AFFIRMED; Opinion Filed June 10, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01124-CR

                               JAIME FALFAN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 6
                                  Dallas County, Texas
                          Trial Court Cause No. F-1271690-X

                            MEMORANDUM OPINION
                           Before Justices Lang, Myers, and Brown
                                  Opinion by Justice Myers
       Jaime Falfan appeals his conviction for indecency with a child by contact. After the jury

found appellant guilty, the trial court assessed appellant’s punishment at four years’

imprisonment. Appellant brings two issues contending (1) the trial court erred by permitting

evidence of appellant’s oral statements to a police officer when appellant had not been

admonished as required by article 38.22 of the Texas Code of Criminal Procedure; and (2) the

prosecutor made an impermissible jury argument. We affirm the trial court’s judgment.

                                       BACKGROUND

       In 2012, the complainant’s mother, Gloria Cuellar, was in a relationship with appellant, a

mechanic. On Saturday night, June 30, 2012, appellant telephoned Cuellar and said he wanted to

talk with her. At that time, the complainant, a ten-year-old girl, was asleep on the bed in

Cuellar’s home. Cuellar drove to appellant’s workshop and brought him back to her home. As
they sat on the couch talking, the complainant awoke, got up, and sat on the couch next to

appellant. The complainant was wearing only her underwear but had a blanket covering the front

part of her body. As she sat there, appellant slipped his hand behind her under her underwear

and touched her buttocks. Cuellar then said it was time for them to go to bed. The complainant

lay down on one side of the bed, her mother was in the middle, and appellant was on the other

side of the bed. Appellant and Cuellar lay in bed talking, and then appellant told the complainant

to get between them so he could talk to her. The complainant did so, and as she lay next to

appellant, he took her hand and placed it on his penis and held it there. Cuellar noticed the

complainant was uncomfortable and told her to move back to the side of the bed next to her. The

next morning, the complainant got up and put on a dress to go to church, and Cuellar went in the

bathroom to take a bath. While Cuellar was in the bathroom, appellant got up, walked over to

the complainant, lifted up the front of her dress, put his hand under the front of her underwear,

and touched her genitals. After Cuellar took appellant back to his shop, the complainant told

Cuellar what appellant had done to her.

       The next day, Cuellar took the complainant to the hospital and told the hospital personnel

what the complainant had told her. The hospital personnel notified the policeman on duty at the

hospital. The complainant was taken to the Dallas Children’s Advocacy Center where she was

forensically interviewed and related the details of the offense.

       A Dallas police detective, Glenn Slade, spoke to appellant, and appellant told him he was

drinking beer with Cuellar on the night of June 30 in front of Cuellar’s house but that he never

went into the house.

       In his defense, appellant presented five alibi witnesses who testified that on June 30 to

July 1, 2012, appellant was at a birthday party for appellant’s brother from four or five o’clock in

the afternoon and that the party went on with appellant there until four o’clock in the morning.

                                                –2–
They testified that appellant spent the night at his brother’s house and that he did not leave until

8:30 or 9:00 or between 9:00 and 10:00 the next morning.

                                        ADMISSION OF ORAL STATEMENTS

           In his first issue, appellant contends the trial court erred by admitting evidence of

appellant’s oral statements to Detective Slade when he had not been advised of his rights as

required by article 38.22 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN.

art. 38.22, § 2(a) (West Supp. 2013). The State argues the admonishment requirement of article

38.22 did not apply because appellant was not in custody. See CRIM. PROC. art. 38.22, § 5. We

apply a bifurcated standard of review to a trial court’s ruling on a motion to suppress evidence.

Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.—Dallas 2004, no pet.). This standard gives

almost total deference to a trial court’s determination of historical facts and applies a de novo

review of the trial court’s application of the law to those facts. Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact, the judge of witness

credibility, and the determiner of the weight given to witness testimony. Randolph, 152 S.W.3d

at 769. We must sustain a trial court’s decision to overrule a motion to suppress if the decision is

supported by the record and is correct under any theory of law applicable to the case. See

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

           Article 38.22 of the Texas Code of Criminal Procedure provides that “[n]o oral or sign

language statement of an accused made as a result of custodial interrogation shall be admissible

against the accused in a criminal proceeding unless” the accused is warned of his rights 1 during

   1
       Those rights are that:
           (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against
           him at his trial;
           (2) any statement he makes may be used as evidence against him in court;
           (3) he has the right to have a lawyer present to advise him prior to and during any questioning;
           (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any
           questioning; and


                                                                      –3–
the recording but before making the statement, “and the accused knowingly, intelligently, and

voluntarily waives any rights set out in the warning.” CRIM. PROC. art. 38.22, § 2(a). Article

38.22 does not preclude the admission of statements that do not stem from custodial

interrogation. CRIM. PROC. art. 38.22, § 5.

