Opinion issued June 5, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00666-CR
———————————
JUAN ANTONIO ZAPATA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1257504
MEMORANDUM OPINION
A jury convicted Juan Antonio Zapata of capital murder and assessed
punishment at confinement for life. 1 In his sole issue on appeal, Zapata contends
that the trial court erred in overruling his motion to suppress statements he made
1
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013) (defining capital
murder and setting life confinement as possible sentence).
after he invoked his right to an attorney. We conclude that Zapata was not in
custody during his interview and, therefore, did not have a right to counsel.
Accordingly, we affirm.
Background
Jose Ojeda died of a gunshot wound to the back of the head, and his body
was found lying in a vacant lot. Several times on the night he died, Ojeda called
Zapata. Based on cell phone records listing calls between Ojeda and Zapata’s
phone numbers, Harris County Sheriff Deputy Detective A. Alanis called Zapata
and asked to talk to him about whether he knew what Ojeda was doing on the night
he died. Zapata agreed to talk to Detective Alanis. Detective Alanis picked up
Zapata at his home and Zapata rode with him in a police car to the police station.
When he picked up Zapata, Detective Alanis did not have a warrant for his arrest
and did not suspect Zapata was responsible for Ojeda’s murder. Zapata rode in the
front seat and was not handcuffed. Once they arrived at the police station,
Detective Alanis told Zapata that he was free to leave.
At the police station, Zapata took a polygraph examination, during which he
reported that he saw Ojeda on the night that he was murdered. After offering
Zapata food, water, and an opportunity to use the restroom, Detective Alanis
informed Zapata of his Miranda rights. Detective Alanis then invited Zapata to
“give us all the information . . . an opportunity to say what happened [on the night
2
Ojeda died],” and Zapata began to talk. Zapata confessed that “this man pushed me
and I took the gun from the other one . . . . And, well . . . that’s it. I popped
[motions right hand] and I got him [Ojeda].”
After Zapata admitted to shooting Ojeda, Detective Alanis did not
immediately arrest Zapata. Detective Alanis knew that Zapata’s first statement was
contrived because his story did not match the evidence collected regarding Ojeda’s
death. Detective Alanis suggested that Zapata’s story was false and asked him to
tell the truth:
ZAPATA: All I took was the gun and that,
because . . . that’s the one I used. And
I’m telling you . . . and I know who
the other guy is. I got tired of looking
for him, but I know his name and all.
ALANIS: Okay. Okay. Here’s the problem: the
same about pushing him—.
ZAPATA: Uh-huh.
ALANIS: - and shooting at him, is another lie.
ZAPATA: Uh-huh.
ALANIS: It’s not true.
ZAPATA: Because—
ALANIS: And I can prove it. Because in order
to—
ZAPATA: He was like this [motions right hand]
and I just popped.
3
Alanis then asked Zapata a series of questions, offering Zapata an opportunity to
change his statement. Here, Zapata first referenced a lawyer.
ALANIS: Touching. It wasn’t, “I pushed you
and shot you.”
ZAPATA: Uh-huh.
ALANIS: It was . . . . Bang! [touches Zapata’s right
knee]
ZAPATA: No. I didn’t hit him so close. Don’t
give me that. That is it! Because
then—okay. Then am I getting a
lawyer or not or what’s the deal, or
am I gonna keep on talking, just with
you all . . . [motions both hands]?
ALANIS: Well . . . it’s your chance to tell the
truth.
While Zapata mentioned the word “lawyer,” he appeared to be thinking aloud. He
never stopped talking to Alanis and never requested to end the interrogation.
Because Zapata did not stop talking, Alanis continued the interrogation.
Zapata made a second reference to a lawyer; however, he again continued to
talk and respond to Alanis’s questions. 2 Not once did Zapata ask to end the
interview or to have an attorney present at the interrogation. Instead, Zapata
2
Even assuming Zapata had clearly invoked his right to counsel, he did not have a
right to counsel because he was not in a custodial situation. Davis v. United States,
512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994) (noting that Miranda v. Arizona,
384 U.S. 436, 469–473, 86 S. Ct. 1602, 1625–27 (1966) provides right to counsel
only in custodial situations and defendant’s invocation of that right must be
unambiguous or unequivocal); see also Pecina v. State, 361 S.W.3d 68, 78–79
(Tex. Crim. App. 2012) (same).
