Affirmed and Memorandum Opinion filed December 20, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00953-CR

                            RONNEY WEEMS, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 182nd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1194236



                        MEMORANDUM OPINION

       Appellant Ronney Weems appeals his felony conviction for murder, challenging
the sufficiency of the evidence to support his conviction and claiming that the trial court
erred in denying his motion to suppress statements he made at the scene and at the police
station. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the offense of murder, to which
appellant pleaded ―not guilty.‖ In the jury trial that followed, the evidence showed that
emergency responders arrived at appellant‘s home in response to appellant‘s 9-1-1 call
reporting that his girlfriend, the complainant, had shot herself.

       A firefighter testified that he observed the complainant, who was visibly pregnant,
lying in front of a couch inside the home and a firearm laying beside her underneath a
coffee table. The complainant had been injured by a gunshot wound to her head. The
complainant was transported by ambulance to the hospital, where she later died.1

       According to the firefighter, appellant explained at the scene that he and the
complainant had argued. The complainant brandished a firearm and told him to leave.
Appellant claimed to have retreated to gather some belongings from another room and
was returning to the living room when he heard a shot.

       Officer Crowder testified that he arrived on the scene and observed paramedics
tending to the complainant in an ambulance. Upon finding appellant inside the home, the
officer asked him what had happened. Appellant told the officer that the complainant had
shot herself and that he did not see the firearm until after she fired the shot.

       Because appellant was in the home at the time of the shooting, Officer Crowder
believed that protocol necessitated testing appellant‘s hands for gunshot residue. The
officer placed appellant in handcuffs to prevent appellant from washing or wiping his
hands until the test had been conducted. As he was doing so, the officer explained to
appellant that the handcuffs were strictly for preservation of evidence. According to the
officer, appellant appeared to understand the purpose of the handcuffs. At some point
while he was handcuffed, appellant asked to wash his hands; Officer Crowder did not
observe any blood on appellant‘s hands and declined appellant‘s request.



       1
          Medical records reflect that narcotics were found in the complainant‘s system. Doctors
delivered the complainant‘s baby by Caesarean section. The baby had a gestational age of approximately
36 weeks at the time of delivery. According to two healthcare providers, the child suffers from limited
mental and physical capabilities likely attributable to the gunshot wound the complainant sustained
shortly before the child‘s birth.
                                                  2
       Officer Crowder stated that he was accompanied by a rookie officer at the scene
and that he explained the procedure of securing the scene and the need for handcuffs to
the new officer. After hearing this explanation, appellant, who was wearing handcuffs,
volunteered that his fingerprints might be on the firearm because he moved it to attempt
resuscitation of the complainant.

       A crime scene investigator testified that, upon his arrival, he took photographs of
the scene, conducted the gunshot-residue test of appellant‘s hands, and collected
evidence. This investigator discovered that the revolver at the scene was missing a spent
casing, which should have been located under the hammer inside the cylinder of the
revolver unless it had been removed. Instead, the revolver contained a live shell inside
and nothing else. The crime scene investigator notified the homicide division that the
complainant‘s death was not necessarily a suicide. Appellant explained to the crime
scene investigator that he was facing away and heard a ―pop‖ and that he did not see the
complainant shoot herself.

       Although Officer Crowder testified that he intended for appellant to remain in
handcuffs for a brief time—for the interval it took for the crime scene investigators to
arrive and conduct the gunshot-residue test—appellant‘s handcuffs were not removed
until about an hour-and-a-half later when the homicide investigators arrived and after the
gunshot-residue test had been performed. According to the record, during the time when
appellant remained handcuffed, Officer Crowder and the other officers engaged in
conversation, but they did not direct questions to appellant. Some of the conversations
involved contacting the complainant‘s next of kin. During those conversations, appellant
volunteered relevant information.

       Homicide investigators testified that they came to the scene because information
about the missing fired casing from the revolver was considered a ―red flag‖ about
whether the complainant had committed suicide. As soon as the homicide investigators
arrived, appellant‘s handcuffs were removed.      In response to questions about what

                                            3
happened, appellant explained to Investigator Martinez, a homicide investigator, that the
complainant, who was sitting on a large sofa, placed a blanket over her head, and shot
herself. Investigator Martinez noted a few inconsistencies in appellant‘s explanation,
namely, that he did not observe any bullet holes in the blanket and did not locate any
spent shell casings on the scene. The investigator also noted that most of the blood at the
scene was in front of the loveseat and on its cushions and not on or near the large sofa.
But, the investigators stated that they had no information upon which to detain appellant.

