; neither man was DeArmas. Oscar had not seen DeArmas since he

abruptly left the police station.

                                III. SUFFICIENCY OF THE EVIDENCE

       By his third and fourth issues, appellant contends the evidence is factually and

legally insufficient to support his conviction. In his combined argument regarding both

issues, appellant argues that: (1) although his DNA was found on a glove at the crime

scene, there is no evidence establishing when the DNA was deposited on the glove,

and “there is no other evidence to support [appellant’s] involvement”; and (2) DeArmas

knew Marin had a safe at his house, but the only evidence of a relationship between

appellant and DeArmas is appellant’s phone call to DeArmas about three hours before

the home invasion.

       Appellant does not separately argue his legal and factual sufficiency challenges.

Appellant acknowledges that the Texas Court of Criminal Appeals has directed

intermediate courts to apply a single standard of review—the Jackson v. Virginia

standard—to legal and factual sufficiency challenges in criminal cases. See Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). Notwithstanding Brooks, appellant asserts that

“[t]he Court of Criminal Appeals has no authority to abrogate the specific provisions of



                                             9
the Texas Constitution or state statutes” and argues that “this Court has the

constitutional and statutory authority to review factual and legal sufficiency issues.”

       “As an intermediate court of appeals, we are bound to follow the precedent of the

court of criminal appeals.” Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d).   The court of criminal appeals has characterized Brooks as

“abolish[ing] factual-sufficiency review.” See Howard v. State, 333 S.W.3d 137, 138 n.2

(Tex. Crim. App. 2011). Accordingly, we apply only the Jackson sufficiency standard to

complaints styled as legal or factual sufficiency challenges. See Ervin, 331 S.W.3d at

54.

A. Standard of Review and Applicable Law

       Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing the Jackson

standard as: “Considering all of the evidence in the light most favorable to the verdict,

was a jury rationally justified in finding guilt beyond a reasonable doubt”). The fact-

finder is the exclusive judge of the credibility of witnesses and of the weight to be given

to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th

Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008)). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive

province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must

resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).



                                             10
       In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not

point directly and independently to the appellant’s guilt, so long as the cumulative effect

of all the incriminating facts is sufficient to support the conviction. Id.

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

307 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       A person commits capital murder if he intentionally or knowingly causes the

death of an individual and intentionally commits the murder in the course of committing

or attempting to commit robbery or aggravated robbery.             TEX. PENAL CODE ANN. §

19.02(b)(1) (West 2011), § 19.03(a)(2); Ervin v. State, 333 S.W.3d 187, 200 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d); Hernandez v. State, 198 S.W.3d 257, 261

(Tex. App.—San Antonio 2006, pet. ref’d). A person commits robbery if, in the course

of committing theft and with intent to obtain or maintain control of the property, he

intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or

knowingly threatens or places another in fear of imminent bodily injury or death. TEX.



                                              11
PENAL CODE ANN. § 29.02(a) (West 2011); Ervin, 333 S.W.3d at 200.             Aggravated

robbery is robbery with the use or exhibition of a deadly weapon. TEX. PENAL CODE ANN.

§§ 29.02, 29.03 (West 2011). A firearm is a deadly weapon. Id. § 1.07(a)(17) (West

Supp. 2011).

       Capital murder is a result-of-conduct oriented offense; the crime is defined in

terms of one’s objective to produce, or a substantial certainty of producing, a specified

result, i.e., the death of the named decedent. Roberts v. State, 273 S.W.3d 322, 329

(Tex. Crim. App. 2008). “A person acts intentionally, or with intent, with respect to the

nature of his conduct or to a result of his conduct when it is his conscious objective or

desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a)

(West 2011). “A person acts knowingly, or with knowledge, with respect to a result of

his conduct when he is aware that his conduct is reasonably certain to cause the result.”

Id. § 6.03(b).

       In deciding whether the defendant had the culpable mental state to commit

murder, the jury weighs the evidence introduced at trial. Childs v. State, 21 S.W.3d

631, 635 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A person’s knowledge and

intent may be inferred from the “acts, words, and conduct” of the accused. Sholars v.

