Ashley Ervin v. State

Opinion issued August 11, 2010

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO. 01-08-00121-CR

———————————

Ashley Ervin , Appellant

V.

The State of Texas , Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 1074292

O P I N I O N

Appellant, Ashley Ervin, appeals from

a judgment convicting her for the capital murder of Brady Davis. See Tex. Penal

Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). Appellant pleaded not guilty to the

jury. The jury found her guilty, and,

because the State did not seek the death penalty, punishment was automatically

assessed at life imprisonment without parole.

See id. § 19.02(b)(1)

(Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009). In seven issues, appellant

challenges the legal and factual sufficiency of the evidence to sustain the

conviction and the trial court’s admission of her three statements made to the

police, which she claims were made in violation of Miranda v. Arizona , 384 U.S. 436 , 478–79, 86 S. Ct. 1602, 1630

(1966). We conclude that the evidence is

legally and factually sufficient; that the trial court properly admitted the first

two statements because statutory warnings were not required for appellant, who

was not in custody; and that the court properly admitted the third statement

that was made following waiver of Miranda

warnings because the evidence fails to show that the officers deliberately

employed a two-step interrogation technique to circumvent Miranda . We affirm.

Background

On May 25, 2006, while she was walking

from the bus stop near her house at around 5:30 a.m., Mary Ann Crutcher was

approached by a man in a hoodie threatening her with a semi-automatic gun. He ran from her when she refused his demand

to give him any money and jewelry. About

an hour after this attack, Davis was two blocks away at a carwash cleaning his

barbeque pit. He was shot and killed

with a semi-automatic gun that used .380 caliber ammunition. When she learned about his death, Davis’s

wife noticed that his cell phone was missing.

Houston police officer A. Brown was assigned the Davis case, but he did

not have any information about who committed the offenses.

One month later on June 23, officers with the homicide

division of the Houston Police Department were working together to solve a

missing persons report concerning the disappearance of Maria Aparece and Huy

Ngo, an offense that occurred three weeks after the Davis murder. Officers Arnold and Termuelen were attempting

to locate Keithron Fields to execute a “pocket” arrest warrant for him for that

case. The officers did not have a

warrant for appellant, and she was not a suspect. Because Keithron was dating appellant, Officers

Arnold and Termuelen tried to locate him at appellant’s house, where she lived

with her mother, Serena Hawkins. Keithron

was not at the house at 3:00 p.m.

Hawkins, however, told the officers that appellant drove a black Nissan

and worked at McDonalds at Deerbrook Mall.

At 4:30 p.m., Officers Arnold and Termuelen, who were in

plain clothes, went to the McDonalds at the Deerbrook Mall, where they found

appellant working the front cash register.

They asked her if she would come with them because they were conducting

an investigation. She was “very polite”

and agreed. The officers asked appellant

about her car because they believed a black vehicle may have been used in the

Aparece and Ngo offense. When appellant

showed them her black car, they asked for consent to search it, and she

agreed.

At 5:40 p.m., while she was at the mall parking lot,

appellant signed a written consent allowing officers to search her black Nissan

Sentra. The officers had the car towed

to the police department’s fingerprint stall.

The keys to the car went with the car when it was towed, and officers

could not recall whether her house keys were on the same ring with her car keys

that went with the car.

Officer Arnold asked appellant if she “minded”

coming to the police station to give a statement. She agreed.

But having agreed to allow the officers to tow her car, appellant needed

a ride to the police station to give her statement. She rode to the station in a marked patrol

unit because no one with an unmarked car from the homicide division was

available to drive her to the station, and Officer Arnold still had work in the

field to complete. Appellant left the

mall in the patrol car shortly after she signed the consent form. She was not in custody, was not handcuffed,

and was free to leave if she wished, though she would have had to ask the

officer to let her out of the car because the car did not have door handles

inside the passenger compartment.

When she arrived at the police

station, she began speaking to Sergeant Motard at about 6:00 p.m. Sergeant Motard was asked by Officer Miller,

who was investigating the Aparece and Ngo case, to speak to appellant. Appellant was not handcuffed, was not in

custody, and was told by Sergeant Motard that “she was not under arrest and she

was free to go anytime she wanted to.”