       Appellant left the home briefly and returned. Appellant went inside the home and
answered more questions from the homicide investigators.            Officer Crowder heard
appellant explain that he and the complainant were arguing when the complainant
produced a firearm and threatened to shoot him. According to appellant‘s explanation, he
struggled with the complainant over control of the firearm and the complainant
eventually gained control of the weapon; appellant claimed to have backed away into a
hallway and that is when he heard the gunshot. At one point, appellant had indicated to
Officer Crowder that the complainant had been sitting on a loveseat; appellant indicated
to Investigator Martinez that the complainant had been sitting on the large sofa.

       Investigator Martinez testified that he received appellant‘s consent to search the
home. After examining the revolver found at the scene and noting that a fired casing had
been removed from the weapon, Investigator Martinez asked appellant about the missing
fired casing. Appellant did not offer an explanation.

       Investigator Martinez explained to appellant that the police would transport him to
a police station to give a recorded witness statement about the incident. Appellant was
placed in handcuffs according to department protocol and transported in a patrol cruiser
to the police station.    Each officer testified that department protocol required any
individual that is to be transported in a police unit to be handcuffed to ensure officers‘
safety; however, the officers did not explain this protocol to appellant.



                                              4
       Meanwhile, officers continued their investigation at the scene. After appellant left
for the police station, officers discovered narcotics under a mattress in appellant‘s home.

       After appellant arrived at the police station, appellant was not advised of his rights
and he was not in handcuffs. The record does not reflect when the handcuffs were
removed.     Appellant gave a recorded statement to Officer Nabors about the events
surrounding the shooting. In the recorded statement, appellant described attempting to
take the gun from the complainant‘s hands by grabbing the end of the barrel and that he
pushed the complainant away from him onto a sofa.                   In his statement, appellant
demonstrated for Officer Nabors and explained how the complainant held the revolver
with her left hand several inches away from her temple on the left side of her head so that
the trajectory of the bullet would have been straight across her head. Officer Nabors
replicated appellant‘s actions at trial. The audio recording of appellant‘s statement was
played in open court during trial.

       Sergeant Wyers testified that he arrived at the police station to advise appellant of
his Miranda rights and to place appellant under arrest for possession of the narcotics
found in appellant‘s home.2 Sergeant Wyers also planned to speak with appellant about
inconsistent statements about the complainant‘s death that appellant made at the scene.
According to Sergeant Wyers, appellant requested a lawyer at that time, and the officer
ended the interview.        Appellant subsequently was arrested and charged with the
complainant‘s death.

       At trial, a medical examiner testified that the complainant suffered a fatal gunshot
wound to her head. The bullet‘s trajectory began at the top left side of her head, traveled
downward, and lodged in the lower right part of her jaw. The medical examiner opined
that, based on the presence of stippling, the weapon was held from one to three feet away
from the complainant‘s head. The medical examiner stated that the wound was atypical

       2
           The record does not reflect whether appellant was charged with any offense related to the
narcotics found in his home.
                                                 5
of a suicide wound and once characterized the circumstances as ―impossible‖ that the
complainant shot herself, noting the difficulty in maintaining a distance of one to three
feet from her head while firing the weapon resulting in the same trajectory. According to
the medical examiner, given the trajectory of the bullet and the stippling indicative that
the firearm was held from one to three feet away, it would be ―awkward,‖ but ―possible,‖
for the complainant to have shot herself. The medical examiner testified that it was not
reasonable to believe that the complainant committed suicide.

      The results from the gunshot-residue test were inconclusive. The test results
reflect low levels of gunshot residue found on appellant‘s hands, but the forensic
evidence manager could not state conclusively based on the test results whether appellant
had fired a weapon. The revolver found at the scene was identified as the firearm that
fired the bullet lodged in the complainant‘s jaw bone.

      The complainant‘s sister testified that she received a call from appellant earlier on
the day of the complainant‘s death, from the complainant‘s cell phone. Appellant asked
the complainant‘s sister to send someone to get the complainant from his home. The
sister testified that the complainant was right-handed.     The record reflects that the
complainant was not depressed and was looking forward to the birth of the baby and the
upcoming Christmas holiday.

