             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00037-CR
           No. 02-18-00038-CR
      ___________________________

     CARLA MAE SOLAYAO, Appellant

                      V.

           THE STATE OF TEXAS


 On Appeal from County Criminal Court No. 5
            Tarrant County, Texas
     Trial Court Nos. 1513977, 1513978


 Before Sudderth, C.J.; Pittman and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

                                   I. Introduction

      Appellant Carla Mae Solayao’s spouse called 911 after she hit him in the face

during an argument. She tried to stop him from making the call. Arlington police

officers were dispatched to the scene and spoke with both parties.              Solayao

subsequently sought the exclusion of her statements to the officers under code of

criminal procedure article 38.22 and requested a jury instruction to that effect,1 both

of which were denied by the trial court. The jury convicted her of assault causing

bodily injury to a family member2 and interfering with an emergency call,3 and the trial

court sentenced her to 90 days’ confinement for each conviction, to run concurrently,

then suspended her sentences and placed her on 12 months’ community supervision.

See Tex. Penal Code Ann. § 12.21 (West 2011) (stating that a Class A misdemeanor

punishment may include a fine not to exceed $4,000, confinement in jail for up to a

year, or both); Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1) (West 2018) (stating that


      1
        See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2018) (providing for a jury
instruction, in appropriate cases, with regard to fact issues on whether evidence was
obtained in violation of the state or federal constitutions or statutes).
      2
        See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2018) (stating that a
person commits an offense if he or she intentionally, knowingly, or recklessly causes
bodily injury to another, including his or her spouse).
      3
       See Tex. Penal Code Ann. § 42.062(a) (West 2016) (stating that a person
commits an offense if he or she knowingly prevents or interferes with another
individual’s ability to place an emergency call to a law enforcement agency).


                                           2
a trial court may suspend the imposition of a sentence and place the defendant on

community supervision).

      In two issues, Solayao complains that the trial court erred by admitting the

officers’ testimony about her statements and by refusing her requested jury

instruction. We affirm.

                                   II. Background

      On September 18, 2017, at around 10:30 p.m., James Hill, Solayao’s husband,

called 911 to report a domestic violence incident. According to Hill, Solayao was

attacking him and had hit him, knocking off his glasses.4 After Hill told Solayao that

the police had been called, she could be heard crying in the background.

      Hill testified at trial that he and Solayao had been married for two years5 and

had a nineteen-month-old daughter. He called the police because Solayao had hit him

in the face twice during an argument about their child. The second strike broke his

glasses, cutting the bridge of his nose. When he used his cell phone to try to call the

police, Solayao tried to knock the phone out of his hand a few times, pulled and




      4
        Solayao objected to the 911 call’s admission during trial but does not complain
of its admission on appeal.
      5
         Hill testified that he had filed the application to adjust Solayao’s immigration
status from fiancée to permanent resident five days after their wedding but that her
status had remained pending at the time of the incident. Three weeks after Solayao’s
arrest, Immigration and Customs Enforcement issued a hold on her.


                                           3
clawed at his arm, and eventually got on top of the couch and tried to get onto his

back so that she could pull the phone away.6

      Arlington Police Officers Jacob Burton and Jimmy May, along with Corporal

Jacob Williams, who was providing field training supervision of Officer Burton,7

responded to the domestic disturbance call approximately five minutes after they

received the information from dispatch. When they arrived at the scene, both parties

were inside the residence. Officer Burton immediately separated the parties, asking

Hill to step outside while Solayao stayed inside the couple’s apartment with Officer

May. Officer May performed a quick safety check of the residence to make sure that

there was no one else inside. Officer Burton interviewed Hill first, then Solayao, and



      6
        Hill also testified that Solayao had previously assaulted him, had pushed him
down the stairs in February 2017, and had bent his fingers back in August 2017. He
filed for divorce after the September 18, 2017 assault.

       The trial court admitted screenshots of some August 2017 text messages
between the parties and allowed these to be published to the jury. Solayao objected to
the admission of the screenshots, but she does not complain about their admission on
appeal. On August 22, 2017, Hill received text messages from Solayao that stated,
“[S]ince I have no family here[,] I am not scare[d] to die here or arrest or whatever,”
and “[I]f they will arrest me[,] I will make sure I’ve done something bad.” On August
28, 2017, less than a month before the instant altercation, Hill received a Facebook
message from Solayao that stated, “Goodbye to you,” and had a photo of her holding
a butcher knife.
      7
        Officer Burton was commissioned as a police officer approximately three
weeks before the September 18, 2017 incident. According to Corporal Williams, new
recruits ride with a field training officer for about 18 weeks after they finish the
academy.


