
                              NO. 07-09-0252-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                                APRIL 20, 2010




                               SERGIO ESTRADA,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2008-421,687; HONORABLE CECIL G. PURYEAR, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Sergio  Estrada  was  convicted  of  failing  to  register  as  a  sex
offender.  He claims the trial court erred in failing to  grant  his  motion
to suppress his oral confession because he gave  it  while  in  custody  and
without having received any warnings in violation of Miranda v. Arizona  and
art. 38.22 of the Code of Criminal Procedure.  We affirm the judgment.
      Appellant was on  deferred  adjudication  for  sexually  assaulting  a
child.  Officer  Jeff  Davis  testified  he  went  to  the  apartment  where
appellant claimed to be living on October 8, 2008.  He spoke to  appellant's
neighbors and to the apartment manager and learned that appellant had  moved
out  of  the  apartment  several  months  earlier.   Davis  then   went   to
appellant's place of employment and spoke to appellant in the  parking  lot.
The two of them proceeded to Davis'  car  where  his  recording  device  was
activated and Davis asked appellant questions about  where  he  was  living.
During this recording, appellant confessed  to  not  having  registered  his
change of address as required  by  art.  62.055  of  the  Code  of  Criminal
Procedure.  Davis claimed that appellant was neither  handcuffed  nor  under
arrest at the time of his oral statement.  After a hearing, the trial  court
denied appellant's motion to suppress.[1]  He was subsequently convicted  by
a jury and sentenced by the trial court to two years confinement.
      An oral statement of an accused taken while  in  custody  may  not  be
used against him unless he first received the  warnngs  set  forth  in  art.
38.22 of the Code of Criminal Procedure and Miranda  v.  Arizona,  384  U.S.
436, 86 S.Ct. 1602, 16  L.Ed.2d  694  (1966).   Four  situations  which  may
constitute custody include: 1)  when the suspect is physically  deprived  of
his freedom in any significant way, 2) when a law enforcement officer  tells
the suspect he cannot leave, 3)  when  law  enforcement  officers  create  a
situation which would lead a reasonable person to  believe  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.  Dowthitt v. State, 931 S.W.2d  244,  255  (Tex.  Crim.
App. 1996).  It is the fourth situation upon which appellant relies.  To  be
applicable, the  officer's  knowledge  of  probable  cause  must  have  been
manifested to the suspect. Id. That can occur if information  substantiating
probable cause is related by the officer to the suspect or  by  the  suspect
to the officer.  Id.  However, the  manifestation  of  probable  cause  must
also be combined with other circumstances  which  would  lead  a  reasonable
person to believe that he is under restraint to the degree  associated  with
an arrest.  Id.
      For purposes of this appeal, we assume arguendo that Davis  improperly
secured the confession of appellant  and  that  the  trial  court  erred  in
denying the motion to suppress.[2]  This does not end the inquiry,  however,
for we must assess whether the error harmed appellant.  Because  appellant's
contention implicates a constitutional  right,  authority  obligates  us  to
apply the harm analysis specified in Rule 44.2(a)  of  the  Texas  Rules  of
Appellate Procedure.  Per the latter, we must reverse  unless  we  determine
beyond a reasonable doubt  that  the  mistake  did  not  contribute  to  the
conviction or punishment.  Tex. R. App. P. 44.2(a); Martinez v.  State,  No.
07-08-296-CR, 2010 Tex. App. Lexis 413 at *30  (Tex.  App.-Amarillo  January
21, 2010, no pet. h.).  Moreover, such indicia as the source and  nature  of
the wrong, the extent, if any, that it was emphasized by the State, and  the
potential weight which the jury could  have  assigned  to  the  inadmissible
evidence when compared to the  admissible  evidence  warrant  consideration.
Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).
      Aside from appellant's oral statement, the jurors heard the  following
evidence at trial.  Appellant had originally registered his address  as  the
Kentwood Apartments on Avenue  Q  in  January  2008.   No  changes  in  that
address were ever reported by him.  Nonethless, he began living with  a  co-
worker and his family in September of 2008 because he had  nowhere  else  to
live.  The individual who served as manager of the  Kentwood  Apartments  at
the time appellant had executed a lease  testified  that  he  1)  remembered
appellant failed to pay rent for July 2008,  2)  noticed  appellant  was  no
longer living in the apartment by the first of August 2008,  3)  hired  some
people in August of 2008 to remove the property left in  the  apartment,  4)
had the electricity turned  off,  and  5)  changed  the  door  locks.   When
arrested in October of 2008, appellant listed his  address  on  the  book-in
sheet as being at a locale other than  the  Kentwood  Apartments.[3]   Those
living across the hall from appellant at the  Kentwood  Apartments  informed
Officer Davis in October of  2008  that  appellant  had  moved  out  several
months earlier.  And, on two occasions during the  fall  of  2008,  officers
had been unable to serve appellant with an arrest warrant at  the  Avenue  Q
address.  This litany of evidence comprises a rather large  foundation  upon
which the jury could have relied in adjudicating appellant guilty.   Indeed,
it even consists of appellant's own inculpatory words  as  captured  in  the
book-in sheet.
      That the confession sought to be suppressed was alluded  to  at  least
three times by the State in its closing argment cannot be ignored.  Nor  can
we ignore that one's own confession of guilt can be assigned greater  weight
by jurors for it removes doubt.  Yet, the  words  uttered  by  appellant  to
Davis did not constitute the only  confession  provided  by  appellant.   As
previously mentioned, he told those booking him after  his  arrest  that  he
lived at an address other than the one on Avenue Q, and  the  State  alluded
to that as well in its closing argument.  So,  even  if  the  confession  to
Davis  was  inadmissible,  the  jury  remained  free  to  legitimately   use
appellant's own words (as they appeared in the booking sheet)  against  him.
So, it is difficult to say that any impropriety  expressed  in  the  State's
closing argument had  any  more  sway  than  the  legitimate  words  of  the
prosecutor.  This  seems  especially  true  when,  as  here,  the  jury  was
instructed to disregard any evidence it believed was obtained  in  violation
of the law.
      Simply stated, we cannot but conclude that the  evidence  about  which
appellant complains was redundant of other ample evidence  establishing  his
guilt.  Though the better strategy is to eschew its  use,  we,  nonetheless,
conclude beyond reasonable doubt from the record before us  that  it  failed
to contribute to the jury's decision.  We do  caution  the  State,  however,
against using the harmless error rule as  a  justification  for  doing  that
which is improper.  Never should the law be breached to gain  a  conviction,
especially by those sworn to uphold those laws.
      Finding the purported error harmless, we affirm the judgment.

                                        Brian Quinn
                                        Chief Justice
Do not publish.




      -----------------------
      [1]The trial court did not specify the basis for its  ruling,  despite
appellant having filed a request for findings of  fact  and  conclusions  of
law.  Nonetheless, appellant does not complain of this failure on appeal.

      [2]The State concedes in part that some of appellant's confession was
improperly secured.

      [3]Appellant was arrested not only for failing to register  as  a  sex
offender but for his outstanding traffic warrant.