4
continued talking and eventually gave a new version of Ojeda’s death, blaming
another man for the murder: Zapata said that he and J. Nava planned to rob Ojeda,
but Nava “went too far” and killed Ojeda.
ALANIS: This is your—your opportunity.
Remember, you’re talking about your
life.
ZAPATA: But if—if . . . Right, but I know—I
know that I’m—my life is in my
hands, to save myself, but . . . I need
somebody to—to advise me, and
that’s it. I’m not just gonna run my
mouth and I don’t have money to pro-
provide myself with a lawyer. It’s
better that, if you all have one,
because . . . and if I’m the one who
messes-up, I’m the one in trouble,
right? Because I even know who has
the gun and . . . and I know who has
the magazines.
ALANIS: Well, there it is, that’s your salvation.
If you didn’t kill him, and you
cooperate, finding who killed him,
and the gun, is your salvation. But if
you start saying “I don’t want to say
anything” [unintelligible overlapping
voices].
ZAPATA: No, but the—the probl- the- no, the
problem is that, if I save myself, then
I will get f[—]d outside. That’s the
problem, that . . . not because of that.
That’s why I’m telling you, I lose on
both side[s], here and out there.
That’s why.
5
Detective Alanis did not arrest Zapata after the first or second statement. Instead,
Detective Alanis continued the interview, arresting Zapata only after the district
attorney accepted the proposed charges against him.
Before trial, Zapata moved to suppress his second statement, arguing that he
had unambiguously invoked his right to counsel and Detective Alanis had
unconstitutionally continued to question him. At the hearing on the motion, Alanis
testified that Zapata appeared to understand the questions and willingly continued
to talk after telling his first version of Ojeda’s murder. Alanis also stated that
Zapata was not under arrest after giving the first version of Zapata’s death, but that
Alanis would not have let Zapata walk out, even if Zapata had requested to do so.
Alanis, however, never told Zapata that he planned to arrest him or that he was not
free to leave.
The trial court denied the motion and admitted the entire transcript of
Zapata’s statement into evidence. A jury convicted Zapata of murder and assessed
punishment at confinement for life.
Zapata timely appealed.
Motion to Suppress
Zapata challenges the trial court’s denial of his motion to suppress his
second statement following his mention of the word “lawyer.” He contends that he
was in police custody when he made the statement admitting to the murder, that he
6
unambiguously invoked his right to counsel, and that Alanis continued the
interview even though he had invoked his right to counsel. The State responds that
Zapata was not in custody when he confessed, he did not invoke his right to
counsel, and the trial court properly denied the motion to suppress.
A. Standard of review
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Ervin v. State, 333 S.W.3d 187, 202 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d). We review a trial court’s denial of a motion to suppress under a
bifurcated standard: we grant almost total deference to a trial court’s
determinations of historical facts and mixed questions of law and fact that rely on
credibility and demeanor. Id. We review de novo all other mixed questions of law
and fact that do not fall within that category. State v. Kerwick, 393 S.W.3d 270,
273 (Tex. Crim. App. 2013); see Ervin, 333 S.W.3d at 202 (applying standard set
forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
We give near total deference to a trial court’s custody determination because
it presents a mixed question of law and fact that depends upon credibility and
demeanor. Herrera v. State, 241 S.W.3d 520, 525–27 (Tex. Crim. App. 2007); see
also Ervin, 333 S.W.3d at 203. We defer to the trial court’s determination that
Detective Alanis was a credible witness. Ervin, 333 S.W.3d at 203. When
reviewing a trial court’s denial of a motion to suppress and the trial court enters no
7
fact findings, we view the evidence in the light most favorable to the trial court’s
ruling. Herrera, 241 S.W.3d at 527. We imply all necessary findings of fact that
are supported by the record. Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex.
Crim. App. 2000)).
