Opinion issued February 4, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00901-CR
                          ———————————
                         DANIEL SMITH, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 183rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1354971



                         MEMORANDUM OPINION

      A jury convicted Daniel Smith of murder, and the trial court assessed his

punishment at forty years’ confinement. On appeal, Smith contends that the trial

court erred in admitting three recorded statements that he made to the police,
claiming that he gave them while in custody without having received the requisite

statutory warnings. Finding no error, we affirm.

                                   Background

      In September 2011, a group of police officers approached Smith while he

was walking across a street and asked him if he would come with them to the

police station. Smith agreed. At the police station, two officers interviewed him in

an interview room. He was not handcuffed during the interview. The officers did

not give Smith any of the warnings pursuant to article 38.22 of the Code of

Criminal Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a)(2) (West 2005).

Approximately seven minutes into the interview, before Smith had made any

incriminating statements, one of the officers told Smith that he was not in custody

and not under arrest. Smith indicated that he understood. The interview lasted

approximately forty–four minutes. At the end of the interview, the officers asked

Smith if he would return the next day to participate in a lineup. Smith agreed.

After the interview, an officer drove Smith from the police station to Smith’s

home. The next day, an officer picked up Smith and drove him to the station to

participate in the lineup. After the lineup, Smith gave the police two additional

statements.




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      During the jury trial, Smith objected to the admission of his three statements

to the police. The trial court conducted a suppression hearing outside the presence

of the jury and ruled that the statements were admissible. The State proffered, and

the trial court admitted, Smith’s three statements at trial.

                                      Discussion

      Smith contends that article 38.22 of the Texas Code of Criminal Procedure

and article 1, section 10 of the Texas Constitution bar the admissibility of the three

recorded statements, because he gave them while in custody without having

received the requisite warnings.

      Standard of review

      We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial court is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241


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(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

      Analysis

      Article 38.22 of the Code of Criminal Procedure bars the admission of an

accused’s statement resulting from a custodial interrogation unless he was advised

of the enumerated rights and voluntarily waived those rights. TEX. CODE CRIM.

PROC. ANN. art. 38.22, §§ 2(a), 3(a)(2) (West 2005); see also Miranda, 384 U.S. at

444–45, 86 S. Ct. at 1612; Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim.

App. 2007). The Article 38.22 warnings, however, are required only when a

person is in custody. 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 is restrained to a degree 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, 114 S. Ct. 1526, 1529–30 (1994)). In evaluating a

custody determination, we examine the objective factors surrounding a detention;

we do not examine the undisclosed, subjective beliefs of the detaining officer or

the accused. State v. Ortiz, 382 S.W.3d 367, 372–73 (Tex. Crim. App. 2012). Any

undisclosed subjective belief of the accused that he is guilty of an offense should


                                          4
not be considered; the reasonable person standard presupposes an “innocent

person.” Id. at 373.

      The State proffered a video recording of Smith’s first statement.

Approximately seven minutes into the recording, before Smith had made any

incriminating statements, one of the police officers present told Smith that he was

not in custody and not under arrest. Smith responded that he understood. After the

interview, an officer drove Smith from the police station to Smith’s home. This

evidence supports the trial court’s finding that Smith was not in custody. Because

Smith was not in custody, the State did not need to advise him of his Miranda

rights. See Herrera, 241 S.W.3d at 526.

      Relying on Kaupp v. Texas, Smith contends that a reasonable person in his

circumstances would not have believed he was free to leave the police station. 538

U.S. 626, 632, 123 S. Ct. 1843, 1847 (2003). He testified that, as he was walking

across a street, several police officers used their cars to trap him, then exited the

cars and pointed their guns at him. He testified that the police ordered him to lie

down on the ground and handcuffed him. Smith also testified that no one told him

that he had the right to leave, contrary to his acknowledgement in the recorded

statement.   Having seen the recorded statement, the trial court was free to

disbelieve Smith’s testimony. See Weide, 214 S.W.3d at 24–25. The facts in

Kaupp are distinguishable from the facts here. There, a group of police officers


                                          5
awakened the defendant in his bedroom in the middle of the night and handcuffed

him. Kaupp, 538 U.S. at 628, 123 S. Ct. at 1845. Here, a group of police officers

approached Smith in public and asked him if he would come with them to the

police station, and Smith agreed. Given the totality of the circumstances, we hold

that the trial court did not err in admitting the first recorded statement.

      Smith contends that his second and third statements to the police are

inadmissible because they were fruit of the illegally obtained first statement.

Because Smith’s first statement is admissible, this argument is unavailing.

Accordingly, we hold that his second and third statements are also admissible.

                                      Conclusion

      Because Smith was not in custody when he made his initial statement to the

police, we hold that the trial court did not err in admitting it or the subsequent

statements not otherwise independently challenged.           We therefore affirm the

judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).
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