                            NUMBER 13-09-173-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


TREVER NORMAN,                                                         Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 379th District Court
                         of Bexar County, Texas.


                       MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Vela
                 Memorandum Opinion by Justice Vela

      A Bexar County Grand Jury indicted appellant, Trever Norman, for murder. See

TEX . PENAL CODE ANN . § 19.02(b)(1), (2) (Vernon 2003). A jury found him guilty and

assessed punishment at eighty-five years’ imprisonment.     By five issues, Norman
challenges the jurisdiction of this Court and contends that the trial court erred in denying

his motion to suppress evidence. We affirm.

                                 I. FACTUAL BACKGROUND

       On December 17, 2006, San Antonio police officer Eric Moreno responded to a

“shots fired” call at 351 Dorie Street in San Antonio. Officer Moreno testified that at that

location, the body of Channell Dixon was discovered wrapped in a carpet, placed in a

barrel, and hidden under a tarp.      Shortly after the body was discovered, appellant

approached the officers conducting the investigation and began asking them about his

uncle, who lived in the Dorie Street residence. Officer Moreno stated that appellant was

asked to “stand by because he was . . . going to be [the] only witness to the—offense.” At

this point, appellant was compliant and was not placed under arrest or placed in handcuffs.

He was seated in a police car and later taken to the police station where Detective Frank

Garibay obtained his videotaped statement. Throughout the interview, appellant related

different versions of where he was and what he saw. When Detective Garibay left the

interview room, appellant made multiple phone calls. On one call to his grandmother, he

asked several times to make sure that she told another individual what their story was, to

make sure they “said the same thing.”

A. Jackson v. Denno hearing

       During the guilt-innocence phase of appellant’s trial, the trial court held a hearing,

outside the jury’s presence, regarding the voluntariness of appellant’s videotaped

statement. During the hearing, the State called two witnesses: Officer Ramsey Garcia and

Detective Garibay. Officer Garcia testified that he was responsible for watching appellant

at the crime scene. When he arrived at the scene, appellant was already seated in the

back of a squad car. At that time, appellant was not wearing handcuffs, and Officer Garcia
                                             2
did not consider him to be under arrest. Later, Officer Garcia transported appellant to the

police station at the request of Detective Garibay, because he “[didn’t] believe [appellant]

had a ride, and he needed to go down there for a statement.” On cross-examination,

Officer Garcia stated that he believed appellant was free to go, yet it was his duty to alert

his sergeant if appellant had attempted to leave.

       Detective Garibay testified that at the outset of the interview, appellant was providing

a voluntary statement and was not under arrest. He further testified that about halfway

through the interview, appellant was informed of his Miranda rights and arrested because

some marihuana had been found in his belongings. At that point, Detective Garibay asked

appellant if he wanted to speak with an attorney, and appellant declined. Detective

Garibay testified that anyone, whether under arrest or not, can state they wish to speak

with an attorney, but only an individual under arrest has a right to have an attorney afforded

him. He also testified to what he saw in the recording of the interview played at the

hearing. He stated that appellant had said that he did not want an attorney because it

would require a longer wait, and that he did not want to “waste his time.”

       On cross-examination, Detective Garibay was questioned extensively about the

length of the video-taped interview. He explained that the length of time of the recording

was approximately three hours, but that the actual interview with appellant was shorter,

because Detective Garibay was also taking statements of other witnesses during that time.

Further, Garibay stated that he never made any threats to appellant and had no way of

knowing if any threats were made by another officer.

       Appellant testified for the limited purpose of the voluntariness of his statement. He

stated that while in the police car, he asked to leave to take care of his dog, and that he

was allowed to do so. He stated, however, that he never thought he was free to leave on
                                           3
his own accord, and he felt his trip to the police station was not voluntary, despite lacking

his own transportation. He stated that a detective threatened that if he did not confess, he

would be “looking at capital murder or the death penalty,” but if he admitted to murder he

was “looking at forty years.” However, on cross-examination, appellant could not identify

the detective who made the alleged threat. No additional testimony of any alleged threat

was offered.

       At the close of the suppression hearing, appellant’s position was that the trip to the

police station and the statement were not free or voluntary exercises of his rights. Defense

counsel requested that “[a]t least until the portion of the tape where he’s Mirandized and

waives an attorney, we believe all the rest of it should be excluded. . . .” The trial court

denied appellant’s motion, and the recording of appellant’s statement was later admitted

into evidence. See TEX . GOV’T CODE. ANN . § 73.001 (Vernon 2005).