State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Hart

v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the

extent of the victim’s injuries, the method used to produce the injuries, and the relative

size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995). In a murder case, a particularly brutal or ferocious mechanism of death inflicted

on a helpless victim can be controlling upon the issue of intent or knowledge. Martin v.



                                           12
State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (concluding

evidence of severe brain injuries was legally and factually sufficient to show intent to kill

ten-month-old and support a capital murder conviction). Intent and knowledge are fact

questions for the jury, and are almost always proven through evidence of the

circumstances surrounding the crime. Childs, 21 S.W.3d at 635. Intent to kill may be

inferred from the use of a deadly weapon. Henderson v. State, 825 S.W.2d 746, 749

(Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). “When a deadly weapon is fired at

close range, and death results, the law presumes an intent to kill.” Ervin, 333 S.W.3d at

200 (quoting Sholars, 312 S.W.3d at 694).

        Here, the jury was instructed that it could find appellant guilty of capital murder as

a principal or as a party.4 The jury returned a general verdict; therefore, if the evidence

is sufficient to support a finding under either of the allegations submitted, we must

uphold the jury’s verdict. See Hernandez, 198 S.W.3d at 261.

        Although appellant was not indicted as a party, the charge authorized his

conviction as a party to capital murder pursuant to penal code section 7.02(a)(2) or (b).

See TEX. PENAL CODE ANN. § 7.02(a)(2), (b) (West 2011).5 A person “is criminally


        4
          The jury was instructed that it could convict appellant if it believed from the evidence beyond a
reasonable doubt that either: (1) appellant caused Marin’s death by shooting him with a firearm and
appellant was in the course of committing aggravated robbery of Marin; or (2) that Alberto caused Marin’s
death by shooting him with a firearm, and appellant was in the course of committing aggravated robbery
of Marin, and appellant encouraged, directed, aided or attempted to aid Alberto in committing capital
murder by purchasing a pair of gloves used in the robbery, planning the robbery with DeArmas, aiding
Alberto by threatening Marin with bodily injury or death, or entering Marin’s home with Alberto without
Marin’s consent.
        5
          Texas law does not require that an individual be indicted as a party; if the evidence supports a
charge on the law of parties, the trial judge may include an instruction on the law of parties despite the
lack of such an allegation in the indictment. Marable v. State, 85 S.W.3d 287, 287–88 (Tex. Crim. App.
2002); see also Gomez v. State, No. 13-09-619-CR, 2010 Tex. App. LEXIS 10250, at *7–8 (Tex. App.—
Corpus Christi Dec. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (explaining that “the
law of parties is not required to be included in the indictment, and may be included in a jury instruction if


                                                    13
responsible for an offense committed by the conduct of another if . . . acting with intent

to promote or assist the commission of the offense, he solicits, encourages, directs,

aids, or attempts to aid the other person to commit the offense.”                  Id. § 7.02(a)(2).

Evidence is sufficient to convict under the law of parties where the accused is physically

present at the commission of the offense and encourages its commission by words or

other agreement. Hernandez, 198 S.W.3d at 261. In determining whether an accused

participated as a party, the fact finder may examine the events occurring before, during,

and after the commission of the offense and may rely on actions of the accused that

show an understanding and common design to commit the offense.                         Id.   Further,

circumstantial evidence may be used to prove party status. Id.

       Also under penal code section 7.02(b), if:

       [I]n the attempt to carry out a conspiracy to commit one felony, another
       felony is committed by one of the conspirators, all conspirators are guilty
       of the felony actually committed, though having no intent to commit it, if
       the offense was committed in furtherance of the unlawful purpose and was
       one that should have been anticipated as a result of the carrying out of the
       conspiracy.

TEX. PENAL CODE ANN. § 7.02(b) (West 2011).

