DOUGLAS CHARLES EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed April 29, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00163-CR
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DOUGLAS CHARLES EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F08-50990-Y
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MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Lang
        Following a plea of guilty, appellant Douglas Charles Edwards was convicted by a jury of murder in the first degree. A jury sentenced appellant to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends the trial court erred by denying appellant's motion to suppress the statements he gave to the police based on their failure to timely warn appellant of his Miranda and 38.22 rights. We decide appellant's issue against him. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
 
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant was convicted for the murder of his ex-girlfriend. Complainant was first discovered missing by her sister on January 17, 2008, when complainant did not show up for work. A missing person report was filed with the Dallas Police Department. On January 22, officers interviewed several witnesses, including complainant's current boyfriend, her coworker, and appellant. The officers collected fingerprints, buccal swabs, and gunshot residue tests from the witnesses. During appellant's initial interview, he stated he had not seen complainant for the past couple of weeks and that he was not at her apartment the night she disappeared. After the initial interview, officers obtained security footage from complainant's apartment complex from the night of January 16. The video showed appellant's vehicle entering the apartment complex. The officers also obtained telephone records for complainant and appellant, which provided information about the contact complainant had with appellant, her boyfriend, and her coworker. Officers asked appellant and complainant's boyfriend to come in for a second interview.
        On January 24, at approximately 1:20 p.m., appellant met with Detective Maria Barker and Detective Eduardo Ibarra for a voluntary, videotaped interview. Appellant consented to have his car searched. Detective Barker testified she did not read appellant his Miranda rights because he was not a suspect; instead, he was one of the two persons of interest in the case. She explained that the policy is to read Miranda rights when officers know a person is the definite suspect in the case. After she confronted appellant about the video surveillance information, appellant denied seeing complainant on January 16. Although Detective Barker told appellant that “everything points to you,” she explained that she was unsure whether appellant knew the location of complainant, and she was merely “fishing for information.” Appellant continued to deny involvement in complainant's disappearance. Approximately one hour and thirty-six minutes into the interview, Detective Barker asked appellant if he wanted more water or to use the restroom. Appellant nodded his head side to side. Appellant then asked, “I can't go to work, right?” and Detective Barker responded, “Let's wrap this up...when I get back, I'm ready to draw [a map to complainant's body].” She left the room and returned with aerial photographs of the area where appellant claimed he had been fishing.
        Detective Ibarra took over the interview and began questioning appellant about his relationship with complainant and recounted appellant's actions on the night of her disappearance. After about an hour and a half after speaking with Detective Ibarra, appellant asked, “I'm not going to be able to go to work, am I?” Detective Ibarra responded, “You tell me the truth, man.” Fifteen minutes later, appellant inquired about the time, and Detective Ibarra told appellant not to worry about going to work because he would talk to appellant's boss.
        After three hours and forty minutes into the interview, at approximately 4:58 p.m., appellant implicated himself “as having knowledge as to where the body could be found.” Appellant told Detective Ibarra he could take him to complainant's body. Detective Ibarra left the room to brief the other detectives on the developments before returning to the interview room and reading appellant his Miranda rights. Appellant indicated that he understood his rights, waived them, and continued the interview. Before disclosing the location of complainant's body, appellant attempted to negotiate for “his day of freedom” and the chance to see his family. About an hour later, appellant agreed to cooperate with the detectives and led them to complainant's body.
        When they returned to the police station, appellant told the officers he had strangled complainant because he was angry she was dating other men. When he released her neck, complainant lied still, so appellant wrapped her up in a sheet and put her in the backseat of his car. He did not call 911 because he was scared. Appellant was charged with first-degree murder.         Appellant filed a pretrial motion to suppress his statements to the police based on their failure to timely warn appellant of his Miranda and 38.22 rights. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2009). After a hearing, the trial court denied appellant's motion, filing no findings of fact in connection with the suppression hearing. Then, appellant pled guilty to murder. Appellant did not testify in the hearing for the motion to suppress, but he did testify at trial. At trial, appellant testified he visited complainant on the evening of January 16 to discuss their relationship. Appellant admitted grabbing complainant around the neck until she was “barely breathing.” According to the medical examiner's testimony, the cause of death was determined to be homicidal violence. After appellant's guilty plea, a jury sentenced him to life imprisonment.
II. ANALYSIS
 
A. Standard of Review
 
        In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor and conduct a de novo review of the trial court's application of the law to those facts. Herrera v. State, 241 S.W.3d 520, 526-27 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Additionally, when, as here, the trial court denies a motion to suppress and does not enter findings of fact, the evidence is viewed “in the light most favorable to the trial court's ruling” and the court assumes “that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Herrera, 241 S.W.3d at 527.
B. Legal Authorities
 
