Kimberly Danielle Milwicz v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00193-CR

KIMBERLY DANIELLE MILWICZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12256

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MEMORANDUM OPINION 1

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Appellant Kimberly Danielle Milwicz appeals her conviction for murder. In

two issues, she argues that the evidence is insufficient to sustain her conviction

and that the trial court erred by admitting part of her recorded interview with

police officers. We affirm.

1
See Tex. R. App. P. 47.4.
 Background Facts

Gene Sabin managed TJ’s, a bar and restaurant in the Oak Trail Shores

area of Hood County. He worked there during early mornings and afternoons. In

the summer of 2011, appellant began working there. She did not have a

permanent residence, so Sabin lent her money and allowed her to stay in his

house.

In late December of that year, Sabin fired her. According to an employee

of the bar, Brandy Shirley, Sabin fired appellant because he learned “who she

was hanging out with . . . and that she was doing drugs.” Sabin’s niece, Frances

Barnes (who also worked at TJ’s), testified that he had fired appellant because

she was using methamphetamine. Sabin allowed appellant to continue living at

his house for a few days after he fired her but eventually told her to leave.

On Martin Luther King, Jr. Day (January 16) in 2012 and the weekend

preceding it, TJ’s was open for business. Banks, however, were closed on the

holiday. On the weekend before the holiday, Sabin suffered a stroke but

continued working at the bar. Because of the stroke, he could not speak and had

trouble writing; through urging by his family, he planned on going to a Veterans

Affairs hospital on the Tuesday following the stroke. At some time during the

holiday weekend, Shirley called appellant to inform her of Sabin’s stroke and to

ask her to return his house keys.

On January 17, Shirley arrived at the bar at about 6:15 a.m. (before it was

set to open at 7 a.m.) to prepare a bank deposit of money collected during the

2
holiday weekend. She noticed that Sabin’s car was parked in its normal spot but

that doors to the bar had been forced open. Upon walking into the bar, she saw

Sabin on the floor. She first believed that he had suffered another stroke, so she

yelled for him to wake up. When she noticed that he was not breathing, she tried

to use the bar’s phone to call for help, but the phone cord had been damaged.

Shirley ran to a nearby convenience store and called 911, telling the operator

that she had found “blood everywhere” and that the bar’s phone had been ripped

out of the wall.

Responders to the scene determined that Sabin had been dead awhile.

They saw a puncture wound on his neck and noticed blood near his head. They

also noticed that money had been taken from various parts of the bar, including

wooden lockers and a metal lockbox that appeared to have been opened with

keys. Sabin’s autopsy revealed that he had been shot in the front of his neck

and that the bullet had not exited his body.

On the day of the murder, Barnes went to Sabin’s house. She noticed that

appellant’s car, which had windshield damage, remained at the front of the

house. Also, some of appellant’s possessions remained in the house. The doors

to the house were locked, and Barnes could not enter it. Later that day, when

Barnes returned to the house, she saw a ladder leaning against a bathroom

window and noticed that appellant’s car and possessions were gone.

3
 Sabin’s sons, Brian and Randy, changed the locks on Sabin’s house

because they learned that his keys were missing after his murder. Two

witnesses testified that Sabin’s keys were never found.

Michael Stoner, a Texas Ranger, investigated the murder. He determined

that the murder was committed by someone who entered and left through the

bar’s front door. He saw a spent shell casing in a sink, noticed that there was no

cash in the register (indicating that a robbery had occurred), and saw that

padlocks on lockers had been opened with a key rather than through using bolt

cutters. He also observed a shoeprint near a damaged door inside the bar.

Based on information that the police received, in two houses, they found money

believed to be related to the robbery and murder.

After talking to several people, Ranger Stoner suspected that appellant,

Justin Ragan, and Gordon Lewis, 2 appellant’s “off-and-on” boyfriend, may have

been involved in the murder. 3 Ranger Stoner, along with other officers, found

Ragan at a hotel, arrested him, and seized his shoes and “large rolls of bills” that

he possessed. Ragan’s right shoe matched the shoeprint found at the murder

scene. Ragan had called 911 on the morning of the murder, alleging that his

truck had been stolen.

2
Lewis was affiliated with the Aryan Brotherhood and was known as
“Flash” because he could change moods quickly and acted differently while on
drugs.
3
Ragan and Lewis had visited the bar occasionally. Lewis had been
barred from entering the bar because he had threatened an employee.

