                           NUMBER 13-08-00436-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOSE CARBAJAL,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION

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

      Appellant Jose Carbajal challenges his conviction for aggravated sexual assault and

indecency with a child on the grounds that the trial court erred in denying his motion to

suppress his written statement given to police. See TEX . PENAL CODE ANN . §§ 21.11,

22.021(a)(1)(B), (2)(B) (Vernon Supp. 2009). By one issue, Carbajal argues that because
he did not knowingly, voluntarily, and intelligently waive his Miranda rights at the time of his

alleged custodial interrogation, the trial court erred in denying his motion to suppress. See

TEX . CODE. CRIM . PROC . ANN . art 38.22, § 2(b) (Vernon 2005); Miranda v. Arizona, 384 U.S.

436, 444 (1966). We affirm.

                                              I. BACKGROUND 1

        In August 2007, the Kleberg County Sheriff's Department began investigating the

alleged sexual assault of A.O., a ten-year-old girl. Carbajal, A.O.'s grandfather, became

a suspect in the case. A sheriff's department investigator attempted to contact Carbajal

to arrange an interview but was unable to reach him. Instead, Carbajal voluntarily

appeared at the sheriff's office to "clear things up" regarding the incident with A.O. After

he arrived at the sheriff's office, an investigator interviewed Carbajal regarding A.O.'s

allegations. Before beginning the interview, the investigator read Carbajal his Miranda

rights and asked if he understood his rights. After Carbajal indicated his assent, the

investigator wrote "yes" on the statement. The interview was conducted primarily in

Spanish, and the investigator then wrote Carbajal's statement in English.2 Another sheriff's

office employee came into the interview room and read the statement back to Carbajal in

English, after which Carbajal signed the statement. It is undisputed that Carbajal was not

handcuffed during the interview. After Carbajal signed the statement, however, the

investigator placed Carbajal under arrest.



        1
           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

        2
         The parties do not dispute that Carbajal's reading and writing skills are lim ited. It is also undisputed
that Carbajal's prim ary language is Spanish. However, the parties disagree over the extent to which Carbajal
understands spoken English.
                                                        2
       Carbajal was indicted on two counts of aggravated sexual assault and two counts

of indecency with a child. Carbajal moved to suppress the written statement he gave the

investigator at the sheriff's office under the Texas Code of Criminal Procedure and United

States and Texas Constitutions, arguing that, while he was in the custody of the police, he

gave a statement without knowingly, intelligently, and voluntarily waiving his rights. The

trial court conducted a hearing on the motion and heard the following testimony:

Lt. David Mendoza

       Lt. Mendoza is the sheriff's department investigator who interviewed Carbajal. He

testified that Carbajal came to the sheriff's office voluntarily with his wife and that no patrol

car picked him up. Lt. Mendoza stated that when Carbajal arrived, he escorted Carbajal

to his office, where he told Carbajal to make himself comfortable and asked Carbajal's wife

to wait outside. He testified that they eventually moved to a different room with a table so

that Lt. Mendoza could sit closer to Carbajal as he was transcribing Carbajal's statement

into English. Lt. Mendoza stated that, although Carbajal was a suspect at the time he

came to the sheriff's office, Lt. Mendoza would have let him walk out if he had not given

a statement.

Yvonne Barbour

       Barbour is the sheriff's department employee who read Carbajal's statement back

to him before he signed it. Barbour testified that Carbajal told her he understood English.

Jose Carbajal

       Carbajal testified that he never spoke to the sheriff's department before he

voluntarily showed up at their office. He stated that he had heard rumors at work that A.O.

was accusing him of molesting her, so he arranged for his wife to drive him to the sheriff's

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office in Kingsville to "clear things up." Carbajal testified that he told Lt. Mendoza his story

from start to finish and that Lt. Mendoza asked no questions during the process. He stated

that he did not understand his Miranda rights. Carbajal testified that he did not know he

was a suspect and did not realize he was in trouble until after he signed his statement and

his wife told him he should not have done so.

        The trial court denied the motion to suppress and filed no findings of fact in

connection with the suppression hearing.