                                          4
observed—as Corporal Williams did8—that Hill was bleeding from a fresh cut on his

nose. The police took photos of Hill’s injuries, which were admitted into evidence

and published to the jury at trial. The photographs show a small cut on the bridge of

Hill’s nose and a scratch on his arm.

       Officer Burton said that Hill was visibly upset, seemed scared, and kept taking

off his glasses, which were broken, and rubbing his eye. When asked, Hill told

Officer Burton that his eye hurt. Hill told him that he and Solayao had been engaged

in a verbal argument that became physical when she hit him with her open hand and

broke his glasses, scratched him, and jumped on him to stop him from calling the

police.9

       Officer Burton said that after hearing Hill’s version, he switched places with

Officer May and spoke with Solayao, who was sitting inside the apartment on the

couch. He described Solayao as extremely calm, “as if nothing was going on,” and

said that she had no visible injuries.

       The trial court held an article 38.22 hearing outside the jury’s presence. At that

hearing, Officer Burton stated that when the police entered the parties’ residence,

Officer May told Solayao to sit on the couch, and Officer Burton took Hill outside to


      Corporal Williams stood next to Officer Burton for the entire investigation
       8

and made the same observations.

      Solayao raised a hearsay objection to these statements at trial but does not
       9

complain about them on appeal.


                                           5
ask him questions. After Officer Burton switched places with Officer May to talk

with Solayao, he asked Solayao what had happened as part of his interview to

determine probable cause. Officer Burton said that no one in the household was free

to go, that everyone was detained while he conducted his investigation, and that no

one under detention would have been free to move around the house during the

investigation. He did not give Miranda warnings10 to Solayao before asking her what

had happened.

      Officer Burton said that when he asked Solayao what had happened, he was

standing next to the couch where she was sitting. In response to his query, Solayao

told him that she and Hill had been in an argument and had called each other names

before she smacked him on the forehead with her open hand. Hill had called her

crazy, which had angered her and caused her to hit him. She also told Officer Burton

that because Hill kept telling her that he was going to call the police, she tried to take

the phone from him and grabbed his arm to keep him from calling. At that point,

Officer Burton believed he had sufficient probable cause to make an arrest and

discussed it with Corporal Williams, who agreed.11 Officer Burton then arrested

Solayao.


      10
        See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
      11
        After the article 38.22 hearing and before the jury, Corporal Williams said that
he had determined that Solayao was the principal aggressor after seeing Hill’s injuries,
hearing Solayao’s admission that she had caused the injuries, and not hearing from
Solayao regarding whether Hill had assaulted her first. Corporal Williams said that

                                            6
      At the conclusion of the article 38.22 hearing, the prosecutor argued that

Solayao’s statements to Officer Burton were admissible because she was not in

custody—she had been in her own home and not handcuffed—and she had not been

interrogated.    Solayao responded that her freedom of movement had been

substantially curtailed, rendering her in custody when she had been directed and

placed in a particular space and not allowed to move from it, and that she had been

interrogated because her statements to Officer Burton were in response to his

questions. The trial court ruled that at that point in time, Solayao had not been in

custody and that her statements to the officer would be admitted.

      Before the jury, Officer Burton testified about Solayao’s statements set out

above and stated that after interviewing her, he determined that he had probable cause

to arrest her for both assault and interference. Solayao was placed in handcuffs,

escorted to a patrol vehicle, searched, and transported to jail. On cross-examination,

Solayao’s counsel asked the officer why she had been placed on the living room

couch, and he replied, “She was placed there [by Officer May] as a -- it was deemed a

safe place for that party to sit.” Solayao’s statements were made in response to his

questions, and he did not warn her that she had a right to remain silent prior to asking

any questions.


Solayao had demonstrated for the officers the slap that she gave Hill. He determined
that Solayao should be arrested based on the corroboration of both parties’ accounts
and the physical evidence of Hill’s injury.


                                           7
       On redirect, the prosecutor asked Officer Burton why both parties had been

detained when he arrived at the scene. Officer Burton replied, “We need to secure a

scene in a domestic situation. We make sure that everyone inside the house is

accounted for. And we freeze the scene. No one can leave; no one can enter. And

then we do our primary investigation with those parties detained” for officer safety

and for party safety. On recross, however, Officer Burton agreed that nothing within

the scope of officer safety would have prevented him from informing Solayao that she

had the right to remain silent.

       Corporal Williams testified that during his nine years as an Arlington police

officer, he had responded to 10 to 40 domestic violence cases a week; Officer Burton

said that he typically responded to 5 to 10 domestic violence calls in a normal week.

Officer Burton explained that domestic violence calls were different from other

offenses because, due to the family dynamic, they tended to escalate and become

heated faster than in most other scenarios. He stated that in a domestic disturbance

investigation, the police separate each party, talk to the complainant, then talk to the

other party, and make a determination of what happened. In their discussion with

each party, officers looked for “clarity, continuation of the story, if there’s any breaks.

