Affirmed and Majority and Concurring Opinions filed January 28, 2014.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-12-00726-CR

                      RICHARD EARL ORTIZ, Appellant

                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 262nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1319044


                   CONCURRING OPINION
      Under the applicable standard of review, the trial court did not abuse its
discretion in denying appellant’s motion to suppress Officer Spencer’s testimony
regarding appellant’s statements through the point at which appellant said, “Your
victim is over there.” Any error in denying the motion to suppress this officer’s
testimony regarding appellant’s final statement was harmless beyond a reasonable
doubt. Though I respectfully disagree with the majority’s analysis, the court is
correct to affirm the trial court’s judgment.
      This court reviews a trial court’s ruling on a motion to suppress under a
bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). At a suppression hearing, the trial court is the sole finder of fact and
is free to believe or disbelieve any or all of the evidence presented. Weide v. State,
214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to
the trial court’s determination of historical facts, especially when the trial court’s
fact findings are based on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. This court affords the same amount of deference to the trial court’s
application of the law to facts if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. This court reviews de novo the trial
court’s application of the law to facts if resolution of those ultimate questions does
not turn on an evaluation of credibility and demeanor. Id.

      It is undisputed that appellant had not received any Miranda warnings when
he made the statements in question. Therefore, this court must decide whether
appellant was in custody when he made the statements. A person is in custody if,
under the circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest. Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The “reasonable person”
standard presupposes an innocent person. Id. Moreover, the subjective intent of
law enforcement officials to arrest is irrelevant unless that intent is somehow
communicated or otherwise manifested to the suspect. Id.

      The Court of Criminal Appeals has recognized four factors relevant to
determining custody: (1) probable cause to arrest, (2) subjective intent of the
police, (3) focus of the investigation, and (4) subjective belief of the defendant. Id.
But, under Stansbury v. California, 511 U.S. 318, 321–24, 114 S. Ct. 1526, 1528–
30, 128 L. Ed. 2d 293, 298–99 (1994), factors (2) and (4) have become irrelevant

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except to the extent that they may be manifested in the words or actions of law
enforcement officials.     See Dowthitt, 931 S.W.2d at 254.             The custody
determination must be made on an ad hoc basis, after considering all of the
objective circumstances. Id. at 255. That an interrogation begins as noncustodial
does not prevent custody from arising later; a consensual inquiry can escalate into
a custodial interrogation. Id.

      The Court of Criminal Appeals has outlined at least four general situations
which may constitute 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.

Id. Concerning the first three situations, Stansbury indicates that the restriction
upon freedom of movement must amount to the degree associated with an arrest as
opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. Concerning
the fourth situation, Stansbury dictates that the officers’ knowledge of probable
cause be manifested to the suspect.           Id.   This manifestation can occur if
information substantiating probable cause is related by the suspect to the officers
or if such information is related by the officers to the suspect. Id. Furthermore, the
fourth situation does not automatically establish custody; rather, custody is
established if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe that he is under restraint

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to the degree associated with an arrest. Id. The length of time spent interrogating
the suspect is one of the factors to consider. Id. at 256.
      Applying the foregoing legal standard to the case under review, the trial
court did not err in concluding that appellant was not in custody at the time he
made all of the statements, except for the final statement that appellant used his
fists and that God gave appellant those fists for a reason (hereinafter the “Last
Statement”). See Hutto v. State, 977 S.W.2d 855, 858 (Tex. App.—Houston [14th
Dist.] 1998, no pet.).
      Regarding the Last Statement, it may be presumed for the sake of argument
that appellant’s nodding his head toward his yard and his statement that “[y]our
victim is over there” substantiated probable cause under the fourth situation and,
combined with other circumstances, would lead a reasonable person to believe that
he was under restraint to the degree associated with an arrest.            Under this
presumption, reversal would be required unless this court can determine, beyond a
reasonable doubt, that the failure to suppress the Last Statement did not contribute
to the jury’s verdict at the guilt/innocence phase. See Jones v. State, 119 S.W.3d
766, 777 (Tex. Crim. App. 2003). If there is a reasonable likelihood that the error
materially affected the jury’s deliberations, the error was not harmless. See id.
      In conducting the harm analysis, the reviewing court should calculate, as
nearly as possible, the probable impact of the failure to suppress on the jury in light
of the other evidence. See id. In the context of a Miranda error, this court must
assess the magnitude of the error in light of the evidence as a whole to determine
the degree of prejudice to the defendant resulting from that error. See id. This
court must assess the probable weight a juror would place upon the Last Statement.
See id. at 778.
      In light of the other evidence of appellant’s guilt, including the statements
appellant made to Officer Spencer before appellant made the Last Statement, this
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court can be confident, beyond a reasonable doubt, that the failure to suppress the
Last Statement did not materially contribute to the jury’s “guilty” verdict. See id.
at 783; Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). Thus,
even if the trial court erred in failing to suppress the Last Statement, this error was
harmless beyond a reasonable doubt. See Jones, 119 S.W.3d at 783; Gardner, 306
S.W.3d at 295.
      For the foregoing reasons, I concur in the court’s judgment.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Jamison, J.,
majority).
Publish — TEX. R. APP. P. 47.2(b).




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