        The case proceeded to trial, and the jury returned a guilty verdict on one of the

counts of aggravated sexual assault and both counts of indecency with a child.3 The jury

assessed punishment at thirty years' incarceration for the sexual assault count and five

years' incarceration for each indecency count; the trial court ordered the sentences to run

concurrently. This appeal ensued.

                                         II. STANDARD OF REVIEW

        We review a trial court's ruling on a motion to suppress for abuse of discretion,

applying a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.

Crim. App. 2007); State v. Vasquez, No. 13-08-00602-CR, 2009 WL 4688600, at *4 (Tex.

App.–Corpus Christi Dec. 10, 2009, pet. filed). The bifurcated standard requires that we

give "almost total deference" to the trial court's findings of historical fact that are supported

by the record and to mixed questions of law and fact that turn on an evaluation of credibility

and demeanor. Herrera v. State, 241 S.W.3d 520, 526-27 (Tex. Crim. App. 2007).



        3
          Carbajal also objected at trial to the adm ission of his written statem ent to the sheriff's investigator,
but the trial court overruled the objections.



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However, we review de novo the trial court's determination of the law and its application

of law to facts that do not turn upon an evaluation of credibility and demeanor. Id. at 527;

St. George, 237 S.W.3d at 725. When the trial court has not made a finding on a relevant

fact, we view the evidence in the light most favorable to the trial court's ruling and assume

the trial court made implicit findings of fact supported by the record. Herrera, 241 S.W.3d

at 527. We will uphold the trial court's ruling if it is reasonably supported by the record and

is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006); Vasquez, 2009 WL 4688600, at *4.

                               III. CUSTODIAL INTERROGATION

       The Fifth Amendment to the United States Constitution provides that no person

"shall be compelled in any criminal case to be a witness against himself . . . ." U.S. CONST .

amend. V. To "safeguard an uncounseled individual's constitutional privilege against self-

incrimination," the United States Supreme Court has prescribed a series of warnings that

must be given to the individual during custodial interrogation. Herrera, 241 S.W.3d at 525

(citing Miranda v. Arizona, 384 U.S. 436, 442-57 (1966)).           The State may not use

"[u]nwarned statements obtained as a result of custodial interrogation" as evidence in a

criminal proceeding. Id. Article 38.22 of the Texas Code of Criminal Procedure sets out

the state law corollary to the federal Miranda requirements and provides that "[n]o written

statement made by an accused as a result of custodial interrogation is admissible as

evidence against him" unless it is shown that the accused was warned of his rights and

knowingly, intelligently, and voluntarily waived them. TEX . CODE CRIM . PROC . ANN . art.

38.22, § 2(a)-(b). However, a person's rights under the Texas Code of Criminal Procedure



                                              5
and the United States and Texas Constitutions are triggered only when the person is

shown to be in custody. See Zavala v. State, 956 S.W.2d 715, 723 (Tex. App.–Corpus

Christi 1997, no pet.).

       "[T]he defendant bears the initial burden of proving that a statement was the product

of 'custodial interrogation.'" Herrera, 241 S.W.3d at 526 (quoting Wilkerson v. State, 173

S.W.3d 521, 532 (Tex. Crim. App. 2005)). Custody is evaluated on an "ad hoc" basis; we

apply a "reasonable person" standard and ask if, under the totality of 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, 254-55 (Tex.

Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). In other

words, we make two discrete inquiries in our custody determination: first, we inquire as to

the objective circumstances surrounding the interrogation; and second, given those

circumstances, we ask whether "a reasonable person [would] have felt he or she was not

at liberty to terminate the interrogation and leave." Herrera, 241 S.W.3d at 532 (internal

citations omitted). There are four general situations in which custody may arise and a

person must be warned of his rights before the interrogation proceeds:

       (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 he is free to leave.

Dowthitt, 931 S.W.2d at 255. In the fourth situation, the officers' knowledge of probable

cause must be manifested to the suspect; "[s]uch manifestation could occur if information




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substantiating probable cause is related by the officers to the suspect or by the suspect to

the officers." Id. The manifestation of probable cause does not "automatically establish

custody," however. Id. Probable cause is but one factor in determining whether the

circumstances of the interrogation "would lead a reasonable person to believe he is under

restraint to the degree associated with an arrest." Id.

