                                   NO. 07-05-0387-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                DECEMBER 28, 2006
                          ______________________________

                                  DOUGLAS D. COX ,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-409,333; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Douglas D. Cox (appellant) appeals his conviction for theft from a person aged 65

or over. His two issues involve 1) the trial court’s denial of his motion to suppress and 2)

the legal and factual sufficiency of the evidence supporting the conviction. We affirm the

judgment.

       Background

       Troy McCurin was approached one day by appellant who was passing out some

flyers. Appellant offered to help McCurin, who was in his nineties, weed his garden.

McCurin paid appellant for the work. Thereafter, appellant kept returning to McCurin’s
home telling McCurin of his problems, and McCurin loaned appellant some money over the

course of several weeks.

       On February 9, 2005, appellant went to McCurin’s home where McCurin made

breakfast for him. Afterward, McCurin asked appellant when he was going to repay the

loans which totaled around $450. When McCurin pulled out a piece of paper on which was

kept a tally of the debt, appellant pushed McCurin to the ground and ran off with McCurin’s

wallet. Appellant later returned to McCurin’s house and told him that he had thrown the

wallet in McCurin’s backyard. When McCurin recovered the wallet, his money was gone.

       Issue 1 - Motion to Suppress

       Via his first issue, appellant challenges the trial court’s ruling on his motion to

suppress any statements he made to police on February 23, 2005. The statements were

made when Detective Doug Sutton stopped him on the street and informed him he was a

suspect in the theft of McCurin’s money and that he should stay away from McCurin’s

house. Appellant contends that the interaction constituted a custodial interrogation which

failed to comply with the requirements of article 38.22 of the Code of Criminal Procedure.

Thus, his comments were inadmissible. We overrule the issue.

       The applicable standard of review is that described in Guzman v. State, 955 S.W.2d

85 (Tex. Crim. App. 1997). So, we are to defer to the trial court’s findings of historical fact

and review de novo its application of the law to the facts. Id. at 89.

       Next, article 38.22 does not permit admission into evidence of an oral statement

resulting from a custodial interrogation unless an electronic recording was made of it and

the accused was warned of his legal rights. TEX . CODE CRIM . PROC . ANN . art. 38.22 §3(a)

(Vernon 2005). As can be seen, the obligation imposed to record and warn are triggered

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by the fact of a custodial interrogation. When determining whether one occurred, we look

to 1) whether the suspect was physically deprived of his freedom in any significant way, 2)

whether law enforcement officers told the suspect that he is not free to leave, 3) whether

law enforcement officers created a situation that would lead a reasonable person to believe

his freedom of movement had been significantly restricted, and 4) whether there was

probable cause to arrest and law enforcement officers did not tell the suspect that he was

free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). But, in any

case, the test remains whether a reasonable person under the circumstances would

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

formal arrest. Id. at 255.

       Here, Detective Sutton testified that while on his way to interview a witness for a

capital murder case he was investigating, he recognized appellant walking down the street.

He stopped and asked appellant to come over to him. Sutton identified himself as a police

officer and even though appellant indicated he needed to get to his brother’s house, Sutton

asked to speak with him “briefly.” When asked if he also “explained to [appellant] that he

wasn’t under arrest, that you were there just to talk to him . . .,” Sutton answered “[c]orrect,

correct.” (Emphasis added). Additionally, appellant was not placed in the patrol car,

searched in any way, or handcuffed.

       During the encounter, Sutton informed appellant he was a suspect in the theft of

McCurin’s wallet and that he should stay away from McCurin’s home. At that point,

appellant said that he knew who McCurin was, that he had taken the wallet but had given

it back, and that somebody else had taken the money. Sutton then told appellant that he



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needed to talk to him some more later, handed him the officer’s card, and asked appellant

to call him. When asked if appellant was free to leave, Sutton responded with: “He was

free to leave and he freely left.” And, while appellant may have been prevented from

leaving had he “ran,” according to the officer, not only did that not occur but also the officer

would have stopped him simply to find out why he ran. Running away was considered, by

the officer, to be suspicious in itself.

         In contrast, appellant testified at the suppression hearing that 1) the officer told him

he wanted to ask him some questions, 2) the officer did not tell him to leave McCurin

alone but told him to go to McCurin’s house and pay him back, 3) the officer asked him

if he knew McCurin and if he took the wallet, and 4) that even though he was not told he

was under arrest, he “could see it in [the officer’s] eyes that he wasn’t going to let

[appellant] walk off.”

         We note initially that if the trial court believed the officer’s testimony at the

suppression hearing,1 it legitimately could have found that no interrogation occurred and

that appellant merely volunteered his statement upon the officer warning appellant to leave

McCurin alone.2 See Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984)




         1
         At trial, Sutton testified that he asked appellant if he knew he was being investigated for theft and
whe ther h e knew Mc Cu rin.