He explained that he did not read Miranda

warnings to her because she was not in custody and he did not view her as a

suspect. He questioned her because she

was the girlfriend of one of the suspects, and her car may have been involved

in the Aparece and Ngo case.

At first, Sergeant Motard spoke to appellant in a conference

room near his desk, but then they moved to his cubicle to type the statement on

his computer. Appellant was 17 years of

age, had completed 12 years of formal education, and was to begin her senior

year of high school that fall. Before he

started speaking to her, Sergeant Motard offered her food, a drink, and the

opportunity to go to the restroom. Appellant

declined all the offers.

Appellant was cooperative as she spoke to Sergeant Motard about

the Aparece and Ngo case. Appellant

revealed that she had a relationship with the people who were suspected of

committing the Aparece and Ngo offense. Appellant

was dating Keithron; was the cousin of Tim Randle; was the “distant cousin” of

Alvie Butler; and was friends with Dexter Johnson, who in the past had lived

near her. Appellant’s first written

statement described her mere presence at the capital murder of Aparece and Ngo committed

by Tim, Alvie, Keithron, and Dexter, when they were all in her black car with

her as the passenger. Tim, the driver of

her car, dropped off Dexter, Alvie, and Keithron, who approached a blue car. After a few minutes, she saw Dexter driving

the blue car, with Alvie in the back seat and Keithron in the front passenger

seat. Tim followed the blue car to a

wooded area near a park. Dexter pulled

into the woods, got people out of the blue car, and took them to the

woods. Appellant then heard two

gunshots, with a small pause between the shots.

Dexter and Keithron drove away in the blue car with Tim following them in

appellant’s car with her as the passenger.

Dexter told appellant he shot the people in the head. Appellant then went with the men to Keithron’s

apartment. When she completed making

her statement, appellant signed it before a notary, representing that it was

true and correct to the best of her knowledge.

After appellant finished making the

first written statement, Sergeant Motard discussed appellant’s version of

events with other officers to see if it was consistent with what the officers

had learned from speaking to other people who had given information about the

Aparece and Ngo case. Because he thought

the “same crew” that committed the Aparace and Ngo crime could be involved in

the Davis case, Officer Brown asked Sergeant Motard to ask appellant about the

unsolved Davis case. This was a “fishing

expedition,” according to Sergeant Motard. When appellant acknowledged she had some

information about the Davis case, Sergeant Motard decided to take a written

statement from her about that case.

In the second written statement, appellant acknowledged that three

weeks before the Aparece and Ngo offense, she was with Dexter and Keithron when

they committed two other offenses on one night and early morning. Appellant stated that when Keithron tried to

take money from a lady at a bus stop, appellant was in the passenger’s seat

while Dexter drove her car. After that, appellant

became the driver of her car. She drove Dexter

and Keithron to a carwash knowing they were going to rob someone there, left

them there, and picked them up after she heard a gunshot. Appellant’s written description of the events

in the Davis case stated,

About three weeks ago, Dexter, Keithron, and I had

been out all night. Dexter was driving

and I was in the back seat. Keithron was

in the front seat. Toward morning, I

fell asleep on the back seat while they were driving around. Sometime around mid-morning, I heard the

passenger car door slam and awoke to see Keithron getting back in the car. He was wearing a hoodie jacket and the hood

was on his head. Keithron told Dexter

the woman didn’t have any money and we drove off. We were in the neighborhood called Northwood

Manor. Dexter drove around on the

streets looking for someone to get money from.

Apparently, there was no one to get money from so Dexter stopped and let

me drive. Dexter got in the back seat.