B. The trial court did not abuse its discretion in denying Zapata’s motion
to suppress
The United States Supreme Court’s decision in Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602 (1966), provides that a suspect has the right to remain
silent, to have an attorney present during custodial interrogation, and to be
informed of these rights before any custodial interrogation. See id. at 478–79, 86 S.
Ct. at 1630; see Ervin, 333 S.W.3d at 225–26. Article 38.22 of the Texas Code of
Criminal Procedure statutorily incorporates those rights. TEX. CODE CRIM. PROC.
ANN. art. 38.22 (West 2012).
Once a suspect is informed of his rights, he may waive his rights by
speaking “freely and voluntarily without any compelling influences.” Miranda,
384 U.S. at 478, 86 S. Ct. at 1630. If a suspect in custody exercises his right to
counsel, and the police nevertheless proceed with the interrogation, any statement
made by the suspect is inadmissible. Id. at 479, 86 S. Ct. at 1630. If the suspect is
not in custody and demands counsel, law enforcement officials have no obligation
to honor a request to end the questioning. Estrada v. State, 313 S.W.3d 274, 296
(Tex. Crim. App. 2010) (holding that police officers were not required to end
8
questioning when suspect was given premature Miranda warnings and had invoked
right to counsel in noncustodial interrogation).
Before trial began, Zapata argued that his statement should be suppressed
because he was in custody and was denied access to counsel. Detective Alanis
testified that Zapata voluntarily appeared for an interview, was not in custody, and
was told that he was free to leave. Both Zapata and the State questioned Alanis
regarding Zapata’s statement. The trial court determined that Zapata’s statements
were admissible. At trial, Zapata again objected to the admissibility of his
statement. While we typically limit our review of a pre-trial motion to suppress to
the evidence presented at that hearing, when the issue is re-litigated at trial, we
review all of the presented evidence. Ervin, 333 S.W.3d at 203; see also Gutierrez
v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Accordingly, we consider
the entire record in reviewing the trial court’s ruling. Gutierrez, 221 S.W.3d at 687.
We first consider whether Zapata was in custody when he confessed. 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 (Tex. Crim. App. 1996)
(citation omitted); see also Herrera, 241 S.W.3d at 525–26. “The construction of
‘custody’ is the same for both Miranda and article 38.22 purposes.” Richard v.
State, No. 01–11–00945–CR, 2013 WL 4676129, at *6 (Tex. App.—Houston [1st
9
Dist.] Aug. 27, 2013, no. pet.) (mem. op., not designated for publication) (citing
Herrera, 241 S.W.3d at 526.). “The defendant bears the initial burden of proving
that a statement was the product of a custodial interrogation.” Id. (citing Gardner
v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009)).
We determine custody on a case-by-case basis, only after considering all of
the objective circumstances. Dowthitt, 931 S.W.2d at 255; Herrera, 241 S.W.3d at
525. Even though an interrogation may begin as noncustodial, it may later become
custodial. Dowthitt, 931 S.W.2d at 255. Police conduct during the questioning may
escalate the circumstances into a custodial interrogation. Id. When determining
whether a custodial situation arose, we consider whether the suspect voluntarily
arrived for the interrogation, the length of the interrogation, whether the suspect’s
requests to see relatives and friends were refused, and the degree of control
exercised over the suspect. Ervin, 333 S.W.3d at 205. We next address each of
these factors.
1. Voluntariness of arrival at police station
First, we consider the circumstances of Zapata’s arrival at the police station.
Zapata argues that he was in custody after giving his first version of Ojeda’s
murder because Detective Alanis testified that, after Zapata said that he shot Ojeda,
“he would not have allowed him to leave.” For this factor, however, our review
10
examines “whether the suspect arrived at the place of interrogation voluntarily.”
Ervin, 333 S.W.3d at 205. He did.
According to Detective Alanis, Zapata was the last person who saw Ojeda
before his body was found. When Detective Alanis requested to ask Zapata
questions about Ojeda, Zapata willingly rode with Alanis to the police station for
an interview. Detective Alanis testified that he did not have a warrant for Zapata’s
arrest at that time and he did not make any attempt to arrest him. Detective Alanis
told Zapata that he was free to leave. And Zapata was not placed under any
physical restraints during the interview. The trial court could have reasonably
concluded that Zapata voluntarily participated in the interrogation. See Ervin, 333
S.W.3d at 205–6 (holding defendant not in custody when she consented to ride
with officers to station, consented to search, and officers told her that she was not
under arrest and could leave at any time); see also Oregon v. Mathiason, 429 U.S.