      According to appellant‘s testimony at trial, he and the complainant had argued on
the day before her death because he had cheated on her. Appellant testified that he
contacted the complainant‘s mother and sister to ask them to pick her up from his home;
the complainant spent the night at a hotel. She arrived at his home the next morning to
retrieve her belongings and pulled a weapon from her coat pocket and aimed it at him as
she sat on the large sofa. Appellant claimed to have struggled with the complainant for
control of the weapon and that he pushed her down. Appellant testified that he ran from
the front door of the home and heard the gun fire as he was coming back inside, after
being away from the home for less than two minutes. He notified authorities that the

                                            6
complainant had shot herself and attempted to resuscitate her; emergency responders
arrived shortly thereafter.

       When asked about the inconsistencies between his testimony at trial and his
recorded statement to authorities, appellant explained that the events unfolded quickly.
Appellant testified that as he came into the home, he saw the complainant‘s left arm
raised in a ―gesture‖ and that he did not see the gun fire; he only heard the gun fire.

       The jury found appellant guilty as charged. Appellant was sentenced to seventy-
five years‘ confinement.       Appellant now appeals his conviction, challenging the
sufficiency of the evidence and the trial court‘s ruling on the suppression of evidence.

                              SUFFICIENCY OF THE EVIDENCE

       In appellant‘s second issue, he challenges the legal and factual sufficiency of the
evidence to support the jury‘s verdict that he committed the offense of murder. A
majority of the judges of the Texas Court of Criminal Appeals has determined that ―the
Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of
a criminal offense that the State is required to prove beyond a reasonable doubt.‖ Brooks
v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined
by Keller, P.J., Keasler, and Cochran, J.J.); id. at 912–15 (Cochran, J., concurring, joined
by Womack, J.) (same conclusion as plurality). Therefore, in this case we review the
evidence under the Jackson v. Virginia standard and do not separately refer to legal or
factual sufficiency.

       In evaluating a legal-sufficiency challenge, we view the evidence in the light most
favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
The issue on appeal is not whether we, as a court, believe the State‘s evidence or believe
that appellant‘s evidence outweighs the State‘s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819
                                         7
S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact ―is the sole judge of the
credibility of the witnesses and of the strength of the evidence.‖ Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or
disbelieve any portion of the witnesses‘ testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of
fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

         A person commits the offense of murder if that person intentionally or knowingly
causes the death of an individual or if that person intends to cause serious bodily injury
and intentionally or knowingly commits an act clearly dangerous to human life that
causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1), (2) (West
2011).

         Appellant claims that the evidence against him is entirely circumstantial.
Sufficiency of the evidence does not require each fact to point directly and independently
to a party‘s guilt; rather, the jury‘s verdict will withstand a sufficiency challenge as long
as the combined and cumulative force of all the circumstances permits the conclusion that
the jury was rationally justified in finding the accused guilty of each element of the crime
beyond a reasonable doubt. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993).

         Although appellant claimed that the complainant shot herself, the medical
examiner testified that it was not reasonable to believe that the complainant committed
suicide. See Williams v. State, 294 S.W.3d 674, 687 (Tex. App.—Houston [1st Dist.]
2009, pet. ref‘d) (concluding evidence was sufficient to support conviction for capital
murder based on the medical examiner‘s testimony that a child‘s injuries could not have
been inflicted in the manner the accused offered as an explanation).           The medical

                                             8
examiner found evidence of stippling on the complainant‘s skin indicative that a firearm
was held from one to three feet away from the complainant‘s left temple. The trajectory
of the bullet followed a downward path from the complainant‘s left temple to the back of
her lower right jaw. At one point, the medical examiner characterized the evidence as
indicating it was ―impossible‖ that the complainant shot herself. Later, the medical
examiner characterized such an event as ―possible,‖ yet ―awkward,‖ noting that the
evidence is atypical of the prior one hundred suicide autopsies that he had performed.
The credibility of the witnesses and the weight to be given to their testimony is
exclusively within the purview of the jury, who apparently chose to believe the medical
examiner‘s theory over appellant‘s explanation of the events. See Porter v. State, 86 Tex.
Crim. 23, 215 S.W. 201, 204 (Tex. Crim. App. 1918) (providing that factfinder was
entitled to credibility determinations of witnesses in case in which accused was convicted
of murdering his pregnant girlfriend despite appellant‘s contention that the complainant
committed suicide). Given the medical examiner‘s testimony, it is reasonable for the jury
to have concluded that the complainant did not shoot herself. See Williams, 294 S.W.3d
at 687.