       A conspiracy exists when two or more persons, as shown by words or deeds,

agree to do an unlawful act. Butler v. State, 758 S.W.2d 856, 860 (Tex. App.—Houston

[14th Dist.] 1988, no pet.). An agreement may be inferred from the parties’ acts, Snow

v. State, 721 S.W.2d 943, 948 (Tex. App.—-Houston [1st Dist.] 1986, no pet.), and the

State may prove a conspiracy by circumstantial evidence. Butler, 758 S.W.2d at 860.

The agreement must be before or contemporaneous with the criminal event. Beier v.

State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). An agreement of the parties to act

the evidence supports such an instruction as a possible means by which the crime was committed”).


                                                 14
together in a common design seldom can be proven by direct evidence; reliance,

therefore, may be placed upon the actions of parties, showing by either direct or

circumstantial evidence an understanding and common design to do a certain act.

Rivera v. State, 990 S.W.2d 882, 887 (Tex. App.—Austin 1999, pet. ref'd).

B. Discussion

      Here, appellant argues that his DNA evidence found on a glove at the crime

scene is only a “modicum” of evidence that does not rationally support his conviction.

We disagree. The evidence established that: (1) on March 29, 2009, appellant and

Alberto purchased a pair of Wells Lamont gloves like those found at the crime scene;

(2) appellant’s DNA was found on a Wells Lamont glove recovered at the crime scene;

(3) the matching Wells Lamont glove was found in a nearby irrigation ditch, along with

other items apparently used in the home invasion; (4) appellant’s cell phone records

show that he called DeArmas—who knew that Marin had a safe at his house—several

hours before the home invasion; (5) appellant initially told the police he did not have a

cell phone number and attempted to cancel his cell phone account the day after the

home invasion; (6) appellant’s van—which he reported as stolen the morning after the

home invasion and was recovered later—contained black zip ties and duct tape similar

to those found at and near the crime scene; (7) when recovered, the van showed no

signs that it had been broken into; and (8) when police attempted to interview DeArmas,

he abruptly disappeared and has not been seen since. Viewing the evidence in the light

most favorable to the verdict, see Brooks, 323 S.W.3d at 898–99, we hold there was

legally sufficient evidence to find appellant guilty as a party under section 7.02(a)(2).

See TEX. PENAL CODE ANN. § 7.02(a)(2).          The jury could have found beyond a



                                           15
reasonable doubt that appellant’s DNA on the glove and other evidence established that

he and Alberto attempted to rob Marin and appellant either (1) shot Marin himself or (2)

aided Alberto in shooting Marin. We overrule appellant’s third and fourth issues.

                                 IV. MOTION TO SUPPRESS

       By his first issue, appellant contends the trial court erred in denying his motion to

suppress statements that he made during the April 18, 2009 interview at the police

station. Appellant argues he was in custody during the April 18 interview, was not given

Miranda warnings, and therefore, statements he made during the interview should have

been excluded. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although appellant

does not identify specific statements that he was harmed by, he argues that his “denials

of involvement with the purchase of the gloves was offered at trial as incriminating

evidence” and that his “denial of any connection to the gloves was harmful and was a

factor in the jury’s determination of guilt.” The State responds that the trial court did not

err in finding that appellant’s statements were not made during a custodial interrogation

and were made voluntarily.

A. Standard of Review and Applicable Law

       Whether the trial court properly denied a defendant’s motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—

Corpus Christi 2009, no pet.).      We give almost total deference to the trial court’s

determination of historical facts but review de novo the trial court’s application of law to

facts not turning on credibility and demeanor. Scardino, 294 S.W.3d at 405; see Ford v.

State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When, as in this case, the trial



                                             16
court makes no explicit findings of historical fact, the evidence must be viewed in the

light most favorable to the trial court's ruling. St. George, 237 S.W.3d at 725. We must

uphold the trial court’s ruling if it is correct under any theory of law applicable to the

case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005). “Absent a clear abuse of discretion, the

ruling on the admissibility of evidence will not be disturbed.” Fonseca v. State, 881

S.W.2d 144, 149 (Tex. App.—Corpus Christi 1994, no pet.) (citing Rivera v. State, 808

S.W.2d 80, 96 (Tex. Crim. App. 1991)).