       If a person voluntarily submits to an interview by a police officer and knows or

should know that law enforcement suspects his involvement in the crime being

investigated, his freedom of movement is not necessarily restrained and he is not

necessarily in custody. Vasquez, 2009 WL 4688600, at *4 (citing Shiflet v. State, 732

S.W.2d 622, 630 (Tex. Crim. App. 1985)); see Zavala, 956 S.W.2d at 724. Moreover, the

reading of Miranda warnings does not "automatically transform a non-custodial setting into

a custodial interrogation." Vasquez, 2009 WL 4688600, at *5. However, the fact that an

interrogation begins as non-custodial "does not prevent custody from arising later" because

of police conduct during the encounter that causes "a consensual inquiry to escalate into

custodial interrogation." Dowthitt, 931 S.W.2d at 255; Vasquez, 2009 WL 4688600, at *4.

                                        IV. DISCUSSION

       By his sole issue on appeal, Carbajal argues that the trial court erred in denying his

motion to suppress because he did not knowingly, intelligently, and voluntarily waive his

rights before making his written statement. Specifically, Carbajal argues that because he

does not read or write fluently in English, the police officer who took his statement did not

adequately apprise him of his rights.




                                              7
       Carbajal fails to explain, however, whether his right to be warned was ever triggered

in the first place. See Zavala, 956 S.W.2d at 723 (holding that a person's rights to be

warned come into play only when the person is in custody). It is undisputed that Carbajal

voluntarily appeared at the sheriff's office out of a desire to "clear things up." See

Vasquez, 2009 WL 4688600, at *4 (holding that a person's voluntary submission to an

interview by a police officer does not indicate restraint of his freedom of movement and

thus custody). He was not formally summoned by the sheriff's office or escorted to the

office in a patrol car, and once there, he was made comfortable by Lt. Mendoza and never

handcuffed during the interview. See Herrera, 241 S.W.3d at 532 (requiring that we inquire

into the objective circumstances surrounding the interrogation). Carbajal told his story to

Lt. Mendoza freely without being interrupted by interrogation-style questioning. See id.

Although Carbajal was considered a suspect by Lt. Mendoza, that information was never

directly related to Carbajal, and Lt. Mendoza stated that Carbajal would have been free to

leave the sheriff's office if he had not given a statement. See Dowthitt, 931 S.W.3d at 255

(holding that an officer's suspicions must be manifested to the suspect to give rise to

"custody"). In fact, Carbajal himself testified at the suppression hearing that he never

considered himself a suspect and did not realize he might be in trouble until his wife told

him he should not have signed the statement.

       The only factor arguably indicating custody is that probable cause became apparent

during the interview when Carbajal implicated himself in the sexual encounter with and

assault of A.O. See id. However, considering the entirety of the circumstances, we cannot

conclude that this one factor outweighs the previously discussed evidence, all of which



                                             8
militates against a finding that a reasonable person would have felt he was not at liberty

to terminate the interview and leave. See Herrera, 241 S.W.3d at 532; Dowthitt, 931

S.W.2d at 255.

       In sum, our review of the record reveals that, at the time he made his statement,

Carbajal was not in custody and was, therefore, not entitled to be warned of his rights. See

Zavala, 956 S.W.2d at 723. Under the totality of the circumstances, no reasonable person

could have believed that his movement was restrained to the degree associated with a

formal arrest.   See Herrera, 241 S.W.3d at 525; Dowthitt, 931 S.W.2d at 254-55.

Therefore, the trial court did not abuse its discretion in denying Carbajal's motion to

suppress. See Herrera, 241 S.W.3d at 526-27; Dixon, 206 S.W.3d at 590 (commanding

that we uphold a trial court's ruling if it is reasonably supported by the record and is correct

under any theory of applicable law). Carbajal's sole issue is overruled.

                                       V. CONCLUSION

       The judgment of the trial court is affirmed.


                                                       NELDA V. RODRIGUEZ
                                                       Justice

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

Delivered and filed the
11th day of March, 2010.




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