BRANDON DESHUN PEARSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued March 21, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00805-CR
............................
BRANDON DESHUN PEARSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-54328-T
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OPINION
Before Justices Lang, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Brandon Deshun Pearson appeals his murder conviction. In two issues, he claims the evidence is factually insufficient and the trial court erred in denying his motion to suppress. We affirm the trial court's judgment.
Background
        In July of 2005, Shamy Conley was living in a second-floor one-bedroom apartment with her twenty-three year-old sister, Nakeitha Gibson. On July 3, 2005, Shamy spent the day swimming with some friends at the apartment's swimming pool; Shamy saw Nakeitha only briefly that day. At nine that evening, Shamy returned to the apartment. When she arrived, she found Nakeitha and appellant playing a video game in the bedroom. Nakeitha asked Shamy if she wanted to go to a club that night. Shamy said she did, but she first needed to take a shower.
        Shamy was in the shower for approximately “twenty to thirty minutes.” When she got out of the shower, appellant was gone. Shamy heard Nakeitha, who was still in the adjacent bedroom, say that Shamy's cellular telephone was ringing. Shamy went into the bedroom to retrieve her phone, wearing only a towel. Nakeitha was alone in the bedroom. When Shamy heard the front door open, she ran back into the bathroom. She heard Nakeitha say, “Oh, it's Brandon.” Approximately thirty seconds later, she heard a single gunshot and immediately opened the bathroom door. As the door opened, Shamy saw her sister falling to the floor, blood running out of her head, mouth, nose, and ears. Nakeitha had been shot in the head, directly between her eyebrows.   See Footnote 1  When Shamy asked appellant what had happened, he said Nakeitha had shot herself. Shamy ran to a neighbor's apartment and asked her to call 9-1-1. While they were waiting for the ambulance, appellant again told Shamy that Nakeitha had shot herself. He also said the shooting was an accident.
        Dallas Police Officer Matthew Banes responded to the call. When Banes arrived at the apartment, he could hear screaming and the door to the apartment was open. He saw blood and footprints tracked through the living room and there were two females and a male present in the living room. He described the situation as chaotic. Inside the bedroom, he found Nakeitha lying sideways on the bed with her feet elevated on a chair. He also saw a Ruger semi-automatic handgun with the “hammer back” lying underneath the chair. Because the gun was in a position where it could still possibly be fired,   See Footnote 2  Banes ordered everyone out of the bedroom and into the living room. Shamy was yelling at appellant, accusing him of shooting her sister. Appellant replied that Nakeitha was “playing” with the gun and she shot herself. A few minutes later, other police officers arrived and Banes took appellant into the hallway in front of the apartment and had him sit on the stairs. Appellant was covered in blood and brain matter. Appellant told Banes he was getting ready to leave and Nakeitha handed him the gun and it “went off,” shooting her. Appellant also said it was not his gun.
        At the police station, appellant was interviewed by Officer Phil Harding of the Dallas Police Department. Appellant gave the following written statement, which was read to the jury at trial:
 
        Me and Nakeitha were in the bedroom laying on the bed. We were playing Super Nintendo. She had gotten a call from her friend or cousin. I don't really know who it was. They talked for a minute on the phone, and me and her went to playing in the background. She got off the phone and I went to playing the Super Nintendo.
 
 
 
        Then I got a call on my cell phone from my girl. Then I was getting ready to leave and I grabbed the pistol off the nightstand. As I was getting ready to leave the room, I pointed the gun at her, or in her direction or whatever, and I told her that I would see her later, and it went off.
 
 
 
        I didn't mean for this to happen. We didn't have no problems prior to this. And we did not have any problems at the time of this.
