Opinion filed August 30, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-11-00225-CR
                                     _________

                        IRIS WILSON JR., Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR38383


                      MEMORANDUM OPINION
      The jury convicted Iris Wilson Jr. of the offense of theft over $1,500 but less
than $20,000. See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2012). After
finding three enhancement paragraphs to be true, the trial court assessed
Appellant’s punishment at confinement for twelve years and a fine of $10,000 and
ordered payment of $4,300 restitution to the victim. We affirm.
      Appellant argues in two issues that the trial court abused its discretion when
it denied Appellant’s motion to suppress and that it erred when it denied
Appellant’s request for a jury instruction.
      At the time of the offense, Tom Esikhati was the owner of a driving
academy. Esikhati employed Appellant to, among other tasks, clean the academy’s
vehicles and classroom. From around 4:30 p.m. to 6:30 p.m. on the date of the
offense, Esikhati left Appellant alone in the academy and locked the doors behind
him. Within a few hours of Esikhati’s return to the academy, he noticed that some
money that he stored in the classroom was missing. At trial, Esikhati testified that
the missing money consisted of $2,500 that he kept in a brown envelope, $1,500
that he stored in a white envelope, and about $300 that was placed in cans. An
audio recording of a statement Appellant made to police in which he admitted to
stealing money from Esikhati was also admitted.
      In his first issue, Appellant contends that the trial court committed reversible
error when it denied Appellant’s motion to suppress the recorded statement that he
gave to law enforcement. We review a trial court’s ruling on a motion to suppress
for an abuse of discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App.
2011); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). When we
review a ruling on a motion to suppress, we apply a bifurcated standard of review.
Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total
deference to the trial court’s determination of historical facts. Valtierra, 310
S.W.3d at 447. The trial court is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given their testimony. Id.; Garza v. State, 213
S.W.3d 338, 346 (Tex. Crim. App. 2007). Second, we review de novo the trial
court’s application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra, 310
S.W.3d at 447. We will sustain the trial court’s ruling if it is reasonably supported
                                           2
by the record and is correct on any theory of law applicable to the case. Valtierra,
310 S.W.3d at 447–48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006).
        Appellant contends that the trial court should have suppressed Appellant’s
confession because the officer who took Appellant’s statement circumvented
Appellant’s Miranda1 rights by using an impermissible “question-first, warn-later”
strategy to obtain the confession during a custodial interrogation. In order to
address this issue, we will first determine whether Appellant was subject to a
custodial interrogation at the time the statement that he sought to suppress was
made.
        A statement made by an accused in a custodial interrogation cannot be used
as evidence against him at his trial unless he had been given proper warnings under
Miranda and Article 38.22 and had knowingly, intelligently, and voluntarily
waived the rights contained in the warnings.            TEX. CODE CRIM. PROC. ANN.
art. 38.22 (West 2005).             If the statement does not stem from custodial
interrogation, the warnings are not required and the statement can be used against
the accused at trial. Id.
        Custodial interrogation is “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.” Miranda, 384 U.S. at 444. It is the defendant’s
initial burden to prove that the statement is the product of custodial interrogation.
Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). “[B]eing the
‘focus’ of an investigation does not necessarily render a person ‘in custody’ for
purposes of receiving Miranda warnings or those required under article 38.22 of
the Code of Criminal Procedure.” Id. at 293.


