Affirmed and Memorandum Opinion filed December 23, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00014-CR

                         JUAN SALGADO, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Cause No. 1348922

                MEMORANDUM                      OPINION


      Appellant Juan Salgado appeals his conviction for indecency with a child on
the ground that the trial court erred in overruling his motion to suppress his
recorded statement. We affirm.

                                 I. BACKGROUND

      Prior to trial appellant filed a motion to suppress his statement in which he
argued that his recorded statement was obtained by an illegal arrest, and with no
knowing and intelligent waiver of his rights. The trial court held a hearing at which
Officer Miraida Martinez and appellant testified. At the conclusion of the hearing
the trial court denied appellant’s motion to suppress.

      Appellant, a distant relative of the complainant and her mother, was living in
the front room of a duplex where the complainant lived. Appellant occasionally
picked up the complainant from school and drove her to a babysitter’s home where
the complainant stayed until her parents finished work for the day. On one of those
occasions appellant took the complainant to his room in the duplex where they all
lived. When they entered the room appellant lowered his zipper and told the
complainant to pull down her pants. The complainant testified that appellant got on
top of her, and “pulled out his thing and he put it in mine.” Afterward the
complainant cleaned herself in the bathroom, and appellant took her to the
babysitter’s house. The complainant did not immediately tell anyone what
happened, but later made an outcry to a teacher’s assistant at her school.

      Officer Martinez was assigned to investigate after the complainant’s outcry,
and was given appellant’s name as a suspect. The mother told Martinez that
appellant worked at a nearby restaurant she thought was named “Brenda’s.” The
mother also described appellant as having tattoos and silver teeth. During her
investigation, Martinez determined that appellant might work at Brennan’s
restaurant. She went to Brennan’s and asked for appellant, but the manager told her
no one named Juan Salgado worked there. Martinez later learned that appellant
might be using the name Jose Najera at Brennan’s.

      Martinez and another officer went to the restaurant and asked the manager
for Jose Najera. The manager pointed out an employee and Martinez approached




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him calling him, “Juan.”1 The employee, later identified as appellant, responded,
saying, “Que paso?” Martinez noticed the employee had silver teeth, and tattoos
that had been described to her earlier in the investigation. Martinez explained that
she was investigating a sexual assault case, and asked if appellant was willing to
come to the police station to determine whether he was the suspect she was
seeking. Appellant agreed to accompany her. Martinez explained to appellant that
he would be transported in a patrol car in handcuffs per police department policy.
They waited approximately 15 minutes for a patrol car to arrive and transport
appellant to the police station.

       When Martinez and appellant arrived at the police station, Martinez took a
picture of appellant and generated a photo array to show the complainant. Martinez
drove approximately 15 minutes to the complainant’s location. Appellant waited at
the police station while Martinez visited the complainant. When Martinez showed
the photo array to the complainant, the complainant identified appellant as the
person who had sexually assaulted her.

       After the complainant identified appellant, Martinez drove back to the police
station, and decided to question appellant. Prior to questioning appellant, Martinez
read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444–45 (1966),
and article 38.22 of the Texas Code of Criminal Procedure. Appellant indicated he
understood his rights and waived them prior to making a statement. Martinez did
not obtain an arrest warrant prior to the interview because she had reason to
believe appellant would flee if he were released. She based this conclusion on the
facts that appellant had previously fled to Mexico, and had used multiple identities
in the past.

       1
        The record reflects that appellant only speaks Spanish. When speaking with appellant
Martinez also spoke Spanish.

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       Appellant’s videotaped statement was then played at the hearing. In his
statement appellant admitted that the complainant’s babysitter had asked him to
pick the complainant up from school approximately three times. Appellant
admitted taking the complainant into his bedroom, and rubbing his penis on the
complainant’s leg.

