Affirmed and Memorandum Opinion filed September 13, 2007
In The
Fourteenth Court of Appeals
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NO. 14-06-00218-CR
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RAUL MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1000727
M E M O R A N D U M O P I N I O N
A jury found appellant, Raul Martinez, guilty of murder and sentenced him to thirty years= confinement. In two issues, appellant contends the trial court erred by (1) denying his motion to suppress audiotaped statements that he made to a police officer because they were the result of custodial interrogation, and (2) admitting his audiotaped statements into evidence because the State introduced part but not all of the statements. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
On September 11, 2004, Sergio Umanzor was shot to death while sitting in his car in front of his residence in Houston. Houston Police Officer Todd Miller reported to the scene and began the investigation. At trial, Officer Miller testified that he spoke with appellant=s emotionally distraught wife on a cell phone while at the scene. Based on the conversation, Officer Miller wanted to speak with appellant because he thought a potential motive for the shooting may have been jealousy.
On September 13, 2004, Officer Miller and his partner drove to Carollton, Texas, to speak with appellant about the shooting. The officers went to the body shop where appellant worked and asked if he would talk with them about the shooting. Subsequently, the police audiotaped two statements given by appellant at the Carrollton Police Station. After the first statement, appellant directed the police to the residence of Fabian Borgus, a person whom appellant claimed to be with at the time of the shooting. Although the officers were not able to locate Borgus, he later came to the police station and spoke with the Officer Miller. After speaking with Borgus, Officer Miller spoke again with appellant. Appellant gave a second audiotaped statement in which he implicated himself in the shooting. After obtaining appellant=s second statement, Officer Miller secured a warrant and arrested appellant.
Before trial, appellant filed a motion to suppress the two audiotaped statements. After conducting a hearing, the trial court denied appellant=s motion to suppress. The statements were admitted into evidence. The jury found appellant guilty of murder and sentenced him to thirty-five years= confinement.
II. Audiotaped Statements
In his first issue, appellant contends the trial court erred by denying his motion to suppress the audiotaped statements he made to Officer Miller because they were the result of custodial interrogation and were not freely and voluntarily made. Specifically, appellant contends that the statements were not freely and voluntarily made because (1) based on his limited education and English-language proficiency, he did not knowingly, intelligently, and voluntarily waive his Miranda rights prior to and during the questioning, and (2) the officers Aignored@ appellant=s repeated assertions of his right to have his attorney present. In response, the State contends appellant was not in custody when he made the statements.
A. Standard of Review
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. We review de novo the trial court=s application of the law. Carmouche, 10 S.W.3d at 327.
B. Analysis
Article 38.22 of the Texas Code of Criminal Procedure prohibits the use of oral statements made as a result of custodial interrogation unless, inter alia 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. See Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a)(1)S(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.CDallas 1998, pet. ref=d). Pursuant to article 38.22, section 5, nothing precludes 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) (emphasis added). If either the Acustodial@ or Ainterrogation@ predicates are not met, article 38.22 does not apply. Villarreal v. State, 61 S.W.3d 673, 680 (Tex. App.CCorpus 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 freedom of action in any significant way. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). A person is Ain custody@ only if Aunder 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 (Tex. Crim. App. 1996). The reasonable person standard presupposes an innocent person, and the subjective intent of law enforcement officials is irrelevant unless it is communicated or otherwise manifested to the suspect. Id. Four factors relevant to determining whether a person is in custody are: (1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the investigation, and (4) subjective belief of the defendant. Id. (citing Meek v. State, 790 S.W.2d 618, 621B22 (Tex. Crim. App. 1990)). 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 (citing Stansbury v. California, 511 U.S. 318, 322B23 (1994)). The determination of custody must be made on an ad hoc basis, after considering all of the circumstances. Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985). Stationhouse questioning does not in and of itself constitute custody. Id. at 255. Becoming the focus of an investigation does not equate to custody for purposes of determining whether a statement is voluntarily given. Meek, 790 S.W.2d at 621.
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. Relative to 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, the fourth situation does 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.
Appellant contends his statements were the result of custodial interrogation and not freely and voluntarily made because he did not knowingly, intelligently, and voluntarily waive his right to an attorney prior to and during the questioning due to his limited education and lack of proficiency in the English-language. Specifically, appellant refers to his testimony at the hearing that he cannot speak English well, can hardly read Spanish or English, and only completed school through the sixth grade in Mexico. Appellant also contends the statements were not freely and voluntarily made because the officers Aignored@ his repeated assertions of his right to have his attorney present. Specifically, appellant refers to his testimony at the hearing and avers that he asked the officers for his attorney.