         2
            The trial court announced on the rec ord th at “the defe nda nt m ade . . . statements that were not the
subject of interroga tion . . . .” It also noted that there was no arrest, appellant was allowed to leave, and he
was never told he was not free to leave. Although appellant complains on appeal that the trial court failed to
file finding s of fact and conc lusion s of law with resp ect to the vo luntariness of h is state m ent, see T EX . C O D E
C RIM . P R O C . A N N . art. 38.22 §6 (Vernon 20 05) (impo sing such an obligation on the co urt), there is substantial
compliance if the court dictates its findings and conclusions into the record and the defendant does not
com plain that the lack of findings or co nclusions hind ered the presenta tion of his ap pea l. Drake v. State, 123
S.W .3d 596, 601 (Tex. App.–Houston [14th Dist.] 2003 , pet. ref’d); Blount v. State, 64 S.W .3d 451, 457 (Tex.
App.–T exa rka na 2 001 , no pet.).

                                                            4
(stating that when an accused spontaneously volunteers information that is not in response

to questioning, the statement is admissible).

       However, even if the officer did interrogate appellant, the trial court also would have

reasonably been justified in finding that appellant was not in custody. Again, Sutton

informed appellant that he wanted to speak to him “briefly,” and “explained” that appellant

“wasn’t under arrest, and that [Sutton was] there just to talk to him . . . .” Nor was appellant

detained for more than minutes, placed in handcuffs or the car, told he was under arrest,

taken to the police station, or told he was not allowed to leave. So too did the encounter

occur at a time when Sutton had little time to converse and was going to investigate

another crime; thus, appellant was handed a card and told to call the officer later.

       That appellant was told to avoid McCurin further weighs against a finding of

restriction tantamount to an arrest. There was little reason to caution appellant if he was

not at liberty to leave. So too does appellant’s own comment that Sutton directed him to

repay McCurin connote that appellant was free to leave; simply put and if appellant was

not free to leave, appellant could hardly go and repay the man. Finally, appellant left when

the two finished conversing.

       Participating in an interview or undergoing questioning (even if at a police station)

does not ipso facto equal custody. Dowthitt v. State, 931 S.W.2d at 255. Nor is a brief

detention enough if the restraint is not of a degree associated with formal arrest. Nor is the

fact that the appellant has become the focus of a criminal investigation, i.e. a suspect,

enough. State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). Indeed, many

of these circumstances appeared in Scott v. State, 165 S.W.3d 27 (Tex. App.–Austin 2005,



                                               5
pet. ref’d) (wherein the appellant was interviewed multiple times over a five-day period,

allowed to leave after the interviews, allowed to take breaks during the interviews,

remained free of handcuffs, and never frisked) and the court nonetheless held that he was

not in custody during that time. Id. at 42-43. If the numerous exchanges in Scott did not

evince custody, the one occurring here certainly did not. Thus, we find no error in the trial

court’s decision to overrule the motion to suppress.

       Issue 2 - Sufficiency of the Evidence

       Next, appellant argues that the evidence is insufficient to sustain the conviction.

This is purportedly so because it did not illustrate that he permanently deprived McCurin

of his wallet. We overrule the issue.

       We review challenges to the sufficiency of the evidence under the standards set

forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and

Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. 2040 (Tex. Crim. App. October 16,

2006). Next, a theft occurs when a person unlawfully appropriates property with the intent

to deprive the owner of it. TEX . PEN . CODE ANN . §31.03(a) (Vernon Supp. 2006). “To

deprive” means “to withhold property from the owner permanently or for so extended a

period of time that a major portion of the value or enjoyment of the property is lost to the

owner.” Id. §31.01(2)(A). As previously mentioned, it is the evidence establishing the latter

element that appellant attacks because he returned the wallet by throwing it into McCurin’s

backyard.

       Yet, according to McCurin, the wallet had money in it when taken by appellant but

not when recovered. And despite his habitual borrowing from McCurin and need of money,



                                               6
appellant denied taking the funds. Instead, he accused someone of journeying into

McCurin’s backyard and completing the theft. McCurin described appellant’s explanation

as “some of that good talking he can do.” The jury could have also so characterized

appellant’s words and rationally concluded, beyond reasonable doubt, that appellant

deprived McCurin of the money, if not the wallet. And, if the factfinder so concluded, we

would hold the decision neither manifestly unjust, overwhelmed by contrary evidence, nor

supported by weak evidence since the jury was free to believe who it cared to believe.

Thus, the verdict enjoys both legally and factually sufficient evidentiary support.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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