          A person is in custody for purposes of article 38.22 if there was a formal arrest or

“restraint of freedom of movement to the degree associated with a formal arrest.” Stansbury v.

California, 511 U.S. 318, 322 (1994) (per curiam) (internal quotation mark omitted); see State v.

Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013); Dowthitt v. State, 931 S.W.2d 244, 254

(Tex. Crim. App. 1996).                    The determination of custody is made on an ad hoc basis after

considering all of the objective circumstances. Dowthitt, 931 S.W.2d at 255.

          The court of criminal appeals has outlined four general situations that may constitute

custody:

          (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.

Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255). The first three situations

require that the restriction on a suspect’s freedom of movement must reach “the degree

associated with an arrest” instead of an investigative detention. Id. The fourth situation requires

that the officer’s knowledge of probable cause be manifested to the suspect. Id.; see Stansbury v.


          (5) he has the right to terminate the interview at any time.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)




                                                                         –4–
California, 511 U.S. 318, 324–25 (1994) (officer’s subjective thoughts are irrelevant to custody

determination unless they are communicated to the suspect). Custody is not established in the

fourth situation “unless the manifestation of probable cause ‘combined with other circumstances’

of the interview, such as the duration or factors of ‘the exercise of police control over [a

suspect],’ would lead a reasonable person to believe that he is under restraint to the degree

associated with an arrest.” Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255–57).

       The trial court held a hearing outside the presence of the jury to determine the

admissibility of appellant’s oral statements. Dallas Police Department Detective Glenn Slade

testified that before speaking to appellant, he viewed the forensic interview of the complainant

and spoke to Cuellar. On July 4 or 5, 2012, Slade, together with Child Protective Services

Investigator Ruben Villegas, went to appellant’s shop to talk to appellant. Slade told appellant

he was investigating the case and that appellant was not under arrest. Slade asked appellant

where he was on June 30. Appellant told Slade that Cuellar came to his shop that night, they

drank some beer, and then they went to her house. Appellant said he never went inside the house

that night but sat in Cuellar’s car in front of her house talking and drinking beer. Appellant said

Cuellar invited him inside the house but that he refused and went home. During the hearing, the

trial court asked Slade if appellant knew he did not have to talk to Slade, and Slade said “Yes.”

       Appellant argued to the trial court that Slade had sufficient information before he talked

to appellant to know that appellant was a suspect, “therefore, as a suspect in an offense he

deserved a 38.22 warning.” The trial court ruled the statements were admissible because “they

did not stem from custodial interrogation.” Slade then testified before the jury to the facts he

testified to during the hearing outside the presence of the jury.

       On appeal, appellant argues he was in custody when speaking to Slade because Slade had

probable cause to arrest appellant. However, the record of the hearing before the trial court

                                                 –5–
contains no evidence that Slade manifested any knowledge of probable cause to appellant. Nor

is there any evidence of the length of Slade’s interview with appellant. Instead, the evidence

shows Slade told appellant he was not under arrest and that Slade was still investigating the case.

The evidence also shows appellant knew he did not have to talk to Slade.

          Appellant cites two cases in support of his argument, Randall v. Estelle, 492 F.2d 118

(5th Cir. 1974), and McCrory v. State, 643 S.W.2d 725 (Tex. Crim. App. 1982). In Randall, two

Dallas police officers investigating a possible homicide discovered Randall crouched over the

dead body of his wife. Id. at 119. They placed Randall in a police car and interrogated him for

ten to fifteen minutes without giving him Miranda warnings, 2 and Randall told them the location

of the murder weapon. A police detective then arrived, was informed of the above information,

and before speaking to appellant, he formed the opinion that Randall was “the likely culprit.” Id.