I started driving on Homestead toward Keithron’s

apartment in Humble. I stopped at the

light on Homestead and Hartwicke and there was a carwash on the corner with a

man washing a large truck. Dexter said, “Let us out here[.]” Dexter and Keithron got out of my car . I knew

they were going to rob someone in the carwash . I turned down around and turned [off]

Homestead onto Guadalupe. I drove around for two or three

minutes. During that time I heard one

gunshot. It was loud and came from the

direction of the carwash . I pulled

back onto Guadalupe and saw Dexter and Keithron standing in the street. They had their black hoodies on with the

hood up and they were holding their black bandana masks. I stopped the car and the[y]

both got in . Dexter and Keithron got

into the car and they were out of breath like they had been running. . . . I drove

on to Keithron’s house and we went inside . . . .

(Emphasis added).

Appellant said that Dexter and Keithron explained to her that they had

shot the man at the carwash because the man elbowed Dexter in an attempt to run

away. According to Sergeant Motard, the

first time he learned that appellant was the driver in the Davis case was when

she told him during the time he took the second statement from her, and it was

at that point that he first felt she could be “possibly culpable.”

The

remainder of the second statement by appellant described the weekend of June 10

when Keithron borrowed her car and later told her the car had been stolen. The recovery of her car ultimately led to it

being towed to the police station. When

the officers towed the car, they found marijuana and a firearm in the car, but

missed finding a .380 firearm that was under the back seat. After recovering the car from the police

impound, appellant’s cousin Tim took a .380 firearm out of the car and gave it

to Dexter. This evidence showed that

appellant knew that Dexter had the same caliber gun that was used to kill

Davis. At the end of this written

statement, appellant represented that the statement she made was true and

correct to the best of her knowledge, and swore to its contents.

After she

made the second written statement, appellant was told that Dexter, who had been

speaking to Officer Abbondondalo, wanted to speak with her if she wanted to

speak to him. Appellant walked alone

from Sergeant Motard’s cubicle to Dexter, who was at Officer Abbondondalo’s

cubicle. Dexter and appellant spoke

privately for several minutes before she returned to Sergeant Motard’s

cubicle. When she returned to the

cubicle, she appeared teary eyed and emotional. Sergeant Motard believed she

was upset about “everybody’s circumstance that are her friends.” Sergeant Motard and Officer Abbondondalo

drove appellant home at around 10:30 p.m. or 11:00 p.m. and told her mother

that appellant was hanging out with some bad guys and needed to stop doing

that.

The

next day, June 24, the officers discussed the crimes and realized there was a

discrepancy between appellant’s statement, who said Alvie and not her brother,

Louis Ervin, were at the murders of Aparece and Ngo, and the statements by Tim,

Alvie, and Dexter, who said Louis was a participant. Sergeant Motard was not sure whether

appellant’s version was correct or whether the statements by the men were

correct.

At

12:45 p.m., Sergeant Motard, Officer Brown, and Officer Abbondondalo went to

appellant’s house and saw a large group of people there. Appellant agreed to return to the police

station to clarify her earlier statements.

She changed clothes and then rode to the police station in an unmarked

Ford Taurus. While walking to the

interview room, Sergeant Motard mentioned the discrepancy about whether it was

Louis or Alvie who was present at the Aparece and Ngo capital murder. Appellant acknowledged the mistake, stating

it was Louis. She then agreed to make

another statement. This time, Sergeant Motard

used a tape recorder to document the statement because that method was easier

for him. Sergeant Motard read appellant

her rights, explaining in his trial testimony that he did so “just as a

precaution.” Appellant waived her

rights. Appellant was offered food and a

drink. She was allowed to use the

restroom upon request and, according to the officers, was not in custody. The third statement, which began at 1:20 p.m.

and lasted about eight minutes, repeated the contents of the first and second

statements in that all the statements concern the same subjects, the capital

murder of Davis, and the capital murders of Aparece and Ngo.

In

the third statement, the recording documented Sergeant Motard reading appellant

her rights and her waiver. He reminded

her that last night she was at the police station, not under arrest, and had

made some statements. He stated that it

was his understanding that she wanted to change her statements from the

previous night in order to correct some of the names of people she spoke

about. In discussing the case about the man

at the carwash, appellant acknowledged that she drove the car and was with Keithron

and Dexter. He asked her to finish in

her own narrative about what happened.

