      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00669-CR



                                      State of Texas, Appellant

                                                   v.

                                 Marcus Tyler Scheffield, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
          NO. CR2011-575, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Appellee Marcus Tyler Scheffield has been charged with two counts of sexual assault

of a child. See Tex. Penal Code § 22.011(a)(2). In this interlocutory appeal, the State challenges the

trial court’s pretrial order granting Scheffield’s motion to suppress statements that he made to a

detective during the investigation. The State asserts that Scheffield’s statements are admissible because

he was not in custody and his interview did not rise to the level of a custodial interrogation. We

reverse the trial court’s order of suppression and remand this case for further proceedings.


                                          BACKGROUND

                 According to the evidence presented at the suppression hearing, Scheffield gave his

friend, Steven Villarreal, a ride to meet “Valerie” and her friend, “Maria,” both aged fourteen.1




        1
            To protect their privacy, we refer to the underage victims by fictitious names.
Scheffield was nineteen years old at the time. One week after this gathering, Valerie gave a forensic

interview in which she admitted to having sexual intercourse with Villarreal. Valerie also told the

forensic interviewer that she saw Maria performing oral sex on Scheffield.

               On August 3, 2011, Detective Schroeder of the New Braunfels Police Department

(NBPD) met with Scheffield at Scheffield’s house and told him that he was investigating a case

involving Scheffield. The detective asked Scheffield to come to the police station to make a

voluntary statement, and Scheffield agreed. In the video-recorded interview, Scheffield conceded

that he drove himself to the police station and was there voluntarily. He was told that he could leave

at any time.

               During his interview, Scheffield told Detective Schroeder his side of the story,

explaining that Valerie and Maria appeared to be underage and that he believed that Villarreal had

sex with Valerie. However, Scheffield insisted that he did not have any sexual contact with Maria.

Detective Schroeder said that Scheffield’s version of events differed from what the detective was

told by others. Approximately forty minutes into the interview, Detective Schroeder played a video

of Valerie saying that she saw Maria performing oral sex on Scheffield. Scheffield again denied this

happened. Detective Schroeder said that Villarreal confirmed everything that Valerie said and told

Scheffield, “Just so you know, you can hear it for yourself.” Before Detective Schroeder could start

the video recording of Villarreal’s interview, Scheffield asked to go to the restroom. Schroeder

responded “You want to listen to this real quick?” and started playing the video interview of

Villarreal. Detective Schroeder is heard on the video saying that the interview pertained to an

investigation of Marcus Tyler Scheffield. Scheffield again requested to go to the restroom, and

Detective Schroeder escorted him to and from the restroom.

                                                  2
                When Scheffield returned to the interview room, he asked if he was a witness or a

suspect. Detective Schroeder told Scheffield that he was both and that he was trying to get Scheffield’s

side of the story. The following exchange then occurred:


        [SCHEFFIELD]:           As much as I want to continue this interview and to be honest,
                                with my little knowledge of specifically the law, I’m not sure
                                that I want to continue this interview right now without an
                                attorney, just because I don’t know what the police
                                department’s intentions are or the county’s in terms of
                                charges or whatnot and I believe that I need someone who can
                                tell me what to do or not to do. So, as much as I would love
                                to continue and to be honest I don’t know how much . . .
                                basically I don’t know whether I’m going to be looking at
                                charges or not, and if that’s the case, then regardless of
                                whether I’m being honest or not.

        [DETECTIVE]:            That’s what I’m telling you right now. I’m telling you exactly
                                what it is. I understand your hesitance on you not knowing if
                                you want to continue or not.

        [SCHEFFIELD]:           So you are saying that you are looking at charges against me?

        [DETECTIVE]:            Let me show you . . . this is your evidence jacket; this is your
                                folder. O.K. This is where it’s already at, Marcus. So, this
                                is your opportunity to tell me exactly what happened.

        [SCHEFFIELD]:           And then what?

        [DETECTIVE]:            If you’re honest with me, I’m taking it straight to [the
                                prosecutor]. I’m gonna give it to him. It’s already going this
                                far anyhow. I know you’ve already been deceptive with me.
                                I already know that. And you already know that I know that
                                too. Cause I’ve already got this [pointing to something on
                                desk], I’ve already got this [pointing to photographic evidence
                                on the wall], I’ve got Maria’s interview, I’ve got everything.
                                I’ve got it all. You were the last piece of the puzzle. So I
                                want you to be honest with me. [The prosecutor] wants you
                                to be honest because he’s going to be watching this right now.
                                ....

                                                   3
       [SCHEFFIELD]:          I know what your job is and your job is to put people away,
                              and as much as I want to be honest, I don’t want to nail my
                              own coffin shut.