The detective then questioned Randall in the police car, and Randall admitted he had killed his

wife. Only then did the detective inform Randall of his Miranda rights. Id. The officers took

appellant to the police station where Randall signed a written confession. Id. The Fifth Circuit

determined that Randall’s oral confession “resulted from custodial interrogation . . . rather than

from inherently noncoercive, on-the-scene questioning.”          Id. at 120.   The court concluded

Randall was in custody because the paramount factor the Fifth Circuit considered in determining

whether an interrogation was custodial was “whether the investigation has focused on the

defendant at the time of interrogation.” Id. The court concluded that “[t]he facts of this case

plainly show that Randall was the focal point of an intensive interrogation by three police

officers in the distinctly unfamiliar environs of a police car.” Id. Twenty years after Randall, the

Supreme Court rejected the argument that a suspect’s being the focus of an investigation was a

factor in determining whether the suspect was in custody at the time of the interrogation. See

   2
       See Miranda v. Arizona, 384 U.S. 436, 444 (1966).



                                                           –6–
Stansbury, 511 U.S. at 326 (“[A]ny inquiry into whether the interrogating officers have focused

their suspicions upon the individual being questioned (assuming those suspicions remain

undisclosed) is not relevant for purposes of Miranda.”). We conclude this portion of Randall

was no longer correct after the Supreme Court’s opinion in Stansbury.

       In McCrory v. State, the police found the body of a teenaged girl who had been raped and

murdered near her car. McCrory, 643 S.W.2d at 727. That same day, McCrory told the police

that his fingerprints would be found on the victim’s car. An officer encouraged McCrory to take

a polygraph test, and he agreed. The polygraph examiner shared a suite of offices with a

psychiatrist. Id. After reviewing the polygraph, the examiner told McCrory that the exam

indicated deception. Id. at 728. The examiner explained to McCrory the reasons why the test

might indicate deception, and he told McCrory that a psychiatrist was available. The examiner

then questioned McCrory in a manner that encouraged McCrory to admit he killed the victim.

Id. Eventually, McCrory told the examiner “I did it,” and he asked to speak to the officer and the

psychiatrist. Id. at 729 (emphasis omitted). The officer (who had been watching through a one-

way mirror), entered the laboratory, and McCrory told him “he had done it, he had killed her.”

Id. The psychiatrist entered the polygraph room and told McCrory he was there as a physician to

help him and that McCrory did not have to talk to him if he did not want to. Id. at 730. McCrory

then told the psychiatrist what had happened, relating how he raped and murdered the victim. Id.

at 731 & n.10. The officer reduced McCrory’s statement to the psychiatrist to writing, and

McCrory signed the statement. Id. At no point was McCrory admonished of his rights under

Miranda and article 38.22. Id. The trial court excluded the written statement but admitted

evidence of McCrory’s oral statement to the psychiatrist. Id. The court of criminal appeals

concluded the trial court erred by admitting evidence of the oral statement to the psychiatrist

because McCrory was in custody at the time. Id. at 734–35. The court explained that McCrory

                                               –7–
was in custody from the time he admitted to the polygraph examiner that he had murdered the

victim because at that point McCrory would not have been allowed to leave. Id. at 733. 3 The

court also stated that the record would support the conclusion that McCrory was in custody from

the time the polygraph examiner told McCrory he believed McCrory had killed the victim. Id.

In this case, however, appellant never admitted his guilt, and Slade never told appellant he

believed appellant had molested the complainant. Thus, the court’s reasoning in McCrory is not

applicable to the case before us.

             We conclude the trial court correctly determined appellant was not in custody when he

talked to Slade and that the trial court did not err by overruling appellant’s objection and

admitting evidence of appellant’s oral statement to Slade. We overrule appellant’s first issue.

                                                          JURY ARGUMENT

             In his second issue, appellant contends the prosecutor made an impermissible jury

argument. The four general areas of proper jury argument are summation of the evidence,

reasonable deductions from the evidence, answers to the argument of opposing counsel, and

pleas for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000); Kirvin v.

State, 394 S.W.3d 550, 560 (Tex. App.—Dallas 2011, no pet.). Attorneys are allowed wide

latitude in drawing inferences from the evidence, but the inferences must be “reasonable, fair,

legitimate, and offered in good faith.” Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App.