       At the hearing, appellant testified that he was handcuffed while in the
restaurant, and placed in a car for more than an hour while waiting for the patrol
car. Appellant testified that despite telling Martinez that he understood his rights,
he did not understand his rights at the time he made his statement. At the
conclusion of the hearing the trial court denied appellant’s motion to suppress.

       After the trial court denied appellant’s motion to suppress, he pleaded not
guilty and proceeded to trial on the charge of aggravated sexual assault of a child.
At trial, the State presented the testimony of the teacher’s assistant to whom the
complainant made outcry, the forensic interviewer who interviewed the
complainant, the physician who examined the complainant, the complainant’s
mother, and the complainant. Martinez testified to her investigation and the taking
of appellant’s statement. The State also admitted appellant’s statement over his
objection.2 The jury found appellant guilty of the lesser-included offense of
indecency with a child, and the trial court sentenced appellant to eighteen years in
prison.

       The trial court made the following pertinent findings of fact and conclusions
of law:

       Findings of Fact
       7. Officer Martinez traveled to Brennan’s where she once again spoke

       2
          The videotaped statement is in Spanish. The trial court admitted a translated transcript
of the statement into evidence.

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to the manager who directed her to an employee known as Jose
Najera.
8. As Officer Martinez approached the defendant at the restaurant, she
called out, “Juan” and the defendant asked “Que paso?” and smiled,
showing silver teeth.
9. Officer Martinez detained the defendant in an effort to determine if
he was in fact the perpetrator in the case under investigation. Officer
Martinez transported the defendant to an HPD office in a patrol car.
10. Officer Martinez took a photo of the defendant, put it in a photo
spread, and showed it to the complainant while the defendant waited
in an office.
11. After the complainant positively identified the defendant as the
man who raped her, Officer Martinez read the defendant his rights and
recorded her interview with the defendant.
12. The defendant was under arrest after Officer Martinez observed
the complainant identify the defendant as the person who sexually
assaulted her.
13. Officer Martinez believed the defendant would escape or abscond
immediately were she to allow him to leave, due to his having used at
least three different names, having gone to Mexico immediately after
sexually assaulting the complainant, and his lack of legitimate
identification and/or legal status in the United States.
14. The defendant stated he understood his rights and wanted to speak
with Officer Martinez about the investigation.
15. The defendant was not denied any basic necessities and was, in
fact, offered a soda.
16. The defendant never invoked his right to counsel, nor did he ever
attempt to cease the interview.
17. The Court finds the State’s witness, Officer Martinez, credible and
accepts her testimony as true.
Conclusions of Law

1. Initially, the Court rules that the statement of the defendant was
freely and voluntarily made.
2. The Court finds that the requirements of 38.22 were fulfilled.

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      3. Lastly, the Court finds that statement of the defendant is admissible.

      In a single issue on appeal appellant argues that at the time he was placed in
the patrol car at Brennan’s he was under arrest without a warrant or probable
cause. As a result of that arrest, appellant argues his statement was tainted and
inadmissible. The trial court therefore erred in denying appellant’s motion to
suppress the statement.

                             II. STANDARD OF REVIEW

      We review a trial court’s denial of a motion to suppress for abuse of
discretion. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas
v. State, 297 S.W.3d 458, 459 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
We review the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court is
the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). We afford almost total
deference to the trial court’s determination of historical facts supported by the
record, especially when the trial court’s findings are based on an evaluation of
credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). We afford the same amount of deference to the trial court’s ruling on
mixed questions of law and fact if the resolution of these questions turns on an
evaluation of credibility and demeanor. Id. We review questions not turning on
credibility and demeanor de novo. Id. If the trial court’s decision is correct under
any theory of law applicable to the case, the decision will be sustained. Estrada v.
State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

      In reviewing a trial court’s ruling, we generally consider only evidence
adduced at the suppression hearing because the ruling was based on it rather than

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evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.
1996). This general rule, however, does not apply when, as in this case, the parties
consensually relitigate the suppression issue during the trial on the merits. Id.

