                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-07-273-CR


ANTHONY RAY NEWSOME                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one point, Appellant Anthony Ray Newsome contends that the trial

court erred by failing to grant his motion to suppress his oral statement given

at a hospital to a police officer. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      In September 2005, Officer Petty, while at Arlington Memorial Hospital

on an unrelated matter, noticed Newsome’s arrival at the hospital and that he

was bleeding profusely. The officer stated the man had a bloody towel held up

to his neck while blood was coming down his shirt. A doctor informed Officer

Petty that Newsome had been shot. Officer Petty contacted dispatch to find

out if any shootings had been reported but none had been at the time. He then

spoke with Newsome to find out what had happened. He learned his name and

birthday and Newsome informed him that he had been shot by a white man at

a Kroger store. After contacting dispatch again, Officer Petty learned that an

unidentified male had attempted to rob an elderly man in a Tom Thumb parking

lot only to be shot three times by the victim.2

      Officer Petty also questioned Newsome about where he was when he had

been shot but Newsome was unsure.            Because of the seriousness of

Newsome’s injuries, Officer Petty was unable to question him any further.

Newsome was not placed under arrest at that time nor given his Miranda


      2
       … More specifically, the evidence later showed that a retired Arlington
resident stopped by a local Tom Thumb grocery store. As he began to walk
toward the store, a gun-toting would-be robber accosted him in the parking lot.
The would-be victim pulled out his own weapon and shot the robber three
times, and the perpetrator, Newsome, escaped the scene, leaving a trail of
blood.

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warnings. Later, the officer said he had a conversation with another officer

who gave him a description of the perpetrator as relayed by the complainant.

The officer stated that the description matched the injured person with regard

to his clothing and ethnicity.   The detective assigned to the Tom Thumb

robbery confirmed the link between Newsome and the shooting at Tom Thumb.

Newsome was arrested at John Peter Smith hospital and charged with two

counts of aggravated robbery along with the use or exhibition of a deadly

weapon and a repeat offender notice.

      Prior to trial, the State waived the first count of aggravated robbery and

the deadly weapon charge. In accordance with Newsome’s pretrial motion to

suppress, the trial court heard evidence regarding Newsome’s hospital

statements.     At the close of a Jackson v. Denno 3 hearing, the trial court

specifically concluded that Officer Petty’s presence at the hospital was

unrelated to the robbery investigation, that the officer did not have Newsome

in custody, and that Newsome volunteered that he had been shot. Therefore,

the trial court ruled Newsome’s oral statements admissible. Newsome pleaded

not guilty; however, the jury found him guilty and assessed his punishment at

forty-two years’ confinement. This appeal followed.




      3
          … 378 U.S. 368, 84 S. Ct. 1774 (1964).

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                             III. Motion to Suppress

      In his single point, Newsome asserts error on the part of the trial court by

failing to suppress his oral statement at the hospital. Specifically, he frames his

point thusly:

      [Newsome] contends the trial court erred by failing to grant his
      motion to suppress the oral statement he made to a police officer
      while under extreme medical duress. [Newsome] further asserts
      that a review of this unique situation establishes, in and of itself,
      a custodial interrogation requiring the police officer to Mirandize
      [Newsome].

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total


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deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When, as here, the trial court makes explicit fact

findings, we determine whether the evidence, when viewed in the light most

favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818–19. We then review the trial court’s legal ruling de novo unless

its explicit fact findings that are supported by the record are also dispositive of

the legal ruling. Id. at 819. We must uphold the trial court’s ruling if it is

supported by the record and correct under any theory of law applicable to the

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case even if the trial court gave the wrong reason for its ruling.    State v.

Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State,

123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974

(2004).

B. Analysis

      Custody is one of the triggers that necessitate Miranda warnings.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The Texas Code

of Criminal Procedure sets forth the parameters for the use of statements at

trial. Specifically, article 38.22, entitled “When statements may be used,”

reads in part “[n]othing in this article precludes the admission of a statement

. . . that does not stem from custodial interrogation, or of a voluntary

statement, whether or not the result of custodial interrogation[.]” Tex. Code

Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005). In Dowthitt v. State, the court

of criminal appeals stated

            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. The
      “reasonable person” standard presupposes an innocent person. . . .

           In the past, we have recognized four factors relevant to
      determining custody:

              (1) Probable cause to arrest,

              (2) Subjective intent of the police,

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            (3) Focus of the investigation, and

            (4) Subjective belief of the defendant.

             . . . [F]actors two and four have become irrelevant except to
      the extent that they may be manifested in the words or actions of
      law enforcement officials; the custody determination is based
      entirely upon objective circumstances.