4
 Ragan admitted that he had shot Sabin during the robbery at TJ’s, and he

stated that Lewis had given him the gun and had driven him to and from the bar. 4

The officers learned that Ragan had paid for his hotel room with cash and found

methamphetamine paraphernalia there. Ranger Stoner wanted to contact

appellant, and based on his conversations with people who knew where she had

gone, on January 18, he called another Texas Ranger, Kevin Wright, who was

working in El Paso.

After learning that appellant was “possibly a suspect” and had checked into

a hotel in Las Cruces, New Mexico, Ranger Wright asked a New Mexico police

officer to watch appellant’s car until he could arrive. When Ranger Wright arrived

at the hotel and appellant saw him there, she immediately asked, “Is this about

Gene?” Ranger Wright confirmed that he was there to talk about Sabin’s murder,

and appellant agreed to ride with him to a New Mexico state police office. Based

in part on statements made during an interview that night indicating that the idea

of committing a robbery at TJ’s came from appellant and that she had talked to

Lewis about how and when to commit that crime, she was later arrested in New

Mexico pursuant to a warrant.

4
Ragan said that he had locked Sabin in a closet and that he did not plan
on shooting Sabin until Sabin escaped from it. Ranger Stoner was skeptical
about Ragan’s ability to put Sabin, who was over six feet tall, in the closet, which
was small.

5
 A grand jury indicted appellant, through multiple alternative paragraphs,

with murder and capital murder. 5 She filed several pretrial motions, including a

motion to suppress the audio recording of her interview with Ranger Wright. The

trial court denied the motion to suppress in part, allowing the admission of the

first two hours and fourteen minutes of the statement but excluding its remainder.

The court found that appellant had not received Miranda 6 warnings before

participating in the interview but that the warnings were not required during the

first part of the interview because she was not arrested or otherwise in custody. 7

The court also found that appellant gave the interview intelligently and voluntarily,

without induction by promises or threats. The court noted in its order denying

appellant’s motion that she had voluntarily accompanied Ranger Wright to the

police office, that she was not handcuffed, that Ranger Wright had told her that

she was not required to speak to him, that Ranger Wright had allowed her to use

her cell phone several times during the interview, and that she had told her father

at the end of the interview that she was not being detained.

5
See Tex. Penal Code Ann. § 19.02(b) (West 2011), § 19.03(a)(2) (West
Supp. 2013).
6
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630
(1966).
7
At the two-hour-and-fourteen-minute mark of the interview, Ranger Wright
informed appellant that a warrant was being prepared for her arrest. The trial
court, pursuant to the State’s concession and citing Dowthitt v. State, found that
appellant’s custody began when Ranger Wright made that statement. 931
S.W.2d 244, 254–55 (Tex. Crim. App. 1996).

6
 At trial, appellant pled not guilty. Upon hearing the parties’ evidence and

arguments, the jury convicted her of murder. The jury received evidence on her

punishment and assessed confinement for life. She unsuccessfully sought a new

trial and brought this appeal.

Evidentiary Sufficiency

In her first issue, appellant contends that the evidence is insufficient to

support her murder conviction. In our due-process review of the sufficiency of

the evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013). This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588,

595 (Tex. Crim. App. 2011). We determine whether the necessary inferences

are reasonable based upon the cumulative force of the evidence when viewed in

the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155

(Tex. Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

App. 2013).

The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

7
the guilt of an actor. Winfrey, 393 S.W.3d at 771; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). Evidence is insufficient when acquittal is the “only

proper verdict.” See Johnson v. State, 419 S.W.3d 665, 670 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d) (citing Tibbs v. Florida, 457 U.S. 31, 42, 102

S. Ct. 2211, 2218 (1982)).

Appellant’s indictment alleged, in part, that she committed murder because

on January 17, 2012 in Hood County, she

did then and there intentionally or knowingly commit or attempt to
commit an act clearly dangerous to human life, to wit: shooting
[Sabin] with a firearm, that caused the death of [Sabin], and the
defendant was then and there in the course of intentionally or
knowingly committing a felony, to wit: robbery, and said death of
[Sabin] was caused while the defendant was in the course of and in
furtherance of the commission or attempt of said felony[.]