        A trial court’s ultimate “custody” determination “presents a ‘mixed question of law

and fact.’” Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (quoting

Thompson v. Keohane, 516 U.S. 99, 112–13 (1995)). “Therefore, we afford almost total

deference to a trial judge’s ‘custody’ determination when the questions of historical fact

turn on credibility and demeanor.” Id. at 526–27. “Conversely, when the questions of

historical fact do not turn on credibility and demeanor, we will review a trial judge’s

‘custody’ determination de novo.” Id. at 527.

        The United States Supreme Court’s decision in Miranda and article 38.22 of the

Texas Code of Criminal Procedure protect suspects subjected to custodial police

questioning. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West 2005); Herrera, 241

S.W.3d at 526 (stating that both article 38.22 and Miranda apply when persons are in

custody and being interrogated); Ervin, 333 S.W.3d at 225-27 (same). The failure to

comply with the Miranda requirements6 results in forfeiture of the use of any statement


        6
          Miranda warnings include a statement regarding the right to remain silent, that any statement
made may be used as evidence, that you have the right to have an attorney present during questioning,
and if you are unable to hire an attorney, you have the right to have an attorney appointed if you cannot


                                                   17
obtained during that interrogation. Ervin, 333 S.W.3d at 204. “If statements are not

made as a result of custodial interrogation, the requirements of Miranda and article

38.22 do not apply.” Rodriguez v. State, 191 S.W.3d 428, 448 (Tex. App.—Corpus

Christi 2006, pet. ref’d).

        In determining whether an individual was in custody, the ultimate inquiry is

whether there was a formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest. Id. at 440. The determination depends on the objective

circumstances, not on the subjective views of either the interrogating officers or the

person being questioned. Id. Moreover, the determination is made on an ad hoc basis.

Id. at 440–41.

        Four general situations may constitute custody for purposes of Miranda and

article 38.22: (1) the suspect is physically deprived of his freedom of action in any

significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3)

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) there is

probable cause to arrest the suspect, and law enforcement officers do not tell the

suspect he is free to leave. Ervin, 333 S.W.3d at 205; Rodriguez, 191 S.W.3d at 441.

The fourth category applies only when the officer’s knowledge of probable cause is

communicated to the suspect or by the suspect to the officer; even then custody is

established only “if the manifestation of probable cause, combined with other

afford one. Miranda v. Arizona, 384 U.S. 436, 444 (1966). These warnings largely overlap with those
required by the Texas Code of Criminal Procedure, Article 38.22, section 2(a), except that section 2(a)
includes an additional warning that the accused “has the right to terminate the interview at any time[.]”
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West 2005).




                                                   18
circumstances, would lead a reasonable person to believe that he is under restraint to

the degree associated with an arrest.” Ervin, 333 S.W.3d at 205 (quoting Gardner v.

State, 306 S.W.3d 274, 295 n.48 (Tex. Crim. App. 2009)); Rodriguez, 191 S.W.3d at

441. “[T]he question turns on whether, under the facts and circumstances of the case,

‘a reasonable person would have felt that he or she was not at liberty to terminate the

interrogation and leave.’” Ervin, 333 S.W.3d at 205 (quoting Nguyen v. State, 292

S.W.3d 671, 678 (Tex. Crim. App. 2009)).

      When a person is transported to a law enforcement facility by an officer in the

course of an investigation, if the person was acting upon the invitation, request, or even

the urging of an officer, there were no threats that he would be taken in a forcible

manner, and the accompaniment is voluntary, then the individual is not in custody.

Rodriguez, 191 S.W.3d at 441–42; see Zavala v. State, 956 S.W.2d 715, 724 (Tex.

App.—Corpus Christi 1997, pet. ref’d).      Station-house questioning alone does not

constitute custody. Rodriguez, 191 S.W.3d at 442. However, police conduct during the

encounter may cause a consensual inquiry to escalate into a custodial interrogation. Id.

