                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 RAFAEL GONZALEZ,                                                No. 08-11-00375-CR
                                                 §
                        Appellant,                                    Appeal from
                                                 §
 v.                                                               120th District Court
                                                 §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                 §
                        Appellee.                                (TC # 20110D02360)
                                                §

                                          OPINION

       Rafael Gonzalez appeald his conviction of aggravated sexual assault of a child. A jury

found Appellant guilty and assessed his punishment at a fine of $2,500 and imprisonment for a

term of thirty years. For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       In September or October of 2006, Appellant began babysitting four-year-old H.R. while

the child’s mother was at work. He continued to watch him until late March or early April of

2007. Four years later, in April 2011, H.R. made an outcry to his mother, R.C. He asked her

whether she had seen Appellant and R.C. replied that she had not seen him since he stopped

taking care of H.R. After confirming that R.C. had not seen Appellant, H.R. asked her whether

Appellant had harmed her. R.C. asked H.R. what he meant and H.R. told her that Appellant had

made him “kiss” Appellant’s private part. She described H.R. as sad and “like he was feeling
nauseous about it.” R.C. filed a police report.

          Joe Zimmerly, a forensic interviewer with the El Paso Child Advocacy Center,

interviewed H.R. Detective Randy Serna of the El Paso Police Department investigated the

allegations and observed Zimmerly’s interview of the child. Serna also took a statement from

H.R.’s mother. Serna later went to Appellant’s apartment and spoke with him to determine if he

was willing to give a statement. Appellant agreed to meet with him. Appellant and his wife

drove their own vehicle to the police station. Serna conducted the interview in Spanish. At the

beginning of the interview, Serna told Appellant that he was a suspect, but he did not have to

speak with officers and he could leave. Serna told Appellant that since he was a suspect, he had

rights. He provided Appellant with a Miranda card1 which contained the warnings in both

English and Spanish. Appellant read the warnings in Spanish and told Serna he understood

them. Serna asked Appellant if he wanted to talk to him and Appellant replied that he did.

Appellant then signed and dated the Miranda card. He admitted babysitting H.R., denied ever

being alone with the child, and claimed that his wife was always present. Appellant also denied

the child’s allegations.

          At trial, nine-year-old H.R. testified that he had told his mother about the “mean man”

who had “[done] something disgusting” to him. The boy said that the man had made him kiss

his “private part” and this had happened “a lot of times.” Appellant’s wife was at work when

this happened. H.R. did not tell anyone what the man had done because he had threatened to do

something bad to H.R.’s mother if he told anyone. H.R. identified Appellant as the man who had

made him put his mouth on Appellant’s “private part.”

                        ADMISSION OF VIDEO-RECORDED STATEMENT

          In Issue One, Appellant contends that the trial court erred by admitting his video-
1
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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recorded statement because the State failed to prove that he voluntarily waived his constitutional

rights as required by Article 38.22 of the Texas Code of Criminal Procedure. The State argues

that it was not required to establish compliance with Article 38.22 or Miranda because the

statement was not the product of custodial interrogation.

       Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of an

accused’s statement resulting from a custodial interrogation unless he was advised of his

Miranda rights and voluntarily waived those rights. TEX.CODE CRIM.PROC.ANN. art. 38.22, §§

2(a), 2(b), 3(a)(2)(West 2005); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966); see also Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007)(“Our

construction of ‘custody’ for purposes of Article 38.22 is consistent with the meaning of

‘custody’ for purposes of Miranda.”). 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, 86 S.Ct. at 1612. Miranda

warnings are not required simply because the questioning takes place in the station house, or

because the questioned person is one whom the police suspect. Oregon v. Mathiason, 429 U.S.

492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). The warnings required by Article 38.22 and

Miranda only apply when a suspect is in custody. See Herrera, 241 S.W.3d at 526.

       A person is “in custody” if, under the circumstances, a reasonable person would believe

his freedom of movement was restrained to the degree associated with a formal arrest. Stansbury

v. California, 511 U.S. 318, 322-24, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293 (1994); Dowthitt

v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). In evaluating whether a reasonable person

would believe his freedom has been restrained to the degree of a formal arrest, we are to look

only to the objective facts surrounding the detention. State v. Ortiz, 382 S.W.3d 367, 372



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(Tex.Crim.App. 2012).      We do not consider the subjective views harbored by either the

interrogating officers of the person being questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. at

1529. The subjective intent of law enforcement officials to arrest is irrelevant unless that intent

is somehow communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 254,

citing Stansbury v. California, 511 U.S. at 318, 114 S.Ct. at 1530, 128 L.Ed.2d at 300. Any

undisclosed subjective belief of the suspect that he is guilty of an offense should not be taken

into consideration--the reasonable person standard presupposes an innocent person. Ortiz, 382

S.W.3d at 373; see Dowthitt, 931 S.W.2d at 254, citing Florida v. Bostick, 501 U.S. 429, 438,

111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991).