She stated she was asleep in her car with Dexter driving. She awoke when she heard Keithron slam the

car door after returning from a robbery of a woman. She said Keithron stated the lady did not

have any money so he threw away her wallet.

Sergeant Motard asked if the lady was shot. Appellant said the lady was not shot. Sergeant Motard asked if this was when she

became the driver instead of Dexter.

Appellant said “yes.” Appellant

said that she drove the car back towards Humble. At some point, near the Homestead

intersection, Dexter and Keithron asked to be let out and she complied. She let them out near a carwash. Dexter and Keithron had guns in their hands,

and put on black bandanas and hoodies after they got out of the car. Appellant drove, turned down a new street,

heard a shot, and then turned back around to drive back towards the carwash. As she drove back, she saw Dexter and Keithron

in their hoodies standing in the middle of the street flagging her down. She picked them up and they returned to Keithron’s

house. She stated that Dexter told her

the man in the carwash elbowed him in an attempt to get away and that was why

he shot him. She stated Keithron later

confirmed this story to her. No money was

taken from the man. After they returned

to Keithron’s house, Dexter was very interested in watching the news to see

what had happened to the man he shot.

When

appellant finished making the statement, she was shown where her family was

located in the family room at the police station. Louis, her brother, had also arrived and was

speaking to a police officer. Appellant

was not in handcuffs or in custody when she returned to be with her family.

The

officers spoke to an assistant district attorney about whether charges would be

accepted on appellant. When a judge

signed a probable cause warrant for appellant, Sergeant Motard told appellant about the charge, and

she left the family waiting area to walk with him back to his cubicle to await

a patrol officer. A patrol officer

handcuffed appellant and took her into custody after that.

Appellant

filed a written motion to suppress, which was litigated prior to trial before

the jury. Officer Arnold and Sergeant Motard

testified, as well as appellant and her mother, Hawkins. Appellant said she believed she was in

custody when she consented to the search and made the statements to the police. Hawkins said she was not allowed to go with

the officers to speak to appellant when they initially went to the McDonalds

and that appellant did not answer her cell phone when Hawkins called her. During cross-examination, Hawkins

acknowledged she had previously been twice convicted of felonies. The trial court denied the motion to

suppress, making findings of fact and conclusions of law to support the ruling.

At trial,

redacted portions of the three statements were admitted into evidence. Appellant presented no evidence in her

defense. The jury charge allowed the

jury to convict appellant as a principal actor, or as party by aiding in the

capital murder, or as a party as a conspirator.

Sufficiency of the Evidence

In her fifth and seventh issues, appellant contends the

evidence is legally and factually insufficient to sustain her conviction

because the evidence failed to show that she entered into a conspiracy with Dexter

and/or Keithron to commit robbery, that Dexter or Keithron shot and killed

Davis in furtherance of the conspiracy, and that she should have anticipated

the killing of Davis as a result of carrying out the conspiracy. We

determine that the evidence shows appellant’s guilt as a conspirator under the law

of parties.

A. Legal and

Factual Sufficiency

In a legal sufficiency review, we

consider the entire trial record to determine whether, viewing the evidence in

the light most favorable to the verdict, a rational jury could have found the

accused guilty of all essential elements of the offense beyond a reasonable

doubt. See Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App.

2007). We “may not re-evaluate the

weight and credibility of the record evidence and thereby substitute our

judgment for that of the [factfinder].” Williams ,

235 S.W.3d at 750 . We give deference to

the responsibility of the factfinder to fairly resolve conflicts in testimony,

to weigh evidence, and to draw reasonable inferences from the facts. Id.

Evidence is factually insufficient

if, when all the evidence is examined neutrally, (1) the evidence supporting

the conviction is “too weak” to support the factfinder’s verdict or (2)

considering conflicting evidence, the factfinder’s verdict is “against the

great weight and preponderance of the evidence.” Laster

v. State , 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). In reviewing the factual sufficiency of the

evidence, we should afford almost complete deference to a jury’s decision when

that decision is based upon an evaluation of credibility. Lancon v. State , 253 S.W.3d 699, 705

(Tex. Crim. App. 2008). The jury may

choose to believe some testimony and disbelieve other testimony. Id. at 707 .

