                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 THE STATE OF TEXAS,                                            No. 08-12-00107-CR
                                                §
                        Appellant,                                  Appeal from
                                                §
 v.                                                     County Criminal Court at Law No. 4
                                                §
 HECTOR MACIAS,                                               of El Paso County, Texas
                                                §
                        Appellee.                               (TC # 20110C03140)
                                                §

                                          OPINION

       The State of Texas appeals from an order granting a motion to suppress the defendant’s

oral admission to a police officer. We reverse and remand to the trial court.

                                     FACTUAL SUMMARY

       Hector Macias filed a motion to suppress an oral statement made while in custody

following his arrest for family violence assault. He alleged that the police officer failed to

administer the warnings required by Miranda and Article 38.22 of the Code of Criminal

Procedure. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

TEX.CODE CRIM.PROC.ANN. art. 38.22, §§ 2(a), 2(b), 3(a)(2)(West 2005). The evidence at the

suppression hearing showed that an El Paso police officer, Kenneth Greseth, was dispatched to a

residence on a family violence assault call. When Greseth arrived, he saw Macias in the front

yard and approached him. Greseth asked Macias what was going on and Macias replied that he
and wife had been arguing and “he had gone too far.” At that point, Greseth conducted a pat-

down search for weapons. Greseth called Officer Leovardo Tellez who was speaking with the

victim and Tellez advised him that an assault had occurred. Based on that information and

Macias’s statement, Greseth placed Macias under arrest.

       Macias contradicted Greseth’s testimony regarding the circumstances under which he

made the statement to the officer. After the incident with his wife, Macias went to his mother’s

house. Macias’s son told him that they had already called the police and to wait for them.

Macias emptied his pockets and gave everything to his son. When Greseth arrived, he asked

Macias, “Do you know what we’re here for?” Macias said that he did and the officer placed him

under arrest, put him in handcuffs, and placed him in the back of the patrol car. Macias admitted

making the statement but said he made it while being transported from the scene in the patrol car.

At the conclusion of the hearing, the trial court stated the following:

       I’m going to grant the motion to suppress the statement regarding the ‘might have
       gone too far’ remark. The basis of that is that I believe the perception of all
       parties is that there had been a detention. It is a stretch, but I think all parties
       involved had the perception that there was a detention and a custodial arrest based
       on the statement by Officer Greseth that he came up to the front yard and stopped
       him. And the defendant’s own statement that -- testimony with respect to him
       taking things out of his pocket and preparing for the arrest. So I think he was
       under a form of custody sufficient for me to justify the suppression of that
       particular statement.

The trial court subsequently signed an order granting the motion to suppress.           The State

requested findings of fact and conclusions of law, but the trial court did not make any additional

findings.

                        SUPPRESSION OF THE ORAL STATEMENT

       In its sole issue on appeal, the State argues that the trial court erred by granting the

motion to suppress. The State focuses on the trial court’s statements made at the end of the



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hearing as indicating the historical facts found by the court, but Macias argues that the trial

court’s ruling must be upheld given that the dispositive facts are disputed and the court did not

make any written findings of fact.

                                       Standard of Review

       We review a ruling on a motion to suppress using a bifurcated standard of review.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010); Guzman v. State, 955 S.W.2d 85,

87-91 (Tex.Crim.App. 1997). Under this standard, the trial court’s findings of historical fact

must be afforded almost total deference provided they are supported by the record. Valtierra,

310 S.W.3d at 447; Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). We also defer

to the court’s determination of mixed questions of law and fact that turn on an assessment of a

witness’s credibility or demeanor. Valtierra, 310 S.W.3d at 447; Amador, 221 S.W.3d at 673.

We will review de novo the trial court’s determination of legal questions and its application of

the law to facts that do not turn upon a determination of witness credibility and demeanor. See

Valtierra, 310 S.W.3d at 447; Amador, 221 S.W.3d at 673.

       As a general rule, appellate courts view the evidence in the light most favorable to the

trial judge’s ruling, regardless of whether the judge granted or denied the suppression motion.

State v. Woodard, 341 S.W.3d 404, 410 (Tex.Crim.App. 2011). If the ruling is reasonably

supported by the record and is correct under any theory of the law applicable to the case, the

reviewing court will uphold it. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996).

       In State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court of Criminal

Appeals held:

       Effective from the date of this opinion, the requirement is: upon the request of the
       losing party on a motion to suppress evidence, the trial court shall state its
       essential findings. By ‘essential findings,’ we mean that the trial court must make
       findings of fact and conclusions of law adequate to provide an appellate court

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       with a basis upon which to review the trial court's application of the law to the
       facts.

The findings of fact and conclusions of law may be stated on the record at the hearing or

prepared by the court in writing and filed. Id. Thus, the State is correct that the trial court’s

statements at the conclusion of the hearing constitute the court’s findings of historical fact.

       Where, as here, a trial court makes explicit fact-findings, the appellate court determines

whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports

these fact-findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). The appellate

court then reviews the trial court’s legal ruling de novo unless the trial court’s supported-by-the-

record explicit fact-findings are also dispositive of the legal ruling. Id.

                                           Applicable Law

       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); 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.”). 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

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

(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, 511 U.S. at 324-25, 114 S.Ct. at 1530. 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).

       The Court of Criminal Appeals has identified four general situations that may constitute

custody: (1) when the suspect is physically deprived of his freedom of action in a significant

way; (2) when a law-enforcement official tells a suspect 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) if there is probable cause to arrest

and law-enforcement officials do not tell the suspect that he may leave. Dowthitt, 931 S.W.2d at

255. The restraint upon freedom in the first three situations must be equivalent with that

associated with an arrest as opposed to an investigative detention. See Dowthitt, 931 S.W.2d at

255. In the fourth situation, the officer’s knowledge of probable cause must be manifested to the

suspect, and such manifestation, considered in the totality of the circumstances, must lead a

reasonable person to believe he is not free to leave. Id.

       The trial court based its determination that Macias was in custody on two findings: (1)

Greseth testified that he “stopped” Macias; and (2) Macias was emptying his pockets prior to the



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officer’s arrival in preparation for arrest. There is no evidentiary support in the record for the

first finding because Officer Greseth never stated that he stopped Macias nor did he state any

facts from which it could be inferred that he stopped Macias or restrained his freedom of

movement in any way when he first approached Macias and asked him what was going on.

Greseth testified that he “approached” Macias and “walked up to” Macias in the front yard and

talked to him. With respect to the second finding, Macias testified that, after being told by his

son that the police were on the way, he emptied his pockets and gave his belongings to his son,

ostensibly in preparation for being taken into custody.          The trial court’s second finding

erroneously focuses on Macias’s subjective belief that the police were going to arrest him and

should not have been utilized by the trial court to make the custody determination.

       Macias contends that the trial court’s ruling should be upheld because the court could

have believed his testimony rather than that of Officer Greseth. Macias would be correct if the

trial court had not made any findings or if the court had found the officer’s testimony not

credible. The trial judge did not indicate in his findings that he disbelieved the officer regarding

when the statement was made or that he believed Macias’s testimony that the statement in

question was not made until after Greseth had placed Macias under arrest and placed him in back

of the patrol car. Because the trial court’s findings do not support its conclusion that Macias was

in custody, we sustain the State’s sole issue on appeal. We reverse the order granting the motion

to suppress and remand the cause to the trial court for trial.


October 16, 2013
                                       ANN CRAWFORD McCLURE, Chief Justice

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

(Do Not Publish)



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