       There are four general situations that may constitute custody for purposes of Miranda and

Article 38.22: (1) the accused is physically deprived of her freedom of action in a significant

way; (2) a police officer tells the accused she is not free to leave; (3) police officers create a

situation that would lead a reasonable person to believe that her freedom of movement has been

significantly restricted; and (4) there is probable cause to arrest the accused, and police officers

do not tell her that she is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex.Crim.App.

2009). Appellant voluntarily went to the police station in his own vehicle and he was not

physically deprived of his freedom. Detective Serna told Appellant he was free to leave and did

not have to speak with him. Serna also told Appellant he was a suspect, but being 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. Gardner,

306 S.W.3d at 293. Finally, Appellant was allowed to return home at the conclusion of the

interview. Under the totality of the circumstances, a reasonable person would not have believed

his freedom had been restrained to the degree of a formal arrest. We hold that Appellant was not



                                               -4-
in custody for purposes of Miranda or Article 38.22. See e.g., California v. Beheler, 463 U.S.

1121, 1122-25, 103 S.Ct. 3517, 3519-20, 77 L.Ed.2d 1275 (1983)(holding that Miranda

warnings were not required where defendant, although a suspect in a murder case, voluntarily

came to the police station, was told he was not under arrest, gave statement after questioning for

approximately thirty minutes, and was then allowed to return home); Oregon v. Mathiason, 429

U.S. 492, 493-95, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)(defendant was not in custody when

defendant voluntarily came to police station at police officer’s request, was informed he was not

under arrest, was questioned for thirty minutes, and was allowed to leave the police station after

giving his statement); Estrada v. State, 313 S.W.3d 274, 289-95 (Tex.Crim.App.

2010)(defendant was not in custody where he voluntarily rode with police to the police station,

police told him he was a suspect but was not under arrest, told him several times he was free to

leave, told defendant he did not have to speak with police, the police questioned him for five

hours, and defendant returned home after giving his statement). We overrule Issue One.

                          ADMISSION OF EXTRANEOUS OFFENSE

        In Issue Two, Appellant complains that the trial court abused its discretion by admitting

evidence that Appellant had been in a Mexican police station because it amounted to evidence of

an extraneous offense. The State responds that Appellant waived this issue because he did not

object on this basis in the trial court.

                                           Preservation of Error

        To preserve a complaint for appellate review, the complaining party must show that the

complaint was made to the trial court, by a timely request, objection, or motion that stated the

grounds for the ruling with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. TEX.R.APP.P. 33.1(a)(1)(A). The



                                                   -5-
record must also show that the trial court ruled on the request, objection, or motion, either

expressly or implicitly. TEX.R.APP.P. 33.1(a)(2)(A). Further, the argument raised on appeal

must comport with the objection made at trial or it is waived. Wilson v. State, 71 S.W.3d 346,

348 (Tex.Crim.App. 2002).

         Appellant told Detective Serna that he was never alone with H.R. because his wife was

always present as she was not working at the time. But Appellant’s wife testified that she was

working at West Telemarketing in 2006 and 2007. She normally worked from 7 a.m. until

3:30 p.m., Monday through Friday. When she was at work, Appellant would stay with H.R.

         Appellant testified at trial and explained that he was nervous when he gave his video

statement. He did not intend to lie but made a mistake when he told the detective that he was

never alone with H.R. because his wife did not work at the time. When asked why he was so

nervous, Appellant stated that he had never been to a police station. In a hearing outside of the

jury’s presence, the State argued that Appellant had opened the door to rebuttal evidence that he

had previously been in a police station in Mexico. The trial court determined that Appellant had

opened the door and permitted the State to cross-examine Appellant on that subject. Appellant

admitted that he had been in a Mexican police station, but denied committing any crime in

Mexico.

         During the hearing outside of the jury’s presence, Appellant did not object on the basis of

Rule 404(b) or otherwise object to admission of this evidence on the ground that it was an

extraneous offense. Likewise, he did not raise an extraneous offense objection when the State

engaged Appellant in limited cross-examination on this subject. Consequently, he failed to

preserve the issue raised on appeal. We overrule Issue Two and affirm the judgment of the trial

court.



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October 30, 2013
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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