492, 495, 97 S. Ct. 711, 714 (1977) (holding defendant not in custody when he
voluntarily went to police station, officers told him he was not under arrest, and he
was free to leave). This factor favors the conclusion that Zapata was not in
custody.
Zapata asks us to focus our review on whether his subsequent participation
in the interrogation became involuntary. We review that question under the next
three Ervin prongs.
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2. Length of interrogation
The next factor considers the length of the interrogation. Zapata does not
argue that the length of the interrogation supports a conclusion that he was in
custody. See, e.g., Meek v. State, 790 S.W.2d 618, 622 (Tex. Crim. App. 1990)
(holding no custody when suspect voluntarily attended interview, was free to leave,
had unsupervised access to his car, and was allowed to leave “a few hours” later);
Ervin, 333 S.W.3d at 208–09 (holding four hours at police station does not give
rise to reasonable belief of custody), cf. Dowthitt, 931 S.W.2d at 256–57 (holding
six hours of interrogation prior to statement is important factor in determining
whether custody occurred before formal arrest). The interview transcript is short:
the time stamp on the transcript indicates the interview lasted less than one hour
and fifteen minutes. Accordingly, the length of the interrogation does not support a
conclusion that Zapata would have had a reasonable belief that he was in custody.
3. Access to friends or family
We next consider whether law enforcement restricted Zapata’s access to
friends, family, or a lawyer. See Ervin, 333 S.W.3d at 205. A suspect’s ability to
access friends and family supports a conclusion that the suspect is not in custody.
See Ervin, 333 S.W.3d at 208–09. Zapata did not request to speak with or visit his
friends or family. Nor did Alanis deny him access to his friends or family. Zapata
also did not request to speak with a lawyer or to have a lawyer present during the
12
interrogation. Although Zapata twice mentioned the word “lawyer,” he did not
request and police did not deny him access to counsel. The fact that Zapata was not
denied access to friends or family or a lawyer supports a conclusion that he was not
in custody during the interrogation.
4. Degree of control exercised
Lastly, we consider the degree of control that law enforcement officers had
over Zapata. Whether a law enforcement officer exercises control over a person
such that it amounts to custody depends on whether “a reasonable person would
have believed he could not leave freely.” Herrera, 241 S.W.3d at 528. In Dowthitt,
the Court of Criminal Appeals held that the law enforcement officers exercised a
custodial level of control over the defendant when they accompanied him to the
bathroom and ignored his complaints about headaches and his requests to see his
wife. 931 S.W.2d at 256–57. Zapata does not raise similar claims, nor did he make
similar requests. By contrast, Alanis, at least twice, offered Zapata food and water
and the opportunity to access a restroom. During the entire time Zapata was
interrogated, Alanis did not restrain or handcuff Zapata or limit Zapata’s ability to
leave the police station.
Zapata does not contend the police control exercised over him; accordingly,
this factor also favors the conclusion that he was not in custody during the
interrogation.
13
Having considered the four Ervin factors, we conclude that the facts do not,
on balance, suggest that a reasonable person in Zapata’s circumstances would have
believed that he was under restraint to the degree associated with arrest, and,
therefore, Zapata was not in custody.
C. Probable cause to arrest
Zapata contends that while he voluntarily appeared for the interview, it
became a custodial situation after he admitted to the first version of Ojeda’s
murder. He argues that after he told the first version of the murder, Detective
Alanis had probable cause to arrest him and that Detective Alanis would not
thereafter have allowed him to leave freely. See Dowthitt, 931 S.W.2d at 257
(holding that once defendant admitted to being present during murders that he was
in custody).
A police officer’s informing the suspect of probable cause 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. at 255. The “‘reasonable person’ standard presupposes an innocent person.” Id.
at 254. The inquiry examines the words or actions of law enforcement officials
and focuses entirely on objective circumstances. Id.
