Affirmed and Majority and Concurring Opinions filed January 28, 2014.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00726-CR

                    RICHARD EARL ORTIZ, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee

                  On Appeal from the 262nd District Court
                          Harris County, Texas
                      Trial Court Cause No. 1319044


                     MAJORITY OPINION
      Appellant Richard Earl Ortiz appeals from his conviction for aggravated
assault of a family member. Prior to trial, the court below denied appellant’s
motion to suppress out-of-court statements he made to a police officer before he
was administered Miranda warnings. A jury then found appellant guilty and
assessed his punishment at 35-years’ imprisonment. In a single issue on appeal,
appellant contends the trial court erred in denying his motion to suppress. We
affirm.
                                      Background

      At the suppression hearing, Officer Jeffrey Spencer of the Baytown Police
Department testified that on September 5, 2011, he was dispatched to a residence
in response to a report of an assault involving appellant. Spencer recognized
appellant’s name, he said, because several officers in the department had spoken
with appellant in the past and appellant had assaulted one of the department’s
sergeants. Because of appellant’s past history, Spencer waited for backup before
proceeding to the residence in question. When he arrived at the location, Spencer
saw appellant walking out of a yard towards the street. Spencer stopped his patrol
car a couple of houses away and observed appellant walking down the middle of
the street with his fists clenched by his side. Spencer believed at that point that
appellant was ready to fight the officers, and Spencer asked appellant “what was
going on . . . how was it going . . . ?” Appellant then looked up and yelled, “It’s a
beautiful night tonight.”

      Spencer told appellant to stop and turn around.        Appellant did so, and
without being given further instructions, appellant placed his hands behind his
back. Spencer then observed blood on appellant’s hands and handcuffed appellant.
Spencer told appellant, “Richard, you’re not under arrest right now. You’re just
being detained until we figure out what’s going on.” Spencer further explained to
appellant that he was only being detained until the officers could figure out what
had happened. According to Spencer, at that time, he did not know whether there
was even a victim in the area, so he would not have known what, if any, charge
appellant should be arrested for.

      Spencer asked appellant if appellant and his father had gotten into a fight. In
response, appellant “kind of nodded his head towards his yard and said: Your
victim’s over there.”       At that point, Spencer had not seen appellant’s father,

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Ricardo Ortiz. Spencer asked appellant, “Did you hit your dad or use a stick or
anything like that?” Appellant replied that he had used his fists and then yelled
that “God gave me these fists for a reason.” Spencer stated that at this time,
appellant was standing beside him in the street and had not been placed on the
ground or in a patrol car, and Spencer had not drawn his firearm or shone a light in
appellant’s eyes.

      Meanwhile, a third officer had arrived on the scene, located appellant’s
father nearby, and was calling for Emergency Medical Services to hurry to the
scene. When Spencer heard the stress in the other officer’s voice, he decided to
place appellant in the police vehicle.        After seeing the victim’s injuries and
speaking with appellant’s wife regarding what had transpired, Spencer placed
appellant under arrest and transported him to jail. Spencer estimated that he asked
his initial question of appellant within seconds of having detained him with the use
of handcuffs, and their entire initial conversation lasted about 30 seconds.

      On cross-examination, Spencer stated that when he first saw appellant in the
middle of the street, he was not afraid of appellant but “was afraid [appellant] was
going to fight.” He additionally acknowledged that appellant was cooperative.
Spencer stated that he had spoken with appellant “several times over the years” and
“detained him to find out what was going on.” Spencer did not give appellant
Miranda warnings before asking him the initial questions recounted above. While
being detained, appellant was not free to leave.

      No other evidence was presented at the suppression hearing. The trial court
denied appellant’s motion to suppress the statements made to Spencer. In its
findings of fact and conclusions of law, the trial court made several findings
demonstrating a general acceptance of events as related by Officer Spencer and



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concluded that appellant’s statements were admissible.1

                                         Discussion

       In his sole issue on appeal, appellant contends the trial court erred in
denying his motion to suppress. We review a trial court’s ruling on a motion to
suppress under a bifurcated standard, giving almost total deference to the court’s
determination of historical facts that are supported by the record and reviewing the
court’s application of the law to the facts de novo. State v. McLain, 337 S.W.3d
268, 271 (Tex. Crim. App. 2011); Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007).

       Appellant specifically alleges that at the time he made his statements to
Officer Spencer, he was not merely detained, but was under arrest without
probable cause, a violation of the Fourth Amendment to the United States
Constitution. He further asserts that even if his arrest was proper, Spencer failed to
advise him of his Miranda rights before asking him questions, a violation of the
Fifth Amendment.2        Our analysis therefore turns to some degree on whether
Spencer’s handcuffing of appellant amounted to an arrest or was a mere detention.
If Spencer’s action amounted to no more than a detention, appellant does not
dispute that the statements were admissible.