       [DETECTIVE]:           My job is not to put people away. My job is to find the
                              evidence in the case, and I’ve already found it. My job is to
                              give you the opportunity, Marcus, to tell the truth, so when
                              people do have the decision to put you away or not, they can
                              say, ‘Hey, was Marcus honest with me?’ . . . .

       [SCHEFFIELD]:          If I’m honest with you will I be leaving here today?

       [DETECTIVE]:           Yes you are. When you walked in here and I told you, you
                              can come in here and I’ll let you walk out that door, you’re
                              darn right I am. That’s my word. But you got to tell me the
                              truth. Tell me the truth and tell [the prosecutor] the truth.


               Scheffield sat silently for a moment, looking at the floor, and then said, “It’s true.”

He confirmed that he received oral sex from, and had intercourse with, Maria. After another minute-

and-a-half of being questioned and providing admissions, Scheffield told Detective Schroeder, “I

don’t think I can keep going right this second. I’m going to come back tomorrow and finish.”

Detective Schroeder reiterated that Scheffield “can walk right out this door at any time,” but

continued questioning Scheffield for another minute or so. Detective Schroeder then said, “All

right, well, instead of going through the whole thing, you asked to leave, I can’t stop you from

leaving, and that’s your wishes, so I’m gonna let you go.” As he was leaving Scheffield asked, “Do

you need me to come back tomorrow or anything?” Detective Schroeder said he would like for

Scheffield to return and tell him everything that happened. Scheffield left the station and did not

return the next day. The interview lasted just over one hour.




                                                 4
               On August 18—fifteen days after Scheffield’s station-house interview—an arrest

warrant was issued for Scheffield. He was then arrested for two counts of sexual assault of a child.

Prior to trial, Scheffield filed a motion to suppress statements he made to Detective Schroeder. The

evidence presented at the suppression hearing consisted of the offense report and a copy of

Scheffield’s video-recorded interview at the police station. The trial court granted the motion to

suppress, noting that Scheffield “invoked right to counsel at time 15:59 on tape.” The trial court

issued written findings of fact and conclusions of law to support its ruling. The State filed this

interlocutory appeal challenging the trial court’s order suppressing Scheffield’s statements. See

Tex. Code Crim. Proc. art. 44.01(a)(5) (granting State right to appeal pretrial order suppressing

evidence if jeopardy has not attached).


                                   STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its

discretion if its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005). A trial court’s ruling on a motion to suppress will be affirmed if it is reasonably

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

283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

               “In reviewing a trial court’s ruling on a Miranda-violation claim, an appellate court

conducts a bifurcated review.” Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012); see

also Miranda v. Arizona, 384 U.S. 436 (1966). We afford almost total deference to a trial court’s

determination of historical facts, but review pure questions of law de novo. Alford, 358 S.W.3d

                                                  5
at 652. Likewise, we give almost total deference to a trial court’s resolution of a mixed question of

law and fact if the question turns on the credibility and demeanor of witnesses. Id. However, if

credibility and demeanor are not necessary to the resolution of a mixed question of law and fact, we

review the question de novo. See id.; Young, 283 S.W.3d at 873.

               “The decision as to whether custodial questioning constitutes ‘interrogation’ under

Miranda is a mixed question of law and fact.” Alford, 358 S.W.3d at 653. When, as here, the custodial

questioning has been videotaped and the underlying events are not in dispute, the trial court’s

ruling is merely an application of uncontested facts to the law. See Herrera v. State, 194 S.W.3d 656,

659 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Mayes v. State, 8 S.W.3d 354, 358

(Tex. App.—Amarillo 1999, no pet.). Thus, we review the trial court’s ruling on the suppression

motion de novo.


                                           DISCUSSION

               In its first point of error, the State asserts that the trial court erred in granting

Scheffield’s motion to suppress the statements he made to Detective Schroeder. Specifically, the State

asserts that Scheffield was not in custody during his station-house questioning and his interview did

not rise to the level of a custodial interrogation. As such, the State contends, Scheffield was not

entitled to be given Miranda warnings, nor was he entitled to have counsel present.


Custodial Interrogation

               The threshold issue in this case is whether Scheffield’s interview amounted to a

custodial interrogation. Both the Miranda line of cases and article 38.22 of the Texas Code of



                                                  6
Criminal Procedure require that the accused be properly admonished of certain constitutional rights

in order for his statements “stemming from custodial interrogation” to be admissible as evidence

against him. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22 §§ 2, 3 (listing required

admonishments for written and oral statements of accused). “By custodial interrogation, we mean

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. The

defendant bears the burden of proving that a statement was the product of a custodial interrogation.