 
        At trial, appellant claimed the shooting was an accident. He testified that he and Nakeitha were playing video games in the bedroom when Shamy entered the apartment. The sisters discussed going to a club. Appellant told them he planned to go to the same club but he was waiting for a ride. While Shamy took a shower, he and Nakeitha continued to play video games. Nakeitha got a telephone call and she and appellant joked about how she was spending too much time talking on the telephone. A few minutes later, appellant received a cellular telephone call from a friend, Mechelle Campbell, who was supposed to give him a ride to the club. The caller identification indicated the call was coming from his grandmother's apartment, which was one level below the apartment that Nakeitha shared with Shamy. Appellant told Nakeitha he was leaving and that he would meet her at the club. He started to leave when Nakeitha told him he was forgetting his gun, which was still on the night stand. He picked up the gun with his finger on the trigger and his hand around the butt of the gun.   See Footnote 3  Nakeitha was sitting on the bed and appellant was standing over her holding the gun at either waist or chest level. As he was leaving the room, he asked her what time she was going to the club. According to appellant, because he “talks with his hands,” when he turned around to tell Nakeitha he would see her later, he jerked his finger while gesturing, accidentally pulling the trigger and shooting her. Appellant thought the gun's safety was on and he was shocked that the weapon fired. After the shooting, appellant and Shamy both left the apartment to summon assistance because they were unable to call for help using the apartment's telephone.
        Mechelle saw Shamy running down the stairs screaming, “Brandon shot my sister.” She was followed by appellant, who was covered in blood. Mechelle and appellant tried to calm Shamy, who was still screaming. Shortly thereafter, Mechelle and appellant went up the stairs to the apartment's bedroom, where she saw Nakeitha lying on the bed. A next door neighbor, who was talking on the telephone to the 9-1-1 operator, asked Mechelle to check Nakeitha for a pulse, but she did not feel a pulse. The neighbor also got a chair and the two of them placed Nakeitha's feet on the chair under some pillows. They got a towel and applied pressure to Nakeitha's head. Appellant insisted the shooting was an accident, explaining he left the gun on the dresser and when he grabbed the gun “it went off.”
        Appellant admitted he lied to Shamy when he told her Nakeitha shot herself. Appellant said that if he had told her he was responsible for shooting Nakeitha, Shamy would have become hysterical. He was trying to calm her down “because she was yelling and screaming.” Appellant further admitted he lied to the police but claimed he did so because he was afraid he would go back to prison for possessing a firearm.   See Footnote 4  Appellant also told the 9-1-1 operator that Nakeitha “had shot herself.”
        Laura Flemming, a firearms expert at the Southwestern Institute of Forensic Sciences, identified the weapon as a Ruger model P90 .45 caliber semi-automatic pistol. She said the trigger on the gun could not be classified as a “dangerous” or “hair trigger.” Less than two pounds of trigger pull would be considered a “hair trigger.” In order for this weapon to be fired, at least 5.2 pounds of pressure needed to be placed on the trigger. There were no mechanical problems with the firearm. Furthermore, because of the internal firing pin, it would not fire if dropped on the floor.         The trial court's charge instructed the jury on murder and the lesser included offenses of manslaughter and criminally negligent homicide. The jury convicted appellant of murder and sentenced him to ninety-nine years in prison.
 
Factual Sufficiency
        In his first issue, appellant claims the evidence is factually insufficient to support the verdict.
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         The jury was instructed that it could find appellant guilty of murder if it found he (1) intentionally or knowingly caused the death of an individual or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). As explained in the court's charge, “serious bodily injury” is bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any “bodily member or organ.” Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2004-05).
        Intent is a question of fact that is within the sole purview of the jury; the jury may rely on its collective common sense and apply common knowledge and experience. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). Intent may be inferred from the circumstantial evidence surrounding the incident including the acts, words, and conduct of the accused. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Moreover, the jury may infer the intent to kill from the use of a deadly weapon unless it would be unreasonable to infer that death or serious bodily injury could result from the use of the weapon. Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992). The Texas Penal Code defines a firearm as a deadly weapon. See Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon 2003).