       Caselaw segregates interactions among police officers and citizens into three
categories for analysis: (1) consensual encounters, (2) investigative detentions, and
(3) arrests or their custodial equivalent. See Crain v. State, 315 S.W.3d 43, 49
       1
         After his arrest, a detective obtained a videotaped statement from appellant. The trial
court, however, denied admission of the videotape at trial.
       2
          The warnings set out by the United States Supreme Court in Miranda v. Arizona were
established to safeguard an unrepresented individual’s constitutional privilege against self-
incrimination during custodial interrogation. 384 U.S. 436, 442-57, 467-79 (1966). Unwarned
statements obtained as a result of custodial interrogation may not be used as evidence by the
State in a criminal proceeding during its case-in-chief. Id. at 444.

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(Tex. Crim. App. 2010). Both detention and arrest involve a restraint on one’s
freedom of movement; the difference is in the degree. State v. Sheppard, 271
S.W.3d 281, 290-91 (Tex. Crim. App. 2008). An arrest places a greater degree of
restraint on an individual’s freedom of movement than does an investigative
detention. Id. at 290. The mere act of handcuffing, as was done here, does not
establish custody, but is only one of a range of relevant factors in determining that
a suspect is in custody. See State v. Ortiz, 382 S.W.3d 367, 374 (Tex. Crim. App.
2012); see also Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002)
(holding investigative detention did not evolve into an arrest simply because
officer handcuffed defendant).

      When considering whether a person is in “custody” for Miranda purposes,
we apply a “reasonable person” standard, i.e., “[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). The inquiry requires an
examination of all of the objective circumstances surrounding the questioning at
issue. Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). The
subjective belief of law enforcement officials about whether a person is a suspect
does not factor into the custody determination unless an official’s subjective belief
was somehow conveyed to the person who was questioned. Id. at 525-26. The
defendant bears the initial burden of demonstrating that a statement was the
product of custodial interrogation, and the State has no burden to show compliance
with Miranda until the defendant meets that initial burden. Wilkerson v. State, 173
S.W.3d 521, 532 (Tex. Crim. App. 2005).

      Several factors often come into play in considering whether a particular
encounter amounted to an arrest or detention, including the amount of force

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displayed, the duration of detention, the efficiency of the investigative process, and
whether it was conducted at the original location or the person is transported to
another location, and whether the officer told the detained person that he or she
was under arrest or was being detained only for a temporary investigation. State v.
Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) (citing 40 George E. Dix
and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 7.34 (2d
ed. 2001)). “If the degree of incapacitation appears more than necessary to simply
safeguard the officers and assure the suspect’s presence during a period of
investigation, this suggests the detention is an arrest.” Id. (quoting Dix & Dawson
§ 7.34).

      Appellant asserts that he was in custody for Miranda purposes once Officer
Spencer handcuffed him. Appellant emphasizes that at the time, he was being
compliant, Spencer had a backup officer present, and Spencer’s actions indicated a
clear intent to arrest. We disagree with appellant’s conclusion.

      According to Spencer’s testimony, when he arrived on the scene and
observed appellant walking in the middle of the street toward officers, Spencer did
not have enough information regarding the reported disturbance to make an arrest.
Spencer was aware, however, that appellant was reportedly involved in an
altercation and had previously assaulted a police sergeant. Spencer also observed
that appellant’s hands were clenched into fists. Spencer expressed concern that
appellant intended to fight the officers. Based on this testimony, it would have
been reasonable to conclude that Spencer initially handcuffed appellant to
temporarily detain him for officer safety while the cause of the disturbance report,
and appellant’s possible involvement therein, were ascertained. Moreover, there is
no evidence Spencer used any force on appellant beyond the application of the
handcuffs, and according to Spencer, the period of time between his use of the

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handcuffs and appellant’s statements was mere seconds. Lastly, Spencer indicated
to appellant that appellant was not under arrest at that time but was only being
detained until the officers could figure out what had happened.

      Based on Spencer’s testimony—the only evidence adduced at the
suppression hearing—the trial court did not err in finding that appellant was
merely detained and not under arrest or in custody and thus was not entitled to be
given Miranda warnings before answering questions. The trial court consequently
did not err in denying the motion to suppress those statements. We overrule
appellant’s sole issue.

      We affirm the trial court’s judgment.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Frost, C.J.,
concurring).
Publish — TEX. R. APP. P. 47.2(b).




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