                             III. MOTION TO SUPPRESS

      Appellant argues that the trial court erred in denying his motion to suppress
the statement he made to Officer Martinez because he was in custody at the time he
was detained at the restaurant, but was not read his rights until after the
complainant identified him. He contends his statement made after receiving
notification of his rights is the fruit of an illegal detention at the restaurant.
Appellant asserts that because he did not receive these warnings until after the
complainant identified him, all of his statements were inadmissible, and should
have been suppressed. See Tex. Code Crim. Proc. Ann. art 38.22; Miranda, 384
U.S. at 444–45; see also Missouri v. Seibert, 542 U.S. 600, 609–11 (2004)
(plurality op.) (discussing admissibility of statements made when “mid-stream”
Miranda warnings are given).

      Miranda warnings are given to “safeguard an uncounseled individual’s
constitutional privilege against self-incrimination during custodial interrogation.”
Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). Additionally,
article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of
statements made by an accused during custodial interrogation. Tex. Code Crim.
Proc. Ann. art. 38.22; see also Herrera, 241 S.W.3d at 526. As with Miranda
warnings, article 38.22 warnings are required only when the interrogation is
custodial. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 3(a), 5; Herrera, 241 S.W.3d
at 526.

      “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
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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 (1994)). Our
custody inquiry includes an examination of all objective circumstances
surrounding the questioning. Herrera, 241 S.W.3d at 525. A person is not in
custody if he “voluntarily accompanies police officers, who are then only in the
process of investigating a crime, to a certain location, and he knows or should
know that the police officers suspect he may have committed or may be implicated
in committing the crime.” Turner v. State, 252 S.W.3d 571, 579 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d). “Once the circumstances show the person is
acting upon the invitation, urging or request of police officers, and not the result of
force, coercion or threat, the act is voluntary and the person is not then in custody.”
Id. at 580.

      In this case, there is evidence that appellant left Brennan’s freely with
Martinez. According to Martinez, appellant met the description of the suspect and
responded to the name of the individual Martinez was investigating. Because she
did not have positive identification, Martinez asked appellant to go to the police
station, and appellant agreed. Martinez permitted appellant to sit in the backseat of
her unmarked car until a patrol car arrived to transport him. Appellant testified that
he did not understand his rights, and that he was handcuffed for over an hour
before the patrol car arrived. While appellant’s testimony differs from that of
Martinez, the trial court was in the best position to evaluate the credibility of the
witness and was free to disbelieve appellant’s testimony. See Mason, 116 S.W.3d
at 256. In its findings of fact, the trial court found Martinez credible and accepted
her testimony as true.

      The placing of handcuffs on a defendant does not, in and of itself,
automatically mean he is in custody. See Balentine v. State, 71 S.W.3d 763, 771

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(Tex. Crim. App. 2002) (holding appellant was not under arrest when officer
placed him in handcuffs because while officer was conducting an investigation into
shots being fired, officer learned the suspect had lied in response to previous
questions and there was no bulletproof partition between the front and back seat);
Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App. 1997) (holding
appellant was not under arrest because officer handcuffed suspect while his partner
was chasing second suspect in a high crime area at night). Martinez explained to
appellant that she “had an investigation going on” and was not sure if she “had the
right person.” Martinez asked appellant if he was willing to come to the police
station to make sure she had the right person, and appellant “said okay.” Martinez
further testified that she handcuffed appellant for officer safety and explained to
appellant that she typically handcuffed people she put in the backseat of a patrol
car for officer safety.

       Based on all of the evidence, we hold the trial court did not abuse its
discretion in concluding appellant was not in custody prior to receiving his
Miranda and article 38.22 warnings. Accordingly, appellant’s statement was not
the product of an illegal arrest. We overrule appellant’s sole issue and affirm the
trial court’s judgment.




                                      /s/       John Donovan
                                                Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).



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