The jury charge tracked this part of the indictment, defined robbery, 8 and

contained language explaining that appellant could be criminally responsible for

Ragan’s and Lewis’s conduct as a party to the offense under certain

circumstances. 9

8
The jury charge correctly stated that a person commits robbery “if, in the
course of committing theft and with intent to obtain and maintain control of
property of another, he intentionally or knowingly causes bodily injury to another.”
See Tex. Penal Code Ann. § 29.02(a)(1) (West 2011).
9
“It is well accepted that the law of parties may be applied to a case even
though no such allegation is contained in the indictment.” Montoya v. State, 810
S.W.2d 160, 165 (Tex. Crim. App. 1989), cert denied, 502 U.S. 961 (1991); see
Murkledove v. State, No. 02-12-00194-CR, 2014 WL 2013438, at *2 (Tex. App.—
Fort Worth May 15, 2014, no pet. h.).

8
 A person commits murder by committing or attempting to commit a felony,

other than manslaughter, “and in the course of and in furtherance of the

commission or attempt, . . . [the person] commits or attempts to commit an act

clearly dangerous to human life that causes the death of an individual.” Tex.

Penal Code Ann. § 19.02(b)(3). Furthermore, if in the attempt to carry out a

conspiracy to commit one felony, another felony is committed by one of the

conspirators, all conspirators are guilty of the felony actually committed, “though

having no intent to commit it, if the offense was committed in furtherance of the

unlawful purpose and was one that should have been anticipated as a result of

the carrying out of the conspiracy.” Id. § 7.02(b) (West 2011). 10 A person

engages in a criminal conspiracy if, with the intent that a felony be committed, the

person agrees with one or more persons that “they or one or more of them”

engage in conduct constituting the offense, and one or more of them performs an

overt act in accordance with the agreement. Id. § 15.02(a) (West 2011).

Cumulating all of these penal code provisions and applying them to the

facts of this case, the evidence 11 is sufficient to prove appellant’s guilt for murder

10
Because we hold below that the evidence is sufficient to support
appellant’s guilt for murder through her participation in a conspiracy under
section 7.02(b), we need not determine whether the evidence is sufficient to
prove her guilt as a party under section 7.02(a)(2). See Tex. Penal Code Ann.
§ 7.02(a)(2); Tex. R. App. P. 47.1; Washington v. State, 417 S.W.3d 713, 723 n.7
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
11
A reviewing court may look to “events before, during, and after the
commission of the offense” to determine whether an individual is a party to an

9
if it shows that (1) with the intent that robbery be committed, she agreed with

Ragan or Lewis for one of them to engage in the conduct of robbery, (2) Ragan

or Lewis performed an overt act according to the agreement, (3) in committing

the robbery, Ragan or Lewis committed an act clearly dangerous to Sabin’s life

that caused his death, and (4) the murder was committed in furtherance of the

robbery and should have been anticipated in carrying out the robbery. See id.

§§ 7.02(b), 15.02(a), 19.02(b)(3); Lee v. State, No. 01-07-00992-CR, 2009 WL

1562861, at *3 (Tex. App.—Houston [1st Dist.] June 4, 2009, pet. ref’d) (mem.

op., not designated for publication) (“Under the law of parties, a defendant may

be convicted of the offense of felony murder, even when the defendant does not

intend to commit murder, if the murder is committed in furtherance of the unlawful

purpose and should have been anticipated as a result of the carrying out of the

conspiracy.”); see also Turner v. State, No. 01-08-00657-CR, 2010 WL 3062013,

at *5 (Tex. App.—Houston [1st Dist.] July 30, 2010, no pet.) (mem. op., not

designated for publication) (“Under the law of parties, if Turner conspired with

Brown to rob the [store’s owner], Turner could be held criminally liable for . . .

murder committed by Brown, even if Turner had no intent to commit . . . murder,

if Brown committed the murder in an attempt to carry out the conspiracy to

commit robbery and if Brown’s actions should have been anticipated by Turner

as a result of the carrying out of the conspiracy.” (footnotes omitted)).

offense, and it may rely on circumstantial evidence to prove party status. Gross
v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012).

10
 We construe appellant’s brief as challenging only the first of these

requirements; she does not explicitly argue, for example, that the murder was not

committed in furtherance of the robbery or that it should not have been

anticipated. She contends that there is “no evidence that she entered into any

kind of an agreement with Lewis and Ragan to rob TJ’s or kill Sabin.” Appellant

emphasizes that no evidence links her to being at the scene of the robbery and

that she was in a hotel “across town” when the murder occurred. We must

determine whether there is sufficient evidence “of an understanding and common

design to commit the offense.” Gross, 380 S.W.3d at 186.