          The jury heard testimony from multiple emergency responders and investigators
that appellant offered inconsistent accounts of what happened. Contrary to appellant‘s
claims on appeal that every version of his story in giving his recorded statement was
consistent in that he did not see the complainant shoot herself, the record reflects that
appellant demonstrated for Officer Nabors that he had seen the complainant hold the
firearm in her left hand and point it at her head. At other times, appellant denied having
seen the complainant shoot herself. The jury reasonably could have concluded, based on
the testimony they heard regarding appellant‘s various versions of the events, that
appellant was lying and that he was the one who shot the complainant. See Kemmerer v.
State, 113 S.W.3d 513, 516 & n.3 (Tex. App.—Houston [1st Dist.] 2003, pet. ref‘d)
(providing that jury could have viewed an accused‘s changing accounts of what happened
as evidence of guilt).
                                            9
       Although appellant asserts that no evidence reflects that he shot the complainant,
the physical evidence did not match appellant‘s inconsistent accounts of what happened.
According to the investigators, some evidence suggests that the complainant‘s death was
not a suicide. They specifically pointed to the following: (1) the fired bullet casing was
missing from the chambers of the revolver and only a live round was found in the
firearm; (2) no holes were found in the blanket that appellant claimed the complainant
placed over her head before shooting herself; and (3) most of the blood was found on or
near a loveseat when appellant claimed, in one account, that the complainant was sitting
on a large sofa at the time of the shooting. Investigators did not locate the fired bullet in
the chambers of the revolver, and investigators did not ever locate the spent bullet
elsewhere. Accepting as true that only appellant and the complainant were in the home at
the time of the shooting, the record reflects that the complainant was incapacitated by the
gunshot wound and could not have removed the spent shell from the revolver. Likewise,
an expert testified that the spent casing would not have discharged from the revolver‘s
chamber, even if the firearm were dropped, and that the fired casing would have had to
have been manually removed from the chambers.            The jury reasonably could have
believed that the only other person who could have removed the spent casing was
appellant.

       Appellant asserts that no evidence connected him to the weapon because the
gunshot-residue tests were inconclusive. According to one witness, an inconclusive test
indicates that some gunshot residue was found in a sample, but it cannot be concluded
that the person from whom the sample was taken fired a weapon. Although the tests
were inconclusive, some residue was detected on each of appellant‘s hands. The forensic
evidence manager testified that it is easy to remove gunshot residue from a person‘s
hands by rinsing with water, or even touching a wall or putting his hands in his pocket.
Officer Crowder noted that appellant‘s hands appeared to have no blood on them even
though appellant claimed to have used a rag on the complainant‘s wound to stop the
bleeding. The jury reasonably could have believed from this testimony that appellant
                                             10
washed his hands and removed the blood and thereby also removed gunshot residue
before the police arrived.

       The record reflects that the complainant was eager for her baby‘s arrival and
looked forward to celebrating the upcoming Christmas holiday with an older daughter;
the complainant was not depressed or suicidal. See Porter, 86 Tex. Crim. 23, 215 S.W. at
204 (providing that evidence that the complainant was cheerful, in good humor, jolly, and
apparently in good spirits shortly before her death was evidence tending to disprove an
accused‘s contentions that the complainant committed suicide); Horinek v. State, 977
S.W.2d 696, 701 (Tex. App.—Fort Worth 1998, pet. ref‘d); (holding evidence was
sufficient to support conviction for murder instead of a suicide by the victim when the
evidence showed, in part, that the complainant had plans for the future and was not
depressed). The State offered evidence that the complainant‘s death was not the result of
suicide, and a rational finder of fact reasonably could have determined from the
cumulative force of the circumstantial evidence that the State proved the essential
elements of the charged offense beyond a reasonable doubt. See Porter, 86 Tex. Crim.
23, 215 S.W. at 204 (providing that evidence supported conviction for murder instead of
accused‘s claims that the complainant committed suicide); Horinek, 977 S.W.2d at 701
(holding evidence sufficient to support conviction for murder).          We conclude the
evidence is sufficient to support appellant‘s conviction. Appellant‘s second issue is
overruled.