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

               To determine whether an individual is in custody, a court must first examine all of

the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there

[was] a formal arrest or restraint on freedom of movement of the degree associated with a formal

arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994) (internal citations and quotations omitted).

This determination of custody “depends on the objective circumstances of the interrogation, not on

the subjective views harbored by either the interrogating officers or the person being questioned.”

Id. at 323. After the circumstances surrounding the interrogation are considered, the court must

determine whether, “given those circumstances, would a reasonable person have felt he or she

was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112

(1995); see also Herrera, 241 S.W.3d at 525.

               The court of criminal appeals has identified four general situations that may

constitute custody:2


       2
          Questioning that begins in a noncustodial environment can become custodial in nature
at some later point during the interrogation. “[P]olice conduct during the encounter may cause a

                                                  7
       (1) when the suspect is physically deprived of his freedom of action in any significant
       way;

       (2) when a law enforcement officer tells the suspect that 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) when there is probable cause to arrest and law enforcement officers do not tell the
       suspect that he is free to leave.


Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). The first through third situations

require that the “restriction upon freedom of movement must amount to the degree associated

with an arrest as opposed to an investigative detention.” Id. (citing Stansbury). The fourth situation

requires the “officers’ knowledge of probable cause be manifested to the suspect.” Id. This can occur

either by the officers relating information substantiating probable cause to the suspect or by the

suspect to the officers. Situation four does not automatically establish custody, but rather “custody

is established if the manifestation of probable cause, combined with other circumstances, would lead

a reasonable person to believe that he is under restraint to the degree associated with an arrest.” Id.

               After reviewing the video-recorded questioning of Scheffield, we cannot conclude

that it would meet any of the four custodial situations outlined by the court of criminal appeals in

Dowthitt. Scheffield was not physically deprived of his freedom of action in any significant way.

The record shows that Scheffield came to the police station voluntarily in his own vehicle. He was

told twice during his video-recorded interview that he did not have to answer any questions and that

he could leave at any time. Scheffield was never physically restrained. He was allowed to go to the


consensual inquiry to escalate into custodial interrogation.” Dowthitt v. State, 931 S.W.2d 244, 255
(Tex. Crim. App. 1996) (citing Ussery v. State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983)).

                                                  8
restroom shortly after requesting to do so. And when Scheffield said that he did not want to continue

with the interview and wanted to finish it the next day, he was allowed to leave the station. The

questioning lasted just over an hour. Detective Schroeder did not create a situation that would lead

a reasonable person to believe that his freedom of movement was significantly restricted. Scheffield’s

freedom of movement was not restricted to a degree associated with an arrest.

                Although Detective Schroeder did indicate to Scheffield that there was probable cause

to arrest him by showing him the investigation file and telling him that he has “got it all” (referring

to evidence against Scheffield), afterward Detective Schroeder told Scheffield he could leave and

allowed him to do so. Based on the totality of the circumstances, we cannot conclude that Detective

Schroeder’s statement about the evidence he had compiled “would lead a reasonable person to

believe that he is under restraint to the degree associated with an arrest.”

                Reviewing the interview in its totality, we conclude that the objective circumstances

of the questioning were non-custodial in nature. The case at hand is similar to many cases considered

by the United States Supreme Court, the court of criminal appeals, and this Court—all of which have

come to the conclusion that the accused was not in custody during questioning, and thus not entitled

to Miranda or article 38.22 warnings.3 In these cases, the accused voluntarily came to the police

station, was either told he or she was not under arrest or was free to leave, was told he or she did not

have to answer any questions, and then the accused was allowed to leave the station house after

making incriminating statements.

       3
        See, e.g., California v. Beheler, 463 U.S. 1121 (1983); Oregon v. Mathiason, 429 U.S. 492,
493–95 (1977); Estrada v. State, 313 S.W.3d 274, 288–95 (Tex. Crim. App. 2010); Gardner v. State,
306 S.W.3d 274, 293–95 (Tex. Crim. App. 2009); Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim.
App. 1990); State v. Dickerson, No. 03-10-00536-CR, 2012 WL 3055526, at *7–8 (Tex.
App.—Austin July 27, 2012, pet. ref’d) (mem. op., not designated for publication).

                                                   9
Invocation of Right to Counsel in a Non-Custodial Setting

                Having concluded that Scheffield’s interview did not constitute custodial interrogation,

we next turn to the issue of whether the interview should have ceased once Scheffield attempted to

invoke his right to counsel.

                The trial court’s conclusions of law indicate that the court suppressed Scheffield’s

statements, in part, based on Scheffield’s possible invocation of his right to counsel during questioning.