       On appeal, the Texas Supreme Court transferred this case from the Fourth Court

of Appeals to this Court.

                                        II. DISCUSSION

A. Custody Challenge

       In his fourth and fifth issues, appellant complains that the trial court erred by denying

the motion to suppress the recording of his interview at the police station. Although

appellant was subsequently placed in custody and given his Miranda warnings at the police

station after speaking with Detective Garibay, he asserts that he was in custody from the

time he became involved at the scene. Appellant claims that he was not advised of or

provided an opportunity to waive his right against self-incrimination as protected under the

Fifth Amendment of the United States Constitution and in violation of article 38.22 of the

Texas Code of Criminal Procedure. See U.S. CONST . amend V; TEX . CODE CRIM . PROC .
                                        4
art. 38.22. (Vernon 2005).

       1. Standard of Review

       Review of a trial court’s ruling on a motion to suppress is under a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). An

appellate court gives almost total deference to the trial court’s determination of historical

facts supported by the record, particularly if the findings turn on witness credibility and

demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact that do not

turn on the credibility or demeanor of a witness are reviewed de novo. See Carmouche,

10 S.W.3d at 327. When, as here, the trial court does not make explicit findings of fact,

the reviewing court assumes the trial court made implicit findings necessary to support its

ruling and reviews the evidence in the light most favorable to the ruling. Id. at 327-28. We

will sustain the trial court’s ruling if it is reasonably supported by the record and is correct

on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996). In order to determine the voluntariness of a confession, a reviewing

court will examine the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 956

(Tex. Crim. App. 1997).

       2. Applicable law

       In determining whether a person was in custody, a court examines “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). “The initial

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
                                           5
questioned.” Id. at 323. Statements are custodial when peace officers initiate questioning

“after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A custodial

statement is not available for the prosecution’s use “unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.” Id. In

Texas, four general situations may constitute custody: (1) when the suspect is physically

deprived of freedom of action in any significant way; (2) when a peace officer tells him he

cannot leave; (3) when peace officers create a situation that would lead a reasonable

person to believe his freedom of movement has been significantly restricted; or (4) when

there is no probable cause to arrest and peace officers do not tell him that he is free to

leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

       3. Analysis

       Here, appellant focuses his challenge on the first and third Dowthitt factors, namely

that he was physically deprived of his freedom of action in a significant way and that peace

officers created a situation that would lead a reasonable person to believe his freedom of

movement had been significantly restricted. See id. at 255. As an initial indication of his

custody, appellant points to the fact that he was asked to “stand by” and later seated in a

police car at the crime scene. Additionally, appellant testified that neither at the crime

scene nor the police station did he feel free to go. He argues that no reasonable person

would have believed that he could leave the police station freely after being seated in a

police car, transported to the police station, and interviewed extensively.

       In determining whether a person is in custody, we must consider whether a

reasonable man, innocent of any crime, would have considered himself in custody, not

whether the particular defendant with his subjective knowledge, would have considered
                                           6
himself in custody. Dancy v. State, 728 S.W.2d 772, 778 (Tex. Crim. App.1987) (emphasis

added); see Lerma v. State, 172 S.W.3d 219, 226 (Tex. App.–Corpus Christi 2005, pet.

ref’d). The evidence shows that appellant voluntarily involved himself in the investigation

by approaching the scene and speaking to the officers. The record supports that he was

seated in the police car while officers secured the scene and began their investigation.

Appellant was not placed in handcuffs at the scene and was transported to the police

station because he had no transportation of his own. If the circumstances show that the

person is acting upon the invitation, urging or request of police officers, and not the result

of force, coercion or threat, the act is voluntary and the person is not in custody. Livingston

v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987). Though appellant’s own testimony

suggests that he was coerced into making a statement, the trial court was free to disbelieve

any of appellant’s testimony. See Ross, 32 S.W.3d at 855. At the police station, appellant

remained un-handcuffed, was placed in an unlocked room, had free use of the telephone,

and was given water and use of the facilities. Most importantly, at the outset of the

interview, Detective Garibay told appellant he was not under arrest and that he was giving

a voluntary statement. Given the totality of the circumstances, it is clear that that there was

no significant deprivation of appellant’s freedom of movement, and a reasonable person,

innocent of any crime, would not consider himself in custody in this particular situation. We

overrule issues four and five.