        1
         Miranda v. Arizona, 384 U.S. 436 (1966).
                                                    3
      There are four general situations that may constitute custody for purposes of
Miranda and Article 38.22: (1) the accused is physically deprived of his freedom
of action in a significant way; (2) a police officer tells the accused he is not free to
leave; (3) police officers create a situation that would lead a reasonable person to
believe that his freedom of movement has been significantly restricted; and
(4) there is probable cause to arrest the accused, and police officers do not tell him
that he is free to leave. Id. at 294. 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 circumstances, would lead a reasonable
person to believe that he is under restraint to the degree associated with an arrest.”
Id. at 294–95 n.48.
      Circumstances relevant to determine whether a person is “in custody”
include (1) the location where the person is questioned, (2) the duration of the
questioning, (3) the statements that are made during the interview, (4) the presence
or absence of physical restraints when the person is questioned, and (5) whether
the person is released at the end of the interview. Howes v. Fields, 132 S. Ct.
1181, 1189 (2012). Appellant contends that he was in custody during the interview
because the fourth and third situations described above were established.
      The trial court entered the following pertinent findings of fact and
conclusions of law after the suppression hearing: (1) Appellant was not under
arrest at the time he made the recorded statement; (2) the recorded statement was
not the result of a custodial interrogation; (3) no coercive, hostile, aggressive, or
threatening behavior was directed toward Appellant while or before he gave the
recorded statement, and no promises were made to him; (4) Appellant voluntarily
made the recorded statement; and (5) after the statement was concluded, Appellant


                                           4
was free to and did leave the offices of the interviewing detective at the Midland
Police Department.
      At the hearing on the motion to suppress, Detective Georvarsey Mitchell
testified that Esikhati told him that Appellant stole funds from him. After speaking
with Esikhati, Detective Mitchell called and asked Appellant to meet with him at
his office.   Appellant obliged.   After arriving at Detective Mitchell’s office,
Appellant and Detective Mitchell had a conversation about the incident. They
discussed whether Appellant committed the offense. Appellant initially denied it
but, eventually, admitted to the act. Detective Mitchell then read Appellant his
Miranda rights and asked Appellant if he would like to give a statement.
Appellant answered affirmatively, and Detective Mitchell made an audio recording
of the statement. This audio recording of the statement is what Appellant sought to
suppress.
      During the hearing, Detective Mitchell also testified that Appellant was not
arrested at any point before, during, or immediately after the interview. Appellant
came to the interview voluntarily. He was not placed in handcuffs and was free to
leave at any time. On the recording, Appellant acknowledges that he was there of
his own free will.
      Here, the trial court determined that the statement was not the product of a
custodial interrogation. The record from the suppression hearing supports the trial
court’s findings. We defer to this determination because it hinges on an evaluation
of Detective Mitchell’s credibility and the credibility and demeanor of Appellant
on the audio recording. Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim.
App. 2006). Here, the record does not reflect circumstances under which we can
reach a conclusion that a reasonable person would believe that he was under
restraint to the degree associated with an arrest or that his freedom of movement