Robert Eubank, who lived close to Lewis, testified that shortly before the

murder, appellant was “having problems” with Lewis and stayed at Eubank’s

house for about a week. Three to five days before the murder, while appellant

was in an angered mood and was possibly intoxicated, she told Eubank that she

“had dreams about hitting [Sabin] in the head with a ball peen hammer.” She

also told Eubank that she hated Sabin. Eubank believed that appellant was

emotionally unstable.

One day before the murder, appellant went to Eubank’s house, had a

couple of beers, and said that she was going to Lewis’s house. Later that night,

Ragan and Lewis, along with several other people, went to Eubank’s house.

Ragan’s girlfriend, Christina Munoz, told Eubank that Lewis and Ragan were

planning to “hit a lick.” Eventually, well into the early morning on the day of the

murder, Ragan and Lewis left Eubank’s house in Ragan’s truck. Later that

11
morning, Ragan returned to Eubank’s house. While acting frantically and

nervously, Ragan told Eubank that he had shot Sabin. Ragan told Christina

“where to find the money.”

Rebecca Cleere, who is a friend of Lewis’s sister, Sandra Smith, testified

that at some time during the week prior to the murder, Smith, Ragan, Lewis, and

appellant went to Cleere’s double-wide trailer. All of those people began talking

in a room of the trailer. During that time, appellant began “ranting and raving

about how she had gotten fired and how she [had] lost her place to live, and she

was very upset with [Sabin], and [Lewis] was talking about going in on a robbery,

to rob the place.” Appellant said during the conversation that she wanted to see

Sabin “beat[en] to a bloody pulp”; she explained that she wanted Sabin “to be

beat and hurt and in pain like she was.” While Cleere was speaking primarily

with appellant, Lewis spoke to Ragan about joining in the crime in a conversation

“on the other side of the room.” But according to Cleere, the room that the

conversations occurred in was small, so everyone could hear what others were

saying.

When the State asked Cleere whether appellant was “involved in telling

[Ragan] what she wanted to see happen” to Sabin, Cleere responded

affirmatively. Cleere testified that at the end of the conversation, Lewis, Ragan,

and appellant left her house together. Cleere did not believe after the

conversations, however, that a crime at TJ’s would occur. According to Cleere,

12
Lewis and appellant induced Ragan to “go in on the deal” by saying that he could

“go with them to . . . smoke some dope.”

After Ranger Wright found appellant at the hotel in Las Cruces, the first

thing that appellant said to him was, “Is this about Gene?” During Ranger

Wright’s interview with appellant that night, she said that she had lived with Sabin

for several months starting in the summer of 2011, that he had fired her in late

December 2011, and that he had said that she could still live with him after firing

her until January 1, 2012, when he “kicked [her] out.” According to statements

that appellant made toward the beginning of the interview, Sabin fired her

because she served a soft drink without “mark[ing] it down,” and he told her to

leave his house because he did not like her dog. Appellant referred to Sabin as

her “savior”; she explained that he treated her well and gave her money and that

she thought of him as her uncle. She stated, however, that Sabin had yelled at

her while she was working at the bar because she had once called the police to

the bar.

Appellant said that Sabin arrived at the bar every day at about 4 a.m. and

would stay there “all day” to watch the bar and protect its employees. She stated

that she learned about Sabin’s death through a text message and phone calls.

She said that before she left Hood County, some people had expressed belief

that she had a role in causing his death.

After prompting from Ranger Wright to “come clean,” appellant said that

she had talked with Lewis more than once (on separate days) about why no one

13
had ever committed a robbery at TJ’s and that Lewis then said that he wanted to

commit a crime at the bar and asked for the best days to do so and the best way

to get in. 12 Appellant indicated that she mentioned the possibility of committing a

robbery at TJ’s to Lewis because stress about his child support debt had caused

him to “hat[e] on [her]” and “put his hands” on her. Appellant said that Lewis had

previously held a knife to her neck and had pointed a gun at her.

Nonetheless, appellant later told Ranger Wright that committing a robbery

at TJ’s was a “frivolous idea” and was not a way to get money for Lewis, and she

claimed that she “wasn’t part of the plan” and “wanted nothing to do with it.” She

described her conversations with Lewis about the potential robbery as “big talk”

and “wolfing.”