            The determination of custody must be made on an ad hoc
      basis, after considering all of the (objective) circumstances. . . .

             We have 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. Concerning the first through third 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.

931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996) (citations omitted); see also

Stansbury v. California, 511 U.S. 318, 322–24, 114 S. Ct. 1526, 1528–30

(1994).

      Custodial interrogation is “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S. Ct.




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at 1612. The United States Supreme Court has delineated a two part inquiry

to determine whether a suspect is in custody:

              (1) what were        the    circumstances   surrounding   the
              interrogation, and

              (2) under those circumstances would a reasonable person
              feel he or she was not free to terminate the questioning and
              leave.

See Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995);

Stansbury, 511 U.S. at 322–23, 114 S. Ct. at 1528–29. The first inquiry is

a   factual   determination   regarding    the   circumstances   surrounding   the

interrogation. See Thompson, 516 U.S. at 112, 116 S. Ct. at 465.

      A distillation of the foregoing discussion, as applied to Newsome and as

asserted in this appeal, is that he was in custody because he reasonably

believed that his freedom of movement was restrained by his medical condition.

However, it is apparent that for custody to attach to the lack of freedom of

movement, the restriction must be created by the police officer, as exemplified

by the third example given in Dowthitt, “when law enforcement officers create

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

movement has been significantly restricted.” 931 S.W.2d at 255 (emphasis

supplied). Likewise, we hold that Dowthitt’s first example, “when the suspect




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is physically deprived of his freedom of action in any significant way,” implicitly

refers to a deprivation created by the police officer. Id.

      In Guerrero v. State, Trooper Davis testified that he went to the

emergency room of McKenna Memorial Hospital in New Braunfels to identify

persons who had been injured in an accident. 605 S.W.2d 262, 265 (Tex.

Crim. App. [Panel Op.] 1980).           There were several persons present in the

emergency room when Davis entered. Id. He asked whether anyone knew

who was driving the car that had been in the accident. Guerrero answered that

he was the driver.         Id.   The court reasoned as follows in concluding that

Guerrero’s statement should not be suppressed:

      Davis asked the question as a part of his required investigation of
      the facts of the accident. When [Guerrero] made the statement,
      the investigation had not shifted from the investigatory to the
      accusatory or custodial stage. Davis did not arrest appellant until
      later, when he decided that appellant was intoxicated. The
      statement was not the product of custodial interrogation and was
      admissible.

Id.; see also Yarborough v. State, 178 S.W.3d 895, 899–902 (Tex.

App.—Texarkana 2005, pet. ref’d) (holding that article 38.22 did not apply

because Yarborough’s movements were restrained only to the extent that he

received medical treatment for his stab wounds and nothing in the record

suggested    that    his    statements    were       made    in   response   to   custodial

interrogation);     Redmond       v.   State,       30   S.W.3d    692,   696–97     (Tex.

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App.—Beaumont 2000, pet. ref’d) (holding that there was no custodial

interrogation when officer asked defendant, who was neither in custody nor

under arrest at the time, but who was in an ambulance with two broken legs,

strapped into a gurney, what had happened); Vessels v. State, 938 S.W.2d

485, 486, 488 (Tex. App.—El Paso 1996, no pet.) (concluding that defendant’s

statements were not the result of custodial interrogation when he went to a

hospital for treatment of a gun shot wound to his hand and there was no

showing on the record that he was in police custody, that he was restrained,

that a guard was posted, that he was told not to leave, that he was

handcuffed, or that he was under arrest at the time he told the police what had

occurred).   But see Clemmer v. State, 645 S.W.2d 918, 919–20 (Tex.

App.—Fort Worth 1983, no pet.) (excluding Clemmer’s statements made in the

emergency room after an officer formally placed him under arrest and advised

him of his rights).

      Here, the trial court read the following findings into the record:

      The officer was there on an unrelated incident. He was told that
      there was a shooting victim or shooting person there. He went to
      try to ascertain whether this person was a victim, talk with him.
      Mr. Newsome volunteered that he was shot. And he was not in
      custody at that time. And as such, he was not subject to custodial
      interrogation. And the Court’s going to make a finding that the
      statement that he gave was a voluntarily made statement and was
      admissible as a matter of both law and fact.


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Applying the relevant standard of review, we hold that Newsome was not in

custody, hence not subject to custodial interrogation, and hence not subject to

the parameters of Miranda and article 38.22. See Wiede, 214 S.W.3d at 24;

Kelly, 204 S.W.3d at 818. For the foregoing reasons, Newsome’s sole point

is overruled.

                               IV. Conclusion

      Having overruled Newsome’s sole point, we affirm the trial court’s

judgment.


                                           BOB MCCOY
                                           JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 20, 2008




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