                                         5
was significantly restricted.    Therefore, we do not agree with Appellant’s
assertions that the facts demonstrate that he was in custody.
      As we provided above, voluntary statements that are not the result of
custodial interrogations are exempt from the Miranda requirements.         State of
Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) (“It is clear therefore that the
special procedural safeguards outlined in Miranda are required . . . where a suspect
in custody is subjected to interrogation.”).      As such, we need not reach a
determination of whether Detective Mitchell employed a two-step interrogation
technique in a deliberate, calculated way to undermine Appellant’s Miranda
warnings. Accordingly, the trial court did not abuse its discretion when it denied
the motion to suppress. Appellant’s first issue is overruled.
      In his second issue, Appellant contends that the trial court erred when it
denied Appellant’s request for the inclusion of jury instructions under
Articles 38.22 and 38.23 of the Code of Criminal. See TEX. CODE CRIM. PROC.
ANN. arts. 38.22, § 6; 38.23 (West 2005).
      In analyzing a complaint of jury charge error, we first determine whether
error existed in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If
error existed, we then determine whether the error caused sufficient harm to
warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
When a defendant properly preserves error, reversal is required if the error caused
some harm. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). When
the defendant does not present a proposed jury instruction at trial, any potential
error in the charge is reviewed only for egregious harm. Oursbourn v. State, 259
S.W.3d 159, 174 (Tex. Crim. App. 2008).
      Article 38.22, section 6, provides for a general instruction by which the jury
is asked to determine whether a defendant’s statement was made under voluntary
                                          6
conditions. Id. at 173. This section applies only “where a question is raised as to
the voluntariness of a statement of an accused.” CRIM. PROC. art. 38.22, § 6. The
Texas Court of Criminal Appeals has held that a “question is raised” when the trial
court is notified by the parties or raises on its own an issue about the voluntariness
of a statement. Oursbourn, 259 S.W.3d at 175. Once a question is raised, the trial
court must hold a hearing outside the presence of the jury to decide whether the
defendant’s statement was voluntary. Id. at 175. The trial court must make written
findings of fact and conclusions of law in support of its ruling. Id. at 175 n.55. If
the trial court finds that the statement was voluntary, it will be admitted, and the
defendant may offer evidence before the jury that the statement was not, in fact,
voluntary. Id. at 175. If the defendant does so, the trial court must give the jury a
voluntariness instruction. Id.
      Article 38.22, section 6, requires that voluntariness be litigated in some
manner before a jury. Id. at 176. Although a factual dispute is not necessary to
induce the requirement of a jury instruction, “‘[s]ome evidence must have been
presented to the jury that the defendant’s confession was not given voluntarily.’”
Id. at 176 n.59 (alteration in original) (quoting Vasquez v. State, 225 S.W.3d 541,
545 (Tex. Crim. App. 2007)). When there is no evidence before the jury to raise
the issue of whether the statement was voluntarily given, there is no error when a
trial court refuses to include the instruction. Vasquez, 225 S.W.3d at 545.
      “The determination of whether a confession is voluntary is based on an
examination of the totality of circumstances surrounding its acquisition.” Wyatt v.
State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State, 903
S.W.2d 715, 744 (Tex. Crim. App. 1995)). A statement may be involuntary “if
there was official, coercive conduct of such a nature that any statement obtained
thereby was unlikely to have been the product of an essentially free and
unconstrained choice by its maker.” State v. Terrazas, 4 S.W.3d 720, 723 (Tex.
                                          7
Crim. App. 1999) (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim.
App. 1995)). The ultimate question for a court to answer when it determines
voluntariness is “whether the suspect’s will was overborne” by the conduct of the
state actor. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Some
relevant circumstances include the length of the detention and interrogation,
whether the defendant was permitted access to his family or attorney, and the
presence or absence of physical brutality. Gomes v. State, 9 S.W.3d 373, 377 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d) (citing Armstrong v. State, 718
S.W.2d 686 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v.
State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). A defendant’s characteristics and
status, as well as the conduct of the police, are also important concerns. Haynes v.
Washington, 373 U.S. 503, 517 (1963).
      In our review of the record, we find no evidence upon which a reasonable
jury could conclude that Appellant’s statement was not voluntary. The evidence
before the jury in the guilt/innocence phase of the trial consisted of Esikhati’s
testimony, Detective Mitchell’s testimony, and Appellant’s recorded statement.
Detective Mitchell’s testimony at trial generally tracked the testimony he gave
during the hearing on the motion to suppress. Nothing in his description of the
interview or the events immediately preceding it raised a question of the
voluntariness of Appellant’s statement. Nor was a question of voluntariness raised
in the recorded statement played to the jury. As we noted in our discussion of
Appellant’s first issue, during the recorded statement, Appellant stated that he was
there of his own free will. Because the record is devoid of any evidence before the
jury that would raise the issue of whether the statement was voluntarily given, the
trial court did not err when it refused to include the Article 38.22, section 6
instruction.