However, at the motion to suppress hearing, the trial court heard testimony from both Officer Miller and appellant. The trial court issued written findings of fact in which the trial court found Officer Miller=s testimony credible and appellant=s testimony not credible. The trial court also found the following: (1) Officer Miller did not coerce or threaten appellant either physically or emotionally into going to the Carrollton Police Station with Officer Miller; (2) Officer Miller read Miranda warnings to appellant from a card in English, and appellant indicated that he understood each right by placing his initials on the card by the Spanish version; (3) appellant advised Officer Miller that he understood his rights and freely and voluntarily waived his rights and agreed to talk with Officer Miller; (4) Officer Miller did not make any promises to appellant in order to persuade him to waive his rights and give a statement; (5) appellant never requested permission to consult with an attorney while speaking with Officer Miller; (6) appellant never mentioned that he was represented by counsel for this murder investigation; and (7) appellant=s statements were an act of his own free will, and were not a result of any coercion, threats, promises, or undue influence.
Officer Miller=s testimony supports the trial court=s findings of fact. Specifically, Officer Miller testified as follows: He and his partner drove to Carrollton, Texas, on September 13, 2004, to speak with appellant. They wanted to speak with appellant to determine if he was involved in the shooting. They went to the body shop where appellant worked and told him they were investigating a shooting that occurred in Houston. They asked if he would accompany them to the Carrollton Police Station to talk with them. Appellant agreed. Appellant rode in an unmarked car to the police station and was not handcuffed. At the police station, Officer Miller gave appellant a copy of the Miranda warnings in English and Spanish and asked appellant to read along in Spanish while Officer Miller read them aloud in English. Officer Miller asked appellant if he was Acomfortable@ talking in English, and appellant assured him that he was comfortable by saying, AIt=s fine.@ Appellant initialed on the Spanish version next to each warning indicating he both understood and agreed to waive the warning. Officer Miller explained to appellant at the beginning of the interview that he was free to leave the room at any time. During the interview, appellant never asked to leave. Furthermore, the questioning occurred in an interview room which opened to the investigative area which had a doorway for exiting. At the body shop or the police station, appellant never told Officer Miller that he was represented by counsel. Appellant never requested an attorney during the interview or asked to stop the interview. After appellant=s first audiotaped statement, he directed Officer Miller to his alibi=s residence, while sitting without handcuffs in the back seat of the unmarked car. As sole trier-of-fact and judge of the credibility of the witnesses and the weight to be given to their testimony, the trial court was free to believe Officer Miller=s testimony. See Ross, 32 S.W.3d at 855. Based on Officer Miller=s testimony and considering all the circumstances, we conclude appellant was not in custody when Officer Miller interviewed him. Therefore, we hold article 38.33 does not apply to appellant=s statements.
Moreover, even if appellant was in custody when he gave the two statements, the trial court heard the testimony concerning appellant=s decision to waive his Miranda rights and concluded that he voluntarily gave the statements after he was advised of and intelligently waived his Miranda rights. This conclusion is supported by Officer Miller=s testimony at the hearing. Therefore, even if he were in custody, the trial court did not err by denying appellant=s motion to suppress because appellant voluntarily waived his Miranda rights. Accordingly, we overrule appellant=s first issue.
III. Texas Rule of Evidence 107
In his second issue, appellant contends the trial court erred by admitting his statements Abecause the State introduced part, but not all of the statements into evidence, which then invokes Rule 107 B the Rule of Optional Completeness of the Texas Rules of Evidence, that expressly allows for the remainder of the statements.@ Appellant=s argument is not entirely clear. Appellant apparently contends that admission of his recorded statements violated Rule 107 because: (1) Officer Miller failed to tape his entire conversation and interview with appellant and only taped appellant=s formal statements; and (2) Officer Miller allegedly stopped the recorder every time appellant asked for his lawyer.[1]
However, the record reflects that appellant failed to object on the basis of Rule 107 in his motion to suppress or when the statements were offered into evidence. Therefore, appellant failed to preserve his complaint for our review because his trial objection does not comport with his complaint on appeal. Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). We overrule appellant=s second issue.
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed September 13, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.*
[1] Under Texas Rule of Evidence 107, when part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties. See Tex. R. Evid. 107.
* Senior Justice Richard H. Edelman sitting by assignment.