Usually when someone’s being more in-depth and more specific, they’re more likely

to be the one telling the truth.” Officer Burton stated that the officers would derive




                                            8
probable cause from the parties’ statements.12 He added, “There’s never one type of

victim in a domestic [disturbance].”

       At the conclusion of evidence, Solayao requested an article 38.22 instruction

and submitted a proposed charge. The trial court denied her request, and the jury

found her guilty of both offenses.

                                     III. Discussion

       Code of criminal procedure article 38.22 sets out the state equivalent of

Miranda rights with regard to statements made “as a result of custodial interrogation”

and provides that such statements may not be used against an accused unless there

has been compliance with procedural safeguards. See Tex. Code Crim. Proc. Ann. art.

38.22, §§ 2(a)(1)–(5), 3(a)(1)–(2) (West 2018).      However, article 38.22 does not

preclude the admission of a statement that does not stem from custodial

interrogation. Id. § 5.

       Solayao argues that because she was not free to leave when she spoke with the

police, article 38.22’s requirements applied to her statements and she should have

received a jury instruction on those requirements.


       12
         Corporal Williams reiterated that the police’s primary concern in responding
to a domestic violence call was to separate the parties and make sure everything was
safe, followed by interviewing both parties to determine whether the facts showed an
offense for which the police needed “to take action or arrest.” Corporal Williams said
that in addition to speaking with the parties, the determination could be made from
physical clues, such as whether either party had an injury and whether the residence
was disturbed.


                                           9
      The State responds that although Officer Burton admittedly did not administer

the statutory warnings to Solayao, she was not in custody when she was questioned by

him, and therefore the trial court properly admitted her statements into evidence and

denied her requested jury instruction.

      We generally review the trial court’s admission of evidence for an abuse of

discretion, see White v. State, 549 S.W.3d 146, 157–58 (Tex. Crim. App. 2018), but in

reviewing a trial court’s ruling on a Miranda-type violation claim, we conduct a

bifurcated review, giving almost total deference to the trial court’s rulings on

questions of historical fact and application-of-law-to-fact questions that turn on

credibility and demeanor while reviewing de novo the trial court’s rulings on

application-of-law-to-fact questions that do not turn upon credibility and demeanor.

Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App.), cert. denied, 568 U.S. 815 (2012);

see also Herrera v. State, 241 S.W.3d 520, 526–27 (Tex. Crim. App. 2007) (explaining

review of “custody” determinations under the bifurcated standard).

A. Custody versus Detention

       “Custodial interrogation” is a term of art defining the questioning of a person

by law enforcement officers after that person has been taken into custody or

otherwise deprived of his freedom of action in any significant way. See Miranda, 384

U.S. at 444, 86 S. Ct. at 1612. But a person held for an investigative detention is not

in custody. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). A

person is in custody only if, under the circumstances, a reasonable person would

                                           10
believe that his freedom of movement was restrained to the degree associated with a

formal arrest. Id.

       Generally, when a person voluntarily accompanies law enforcement to a certain

location, even though he knows or should know that law enforcement suspects that

he may have committed or may be implicated in committing a crime, that person is

not restrained or “in custody.” Miller v. State, 196 S.W.3d 256, 264 (Tex. App.—Fort

Worth 2006, pet. ref’d) (citing Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App.

1987), cert. denied, 487 U.S. 1210 (1988)).       More specifically, so long as the

circumstances show that a person is acting only upon the invitation, request, or even

urging of law enforcement, and there are no threats, either express or implied, that he

will be taken forcibly, the accompaniment is voluntary, and such person is not in

custody. Id. (citing Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996), cert.

denied, 521 U.S. 1122 (1997)); see also Meek v. State, 790 S.W.2d 618, 621–22 (Tex. Crim.

App. 1990) (citing Shiflet v. State, 732 S.W.2d 622, 631 (Tex. Crim. App. 1985), for the

proposition that a person is not in custody when he voluntarily accompanies an

officer to a location and knows or should know that he is a suspect in the crime being

investigated).

       The court of criminal appeals has identified several scenarios that may

constitute custody, including the following:      (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 he cannot leave, (3) when law enforcement officers create a

                                           11
situation that would lead a reasonable person to believe his freedom of movement has

been significantly restricted, and (4) when there is probable cause to arrest13 and law

enforcement officers do not tell the suspect he is free to leave. Dowthitt, 931 S.W.2d

at 255. In the first, second, and third situations, the restrictions upon the suspect’s

freedom of movement must rise to the degree associated with an arrest as opposed to

an investigative detention. Id. With regard to the fourth situation, the officers’

knowledge of probable cause must be manifested to the suspect. Id.