                                         8
      In the second part of Appellant’s argument under the second issue, he
contends that the trial court erred when it denied his request for an instruction
under Article 38.23. When a fact question arises at trial regarding how evidence
was obtained, Article 38.23 requires the trial court to instruct the jury to disregard
the evidence if the jury believes that the evidence was obtained in violation of the
Constitution or laws of the United States or of Texas. See CRIM. PROC. art. 38.23.
There are three requirements that a defendant must meet before he is entitled to the
submission of a jury instruction to disregard evidence: (1) the evidence heard by
the jury must raise an issue of fact; (2) the evidence on that fact must be
affirmatively contested; and (3) that contested factual issue must be material to the
lawfulness of the challenged conduct in obtaining the evidence. Madden v. State,
242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
      It is at least on the third requirement under Madden that Appellant’s
argument fails. Appellant contends the following factual issues warranted an
Article 38.23 instruction: (1) Esikhati testified that the stolen money was in
envelopes, whereas Appellant said in his statement that the money was in a bag;
(2) Esikhati testified that $4,300 was stolen, while Appellant said in his statement
that the amount was approximately $3,000; and (3) Esikhati testified that the stolen
money was in the desk drawer, but Appellant indicated in his statement that the
money was on top of the desk. Appellant argues that these facts are material
because they indicate Detective Mitchell was questioning Appellant with
inaccurate facts, thereby seeking an inaccurate confession. We disagree. “The
defendant must offer evidence that, if credited, would create a reasonable doubt as
to a specific factual matter essential to the voluntariness of the statement.”
Oursbourn, 259 S.W.3d at 177. Whether the jury believed Esikhati’s testimony or
Appellant’s statement as to the factual differences argued by Appellant has no
bearing on whether Appellant’s statement was voluntary. See id. at 178 (citing
                                          9
Colorado v. Connelly, 479 U.S. 157, 164 & n.1 (1986), and Terrazas, 4 S.W.3d at
727) (“Normally, ‘specific’ exclusionary-rule instructions concerning the making
of a confession are warranted only where an officer uses inherently coercive
practices like those set out in Connelly.”).
      Furthermore, the proposition that Detective Mitchell was intentionally
questioning Appellant with inaccurate facts is not supported by the evidence. The
only evidence as to Detective Mitchell’s mental state concerning his questioning
about those facts is his testimony that “[he] was told that [the missing amount] was
$3,000” in response to Appellant’s question asking if he had contacted the victim
or anyone else at the academy to check those facts. Even if there was such
evidence, “it is well established that lying about the state of the evidence is not the
sort of ‘overreaching’ that implicates the Due Process Clause, as long as the
subterfuge used is not one likely to produce an untrue statement.” Id. at 182
Given our previous holding that the factual differences argued by Appellant have
no bearing on whether Appellant’s statement was voluntary and the lack of
evidence of any intentionality on the part of Detective Mitchell, we cannot say that
the alleged deception interjected the type of extrinsic considerations that would
overcome Appellant’s “‘will by distorting an otherwise rational choice of whether
to confess or remain silent.’” Id. at 182 n.88.
      Appellant also argues that a contested factual issue existed that would trigger
an Article 38.23 instruction because “the defense, believing [Detective] Mitchell
told [Appellant] he would release [Appellant] if he confessed, contested the
reasoning why [Detective] Mitchell eventually released [Appellant] after obtaining
his confession.” However, there was no evidence presented at trial to support this
contention; rather, the only support for this contention was a question posed by
Appellant’s counsel during his cross-examination of Detective Mitchell.             In
Oursbourn, the Court of Criminal Appeals stated that the triggering “factual
                                          10
dispute can be raised only by affirmative evidence, not by mere cross-examination
questions or argument.” Id. at 177 (citing Madden, 242 S.W.3d at 513 nn. 22–23).
Thus, as Appellant’s argument is not based on evidence, it is not persuasive.
      Finally, Appellant argues that “the content and circumstances of the
unrecorded, unwarned interview brings into dispute the ‘question-first, warn-later’
tactics” that Appellant alleged in his first issue. Appellant does not elaborate on or
point to any material or specific fact disputes in support of this argument. As
discussed above, the triggering factual dispute can only be raised by affirmative
evidence. Id. Although Appellant may speculate at trial about what may or may
not have happened, the record does not support his allegation.          Because the
requirements necessary to trigger an instruction under Article 38.23 were not met,
we hold that the trial court did not err when it denied Appellant’s request for an
Article 38.23 instruction.
      Because we have determined that the trial court did not err when it refused
to instruct the jury under Articles 38.22 and 38.23, Appellant’s second issue is
overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


August 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.



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