Although appellant challenges the

admission of her statements, we address that matter separately from our

analysis of the sufficiency of the evidence.

“It is well-settled that in reviewing evidence sufficiency claims, the

appellate court must consider all of the evidence presented, whether properly

or improperly admitted.” Fuller v. State , 827 S.W.2d 919, 931

(Tex. Crim. App. 1992).

B. Capital Murder Under Conspiracy Theory of

Law of Parties

A person commits capital murder if

she intentionally or knowingly causes the death of an individual and

intentionally commits the murder in the course of committing or attempting to

commit robbery or aggravated robbery. Tex. Penal Code Ann. §§ 19.02(b)(1),

19.03(a)(2); Sholars v. State , No.

01-08-00060-CR, 2009 WL 3050866, at *8 (Tex. App.—Houston [1st Dist.] Sept. 24,

2009, pet. ref’d). A person commits

robbery if, in the course of committing theft and with intent to obtain or

maintain control of the property, he intentionally, knowingly, or recklessly

causes bodily injury to another, or intentionally or knowingly threatens or

places another in fear of imminent bodily injury or death. Tex.

Penal Code Ann. § 29.02(a) (Vernon 2003); Sholars , 2009 WL 3050866, at *8 .

Aggravated robbery is robbery with the use or exhibition of a

firearm. Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2003); McElhaney v. State , 899 S.W.2d 15, 17

(Tex. App.—Tyler 1995, writ. ref’d). A firearm is a deadly weapon. Tex.

Penal Code Ann. § 1.07(17) (Vernon Supp. 2009).

“[I]ntent to kill may be inferred

from the use of a deadly weapon, unless it would not be reasonable to infer

that death or serious bodily injury could result from the use of the

weapon.” Sholars , 2009 WL 3050866, at *9 ; Dominguez v. State , 125 S.W.3d 755, 761 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d) (holding evidence permitted inference of intent to kill when defendant

and other members of his gang planned to rob person walking alone at night,

and, in course of theft or attempted theft of complainant, defendant retrieved

loaded shotgun from car trunk and shot complainant in abdomen, resulting in

complainant’s death). Intent may also be

inferred from the means used and the wounds inflicted, and is a factual matter to

be determined by the jury from all the facts and circumstances in evidence. See

Hemphill v. State , 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). “When a deadly weapon is fired at close

range, and death results, the law presumes an intent to kill.” Sholars ,

2009 WL 3050866, at *9 .

Under the law of parties, the jury

could have found appellant guilty of capital murder if it concluded that the

murder was committed in an attempt to carry out a conspiracy to commit aggravated

robbery with a deadly weapon, and, though appellant had no intent to commit the

murder, it was committed in furtherance of the unlawful purpose and should have

been anticipated as a result of the carrying out of the conspiracy. Tex.

Penal Code Ann. § 7.02(b) (Vernon 2003); Love v. State , 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d). In determining

whether the accused participated as a party, the court may look to events

occurring before, during, and after the commission of the offense. Ransom

v. State , 920 S.W.2d 288 , 302 (Tex. Crim. App. 1994). “Evidence that a defendant knew his

co-conspirators might use guns in the course of the robbery can be sufficient

to demonstrate that the defendant should have anticipated the possibility of

murder occurring during the course of the robbery.” Love ,

199 S.W.3d at 453 .

Since an agreement between parties to act together in common

design can seldom be proven by words, the State often must rely on the actions

of the parties, shown by direct or circumstantial evidence, to establish an

understanding or a common design to commit the offense. Miller v. State , 83 S.W.3d 308, 314

(Tex. App.—Austin 2002, pet ref’d); see

Wygal v. State , 555 S.W.2d 465, 469 (Tex. Crim. App. 1977)

(circumstantial evidence sufficient to show guilt as party). The agreement, if any, must be made before or

contemporaneous with the criminal event, but in determining whether one has

participated in an offense, the court may examine the events occurring before,

during, and after the commission of the offense. Beier v. State , 687 S.W.2d 2 ,

3–4 (Tex. Crim. App. 1985); Miller , 83 S.W.3d at 314 . Presence at the scene may be considered in

determining whether a defendant was a party to the offense, but mere presence

at the scene without more is insufficient to prove guilt as a party. Valdez v. State , 623 S.W.2d 317, 321

(Tex. Crim. App. 1979) (op. on reh’g); Miller , 83 S.W.3d at 314 .

