Affirmed and Memorandum Opinion filed December 16, 2014.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00817-CR

                  JAIRO FRANCISCO LOPEZ, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 13
                          Harris County, Texas
                     Trial Court Cause No. 1803236


               MEMORANDUM OPINION
      Appellant Jairo Francisco Lopez challenges his conviction for driving while
intoxicated on the grounds that the trial court erred in admitting into evidence
statements he made to a responding police officer without being administered
Miranda warnings and statutory warnings. We affirm.
                                 BACKGROUND
      Sergeant John Guerra, an officer with the City of West University Place, was
on duty when he heard a loud crash. His investigation into the crashing sound took
him across the street, just outside his jurisdiction and into the surrounding city of
Houston, where he located appellant outside a nearby bank. Appellant was on the
phone calling a wrecker to tow a vehicle that had hit a tree and was parked in the
median of the road. Guerra informed appellant that he needed to wait at the scene
until the Houston Police Department officers arrived and filed a police report
because the accident caused damage to bank property. Because appellant was
unsteady on his feet, Guerra asked him to sit on the curb while waiting. Guerra
asked appellant what happened and appellant stated that he had an accident.
Appellant later disclosed that he had been driving from a nearby bar to an
automated teller machine when he lost control of the vehicle.

      Officer David Williamson of the Houston Police Department arrived at the
scene about twenty minutes later. Williamson saw appellant’s car wrapped around
a pole and also observed several signs of intoxication in appellant. Williamson
stated that appellant emitted a strong odor of a fruity alcoholic beverage,
appellant’s speech was slurred, and appellant was stuttering.          According to
Williamson, appellant swayed as he stood and he cycled between acting nice and
acting belligerent.

      Appellant was charged by information with driving while intoxicated
(DWI). Before trial by jury, appellant filed a motion to suppress to the statements
he made to Sergeant Guerra, asserting he was in custody and was not provided
with Miranda warnings. The trial court denied appellant’s motion to suppress and
during trial Guerra testified regarding appellant’s statements.      The jury found
appellant guilty as charged. Appellant timely filed this appeal, asserting in a single

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issue that the trial court erred in denying his motion to suppress.

                                        ANALYSIS

      Appellant contends that the trial court erred in denying his motion to
suppress statements he made to Guerra on the grounds that the statements were
involuntary because he was in custody and was not provided with Miranda
warnings or warnings required by Texas Code of Criminal Procedure Article
38.22, which governs when statements of an accused may be used in evidence
against him. This court reviews a trial court’s ruling on a motion to suppress under
a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). At a suppression hearing, the trial court is the sole finder of fact and
is free to believe or disbelieve any or all of the evidence presented. Weide v. State,
214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to
the trial court’s determination of historical facts, especially when the trial court’s
fact findings are based on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. This court affords the same amount of deference to the trial court’s
application of the law to facts if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. This court reviews de novo the trial
court’s application of the law to facts if resolution of the ultimate questions does
not turn on an evaluation of credibility and demeanor. Id.

      Appellant asserts that the trial court erred in denying his motion to suppress
statements he made to Guerra because Guerra interrogated him without providing
him the benefits of warnings set out by the United States Supreme Court in
Miranda v. Arizona and the warnings required by Article 38.22 of the Texas Code
of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West, Westlaw
through 2013 3d C.S.); Miranda v. Arizona, 384 U.S. 436, 442–57, 86 S.Ct. 1602,
1611–18, 16 L.Ed.2d 694 (1966).         It is a violation of an individual’s Fifth-

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Amendment right against self-incrimination for the State to use unwarned
statements obtained as a result of custodial interrogation in a criminal proceeding
during its case-in-chief. Id. at 444, 86 S.Ct. 1612. Miranda warnings are required
only if the person is “in custody.” See Oregon v. Mathiason, 429 U.S. 492, 495, 97
S. Ct. 711, 714, 50 L.Ed.2d 714 (1977).

      Similarly, article 38.22 governs the admissibility of statements made by a
defendant during a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007). It is undisputed that appellant had not received any
Miranda warnings or statutory warnings when he made the statements in question.
Appellant’s statements to Guerra were made in response to questioning by Guerra.
Therefore, this court must decide whether appellant was in custody when he made
the statements.

      A person is in custody 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 “reasonable person” standard presupposes an innocent
person. Id. Moreover, the subjective intent of law enforcement officials to arrest
is irrelevant unless that intent is somehow communicated or otherwise manifested
to the suspect. Id.

      The Court of Criminal Appeals of Texas has recognized four factors relevant
to determining custody: (1) probable cause to arrest, (2) subjective intent of the
police, (3) focus of the investigation, and (4) subjective belief of the defendant. Id.
But, under Stansbury v. California, 511 U.S. 318, 321–24, 114 S.Ct. 1526, 1528–
30, 128 L.Ed.2d 293, 298–99 (1994), factors (2) and (4) have become irrelevant
except to the extent that they may be manifested in the words or actions of law
enforcement officials.     See Dowthitt, 931 S.W.2d at 254.             The custody

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determination must be made on an ad hoc basis, after considering all of the
objective circumstances. Id. at 255. That an interrogation begins as non-custodial
does not prevent custody from arising later; a consensual inquiry can escalate into
a custodial interrogation. Id.

      The Court of Criminal Appeals has outlined at least four general situations
which 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.
Id. Concerning the first three situations, Stansbury indicates that the restriction
upon freedom of movement must amount to the degree associated with an arrest as
opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. Concerning
the fourth situation, Stansbury dictates that the officers’ knowledge of probable
cause be manifested to the suspect.            Id.   This manifestation can occur if
information substantiating probable cause is relayed by the suspect to the officers
or if such information is relayed by the officers to the suspect. Id. Furthermore,
the fourth situation does not automatically establish custody; 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. The length of time spent interrogating
the suspect is one of the factors to consider. Id. at 256.

      The record reflects that Guerra detained appellant at the scene, rather than
another location, for an estimated fifteen to twenty minutes. Guerra testified that
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he refrained from asking appellant whether he was intoxicated because Guerra
wanted the Houston Police Department to take control of the scene. Guerra did not
tell appellant that he was under arrest or that he suspected appellant had operated a
motor vehicle while intoxicated.      To the contrary, Guerra merely stated that
appellant needed to remain at the scene so that the Houston Police Department
could conduct an accident report. Guerra asked appellant to sit on the curb for
appellant’s own safety but did not place appellant in handcuffs or in the police car
or engage in any other conduct that suggested the officer was doing anything other
than maintaining the status quo until police officers with jurisdiction arrived at the
scene. Guerra informed appellant that he was being detained and he did not take
any actions that indicated he was under arrest. Applying the foregoing legal
standard to the case under review, the trial court did not err in concluding that
appellant was not in custody at the time he made the statements to Guerra. See
State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim. App. 1997) (holding that
appellant was not in custody when he made statements during roadside DWI
investigation). The trial court did not err in denying appellant’s motion to suppress
these statements on the grounds that he did not receive Miranda warnings or
statutory warnings.




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                               CONCLUSION
      The trial court did not err in denying appellant’s motion to suppress
statements made to a responding officer because appellant was not in
custody at the time he made the statements. Accordingly, we overrule
appellant’s sole issue.

      The trial court’s judgment is affirmed.




                                /s/             Kem Thompson Frost
                                                Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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