      RULING ON APPELLANT’S REQUEST FOR SUPPRESSION OF THE EVIDENCE
       In his first issue, appellant claims the trial court should have granted his motion to
suppress inculpatory statements he made at the scene and at the police station. According
to appellant, he was in custody at the time he made those statements, and police officers
did not advise appellant of his Miranda rights.

       We review a trial court‘s ruling on a motion to suppress under an abuse-of-
discretion standard. See Villareal v. State, 935 S.W.3d 134, 138 (Tex. Crim. App. 1996).

                                             11
At a hearing on a motion to suppress, the trial court is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990). We afford almost complete deference to the trial
court‘s determination of historical facts supported by the record, as well as to mixed
questions of law and fact dependent on the determination of a witness‘s credibility and
demeanor. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We consider
issues that present purely legal questions under a de novo standard. See id. As relevant
in the case at hand, a trial court‘s ultimate determination whether an individual was in
custody presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520,
526 (Tex. Crim. App. 2007).

       The State may not use exculpatory or inculpatory statements stemming from the
custodial interrogation of an accused unless procedural safeguards were effectively used
to secure the accused‘s privilege against self-incrimination. See Miranda v. Arizona, 384
U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Texas Legislature has
codified these procedural safeguards in the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 38.22 (West 2005). Specifically, article 38.22, section 3
prohibits the admission of an accused‘s oral statement made as a result of custodial
interrogation unless, among other prerequisites, the Miranda warnings and one additional
warning prescribed in article 38.22 were given, and the accused knowingly, intelligently
and voluntarily waived any rights set out in the warnings. See id. § 3(a).

       At the suppression hearing, Officer Crowder, Investigator Martinez, Officer
Nabors, and Sergeant Wyers testified. The officers each described their respective roles
in the investigation surrounding the complainant‘s death.          Each officer undertook
separate parts of the investigation at or about the same time. The investigation was a
fluid process that unfolded bit by bit as the officers compiled information and evidence
simultaneously. The trial court ruled that appellant was not in custody when he made the
statements at the scene and at the police station. The trial court found that there was no

                                             12
probable cause for a formal arrest ―even up to the very end of the conversations.‖
According to the trial court‘s findings, appellant was not significantly deprived of his
freedom, and he was not under arrest, in custody, or clearly the focus of a murder
investigation at the time he gave statements to the officers.       The trial court found
appellant‘s statements to be voluntary and that—even to the extent appellant was being
interrogated—because he was not in custody—officers were not required to have given
appellant Miranda warnings.

       It is undisputed that the officers did not give appellant these warnings until
Sergeant Wyers spoke with appellant at the police station. When appellant asked for an
attorney, Sergeant Wyers terminated the interview. Appellant refers to being handcuffed
for a long period of time and being in a ―strong police presence over a matter of hours‖ as
creating a situation in which he was not free to leave, and was in police custody, such that
his statements made at the scene and at the police station should have been suppressed.
Consequently, we must determine whether the statements appellant made at the scene and
at the police station (before Sergeant Wyers read appellant these warnings) were made as
a result of custodial interrogation.

       ―Custodial interrogation‖ means ―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. ―A person is in ‗custody‘
only 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) (citing Stansbury v. California, 511
U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). Under this reasonable-person
standard, we presume that person is innocent. Id.

       The ―custody‖ determination must be made on a case-by-case basis considering all
objective circumstances of the interrogation. Stansbury, 511 U.S. at 323; Dowthitt, 931
S.W.2d at 255. We consider four factors in determining whether a person is in custody:

                                            13
(1) probable cause to arrest; (2) subjective intent of the police officers; (3) focus of the
investigation; and (4) subjective belief of the accused. Dowthitt, 931 S.W.2d at 254. The
subjective intent of law enforcement officers to arrest is irrelevant unless the intent is
somehow communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.3d at
254.

       Four general situations may constitute custody: (1) when a suspect is physically
deprived of his freedom of action in any significant way; (2) when a law-enforcement
officer tells a suspect he cannot leave; (3) when a law-enforcement officer creates 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 he is free to leave. Dowthitt, 931 S.W.3d at
255. The mere fact that an interrogation begins as noncustodial does not prevent custody
from arising later; police conduct during the encounter may cause a consensual inquiry to
escalate into custodial interrogation. Id. at 255. A person is ―in custody‖ only if, under
the totality of the circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest. See Stansbury,
511 U.S. at 322; Dowthitt, 931 S.W.2d at 254.