        Appellant argues the evidence is insufficient to prove he acted with the required intent to cause death or serious bodily injury. More specifically, he claims the evidence shows the gun accidentally discharged while he was “gesturing with the gun towards” Nakeitha. The State responds that the jury was presented with evidence from which it could infer appellant intentionally shot and killed Nakeitha or intended to cause her serious bodily injury.
        There was conflicting evidence presented. Shamy did not see the shooting. She heard the gunshot and came out of the bathroom. Appellant admitted he shot Nakeitha but claimed the shooting was an accident. He gave several different accounts of the shooting. He admitted he lied to Shamy when he told her Nakeitha shot herself while “playing” with the gun. He admitted he lied to the police when he told them Nakeitha shot herself while handing him the gun. He also lied to the 9-1-1 operator when he claimed Nakeitha shot herself. In his written statement, appellant stated that he pointed the gun either at Nakeitha or in her direction as he was leaving the room and it “went off.” At trial, he claimed that because he “talks with his hands,” he accidentally jerked the trigger while gesturing in her direction, causing the weapon to fire. The firearms expert testified that at least 5.2 pounds of pressure needed to be applied to the trigger in order to fire the weapon. She concluded it did not have a “hair trigger.” Banes described a trigger pull of four to five pounds as a “hair trigger.”
        It was the jury's function to resolve these conflicts in the evidence. Johnson, 23 S.W.3d at 9. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.).
        Viewing the evidence under the proper standard, we conclude it is factually sufficient to support appellant's conviction for murder. See Watson, 204 S.W.3d at 415. Appellant's first issue is overruled.
Motion to Suppress
        In his second issue, appellant claims the trial court erred in failing to suppress the oral statements he made to Banes at the apartment because the officer did not read appellant his Miranda   See Footnote 5  rights and did not comply with article 38.22 of the Texas Code of Criminal Procedure. The State argues appellant was not in custodial interrogation when he made the statements.
        Prior to trial, the trial court held a hearing to determine the admissibility of statements appellant made to Banes at the crime scene. During the hearing, Banes testified that he spoke to appellant “outside of the apartment in the breezeway on the steps.” At that point, appellant was not free to leave. He was not under “custodial arrest” but he was “detained . . . pending the investigation.” Banes described appellant's statements as voluntary. He recalled, “I simply asked him what happened.” Appellant explained that he and Nakeitha were in the bedroom playing a video game. As he started to leave the apartment, “she was playing with a gun and it discharged and [she] shot herself in the head.” Banes's reason for interviewing appellant was to determine whether potential suspects had fled the crime scene. In addition, Banes testified on cross-examination that, immediately after he arrived at the apartment, Shamy told him appellant shot Nakeitha.
        At the conclusion of the hearing, the trial court denied appellant's motion in limine.   See Footnote 6  The trial court concluded appellant was not under custodial arrest at the time he made the statements; his detention was merely part of the investigation into the shooting.
        After the jury was selected, the trial court informed the parties that it had researched the suppression issue and was “not satisfied” the record was “fully developed” regarding the circumstances surrounding appellant's statements to Banes. The trial judge ordered Banes brought “back in” for additional testimony.
        At this second hearing, Banes testified that when he first arrived at the apartment the situation was “out of control.” People were frantically pacing around the apartment and were “panicked” and “screaming.” Besides Nakeitha and appellant, Shamy and a neighbor were also in the apartment. Nakeitha was in the bedroom and the gun was lying on the bedroom floor next to a chair. Everyone in the apartment was “pretty much covered in blood, especially [appellant].” In order to secure the crime scene and minimize potential threats to his safety, Banes closed the bedroom door. He also decided that no one would leave the apartment until they had been interviewed by investigators.