At trial, the defendant bears the initial burden of proving that a statement was the

product of custodial interrogation. Herrera, 241 S.W.3d at 526.

B. Discussion

      On January 26, 2011, the trial court held a pre-trial hearing on appellant’s motion

to suppress.   The only witnesses were Officers Tamez and Garcia.           Both officers

testified that they picked appellant up at his residence on April 18, 2009; appellant

agreed to go to the police station for questioning. Officer Tamez described appellant as

a “person of interest,” not a suspect. The officers were in an unmarked “undercover”



                                           19
vehicle; appellant was not handcuffed and rode in the front seat. Appellant was offered

water or soda during the interview. Appellant was not forced to make any statements,

and did not ask to terminate the interview. On cross-examination, Officer Tamez stated

that when he and Officer Garcia left the station to obtain a search warrant, he instructed

Officer Carrizales to stay with appellant.

       Officer Garcia gave similar testimony regarding the April 18 interview with

appellant. During the interview, Officer Garcia asked appellant if he wanted to provide a

written statement, but appellant declined because he cannot read or write. After telling

appellant that the officers had seen the Wal-Mart video of him and Alberto buying

gloves, Officer Garcia asked appellant why he was buying gloves; appellant did not

answer. Appellant was not a suspect at the time of the interview. Appellant became

angry with Officer Tamez and said he would rather talk to Officer Garcia. Appellant did

not ask to be taken home. The interview lasted about an hour and a half. On cross-

examination, Officer Garcia said that on April 18, he considered appellant a “person of

interest” but not a suspect. Officer Garcia asked appellant for a DNA sample, but he

refused.   When Officer Garcia told him that he would obtain a search warrant

authorizing a blood sample, appellant said, “okay.” Officer Garcia said that on April 18,

he had no probable cause to arrest appellant.

       Appellant’s counsel argued that the custodial interrogation began when the

officers started interviewing appellant at the station. Counsel argued that the officers

intended to confront appellant with the video and elicit incriminating responses from

him. Although counsel did not identify specific “incriminating responses,” he argued that

“anything said and anything revealed” by appellant should be suppressed. The State



                                             20
argued that appellant went with the officers voluntarily and was not in custody. The

State introduced two exhibits, Officer Tamez’s and Officer Garcia’s investigative reports,

both of which included a chronological summary of the investigation.

       On February 10, 2011, the trial court signed an order denying appellant’s motion

to suppress. The order states, in relevant part, that “the Court holds that [appellant’s]

statements, admissions or confessions were not a product of custodial interrogation and

were voluntarily made.”

       Viewing the evidence in the light most favorable to the trial court’s ruling, see

Herrera, 241 S.W.3d at 527, we conclude that the trial court did not abuse its discretion

in concluding that appellant’s statements were not made as a result of custodial

interrogation and were therefore admissible. See Rodriguez, 191 S.W.3d at 448. The

trial court heard testimony that appellant accompanied the officers to the station

voluntarily. He was not handcuffed and was free to leave. See Ervin, 333 S.W.3d at

211 (finding appellant not in custody where she voluntarily went to police station, was

not handcuffed, was told she could leave, was questioned four hours, and went home

after making statements); Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1993)

(“[W]here the circumstances show that the person voluntarily accompanied the police in

the investigation of a crime, and he knew or should have known that the police might

suspect that he is implicated in the offense, whether he is acting upon the invitation,

urging, or request of police officers, and not being forced, coerced or threatened, the act

is voluntary and the person is not then in custody”); see also Bridges v. State, No. 05-

09-00784-CR, 2011 Tex. App. LEXIS 697, at *27 (Tex. App.—Dallas Jan. 21, 2011, pet.

ref’d) (not designated for publication) (same). Officers Tamez and Garcia both testified



                                            21
that appellant was not in custody. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.