       The record does not reflect that any officer communicated to appellant that he was
not free to leave.   The record reflects two times in which appellant was placed in
handcuffs, both of which were intended as protocol for an ongoing investigation or for
officer safety. Even though Officer Crowder testified that appellant was not free to leave
once he placed appellant in handcuffs at the scene for preservation of evidence, the
officer did not tell appellant he was not free to leave. See Dowthitt, 931 S.W.2d at 254
(requiring manifestation by words or conduct of an officer). According to the record,
appellant appeared to understand that the handcuffs were intended for preservation of
evidence. The record reflects that after appellant‘s handcuffs were removed at the scene,



                                            14
he was free to leave—and, in fact, did leave the house briefly to go outside before
returning inside to speak with officers and ultimately depart for the police station.

       Appellant complains that officers detained him, handcuffed him, and participated
in a ―show of force‖ that made it obvious he could not leave. A person may be detained
for the purpose of conducting a police investigation without being ―in custody.‖ See id.
An officer conducting a temporary investigative detention may use such force as is
reasonably necessary to effect the goal of detention: investigation, maintenance of status
quo, or officer safety. See Balentine, 71 S.W.3d at 771; Rhodes v. State, 945 S.W.2d 115,
117 (Tex. Crim. App. 1997); Dang v. State, 99 S.W.3d 172, 182–84 (Tex. App.—
Houston [14th Dist.] 2002), reversed on other grounds by, 154 S.W.3d 616 (Tex. Crim.
App. 2005) (concluding that a juvenile‘s temporary detention inside of a police patrol
unit for two-and-a-half hours was not unreasonable because the record did not reflect that
the pace of the investigation at the scene was unreasonable). Being in handcuffs does not
automatically equate with being in police custody or under arrest. See Balentine, 71
S.W.3d at 771; Turner v. State, 252 S.W.3d 571, 580 (Tex. App.—Houston [14th Dist.]
2008, pet. ref‘d) (citing Balentine, 71 S.W.3d at 771). Officer Crowder testified that he
placed appellant in handcuffs for the purpose of preserving evidence until the gunshot-
residue test had been conducted. Officer Crowder explained to appellant that the need for
handcuffs was to preserve any evidence and was protocol for any witnesses present in the
home at the time of the shooting; appellant appeared to understand this explanation. An
officer may place an accused in handcuffs in order to safely investigate the scene and
preserve the status quo. See Zayas v. State, 972 S.W.2d 779, 790 (Tex. App.—Corpus
Christi 1998, pet. ref‘d) (concluding trial court had enough information to have
reasonably concluded that an accused was not under arrest when officer immediately
conducted investigation on the scene and questioned the accused). The record reflects
that for the duration appellant was in handcuffs at his home, the investigation was
ongoing. See Dang, 99 S.W.3d 172, 182–84. As to appellant‘s assertion that the officers
on the scene demonstrated a ―show of force,‖ the record reflects that Officer Crowder
                                             15
entered the home with his weapon unholstered because he was not certain whether the
scene had been secured after the shooting or whether more people were in the home with
firearms; the record does not reflect that officers drew their weapons at any other time at
the scene. Just because appellant was the focus of an investigation did not convert the
investigative detention into custody or an arrest. See State v. Stevenson, 958 S.W.2d 824,
829 (Tex. Crim. App. 1997).

       Appellant claims that the presence of the crime-scene investigators and the
homicide investigators at the scene demonstrated the officers‘ subjective intent that the
officers had developed probable cause to arrest and that they were not investigating a
suicide.     But, each of the officers testified that he had no probable cause to arrest
appellant.     The officers testified that they were investigating a suicide.      As the
investigation continued to unfold, additional information came to light, but the officers
testified that they did not have probable cause to arrest appellant. The trial court was in
the best position to evaluate the credibility of the witnesses. See Turner, 252 S.W.3d at
581. According to the officers, at no point prior to appellant being Mirandized was he
under arrest. See Gardner v. State, 306 S.W.3d 274, 293–94 (Tex. Crim. App. 2009)
(involving evidence that officers did not have probable cause to arrest an accused).