        At some point “[d]uring all the chaos and panic,” Shamy screamed, “He shot her, he killed her.” Banes could not remember whether Shamy actually referred to appellant by name when she made this statement. During these early moments, shortly after he arrived at the apartment, Banes also heard appellant tell Shamy that Nakeitha was “playing” with the gun and it “went off.” Approximately two or three minutes after Shamy screamed, “He shot her, he killed her,” Banes took appellant outside and interviewed him separately. On the front steps of the apartment, appellant told Banes that Nakeitha shot herself while handing him the gun. Banes did not give appellant any Miranda warnings. At this point, he considered appellant to be “more of a witness than a suspect.”         Banes initially considered everyone in the apartment, including appellant, to be suspect in the shooting. Because he “didn't know what we were dealing with,” Banes decided no one would be handcuffed. However, everyone in the apartment would be detained until supervisors and detectives secured the crime scene and conducted interviews. Banes told appellant “that we had to have him talk to some people,” but he “never told him he couldn't leave” and appellant never tried to leave the apartment. Approximately thirty or forty minutes after he spoke to appellant and homicide detectives had secured the crime scene, Banes arrested appellant and transported him to the police station.
        After hearing Banes's “fully developed” testimony, the trial court again denied the motion in limine, concluding appellant was not under custodial arrest because Banes did not have probable cause to arrest appellant at the time he made the statements.   See Footnote 7 
        We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); 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). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. Id. If, as here, the trial court files no findings of fact, we view the evidence in a light most favorable to the ruling and will uphold a trial court's ruling on any theory of law supported by the evidence. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
        Article 38.22 of the Texas Code of Criminal Procedure prohibits the use of an oral statement of an accused made as a result of custodial interrogation unless an electronic recording is made of the statement, Miranda warnings are given, and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a)(1)-(2) (Vernon 2005). Article 38.22 codifies both Miranda's system of protecting a suspect against self-incrimination and its distinction between voluntary statements and compelled confessions. See Stahle v. State, 970 S.W.2d 682, 690 (Tex. App.-Dallas 1998, pet. ref'd). Section five of article 38.22 states that nothing in the article precludes the admission of a statement that is either (1) res gestae of the arrest or offense, (2) a statement that does not stem from custodial interrogation, or (3) a voluntary statement, whether or not the result of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon 2005). If either the “custodial” or “interrogation” predicates are not met, article 38.22 does not apply. Villarreal v. State, 61 S.W.3d 673, 680 (Tex. App.-Corpus Christi 2001, pet. ref'd).
        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. Four factors are relevant to determining whether a person is in custody: (1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the investigation, and (4) subjective belief of the defendant. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Under Stansbury v. California, factors two and four have become irrelevant except to the extent that they may be manifested in the words or actions of police officers; the custody determination is based entirely upon objective circumstances. Dowthitt, 931 S.W.2d at 254; see also Stansbury v. California, 511 U.S. 318, 322-23 (1994). Becoming the focus of the investigation does not equate to custody for purposes of determining whether a statement is voluntarily given. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990).
        There are four general situations in which a suspect's detention 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 he cannot leave, (3) when law enforcement officers create a situation that 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 he is free to leave. Dowthitt, 931 S.W.2d at 255. In the first through third situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. Concerning the fourth situation, the officers' knowledge of probable cause must be manifested to the subject, and such manifestation could occur if information sustaining the probable cause is related by the officers to the suspect or by the suspect to the officers. Id. However, situation four will not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. Id. Additionally, the length of time involved is an important factor to consider in determining whether a custodial interrogation occurred. See id. at 256.
        Interrogation is not limited to questions; any words or actions by police may be considered interrogation if the police “should have known [they] were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302 (1980). The term “incriminating response” refers to any response the prosecution may seek to introduce at trial. Id. at 301 n.5. Where the comments of the police are “designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Id. at 301 n.7. Statements volunteered by the accused are admissible. Miranda , 384 U.S. at 478 .
        In this case, appellant alleges the following facts demonstrate he was in custody during his conversation with Banes: (1) appellant was told he was not free to leave; (2) appellant was the prime suspect in the shooting; and (3) Banes had been told by Shamy that appellant shot Nakeitha.