B. Jurisdictional Challenge

       In appellant’s first three issues, he challenges this Court’s jurisdiction. First, he

contends that chapter 73 of the Texas Government Code violates the Equal Protection

Clause of the United States Constitution, because it does not give proper effect to the

voters of Texas who elect the justices of the intermediate appellate courts. See U.S.
                                           7
CONST . amend. XIV. TEX . GOV’T CODE ANN . § 73.001 (Vernon 2005). Second, appellant

argues that this Court lacks jurisdiction over this appeal because the Texas Constitution

and Chapter 73 of the Texas Government Code are in conflict. Finally, appellant claims

this Court lacks jurisdiction over this appeal because the Texas Supreme Court’s order of

transfer is a void exercise of legislative authority over the judiciary in violation of the

Separation of Powers provision contained in article II, section 1 of the Texas Constitution.

See TEX . CONST . art. II § 1. He requests that we transfer this appeal back to the Fourth

Court of Appeals.

        1. Applicable law

        The Texas Supreme Court may transfer cases to this Court, pursuant to section

73.001 of the Texas Government Code, “at any time that, in the opinion of the supreme

court, there is good cause for transfer.” TEX . GOV’T CODE ANN . § 73.001; Arocha v. State,

No. 08-07-00108-CR 2009 WL 1883733, at *4 (Tex. App.–El Paso June 30, 2009), (mem

op.) (not designated for publication), pet. dism’d improvidently granted, 2010 WL 2618421

(Tex. Crim. App. June 30, 2010).1 Section 73.002 provides that the transferee court of

appeals “has jurisdiction of the case without regard to the district in which the case

originally was tried and to which it is returnable on appeal.” TEX . GOV’T CODE ANN . §

73.002. Appellant argues his constitutional issues as challenges to our jurisdiction.

Generally, a party is not required to preserve a challenge to the court of appeals’

jurisdiction. See Arocha, 2009 WL 1883733, at *5. However, the Eighth Court of Appeals

in Arocha concluded that constitutional jurisdictional challenges such as this must be


        1
         The Court of Crim inal Appeals granted discretionary review to determ ine whether the Eighth Court
of Appeals erred in rejecting Arocha’s jurisdictional argum ents on the basis of a procedural default, however,
upon reviewing the record, it concluded that granting Arocha’s petition was im provident. Arocha v. State, (No.
PD-1189-90) 2010 W L 2618421 (Tex. Crim . App. June 30, 2010).
                                                      8
preserved, because “[e]ven if Section 73.001 is unconstitutional as applied to [Arocha], we

would not be divested of jurisdiction” under Section 73.002. Id.

       The proper procedure for obtaining a transfer between appellate courts is by motion

to the Texas Supreme Court. See TEX . GOV’T CODE ANN . § 73.001. The Texas Supreme

Court has established the following procedure for a transfer:

              The party requesting transfer should file a copy of the motion to
       transfer in each of the two courts of appeals, asking that, when the motion
       is forwarded to the Supreme Court, each court of appeals advise the
       Supreme Court in writing whether it has any objection to the proposed
       transfer. Any briefs in favor of the proposed transfer should also be filed in
       each court of appeals and forwarded with the transfer motion. We will then
       have the motion, the briefs, and the comments of the two courts of appeals
       in determining whether to grant the motion to transfer.

Id. citing Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.2 (Tex. 1995),

       Failure to follow the established procedure results in failure to preserve complaints

about the transfer of an appeal. See id.

       The State contends that appellant failed to utilize the procedure for seeking a

transfer of his appeal. Appellant’s brief mentions a document in a footnote, that he urges

was filed with the Texas Supreme Court, entitled “Special Appearance and Objection to

Case Transfer of Case From Courts of Appeals,” yet no copy of this document was

included in the record. Regardless, from the title of the document we cannot discern if it

serves in any way to comport with proper procedure for requesting a transfer. If appellant

had followed the procedure and his motion had been granted, his complaints about the

constitutionality of section 73.001 would be remedied. Id. Alternatively, if his motion were

denied, this Court would be in a position to address the constitutional issues. Id. We

conclude appellant did not follow the proper procedure requesting transfer and, therefore,

his complaint is not preserved. We overrule appellant’s first, second, and third issues.


                                             9
                                     III. Conclusion

       We affirm the judgment of the trial court.




                                                       ROSE VELA
                                                       Justice


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

Delivered and filed the
19th day of August, 2010.




                                            10