But appellant detailed to Lewis how to commit the robbery. Specifically,

she told Lewis that Fridays and Saturdays would be the best days to commit the

robbery. She also told Lewis “how to do it” 13 and where the bar’s money was

kept, including that wooden lockers within the bar would contain a substantial

amount of cash. Testimony at trial established that TJ’s employed three

bartenders every day and that each of those bartenders kept money in a bag that

was placed inside a padlocked locker. Sabin had the keys to the padlocks.

12
Appellant characterized herself as “throw[ing] the idea [of committing a
robbery at TJ’s] out there.”
13
For example, Lewis suggested going through a side door at the bar, but
appellant told him that the side door had recently been replaced.

14
When Sabin was murdered, the lockers had been opened, and money had been

removed from the bags.

While appellant admitted during her interview with Ranger Wright that she

heard Lewis say that he was going to commit the crime, she expressed that she

did not believe that he would actually do so. She also stated that Lewis had

proposed that he could “pull a pistol” on Sabin but that she had told him not to.

Appellant said during the interview that in her discussion with Lewis about

a potential robbery at TJ’s, she said that she could be a good getaway driver but

that she “didn’t want to do it.” According to appellant, she told Lewis that she did

not want to “be involved.”

Although Eubank testified that appellant saw him and went to see Lewis on

the day before the murder, appellant told Ranger Wright that she had not spoken

to Lewis in the few days before the murder and that on the morning of the murder

and the night preceding it, she was in bed at her hotel. She denied knowing of

anyone named “Justin” but said that she had talked about the potential robbery in

the presence of someone named “Ray Ray.”

Krista Smith, a Hood County probation officer, testified that she began

supervising probation for appellant in June 2011, that she was still appellant’s

probation officer in January 2012, and that a few days before the murder, she

received a message from appellant stating that she had gone to California to

attend her mother’s funeral. Smith testified that she had called appellant on

January 18 (the day after the murder) and that appellant had called her back that

15
day. When appellant returned the call, she indicated that she was still in

California and said that she was not sure when she could come back. Smith

later learned from appellant’s father that appellant was never in California, and

she testified that to her knowledge, no funeral occurred.

Appellant’s father testified that in January 2012, he had not spoken to

appellant in two years, but she called him while stating that she wanted to come

to California. 14 Appellant told him that “people were stealing her belongings,

beating her up, [and] not allowing her to take her things with her.” Because

appellant needed time to replace a car battery and repair a smashed windshield,

her father paid for her to stay in a hotel from January 14 through 17, when she

left for California. He also provided money for the windshield’s replacement.

Appellant’s father testified that before Sabin’s murder, appellant talked

about him and was sympathetic about his having a stroke. He also stated that

after the murder, while crying, she told him that Sabin was dead. He stated,

however, that appellant had never told him about discussing how to commit a

crime at TJ’s with Lewis.

Stephanie Houghtaling worked at TJ’s during the time that appellant

worked there and allowed appellant to move into her house “until she got on her

feet.” According to Houghtaling, although several employees of TJ’s came to the

bar upon learning of Sabin’s murder, appellant did not do so.

14
Appellant grew up in California and moved to Texas only about a year or
two before Sabin’s murder because of disputes with her father.

16
 From appellant’s statements before the murder and during her interview

with Ranger Wright, the jury could have rationally inferred that she conspired with

Lewis (who joined with Ragan) 15 to commit robbery of Sabin. Specifically, the

jury could have found appellant’s participation in a conspiracy to rob Sabin from

appellant’s statements to Eubank, Cleere, and Ragan that she desired to

violently harm Sabin (especially as coupled with the fact that Ragan murdered

Sabin soon afterward); her involvement in a discussion in Cleere’s trailer about

robbing Sabin and her encouragement (along with Lewis) for Ragan to “go in on

the deal” (especially as combined with the fact that Ragan and Lewis robbed

Sabin soon afterward); and her admissions that committing a robbery at TJ’s was

her idea and that she had spoken with Lewis, who she knew was violent and

needed money, about the best days and means to commit the robbery.

Likewise, the jury could have rationally inferred that appellant joined in the

robbery conspiracy by her odd behavior near the time of Sabin’s murder. For

example, she told Krista Smith before the murder that she had traveled to

California when she had not (possibly attempting to set up a false alibi); did not

go to an appointment with her probation officer on the Friday before the murder;

did not go to TJ’s after hearing of Sabin’s murder like some of the bar’s

15
Contrary to an argument in appellant’s brief, the State was not required
to prove that appellant conspired with both Lewis and Ragan; rather, the penal
code required the State to prove that appellant agreed with “one or more persons
that they or one or more of them” would engage in the robbery. See Tex. Penal
Code Ann. § 15.02(a) (emphasis added).