       Appellant complains he was told to make a formal statement at the station and was
transported in a marked patrol cruiser while he wore handcuffs, amounting to custody.
Stationhouse questioning in and of itself does not constitute custody. Nickerson v. State,
312 S.W.3d 250, 256 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The record
reflects that Sergeant Wyers and Investigator Martinez each explained to appellant the
purpose in speaking with him both at the scene as part of the investigation and later in
appellant‘s giving a formal, eyewitness statement at the police station to aid the
investigation. According to Investigator Martinez, appellant appeared willing to go to the
station and give the statement. See Gardner, 306 S.W.3d at 294 (involving evidence that
appellant appeared to go voluntarily to a sheriff‘s office to talk to officers). If police

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officers request that a person speak with them and the person is acting on this request
without force, threat, or coercion, then the act is voluntary and the person is not in
custody. See Nickerson, 312 S.W.3d at 257 (concluding that accused was not in custody
even when some evidence at the suppression hearing reflected that as many as twenty
officers with guns drawn had taped brown bags to the accused‘s handcuffed hands, but
when the accused was not threatened or forced to go with the officers in an unmarked
police cruiser to police station to make a voluntary statement as requested by officers);
Turner, 252 S.W.3d at 580 (concluding that accused voluntarily accompanied the officers
to the station and subsequent handcuffing did not transform the accompaniment into an
arrest). The record reflects sufficient evidence to determine that appellant voluntarily
accompanied the officers to the police station. See Turner, 252 S.W.3d at 580.

       The officers testified that department protocol, for the officers‘ safety, required
handcuffing any witness or suspect who was to be transported in a police unit. Placing
appellant in handcuffs is reasonably necessary force to effect officer safety.          See
Balentine, 71 S.W.3d at 771.       Moreover, placing a person in handcuffs does not
automatically mean that person is in custody. See Turner, 252 S.W.3d at 580. The
officers claimed to have had no probable cause to arrest appellant at the time appellant
left the scene and that appellant was not a suspect at the time he departed for the police
station. See id. (involving evidence that officers had no probable cause to arrest a witness
who was involved in incident, but handcuffed the witness during transport to the police
station to give a formal statement of the incident).           Sergeant Wyers answered
affirmatively when asked specifically, ―Did you explain to the defendant about going to
the station and getting a formalized statement?‖ The record does not affirmatively reflect
that the officers explained to appellant that handcuffs were part of protocol in
transporting witnesses. An officer‘s motivation in handcuffing a witness for officer
safety, without explaining why the handcuffs were used, does not speak to how the
officer‘s actions would be reasonably understood. See id. at 582. However, the record
reflects the following: appellant was told by at least two officers of the purpose in giving
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a formal eyewitness statement at the station and he appeared to understand; he voluntarily
accompanied the officers to the station; he was placed in handcuffs only after consenting
to accompany the officers; the handcuffs were used for the relatively short trip to the
station3; and the handcuffs were removed shortly after arriving at the station. See id. at
580–82 (involving evidence that handcuffs were placed on witness after he consented
accompany officers in a police unit to give statement at stationhouse thirty miles away
and the handcuffs were removed upon arrival at police station). In considering the
totality of the circumstances, an objective person reasonably could have believed
appellant was a witness who was voluntarily accompanying officers to give a statement
of the events he saw and that he was not in custody. See id. at 582 (considering officer‘s
subjective intent manifested in words to the accused).

       In sum, having considered all the objective circumstances, we conclude that the
trial court did not abuse its discretion in determining that appellant was not significantly
deprived of his freedom and he was not under arrest, in custody, or the focus of a murder
investigation at the time he gave statements to the officers at the scene and later at the
police station while making his recorded statement. See Nickerson, 312 S.W.3d at 257.
Based on the evidence, appellant was not physically deprived of his freedom, never told
he could not leave, never restricted in his movement in a way that would be tantamount
to arrest, or a subject with enough probable cause to arrest him at the scene. See id.
Likewise, appellant was not in custody when he was escorted from his home to the police
station. See id. For this reason, article 38.22 was not applicable in that appellant was not
in custody at the time he made any of the statements. See Tex. Code Crim. Proc. Ann.
art. 38.22. The trial court did not abuse its discretion in denying appellant‘s motion to
suppress the statements appellant made at the scene and at the police station. See Turner,
252 S.W.3d at 580. Appellant‘s second issue is overruled.



       3
           The record suggests that the drive to the station could have been as short as fifteen minutes.
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      Having overruled each of appellant‘s issues, we affirm the trial court‘s judgment.




                                         /s/     Kem Thompson Frost
                                                 Justice



Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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