Crim. App. 1997) (“The officer’s testimony is a factor to be considered, along with the

other facts and circumstances of the detention, in determining whether an arrest has

taken place.”). The testimony demonstrates that appellant understood that he could

decline to provide a written statement and a DNA sample and could refuse to continue

talking with Officer Tamez. Officer Garcia stated that on April 18, he did not have

probable cause to arrest appellant. Even if Officer Garcia believed he had probable

cause to arrest appellant on April 18, the record does not reflect that this was ever

manifested to appellant. See Gardner, 306 S.W.3d at 294–95 (finding even if officer

had probable cause to arrest, appellant not in custody where appellant said nothing to

officer that furnished probable cause and officer never told appellant he was a prime

suspect); see also Bridges, 2011 Tex. App. LEXIS 697, at *28–29 (finding initial non-

custodial interview escalated into custodial interrogation when appellant admitted

shooting the victim because admission established probable cause to arrest); Navarro

v. State, No. 10-11-00051-CR, 2011 Tex. App. LEXIS 8041, at *13–14 (Tex. App.—

Waco October 5, 2011, no pet.) (mem. op., not designated for publication) (finding no

custody even if officer believed he had probable cause to arrest appellant, as belief was

not manifested to appellant); State v. Roberts, No. 05-09-01328-CR, 2010 Tex. App.

LEXIS, at *12–13 (Tex. App.—Waco July 28, 2010, pet. ref’d) (not designated for

publication) (finding suspect not in custody during initial portion of interview because

even though officer had arrest warrant, the officer’s knowledge of probable cause was

not communicated or otherwise manifested to suspect and suspect provided no

information substantiating probable cause to officer during initial portion of interview).



                                             22
       After the interview was concluded, the officers left to obtain a search warrant.

Officer Tamez asked Officer Carrizales to stay with appellant, but there was no

evidence that appellant was told that he could not leave. As the State notes, Officer

Carrizales was asked to keep an eye on appellant after the interview was conducted;

thus, even if we assume, without deciding, that appellant was in custody during the time

that he was in Officer Carrizales’s care, there is no evidence that he was questioned

during or after that time.

       Moreover, we note that appellant did not provide a harm analysis, other than to

assert, without elaboration or citation to authority, that “[a]ppellant’s denial of any

connection to the gloves was harmful and was a factor in the jury’s determination of

guilt.” Thus, we conclude that appellant’s claim that he was harmed by the trial court’s

denial of his motion to suppress was inadequately briefed. See TEX. R. APP. P. 38.1(i).

We overrule appellant’s first issue.

                             V. VALIDITY OF SEARCH WARRANT

       By his second issue, appellant contends that the trial court erred in admitting

evidence regarding DNA testing of his blood sample because the warrant used to obtain

the sample was based on insufficient probable cause. The State responds that the

issue is not preserved because appellant did not: (1) challenge the search warrant

before the trial court; and (2) object to Edna Zavala’s trial testimony that she matched

DNA evidence from various items to appellant’s DNA profile. The State further argues

that even if we consider the merits of appellant’s complaint, the search warrant was

supported by sufficient probable cause.




                                          23
       We agree that it is unnecessary to decide whether the search warrant was based

on sufficient probable cause because defense counsel did not preserve this issue. The

validity of the search warrant used to obtain appellant’s blood sample was not

challenged at the suppression hearing or at trial. At trial, there was no objection to

Officer Tamez’s or Officer Garcia’s testimony regarding the search warrant used to

obtain the blood sample from appellant.             Neither was there an objection to Edna

Zavala’s testimony regarding the DNA evidence or to the admission of the blood sample

evidence. “As a prerequisite to presenting a complaint on appeal, a party must have

made a timely and specific request, objection, or motion to the trial court. Grant v.

State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing TEX. R. APP. P.

33.1(a)(1)(A)).   Here, appellant did not challenge the validity of the search warrant

before the trial court. Therefore, we conclude that this issue was not preserved for

appellate review. See TEX. R. APP. P. 33.1. We overrule appellant’s second issue.

                                     VI. CONCLUSION

       We affirm the trial court’s judgment.



                                                     DORI CONTRERAS GARZA
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
31st day of May, 2012.




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