17
employees did but instead went to his house, retrieved her car and personal

items, and left Texas while having no apparent contact with anyone close to him;

and began traveling to California on the day of the murder, even though she had

not talked to her father, who lived there, in the two years preceding the week of

the murder.

And the jury had a rational basis to doubt appellant’s credibility and to

therefore reject allegations in her interview that she did not conspire with Lewis to

commit the robbery but only provided the idea and details about how to do so.

Appellant made statements during the interview that contradicted each other and

contravened evidence presented at trial. For example, appellant said at various

times during the interview that the reason Sabin fired her at TJ’s was because

she was receiving disability benefits, because she had not properly charged a

customer for soda, because effects from her bipolar disorder frustrated Sabin,

and because she had once called the police out to the bar. She also said that

she did not “do dope.” But the jury learned from two witnesses who worked at

TJ’s that Sabin fired appellant because of her drug use, and Eubank testified that

appellant used methamphetamine.

Also, although appellant said that she last spoke to Lewis several days

before the murder, Eubank testified that appellant went to see Lewis after leaving

his house on the day before the murder. And although appellant informed Krista

Smith a few days before the murder that she had left for California to attend a

funeral, the evidence shows that appellant did not leave Texas until after the

18
murder was committed and that she was not going to California for a funeral.

Finally, while appellant represented to Ranger Wright and her father that she

esteemed Sabin, witnesses testified that she had expressed hate toward Sabin

and had talked about a desire to see him violently harmed.

We recognize that some evidence, if credited to appellant’s favor, weighs

against the finding of a conspiracy between appellant, Lewis, and Ragan on the

date of the robbery. For example, one of appellant’s acquaintances, Joshua

Jenkins, testified that approximately four days before the murder, he gave

appellant a ride to a motel because she and Lewis had fought and he had thrown

all of her possessions, including her dog, out of his house. According to Jenkins,

Lewis had said that he never wanted appellant around his house again after that

day, and appellant had said that she was going to drive to California.

But “[e]ach fact need not point directly to the guilt of the defendant, as long

as the cumulative effect of the facts [is] sufficient to support the conviction under

the law of parties.” Gross, 380 S.W.3d at 186. Rejecting the jury’s decision and

sustaining appellant’s first issue would require substituting inferences in

appellant’s favor for the reasonable, implicit inferences that the jury drew against

her. We cannot do so because the trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979); Winfrey, 393 S.W.3d at 768. Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Isassi v. State,

19
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict and defer to

that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390

S.W.3d at 360.

For all of these reasons, viewing the evidence in the light most favorable to

the verdict and deferring to the jury’s resolution of conflicting inferences from the

evidence, we conclude that a rational jury could have found the existence of

appellant’s participation in a conspiracy to rob Sabin beyond a reasonable doubt,

which is the only essential element of her murder conviction that she challenges.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393 S.W.3d at 768;

see also Tex. Penal Code Ann. §§ 7.02(b), 15.02(a), 19.02(b)(3). We overrule

appellant’s first issue.

Denial of Motion to Suppress

In her second issue, appellant contends that the trial court erred by

denying her motion to suppress the first two hours and fourteen minutes of her

recorded interview with Ranger Wright. We review a trial court’s ruling on a

motion to suppress under a bifurcated standard. Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). We give almost total deference to a trial court’s rulings on

questions of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-of-law-

to-fact questions that do not turn on credibility and demeanor. Amador, 221

20
S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

We must uphold the trial court’s ruling if it is supported by the record and correct

under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007).

Ranger Wright was the only witness at the suppression hearing. Appellant

does not contest his credibility or the truth of the facts in his testimony at that

hearing. Rather, the parties present different arguments concerning the legal

significance of those facts. Thus, we will apply a de novo review. See Amador,

221 S.W.3d at 673.

Appellant contends that her recorded statement was inadmissible because

it was “not taken in compliance” with Miranda or article 38.22 of the code of

criminal procedure. Miranda and article 38.22 require that when a defendant is

questioned while in custody, law enforcement must advise the defendant of

certain rights, including the right to remain silent and to have a lawyer present

during questioning. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2)

(West Supp. 2013); Miranda, 384 U.S. at 478–79, 86 S. Ct. at 1630; see also

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (“As with the

Miranda warnings, the warnings in . . . Article 38.22 are required only when there

is custodial interrogation.”). The State argues that the warnings associated with

Miranda and article 38.22 were not required because appellant was not in

custody during the first part of the interview. We agree with the State.

