                                    NO. 07-06-0138-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   APRIL 7, 2008
                          ______________________________

                           LORI SUE HOLCOMB, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 33RD DISTRICT COURT OF BURNET COUNTY;

                      NO. 31515; HONORABLE D. MILLS, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Lori Sue Holcomb, was convicted of the offense of burglary of a building

and sentenced to two years confinement in a State Jail Facility, probated for five years.

By one issue, appellant claims that the trial court erred in admitting testimony of an officer

regarding an interview of appellant that was conducted at appellant’s place of employment.

We affirm.
                                    Factual Background


       The facts are not in issue, therefore, only a brief recitation of the operative facts is

required. A City of Bertram police officer, Jeff White, was on routine foot patrol when he

saw a man, identified as Patrick Hodges, standing next to a truck parked at the entrance

to an alley. Upon talking to Hodges, White was told that Hodges was parked there while

appellant went down the alley to use the restroom. Shortly thereafter, appellant appeared

from some bushes near a vacant house. This was the same vacant house that appellant

was ultimately charged with burglarizing.         White questioned appellant and she was

released.   White discovered the owner of the vacant house, interviewed her, and

discovered that certain items had been taken from the house. Upon returning to the vacant

house, White found a number of items stacked on the front porch, including a purse that

contained no identification.     Some days later, White went to appellant’s place of

employment to interview her about the burglary at the vacant house. Upon beginning the

interview, appellant began crying and made statements about the items left on the porch,

including the purse which she claimed belonged to her. White testified, at a pretrial

hearing, that during his interview with appellant he felt he had enough information to

formulate probable cause to arrest her. However, White further testified that he did not

attempt an arrest or inform appellant that he felt he had probable cause to arrest. At the

conclusion of this pretrial hearing on the admissibility of appellant’s oral statements, the

trial court ruled that they were admissible. Appellant was convicted of the charge of

burglary of a building and this appeal resulted.




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                                Appellant’s Oral Statements


       Appellant’s sole contention is that, once officer White formulated in his mind that he

had probable cause to arrest appellant for the burglary of the vacant house, appellant was

in custody unless the officer had advised appellant that she was free to leave. According

to appellant, White rendered the oral statements inadmissible because, even though

appellant was in custody, she was not given her Miranda1 rights prior to making the

incriminating oral statement.


       We will review the decision of the trial court to overrule the motion to suppress de

novo, as there is no controversy regarding the factual background nor is the decision

based on the credibility of the witness. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.

1999). Appellant’s contention is grounded upon her view that the opinion in Dowthitt v.

State stands for the proposition that once an officer develops, in his own mind, probable

cause to arrest a suspect, the suspect is in custody for Miranda purposes unless the officer

advises the suspect that they are free to leave. See Dowthitt v. State, 931 S.W.2d 244,

254 (Tex.Crim.App. 1996). However, appellant misconstrues the Dowthitt holding. In

Dowthitt, the Texas Court of Criminal Appeals stated that the custody determination is

based entirely upon objective circumstances. Id. (citing Stansbury v. California, 511 U.S.

318, 324, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). A person is in custody only if it is

established that the manifestation of probable cause, combined with other circumstances,




       1
           Miranda v. Arizona, 384 U.S. 430, 460, 86 S.Ct. 1602, 128 L.Ed.2d 694 (1966).

                                             3
would lead a reasonable person to believe that he is under restraint to the degree

associated with arrest. Id.


       Given the facts in the record, it is clear that on the day of the interview at appellant’s

place of employment, it was never communicated to appellant that she was under arrest

or otherwise restrained of her freedom.         Accordingly, the oral statements made by

appellant on that day were not the result of custodial interrogation and the trial court did

not err in admitting them before the jury. Id.


       Additionally, we note that appellant gave a written confession that was introduced

during the trial. Appellant has not attacked the introduction of the written confession before

the jury. Accordingly, that evidence is before the court for all purposes. A review of the

written statement reveals that it covers much of the same material and makes further

admissions. Therefore, even were we to find that the oral statements were admitted in

error, the written statement would render this error harmless beyond a reasonable doubt.

TEX . R. APP. P. 44.2(a).


                                          Conclusion


       Having overruled appellant’s sole contention, the judgment of the trial court is

affirmed.


                                                           Mackey K. Hancock
                                                                Justice

Do not publish.



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