        Considering all of the objective circumstances, we conclude appellant was not in custody for purposes of Miranda and article 38.22 when Banes questioned him. When Banes spoke to appellant on the steps of the apartment, appellant was not the focus of the investigation. At that point, Banes considered appellant to be “more of a witness than a suspect,” and his primary concern was whether potential suspects had fled the crime scene. While it is true appellant was not free to leave the apartment, Banes testified that no one was free to leave because he considered everyone in the apartment to be a potential suspect. Banes also testified that appellant was not handcuffed and there is no indication appellant's freedom of movement was obstructed. Regarding Shamy's statement that “He shot her, he killed her,” Banes said he did not remember whether Shamy referred to appellant by name when she made this statement. While he suspected she was referring to appellant, he could not “say for sure” whether he knew at that point that appellant, who was the only male in the room, was the individual Shamy was “talking about.” This contradicts Banes's testimony from the previous hearing where he said Shamy told him that appellant shot Nakeitha. However, the trial court could have concluded, given its role as the sole judge of the credibility of the witnesses and the weight to be given to their testimony, that Shamy's statement that “He shot her, he killed her,” was the statement Banes was referring to at the previous hearing when he admitted that Shamy told him appellant shot Nakeitha. There were also conflicts in Banes's testimony concerning whether appellant told Banes that Nakeitha shot herself while “playing” with the gun or if she shot herself while handing appellant the gun, but the trial judge was free to determine the weight to give conflicting testimony. Furthermore, appellant was not arrested or placed in handcuffs until thirty or forty minutes after the conversation with Banes.
        On this record, we conclude a reasonable person in appellant's position would not have considered his freedom of movement restrained to the degree associated with a formal arrest. See Dowthitt, 931 S.W.2d at 254. Because appellant was not in custody while being questioned, neither the failure to advise him of his rights nor the failure to record the statements rendered them inadmissible under the Fifth Amendment and Miranda or article 38.22. Based on the record before us, we conclude the trial court did not abuse its discretion when it denied the motion to suppress.
        We affirm the trial court's judgment.
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060805F.U05
 
Footnote 1 According to the medical examiner, Dr. Shiela Spotswood, Nakeitha died from a single gunshot wound to the head. The gunshot wound was between the eyebrows and there was no indication of soot, a smoky material that can sometimes be deposited on the skin. The lack of soot indicated the shot occurred in the “medium range or intermediate range,” which was one to three feet.
Footnote 2 Recalling the condition of the weapon, Banes testified that when the hammer was pulled back the weapon was in “single action mode” and the required trigger pull would have been somewhere between “eleven or twelve pounds down to maybe four or five pounds.” He described this as a “hair trigger” that “basically allows you to be more accurate and your trigger pull is a lot lighter.”
Footnote 3 Appellant admitted he was “mishandling” the gun.
Footnote 4 The indictment contained a single enhancement paragraph alleging a prior felony conviction in 2003 for burglary of a habitation. Following the punishment phase of the trial, the jury found the enhancement paragraph to be true.
Footnote 5 Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 6 During the hearing, both parties and the trial court repeatedly referred to appellant's motion as a “motion in limine.” Nevertheless, we will review the motion in limine as a motion to suppress because it is undisputed that it sought to suppress evidence. See State v. Roberts, 940 S.W.2d 655, 660 (Tex. Crim. App. 1996) (motion to suppress has a technical meaning which applies only to illegally secured evidence); Wade v. State, 814 S.W.2d 763, 764-65 (Tex. App.-Waco 1991, no pet.) (title of a document as a “Motion to Suppress” is not the determining factor in deciding whether it is a motion to suppress or a motion in limine).
Footnote 7 Later, during the trial of the case, shortly before he testified in front of the jury, Banes testified that appellant also told him outside the apartment “that the firearm was not his.” Appellant reasserted his previous objection that this statement was provided during custodial interrogation in violation of appellant's Fifth Amendment rights and article 38.22 of the code of criminal procedure. Citing its previous decision, the trial court overruled the objection.