      Further, the degree of force employed by the police officer, the nature of the

crime under investigation, the degree of suspicion, the location of the seizure, the time

of day, and the suspect’s reaction are all facts that bear on the issue of whether a

particular seizure is an arrest or merely an investigative detention. Campbell v. State,

325 S.W.3d 223, 234 (Tex. App.—Fort Worth 2010, no pet.). The officer’s opinion,

while not determinative, is another fact to be considered, as well as whether the

officer actually conducts an investigation. Id. The duration of time, while not itself

dispositive, is another important fact in determining whether custody has occurred.

Dowthitt, 931 S.W.2d at 256.     Whether a seizure is an arrest or an investigative




      13
          Probable cause to arrest exists at the moment that the facts and circumstances
within the arresting officer’s knowledge of which he has reasonably trustworthy
information would warrant a reasonable and prudent man in believing that a particular
person has committed or is committing a crime. Miller, 196 S.W.3d at 265 n.3 (citing
Jones v. State, 493 S.W.2d 933, 935 (Tex. Crim. App. 1973)).


                                           12
detention depends on the reasonableness of the intrusion under all of the facts.

Campbell, 325 S.W.3d at 234.

B. Analysis

      Solayao argues that she was in custody when the police officers “ordered [her]

to sit on the couch and remain there.” But the issue is not whether Solayao thought

she was in custody, but whether a reasonable person under the circumstances of this

case would have believed that her freedom of movement was restrained to the degree

associated with a formal arrest, see Dowthitt, 931 S.W.2d at 255, particularly when

nothing in this record reflects that Solayao sought to leave the couch or living room

during the investigation or suggests that she thought she was in custody. Rather, even

though Solayao should have known that Officer Burton suspected her of assault—in

light of Hill’s having called 911, the wound on Hill’s nose, and Hill’s having spoken to

Officer Burton first—this record is consistent with Solayao’s having voluntarily sat

down on the couch in response to Officer May’s request while awaiting her chance to

tell her side of the story.14 See Miller, 196 S.W.3d at 264; cf. Bates v. State, 494 S.W.3d

256, 268 & n.9, 269–72 (Tex. App.—Texarkana 2015, pet. ref’d) (explaining that while

Bates’s statement in response to the policemen’s first asking him what was going on at

the scene was a consensual interaction, under the case’s circumstances, Bates was in

custody after he was handcuffed and secured in a police car because he clearly was not

      14
         The record does not reflect whether there was anywhere else in the parties’
living room to sit and wait.


                                            13
free to leave). The record does not reflect that there were any express or implied

threats to Solayao by the police of what might happen if she did not sit on the couch

to wait, or any manifestation by Officer Burton that he had developed probable cause

before he asked Solayao any questions or of an intent to arrest her until after he

concluded his investigation. See Miller, 196 S.W.3d at 264. The record likewise neither

reflects how long Solayao had to wait before Officer Burton came to talk with her nor

whether Solayao had some other engagement that evening that she was prevented

from attending because of the investigation. See Campbell, 325 S.W.3d at 234.

       Under the circumstances presented here, we cannot say that the investigative

detention presented such an unreasonable intrusion on Solayao’s freedom of

movement as to amount to a formal arrest. Accordingly, we conclude that the trial

court did not abuse its discretion by admitting into evidence her statements to Officer

Burton over her article 38.22 objection. Accordingly, we overrule Solayao’s first

issue.15


       15
         We note, however, that even if the trial court had abused its discretion by
admitting Solayao’s statements, the jury could have determined from the remaining
evidence—Hill’s testimony, the photographs of his injuries, and the 911 call—that
Solayao was the culprit in the assault and interference cases. See Tex. R. App. P.
44.2(b) (stating that when reviewing nonconstitutional error, the court disregards the
error if it did not affect the appellant’s substantial rights); Motilla v. State, 78 S.W.3d
352, 355–56 (Tex. Crim. App. 2002) (stating that in a nonconstitutional-error-based
review of harm, the court reviews the record as a whole, the nature of the evidence
supporting the verdict, the character of the alleged error, and how it might be
considered in connection with other evidence in the case, as well as jury instructions,
the State’s theory and any defensive theories, whether the State emphasized the error,
closing arguments, and—if applicable—voir dire).

                                            14
      Because we have concluded that the trial court did not abuse its discretion by

admitting her statements, the trial court likewise did not err by refusing her request

for a jury instruction with regard to those statements. Thus, we overrule her second

issue. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (stating that

when reviewing a jury charge issue, the court must first determine whether error

occurred; if no error occurred, then the court’s analysis ends).

                                   IV. Conclusion

      Having overruled both of Solayao’s issues, we affirm the trial court’s

judgments.

                                                       /s/ Bonnie Sudderth
                                                       Bonnie Sudderth
                                                       Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 13, 2018




                                           15
