Affirmed and Majority and Concurring Memorandum Opinions filed December 18, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00468-CR
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DARRYL ONEAL RANDALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1000233
C O N C U R R I N G M E M O R A N D U M O P I N I O N
In his first issue, appellant contends the trial court abused its discretion by denying his motion to suppress his statement because it was obtained by officers in violation of Miranda v. Arizona and Texas Code of Criminal Procedure article 38.22, section 2. An oral statement made by an accused as a result of custodial interrogation is inadmissible unless (1) prior to the statement but during the recording, the accused is given the specific Miranda warnings contained in article 38.22, section 2(a) of the Code of Criminal Procedure, and (2) the accused knowingly, intelligently, and voluntarily waives the rights set out in the warnings. See Tex. Crim. Proc. Code Ann. art. 38.22, ' 3 (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It is undisputed that appellant was not given the specific Miranda warnings contained in article 38.22, section 2(a) of the Code of Criminal Procedure. It is also undisputed that appellant did not waive any of these rights. Therefore, the admissibility of appellant=s statement rests entirely upon whether all or part of the interview was a custodial interrogation.
A person is in custody 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 (Tex. Crim. App. 1996). The Areasonable person@ standard presupposes an innocent person. Id. Moreover, the subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Id. The 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.
Id. However, under Stansbury v. California, 511 U.S. 318, 321B24, 114 S. Ct. 1526, 1528B30, 128 L. Ed. 2d 293, 298B99 (1994), factors (2) and (4) have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials. See Dowthitt, 931 S.W.2d at 254. The custody determination must be made on an ad hoc basis, after considering all of the objective circumstances. Id. at 255. The mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; a consensual inquiry can escalate into custodial interrogation. Id.
The Court of Criminal Appeals has outlined at least 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 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 that he is free to leave.
Id. Concerning the first three situations, Stansbury indicates that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Concerning the fourth situation, Stansbury dictates that the officers= knowledge of probable cause be manifested to the suspect. Id. Such manifestation can occur if information substantiating probable cause is related by the suspect to the officers or if such information is related by the officers. Id. Furthermore, situation (4) 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 that he is under restraint to the degree associated with an arrest. Id. The length of time spent interrogating the suspect is another factor to consider. Id. at 256.
In the case at hand, the main objective circumstances relating to the analysis are as follows:
! The interview was conducted at the store, which, at the time, was appellant=s place of employment.
! When the officers interviewed appellant, no warrant had been issued for appellant=s arrest. At the beginning of the interview, Officer Roberts told appellant that he was not under arrest.
! Approximately five minutes into an interview that lasted less than thirty-two minutes, Officer Roberts made statements to appellant manifesting to him the officers= knowledge of probable cause to arrest appellant for the robbery in question. After this, appellant made various incriminating statements.
! The officers indicated to appellant that the videotape incriminated him in the robbery but that they were not there to arrest appellant; rather, they were there to allow appellant an opportunity to tell the officers what really happened and help them identify and locate the other two individuals.
! Officer Roberts stated that it would be no problem if appellant did not want to change or add to his prior statements, and that if this were the case, the officers would present the results of their investigation and the evidence incriminating appellant to the district attorney.
! After probable cause had been manifested to appellant, Officer Bonnette stated that the officers= purpose was not to arrest appellant and that appellant was not under arrest.
! Appellant took a call on his cell phone during the interview without asking for permission and without complaint from the officers.
! The officers spent a significant portion of the interview asking appellant questions about the other two individuals and trying to locate a record of their phone call with appellant in appellant=s cell phone.
! After the interview was over, the officers left and appellant was not arrested that day.
The manifestation of probable cause, combined with the other objective circumstances, would not lead a reasonable person to believe that he was under restraint to the degree associated with an arrest. See Meek v. State, 790 S.W.2d 618, 622B23 (Tex. Crim. App. 1990). Accordingly, the trial court did not err in overruling appellant=s motion to suppress.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Concurring Memorandum Opinions filed December 18, 2008.
Panel consists of Justices Frost, Seymore, and Guzman. (Seymore, J., majority)
Do Not Publish C Tex. R. App. P. 47.2(b).