14
Zapata likens his circumstances to those addressed in Ruth v. State, in which
the Court of Criminal Appeals held that when a suspect admitted to shooting the
victim, explained his motive, and reenacted the offense, the interrogation became
custodial because a law enforcement officer had probable cause to arrest him. Ruth
v. State, 645 S.W.2d 432, 435 (Tex. Crim. App. 1979). The Court considered the
law enforcement officer’s subjective intent, the suspect’s subjective belief, the
investigation’s focus, and whether there was probable cause for arrest. Id. at 436.
The law enforcement officer did not give Miranda warnings and “inten[ded] to
restrain the appellant until he made a statement.” Id. This intention gave rise to the
suspect’s “subjective belief that he was required to answer [the questions]” and
there was probable cause to arrest the suspect. Id. Based on the totality of these
circumstances, the Court held that the suspect was in custody following the
statement. Id.
The facts in this case significantly differ from those in Ruth. Unlike the
suspect in Ruth, Zapata was told he could leave and that he was not in custody. In
Ruth, the suspect believed he was required to stay and answer the officers’
questions. No comparable evidence exists in this case.
Moreover, the law has changed since Ruth. After Ruth, the Court of Criminal
Appeals interpreted Stansbury as requiring a modification of the test for
determining custody. Dowthitt, 931 S.W.2d at 255 (citing Stansbury v. California,
15
511 U.S. 318, 114 S. Ct. 1526 (1994)). The Court of Criminal Appeals deleted two
of the four inquiries used at the time of Ruth—the subjective beliefs of the officer
and suspect—and modified the probable cause inquiry to focus on whether there
was a manifestation by the officers that they had probable cause. Id.
Thus, the inquiry we must conduct under the probable cause basis for
establishing custody is two-fold: (1) whether Detective Alanis had probable cause
to arrest Zapata after he first confessed to shooting Ojeda and (2) whether a
reasonable person who was innocent would have had a reasonable belief under the
circumstances that he was in custody. See Dowthitt, 931 S.W.2d at 255; Ervin, 333
S.W.3d at 205; see also State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.—El
Paso 1999, pet. ref’d) (holding probable cause alone was insufficient to establish
custody, officers must tell suspect that they have probable cause).
We assume that when Zapata first confessed to shooting Ojeda, Detective
Alanis had probable cause to arrest him. See Dowthitt, 931 S.W.2d at 256 (noting
police had probable cause to arrest suspect once he admitted that he was present
during the murder); see also Ruth, 645 S.W.2d at 436. We turn, therefore, to the
second inquiry of whether Detective Alanis “communicated or otherwise
manifested” to Zapata that he had probable cause to arrest him. Dowthitt, 931
S.W.2d at 254.
16
Zapata argues that he was in custody because Detective Alanis testified at
the hearing on the motion to suppress that “he would not have allowed him to
leave” after the first time Zapata admitted to the shooting. However, “the
subjective intent of law enforcement officials to arrest is irrelevant unless that
intent is somehow communicated or otherwise manifested to the suspect.”
Dowthitt, 931 S.W.2d at 254; see also Stansbury, 511 U.S. at 324, 114 S. Ct. at
1530 (noting “one cannot expect the person under interrogation to probe the
officer’s innermost thoughts . . . . [A]n officer’s evolving but unarticulated
suspicions do not affect the objective circumstances of an interrogation or
interview”). There was no evidence that Detective Alanis communicated to Zapata
that he had probable cause to arrest him or that Zapata could not leave.
Accordingly, we conclude that Zapata’s interview did not become custodial when
Zapata first took responsibility for shooting Ojeda. While probable cause may have
existed after Zapata’s first statement, Detective Alanis never communicated that
fact to Zapata. We, therefore, hold that the record supports the trial court’s
determination that Zapata was not in custody when he gave his second statement
accounting for Ojeda’s death.
Because Zapata was not in custody, he did not have a right to an attorney
and Detective Alanis was not obligated to stop the interview. Therefore, we
17
conclude that the trial court did not abuse its discretion in denying Zapata’s motion
to suppress.
We overrule Zapata’s sole issue.
Conclusion
We affirm.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
18