C.

Analysis

Appellant’s guilt is established by

her own words documented in her second and third statements. No evidence contrary to her statements was

admitted at the trial. In her statements,

appellant admits that she drove Dexter and Keithron to the carwash where a man

was washing a barbeque pit in a large truck, and she dropped them off there. She admits she knew Dexter and Keithron both had guns. She saw them put on their bandana masks and

hoodies as they got out of her car.

She states that she “knew they were going to rob someone in the carwash.” While the two men were robbing the man at the

carwash with a firearm, appellant acknowledges that she stayed nearby. After she heard a loud gunshot coming from

the direction of the carwash, she returned to the location to pick up Dexter

and Keithron, who were standing on the street wearing black hoodies and holding

their black bandana masks. Appellant

stopped her car, they got in the car, and she drove them from the carwash to Keithron’s

house.

From this evidence, the jury could

have reasonably determined that appellant entered into an agreement with Dexter

and Keithron to commit the aggravated robbery of the man at the carwash, Davis,

because she drove them to the location, left them there with their guns and

wearing bandana masks and hoodies, knowing they were going to rob the man. The jury could also have reasonably

determined that Dexter murdered Davis in furtherance of the conspiracy to rob

him because he shot him during the course of taking Davis’s cell phone that

Davis’s wife said was missing from Davis.

Furthermore, from appellant’s statements, the jury could have reasonably

determined that she should have reasonably anticipated the murder of Davis by

Dexter as a result of the carrying out of the conspiracy because she knew he had

a loaded firearm when he went wearing a mask and hoodie to rob Davis. She also knew that immediately before Davis

was killed, Dexter had driven Keithron to an area nearby where Keithron had

robbed a lady at a bus stop with a firearm.

Viewing the evidence in the light

most favorable to the verdict, a rational jury could have found that appellant,

acting as a conspirator under the law of parties, was guilty of all essential

elements of capital murder beyond a reasonable doubt. See

Love , 199 S.W.3d at 453 . Examining

the evidence neutrally, we conclude the evidence supporting the

conviction is not too weak to support the jury’s verdict. See

Laster , 275 S.W.3d at 518 . Because no contrary evidence was introduced

at appellant’s trial, we also conclude the jury’s verdict is not “against the

great weight and preponderance of the evidence.” See

Roberson v. State , 16 S.W.3d 156, 171 (Tex. App.—Austin 2000, pet.

ref’d). We hold the evidence is legally and factually sufficient to sustain the

conviction as a conspirator under the law of parties.

We overrule appellant’s fifth and seventh issues. We need not address, therefore, appellant’s

fourth and sixth issues that assert the evidence is legally and factually insufficient

to convict her as a party by aiding the capital murder.

Motion to Suppress

Appellant

challenges the trial court’s denial of her motion to suppress the two written

statements and third statement, the tape recorded oral statement. Appellant contends that the three statements

must be suppressed because she should have been given her statutory warnings

when she made the two written statements while she was in custody, and the

third statement repeated the contents of the first two statements, making the

warning preceding the third statement ineffective.

A. Standard

of Review

“A trial court’s

ruling on a motion to suppress, like any ruling on the admission of evidence,

is subject to review on appeal for abuse of discretion.” Amador

v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); see Swain v. State , 181

S.W.3d 359, 365 (Tex. Crim. App. 2005). “In

reviewing a trial court’s ruling on a motion to suppress, appellate courts must

view all of the evidence in the light most favorable to the trial court’s

ruling.” State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App.

2008).