If Scheffield was in custody and invoked his right to counsel, “the interrogation must cease until an

attorney is present.” Miranda, 384 U.S. at 474. The custodial interrogation may not continue “unless

the accused himself initiates further communication, exchanges, or conversations with the police.”

Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). Therefore, if Scheffield was in custody and

invoked his right to counsel, his post-request “responses to further interrogation may not be used to

cast doubt on the clarity of his initial request for counsel.” Smith v. Illinois, 469 U.S. 91, 91 (1984).

                However, as we previously discussed, Detective Schroeder’s questioning did not

rise to the level of custodial interrogation, and thus Scheffield was not in custody when he possibly

invoked his right to counsel. The court of criminal appeals has clearly stated that when an accused

is not in custody, the police are not obligated to stop questioning him if he invokes his right to

counsel. See Estrada v. State, 313 S.W.3d 274, 296 (Tex. Crim. App. 2010). In Estrada, the court

concluded that Estrada was not in custody when he provided a video-recorded statement and possibly

invoked his right to counsel. Id. at 294. Shortly after being brought into the interview room, Estrada

made some references to a lawyer. Id. at 289. The court concluded that “[e]ven if we were to assume

that appellant unambiguously invoked his right to counsel and to silence during the noncustodial



                                                   10
interrogation setting, we do not agree that the police were required to honor these invocations.”4

Id. at 296.

               This Court has also previously considered a case with a similar fact pattern and came

to the same conclusion as the court of criminal appeals. In Rian v. State, the appellant voluntarily

went to the police station to discuss allegations that she sexually assaulted a child. Rian v. State,

No. 03-07-00599-CR, 2009 WL 2476607, at *1 (Tex. App.—Austin Aug. 11, 2009, pet. ref’d)

(mem. op., not designated for publication). Officers began the interview by telling Rian that the door

was unlocked and that she was free to leave at any time. Id. After the officers began pressing her

for the truth, she made a reference to an attorney and pulled out his business card. Id. at *2. At a

certain point during the questioning Rian said, “Well then, I need to call the attorney.” The officer

said, “No,” and began to play one of the recorded conversations between Rian and the boy. Id. After

nearly two hours of questioning, Rian admitted to having sexual relations with the child. Id. at *3.

               In addressing Rian’s argument that the interview became a custodial interrogation

when her request for counsel was not honored, this Court explained that:



        4
          The court went on to adopt the following relevant discussion from its prior unpublished
decision in Davis v. State:

        Because the appellant was not in custody, law enforcement officials had no obligation
        under Miranda to scrupulously honor a request to terminate questioning . . . . The
        need to scrupulously honor a defendant’s invocation of Miranda rights does not arise
        until created by the pressures of custodial interrogation. Without those pressures, the
        police are free to attempt to persuade a reluctant suspect to talk, and the immediate
        termination of the interrogation after the invocation of rights is simply not required.

Estrada, 313 S.W.3d at 296 (quoting Davis v. State, No. AP-74393, 2007 WL 1704071, at *5 (Tex.
Crim. App. June 13, 2007)).


                                                  11
        [T]he officers had no obligation under the Fifth Amendment to honor those requests
        [for counsel] if appellant was not in custody. Appellant’s argument in support of her
        contention is a form of bootstrapping: she asserts that she was in custody because
        she was not allowed to speak to the lawyer and that she was entitled to speak to the
        lawyer because she was in custody. Appellant does not refer us to any authority
        holding that a person’s request to speak to counsel, in and of itself, transforms a
        noncustodial interrogation into a custodial interrogation under the Fifth Amendment.


Id. at *4 (internal citations omitted). We concluded that “[b]ecause appellant was not in custody,

she had no Fifth Amendment right to counsel and the officers were not obligated to stop questioning

her when she asked to speak to her attorney.” Id. at *5.

                The same rationale applies in this case. Based on this record, we conclude that

Scheffield was not in custody when he was questioned, and as such Detective Schroeder was not

obligated to advise Sheffield of his Miranda rights. Given that Scheffield was not in custody, the

detective also was not obligated to stop questioning Scheffield after he expressed a reluctance to

continue the interview without counsel. As such, Scheffield’s statements are admissible, regardless

of whether he requested to have counsel present.5


                                          CONCLUSION

                We reverse the trial court’s order suppressing Scheffield’s statements and remand

this cause to the trial court for further proceedings.




       5
         Because we conclude that Scheffield was not in custody and his statements are admissible,
we do not address the State’s alternative argument that Scheffield’s invocation of his right to counsel
was ambiguous.

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                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Reversed and Remanded

Filed: December 30, 2014

Do Not Publish




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