        In Miranda v. Arizona, the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination provided under the U.S. Constitution. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The holding of Miranda is codified in article 38.22 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2009); Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex. Crim. App. 1996). Section 3(a) of article 38.22 provides that no oral statement made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless, among other things, prior to giving the statement, the accused received the statutory warnings of section 2(a) of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22 §§ 2-3. Those statutory warnings include: (1) that he has the right to remain silent and any statement he makes may be used against him at trial; (2) that any statement he makes may be used as evidence against him in court; (3) that he has the right to have a lawyer present to advise him during any questioning; (4) that if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) that he has the right to terminate the interview at any time. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a).
        The Miranda requirement that police advise a person of rights prior to questioning applies if the person is “in custody or otherwise deprived of his freedom of action in any significant way.” See Miranda, 384 U.S. at 445. The determination as to whether a person is in custody within the meaning of Miranda must be made on a case by case basis considering all the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996); Herrera, 241 S.W.3d at 532. A person is in custody only if, under all the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with an arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994); see Dowthitt, 931 S.W.2d at 254-55.         The Texas Court of Criminal Appeals has recognized four factors relevant to determining custody: (1) Probable cause to arrest, (2) Subjective intent of the police, (3) Focus of the investigation, and (4) Subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254 (citing Meek v. State, 790 S.W.2d 618, 621-22 (Tex. Crim. App. 1990)). Under Stansbury, factors 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. Stansbury, 511 U.S. at 322, 114 S. Ct. at 1528-29, 128 L. Ed. 2d at 298.
        The determination of whether a person is in custody is made on an ad hoc basis after considering all of the objective circumstances. Dowthitt, 931 S.W.2d at 255. The reviewing court first determines the circumstances surrounding the interrogation. Herrera, 241 S.W.3d at 532. Then, the court must consider whether, given those circumstances, a reasonable person would believe he could not terminate the questioning and leave. Id. The record as a whole must “clearly establish” the statement was the product of custodial interrogation. Id. at 526 (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). The defendant bears the initial burden of proving a statement was the product of custodial interrogation. Id. Although an interrogation may begin as non-custodial interrogation, police conduct during an encounter can cause an initially consensual inquiry to escalate into custodial interrogation. Dowthitt, 931 S.W.2d at 255. 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. Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985).        
        In Dowthitt, the appellant was interviewed by police detectives for approximately twelve hours before he first admitted he was present during the commission of the murders the police were investigating. Dowthitt, 931 S.W.2d at 256. The Court of Criminal Appeals held that “custody” began immediately after appellant's pivotal admission because it established probable cause to arrest appellant and a “reasonable person [in appellant's position] would have realized the incriminating nature of the admission.” Id. at 257; see Ruth v. State, 645 S.W.2d 432 (Tex. Crim. App. 1979) (suspect was in “custody” from the moment he admitted to the shooting and any subsequent statements were governed by Miranda). Further, in determining when “custody” began, the court considered the long time period of the interview and the police's exercise of control over the appellant by accompanying him to the restroom and ignoring his two requests to see his wife. Dowthitt, 931 S.W.2d at 257.        
        The Court of Criminal Appeals in Dowthitt outlined at least four general situations that may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, such as being placed in a police vehicle and taken to the station house for questioning; (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 is 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. Id. at 255 (citing Shiflet, 732 S.W.2d at 629). In the first through third situations, the restriction on freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. The ultimate inquiry is whether there was a formal arrest or restraint on freedom associated with a formal arrest. Bates v. State, 15 S.W.3d 155, 158 (Tex. App.-Texarkana 2000, pet. ref'd). With respect to the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect. Dowthitt, 931 S.W.2d at 255. Such manifestation can occur if information sustaining probable cause is related by the officer to the suspect or by the suspect to the officer. Id. Moreover, situation four does not automatically establish custody. Id. 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.
C. Application of Law to Facts
 
        Appellant contends the trial court erred by denying appellant's motion to suppress the statements he gave to the police based on their failure to warn appellant of his Miranda and 38.22 rights. The parties agree that appellant voluntarily came to the police station in order to speak with police detectives about complainant's disappearance and that he was not in custody when he arrived. Appellant contends that the interview transformed into a custodial interrogation, and he was in custody when he admitted to having knowledge of the location of complainant's body.
        Appellant claims that he was in custody when he made the statement because a reasonable person in appellant's position would have believed that he was not free to leave the interview based on the detectives: (1) telling appellant they would continue the interview “all day long,” until appellant was ready to tell detectives where complainant's body was, (2) ignoring appellant's desire to leave to go to work, and (3) engaging in physical contact with appellant by removing the desk appellant was seated at, pulling appellant's hand away from appellant's face, and putting hands on appellant's arms. Moreover, appellant contends that any statements made subsequent to the Miranda warnings were also inadmissible under the “fruit-of-the-poisonous-tree doctrine” because no curative measures were taken.
        The interviews of appellant do not fall within any of the four situations described in Dowthitt that may constitute custody. See Dowthitt, 931 S.W.2d at 255. Appellant voluntarily appeared at the police station for a second interview in his own vehicle without escort. He was not handcuffed and the detectives did not otherwise manifest any intent to detain him as a suspect. Throughout the interview, the detectives gave him water and although offered the use of the bathroom, he declined. Both Detective Barker and Ibarra testified that they did not develop probable cause to arrest appellant until appellant admitted he knew the location of complainant's body. We conclude “custody” began immediately after appellant admitted he knew the location of complainant's body because the admission established probable cause to arrest appellant and a reasonable person in appellant's position would have realized the incriminating nature of the admission. See Dowthitt, 931 S.W.2d at 257. It was at that point appellant was read his Miranda rights.
        The only facts that arguably could constitute a “factor” under Dowthitt to indicate custody at an earlier point is that appellant inquired about leaving for work and the detectives “deflected” the question. However, appellant did not ask to leave at any time during the interviews. Rather, he chose to remain at the station and discuss the allegations at length. Considering the entirety of the circumstances, we cannot conclude that these facts outweigh the evidence described above, all of which 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; see also Dowthitt, 931 S.W.2d at 255 (custody began after appellant made an incriminating statement, not when the officers previously ignored appellant's two requests to see his wife).
        After considering the objective circumstances, no reasonable person could have believed that appellant's 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. The record does not “clearly establish” the statement was the product of custodial interrogation. See Herrera, 241 S.W.3d at 526. Appellant was not in custody for purposes of article 38.22 at the time he made the incriminating statement. As a result, article 38.22 did not apply to the statements, and appellant was not entitled to be warned of his Miranda rights.
 
III. CONCLUSION
 
        Because the trial court did not err in denying appellant's motion to suppress, the trial court's judgment is affirmed.
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE                                                 
 
Do Not Publish
Tex. R. App. P. 47
090163F.U05