We conduct

our review of the trial court’s ruling through a bifurcated standard of

review. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App.

2007). We do not engage in our own

factual review, rather the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given to their

testimony. Id. Trial courts are given

almost complete deference in determining historical facts. Id. We are to “afford the same amount of

deference to trial courts’ rulings on ‘application of law to fact questions,’

also known as ‘mixed questions of law and fact,’ if the resolution of those

ultimate questions turns on an evaluation of credibility and demeanor.” State

v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997)). We review de novo

“mixed questions of law and fact” not falling within that category. Id.

More specifically, a trial court’s ultimate

“custody” determination “presents a ‘mixed question of law and fact.’” Herrera

v. State , 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Therefore, we afford almost total deference

to a trial court’s “custody” determination when the questions of historical

fact turn on credibility and demeanor. Id. at 527 . Conversely, when the questions of historical

fact do not turn on credibility and demeanor, we will review a trial judge’s

“custody” determination de novo. Id.

Here, i n assessing whether the trial court properly admitted the statements,

we must defer to the trial court’s findings that Sergeant Motard and Officer Arnold

were credible witnesses, and that appellant and Hawkins were not credible

witnesses. See St. George , 237 S.W.3d at 725 .

Appellant

suggests we should disregard the trial court’s findings concerning the

credibility of the witnesses. The

record, however, contains conflicting evidence from the various witnesses about

many disputed facts. Reconciliation of

the evidence based on who is credible is a matter uniquely reserved for the

trial court. See id. Furthermore, the impeachment

of the officers that is suggested in this case largely comes from resorting to

evidence presented in other trials — evidence not presented to the trial court in this

case. But our task is to review the

evidence actually before the trial court in this case rather than resorting to

external facts not before the court when it made its decision. [1] As noted above, we give almost complete

deference to the trial court’s custody determinations when those determinations

turn on the credibility of the evidence before the trial court. See

Herrera , 241 S.W.3d at 526 .

The trial court made a pre-trial

determination that appellant’s statements were admissible. At trial, the State asked Officer Arnold

questions concerning the issue of whether appellant was in custody. Appellant cross-examined Officer Arnold on

the issue as well. Both the State and

appellant also questioned Sergeant Motard extensively on this issue. Although, generally, our review of a

pre-trial motion to suppress is limited to the evidence presented at the

pre-trial hearing, where, as here, the parties re-litigate the issue

during the trial on the merits, we review all the evidence presented. Gutierrez v. State , 221 S.W.3d 680, 687 (Tex. Crim.

App. 2007) ; Rachal v. State , 917 S.W.2d 799, 809 (Tex. Crim.

App. 1996). During

the trial, appellant’s attorney re-urged the objections to the introduction of

appellant’s statements and the trial court overruled the objections. To the extent that the officers testified

differently at the trial than at the motion to suppress hearing, the trial

court considered that when it overruled appellant’s objections and when it made

its findings. See Gutierrez , 221 S.W.3d at 687 ; Rachal , 917

S.W.2d at 809 . Because the trial court ruled on the admissibility

of appellant’s statements during trial, it considered the entire testimony of

the officers in making its credibility determination, and we must defer to that

finding. See Herrera , 241

S.W.3d at 527 ; St. George , 237 S.W.3d at 725 .

We also

note that the standard of review for the law applicable to this case is the law

pertaining to statements taken from adults, not juveniles, as appellant

suggests on appeal. Appellant contends

that because she had recently turned 17 years of age, the warnings for

juveniles should have been used in her case. See Jeffley v. State , 38

S.W.3d 847, 854 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The juvenile procedures are inapplicable,

however, because, at 17 years of age, appellant was an adult at the time of the

offenses. See id.

B. Analysis

of First Two Statements

In her first

and second issues, appellant contends the trial court erred by admitting the

first two statements. We address the

first two statements together because they were taken on the same day within a

short period of time under the same circumstances without Miranda warnings.

1.