21
 When raising a claim under Miranda or article 38.22, the defendant bears

the initial burden of proving that he or she was in custody. Hines v. State, 383

S.W.3d 615, 621 (Tex. App.—San Antonio 2012, pet. ref’d). In deciding whether

a person was in custody, we must consider whether, given the circumstances

surrounding the interrogation, a reasonable person would have perceived that

law enforcement officers restrained the person’s movement in a way that is

comparable to the restraint of a formal arrest. See Thompson v. Keohane, 516

U.S. 99, 112, 116 S. Ct. 457, 465 (1995); Dees v. State, Nos. 02-12-00488-CR,

02-12-00489-CR, 2013 WL 6869865, at *3 (Tex. App.—Fort Worth

Dec. 27, 2013, no pet.) (mem. op., not designated for publication). In other

words, we must determine whether a reasonable person would have felt free to

end the interrogation and leave. See Thompson, 516 U.S. at 112, 116 S. Ct. at

465; Nguyen v. State, 292 S.W.3d 671, 678 (Tex. Crim. App. 2009).

As the court of criminal appeals has stated,

In evaluating whether a reasonable person would believe his
freedom has been restrained to the degree of formal arrest, [courts
look] only to the objective factors surrounding the detention. The
subjective beliefs of the detaining officer are not included in the
calculation of whether a suspect is in custody. But if the officer
manifests his belief to the detainee that he is a suspect, then that
officer’s subjective belief becomes relevant to the determination of
whether a reasonable person in the detainee’s position would
believe he is in custody. Conversely, any undisclosed subjective
belief of the suspect that he is guilty of an offense should not be
taken into consideration—the reasonable person standard
presupposes an “innocent person.”

22
State v. Ortiz, 382 S.W.3d 367, 372–73 (Tex. Crim. App. 2012) (footnotes

omitted). Custody determinations must be made on a case-by-case basis while

considering all objective circumstances, but four nonexclusive categories that

may constitute custody for purposes of Miranda and article 38.22 are

(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,[16]
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. at 376–77 (quoting Dowthitt, 931 S.W.2d at 255). For the fourth of these

categories to constitute custody, the officer’s belief that probable cause to arrest

exists must be “manifested to the suspect.” Id. at 376 (quoting Dowthitt, 931

S.W.2d at 254).

A person is generally not in custody when the person “voluntarily

accompanies police officers, who are then only in the process of investigating a

crime, to a certain location, and he knows or should know that the police officers

suspect he may have committed or may be implicated in committing the crime.”

Burgess, 2014 WL 70090, at *9 (quoting Dancy v. State, 728 S.W.2d 772, 778–

79 (Tex. Crim. App.), cert. denied, 484 U.S. 975 (1987)); see Livingston v. State,

739 S.W.2d 311, 327 (Tex. Crim. App. 1987) (“Once the circumstances show

16
“In the first three situations, the restriction on freedom of movement must
amount to a degree associated with arrest rather than investigative detention.”
Burgess v. State, No. 02-12-00407-CR, 2014 WL 70090, at *7 (Tex. App.—Fort
Worth Jan. 9, 2014, no pet. h.) (mem. op., not designated for publication).

23
that the person is acting upon the invitation, urging[,] or request of police officers,

and not the result of force, coercion[,] or threat, the act is voluntary and the

person is not then in custody.”), cert. denied, 487 U.S. 1210 (1988); Varela v.

State, No. 04-13-00303-CR, 2014 WL 1494607, at *4 (Tex. App.—San Antonio

Apr. 16, 2014, no pet.) (mem. op., not designated for publication) (holding

similarly). Several precedential decisions demonstrate this principle.

For example, in Oregon v. Mathiason, the Supreme Court held that a

defendant was not in custody when an officer asked the defendant to meet at a

police building two blocks from the defendant’s apartment, the defendant went to

the building and talked to the officer in a closed office, and the officer told the

defendant that he was not under arrest but stated that the police suspected his

involvement in a burglary. 429 U.S. 492, 493–95, 97 S. Ct. 711, 713–14 (1977).

