Han Quang Bui v. The State of Texas--Appeal from Co Crim Ct at Law No 9 of Harris County

Opinion issued October 19, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00456-CR

HAN QUANG BUI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court of Law No. 9

Harris County, Texas

Trial Court Cause No. 1285487

MEMORANDUM OPINION

A jury convicted appellant, Han Quang Bui, of selling alcohol to minors. See Tex. Alco. Bev. Code Ann. 106.03(a) (Vernon Supp. 2005). // The trial court assessed punishment at six months in the county jail and a $1,500 fine, suspending the jail sentence in lieu of 18 months of community supervision. In his sole point of error, appellant argues that the trial court erred by denying his motion to suppress and by allowing testimony regarding his oral confession to be admitted.

We affirm.

Facts

On February 12, 2005, Deputy W. Jacobo noticed two minors acting suspiciously in front of a convenience store. Three twelve-packs of beer and four bottles of wine were found near the minors. The minors claimed to have purchased the alcohol from an Asian man inside the store. Deputy Jacobo found appellant, who is Asian, in the back of the store, resting in a room. The room had only one entrance, and the officer stood in the doorway as he questioned appellant. During the questioning, appellant admitted to selling alcohol to the two minors.

Motion to Suppress

In his sole point of error, appellant claims he was in custody when he admitted selling the alcohol to the juveniles and thus the trial court should have suppressed his confession.

In reviewing a trial court s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court s determination of historical facts that depend on credibility, while we conduct de novo review of the trial court s application of the law to those facts. Id. We review de novo the trial court s application of the law of search and seizure and probable cause. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Wilson v. State, 98 S.W.3d 265, 271 (Tex. App. Houston [1st Dist.] 2003, no pet.). We examine the evidence in the light most favorable to the trial court s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

All statements made during a custodial interrogation must be prefaced by a Miranda warning in order to be admissible. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966). In Texas, officers must give an additional warning not required by Miranda. See Tex. Code Crim. Proc. Ann. art. 38.22 2(a)(5) (Vernon 2005) (requiring warning that defendant has right to terminate interview at any time). Oral statements made during custodial interrogations are further required to be electronically recorded in order to be admissible. Tex. Code Crim. Proc. Ann. art. 38.22 3(a) (Vernon 2005). Statements that are voluntary and given freely while a suspect is not in custody are admissible into evidence without being subjected to the requirements of Miranda or article 38.22. See Roquemore v. State, 60 S.W.3d 862, 868 69 (Tex. Crim. App. 2001); Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990) (citing Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980)).

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. Dowthitt v. State, 931 S.W.2d 244, 254 55 (Tex. Crim. App. 1996) (stating Texas courts recognize 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 he cannot leave; (3) when law enforcement officials 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). The facts and circumstances of a detention determine whether a suspect is in custody or simply detained while under investigation. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). The subjective belief of the officer as to whether the subject is detained or arrested is not determinative. Amores, 816 S.W.2d at 412; Goldberg, 95 S.W.3d at 360. Instead, the actions of the officer are evaluated under a reasonable person standard, using the perspective of a reasonable officer at the scene of the incident. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997); Goldberg, 95 S.W.3d at 360.

Appellant argues that his confession was the result of custodial interrogation because he was not free to leave the room whose only door was blocked by a police officer. Appellant also points out that Deputy Jacobo testified at the suppression hearing that appellant was not free to leave the room. The State responds that appellant was not in custody when appellant confessed, and therefore Miranda and article 38.22 do not apply.

The record reveals that Deputy Jacobo found appellant in a back room of the store lying down on a bed. Deputy Jacobo told appellant that he was conducting an investigation of selling alcohol to minors. Deputy Jacobo further testified, My intention was to question him. I am conducting an investigation. When I show up to any scene I have to conduct an investigation before I can determine who is going to be filed on or arrested. I have to conduct an investigation first. Once I determine the facts, that s when I either detain or place somebody under arrest.

After Deputy Jacobo informed appellant that he was conducting an investigation, appellant admitted that he had sold alcohol to the minors. Deputy Jacobo further testified that appellant volunteered the information. We conclude that when Deputy Jacobo informed appellant that he was conducting an investigation of selling alcohol to minors, appellant s freedom of movement was not restrained to the degree associated with a formal arrest. Thus, it was not necessary for Deputy Jacobo to give appellant Miranda warnings or to comply with section 38.22. Although Deputy Jacobo may have subjectively thought that appellant was not free to leave, Deputy Jacobo did not communicate his beliefs to appellant. See Amores, 816 S.W.2d at 412; Goldberg, 95 S.W.3d at 360. Therefore, the trial court did not abuse its discretion when it denied appellant s motion to suppress.

We overrule appellant s sole point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).