1996); see Lair v. State, 265 S.W.3d 580, 592 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)

(quoting Shannon). When a jury argument improperly refers to matters outside the record, an

     3
         The court stated,
             Indeed, it strains credulity to suggest appellant himself thought he could admit commission of this capital murder to Baker,
             shake hands around, glance at his watch as he informed the group he was late for another appointment, and walk out the
             door! No doubt appellant assessed the situation exactly as did [the sheriff’s officer]: once he had admitted the crime, he
             was no longer free to leave.
McCrory, 643 S.W.2d at 733.




                                                                        –8–
instruction to the jury to disregard the argument cures any error “unless the argument is

manifestly improper or so extreme that an instruction will not cure the error.” Ransom v. State,

920 S.W.2d 288, 303 (Tex. Crim. App. 1994). Improper arguments are not reversible “unless, in

light of the record as a whole, the argument is extreme or manifestly improper, violative of a

mandatory statute, or injects new facts harmful to the accused into the trial proceeding.”

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). To warrant reversal, “the

remarks must have been a willful and calculated effort on the part of the State to deprive

appellant of a fair and impartial trial.” Id. However, “[b]efore a defendant will be permitted to

complain on appeal about an erroneous jury argument or that an instruction to disregard could

not have cured an erroneous jury argument, he will have to show he objected and pursued his

objection to an adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996);

see Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (reaffirming Cockrell:

“Cockrell remains the law. Because appellant failed to object to the jury argument [that it was

outside the record], he has forfeited his right to raise the issue on appeal.”).

       In the jury argument, the prosecutor discussed all the times the complainant had to

explain the sexual abuse appellant inflicted on her to medical personnel, investigators, and

therapists, and he compared the credibility of her testimony to that of appellant’s alibi witnesses,

who never went to the authorities with their information about appellant’s location and activities

on the night in question until the trial. He then compared the alibi witnesses’ testimony to that of

Slade and Villegas, who had testified to appellant’s oral statement about spending the night of

June 30 talking to Cuellar in her car and then going home. The prosecutor told the jury,

       What did those men [Slade and Villegas] have to lose by coming in here and
       telling you what the defendant said? They certainly didn’t make it up because
       they had a career on the line.

       [Appellant’s Counsel]: Objection about any career on the line in their testimony,
       Your Honor.
                                                 –9–
       The Court: Well, I will sustain the objection. The jury will recall the evidence
       they heard.

       [Prosecutor]: They had everything to lose. Those family members [who testified
       to appellant’s alibi], they have nothing to lose by telling you the story they told
       you. Simply asking that you use your collective conscience and your collective
       common sense. We are certain that that will lead you to a verdict of guilty.

       Appellant acknowledges his counsel did not move for a mistrial, but he argues the

prosecutor disregarded the ruling of the trial court by continuing with the same line of argument.

Appellant “prays that such argument be viewed as fundamental error, incurable in that it was

compounded by repetition.” Appellant cites no authority in support of these arguments.

       Appellant received all the relief he requested from the first objection because the trial

court sustained his objection and sua sponte instructed the jury.         “To preserve error in

prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury

argument.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Appellant failed to

preserve any error for review because he did not pursue his objection to an adverse ruling. See

Kennedy v. State, 255 S.W.3d 684, 690 (Tex. App.—Eastland 2008, no pet.). To the extent

appellant argues the error from the prosecutor’s continuing the same argument was

“fundamental,” by which it appears he means that it was not curable by an appropriate

instruction to the jury to disregard, that error was not preserved for appellate review because

appellant did not object to the continuation of the argument. See Cockrell, 933 S.W.2d at 89.

Even if the error were preserved, the argument was not “extreme or manifestly improper,

violative of a mandatory statute,” and it did not “inject[] new facts harmful to the accused into

the trial proceeding.”   Wesbrook, 29 S.W.3d at 115.       The record does not show that the

prosecutor’s argument was “a willful and calculated effort to deprive appellant of a fair and

impartial trial.” Id. Accordingly, any error that may have been preserved was not reversible.

We overrule appellant’s second issue.


                                              –10–
                                       CONCLUSION

       We affirm the trial court’s judgment.




                                                  /Lana Myers/
                                                  LANA MYERS
                                                  JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131124F.U05




                                               –11–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JAIME FALFAN, Appellant                                On Appeal from the Criminal District Court
                                                       No. 6, Dallas County, Texas
No. 05-13-01124-CR         V.                          Trial Court Cause No. F-1271690-X.
                                                       Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                           Justices Lang and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 10th day of June, 2014.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE




                                                –12–