Next, in White v. State, we held, citing Mathiason, that a defendant was not

in custody when the police approached him in a park, told him that they wanted

to speak with him about a stolen cell phone, said that he was not under arrest,

allowed him to call his grandmother, asked him whether he needed to eat or

drink, took him to a police station for a one-hour interview, and took him to his

grandmother’s house after the interview concluded. 395 S.W.3d 828, 831–32,

835–37 (Tex. App.—Fort Worth 2013, no pet.)

And in Estrada v. State, the court of criminal appeals held that a defendant

was not in custody when the police, who were investigating a capital murder, told

the defendant that he did not have to talk and that he was not under arrest, took

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him to a police station for a five-hour interview, and told him several times that he

was free to leave. 313 S.W.3d 274, 292–95 (Tex. Crim. App. 2010), cert. denied,

131 S. Ct. 905 (2011); see also Ervin v. State, 333 S.W.3d 187, 208, 212 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that a defendant was not in

custody although she stayed at a police station for four hours while being

interrogated), cert. denied, 131 S. Ct. 2992 (2011); State v. Rodriguez, 986

S.W.2d 326, 330 (Tex. App.—El Paso 1999, pet. ref’d) (determining that a

defendant was not in custody although an interrogation lasted several hours).

At the beginning of appellant’s interview with Ranger Wright, near 10 p.m.

on the day after the murder, he expressed that he wanted to make it “crystal

clear” that she was not under arrest, that he did not plan to arrest her, and that

she did not have to talk to him. He also stated that he had explained these facts

to her before the interview had started. He asked her whether she needed any

food or water.

At the suppression hearing, Ranger Wright testified that he did not tell

appellant that she was under arrest, that he had a warrant for her arrest, or that

she would be arrested if she did not comply. He explained that in the front seat

of his truck and without wearing handcuffs, appellant went with him to the state

police office, which was less than two miles away from the hotel. They went into

an interview room. During the interview, which lasted approximately four hours,

appellant used her cell phone several times for phone calls and text messages.

25
At the end of the interview, she called her father and told him that she was not

being detained, and Ranger Wright took her back to her hotel.

Under the cases cited above, we agree with the trial court’s finding that

appellant was not in custody in the first part of Ranger Wright’s interview with

her. These undisputed facts show that appellant voluntarily and without force,

threats, or restraints, acted upon Ranger Wright’s invitation and accompanied

him to the state police office; that he told her more than once that she was not

under arrest and was not required to talk to him; that the interview lasted for four

hours, which, under the cases above, does not by itself mean that appellant was

in custody; and that he drove her back to the hotel after the interview concluded.

As the State contends, there is no evidence that appellant was personally

searched, fingerprinted, handcuffed, or photographed. Although appellant

emphasizes that she was already a suspect when she agreed to speak with

Ranger Wright, the record does not establish that Ranger Wright communicated

such a status to her in the first part of the interview, and “being the focus of the

investigation does not equate to custody.” 17 Cedillos v. State, 250 S.W.3d 145,

152 (Tex. App.—Eastland 2008, no pet.) (citing Meek v. State, 790 S.W.2d 618,

621 (Tex. Crim. App. 1990)); see also Estrada, 313 S.W.3d at 294 (explaining

that an officer’s “beliefs concerning the potential culpability of the individual being

questioned . . . may be one among many factors that bear upon the assessment

17
During his testimony in front of the jury, Ranger Wright said that when he
was sent to talk with appellant, he was not sure that she would be arrested.

26
whether that individual was in custody, but only if the officer’s . . . beliefs were

somehow manifested to the individual under interrogation”). Also, appellant

argues that she was in custody because at night, she was “isolated” at the police

office away from her hotel. We cannot agree. See Estrada, 313 S.W.3d at 289,

292, 294–95 (holding that a defendant was not in custody when after 8 p.m., he

rode with the police from his apartment to a police station for an interview that

lasted several hours).

We uphold the trial court’s finding that appellant was not in custody during

the first part of her interview with Ranger Wright, and we overrule her argument

that the recording was inadmissible under Miranda or article 38.22. See Tex.

Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2); Miranda, 384 U.S. at 478–79,

86 S. Ct. at 1630. We overrule appellant’s second issue.

Conclusion

Having overruled both of appellant’s issues, we affirm the trial court’s

judgment of conviction.

/s/ Terrie Livingston

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

GARDNER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 10, 2014

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