Applicable Law for Admission

of Noncustodial Statements

In Miranda , the United States Supreme Court

determined that an accused, held in custody, must be given the required

warnings “prior to questioning.” Jones v. State , 119 S.W.3d 766, 772

(Tex. Crim. App. 2003). The failure to

comply with the Miranda requirements

results in forfeiture of the use of any statement obtained during that

interrogation by the prosecution during its case-in-chief. Id. Similarly, the Code of Criminal Procedure provides that a statement is

admissible against a defendant in a criminal proceeding if, among other things,

the defendant was given the warnings set out in section 2(a) of article 38.22 before

the statement was made and the defendant “knowingly, intelligently, and voluntarily”

waived the rights set out in the warnings.

Herrera , 241 S.W.3d at 526 ; see also Tex.

Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a) (Vernon 2005).

For

a statement taken from a person in custody to be admissible, the person must be

informed of the following rights under the Code of Criminal Procedure:

(1) he has the right to remain silent and not make any statement at

all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as

evidence against him in court;

(3) he has the right to have a lawyer present

to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has

the right to have a lawyer appointed to advise him prior to and during any

questioning; and

(5) he has the right to terminate the interview

at any time.

Tex. Code

Crim. Proc. Ann. art. 38.22, § 2(a); see

Woods v. State , 152 S.W.3d 105, 116

(Tex. Crim. App. 2004) . The warnings provided in the Code are

virtually identical to the Miranda

warnings, with one exception—the warning that an accused “has the right to terminate

the interview at any time” as set out in section 2(a)(5) is not required by Miranda .

Herrera , 241 S.W.3d at 526 . As with the Miranda warnings, the warnings in article 38.22 of the Code are

required only when there is custodial interrogation. Id. ;

Wo ods , 152 S.W.3d at 116 ; Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a). Our construction of “custody” for purposes of article 38.22

is consistent with the meaning of “custody” for purposes of Miranda .

Herrera , 241 S.W.3d at 526 .

Four general situations may

constitute custody for purposes of Miranda

and article 38.22: (1) the suspect is physically deprived of his freedom of

action in any significant way; (2) a law enforcement officer tells the suspect

he is not free to leave; (3) 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) there is probable cause to arrest the

suspect, and law enforcement officers do not tell the suspect he is free to

leave. Gardner v. State , 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); see also Dowthitt v. State , 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The fourth category applies only when the

officer’s knowledge of probable cause is communicated to the suspect or by the

suspect to the officer; even then custody is established only “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.” Gardner , 306

S.W.3d at 295 n.48.

“[T]he question turns on whether, under the

facts and circumstances of the case, ‘a reasonable person would have felt that

he or she was not at liberty to terminate the interrogation and leave.’” Nguyen

v. State , 292 S.W.3d 671, 678 (Tex. Crim. App. 2009). The reasonable person standard

presupposes an innocent person. Dowthitt , 931 S.W.2d at 254 . 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 determination of custody must be made on an ad hoc basis, after

considering all of the (objective) circumstances.” Id. at

255 ; Martinez v. State , 171 S.W.3d

422, 430 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Stansbury v. California , 511 U.S. 318,

323 , 114 S. Ct. 1526, 1529 (1994)).

Factors for

determining if a person is in custody include “whether the suspect arrived at

the place of interrogation voluntarily, the length of the interrogation,

whether the suspect’s requests to see relatives and friends are refused, and

the degree of control exercised over the suspect.” Xu v.

State , 100 S.W.3d 408, 413 (Tex. App.—San Antonio 2002, pet. ref’d). After examining each of those factors, we also

address whether there was probable cause to arrest appellant and whether any of

the four situations constituting custody were established. Gardner , 306 S.W.3d at 294 .

2.

Voluntariness of Arrival at Police Station

Appellant

contends she was in custody when she arrived at the police station because (a)

her car and keys were taken without her voluntary consent to search, (b) her

cell phone was taken from her, (c) she rode in a police car to the police

station, and (d) she was told she was not free to leave. Neither the trial court’s findings nor the

record supports these assertions.

a. The Car and Keys

The trial

court’s findings of fact expressly determine that appellant consensually agreed

to have the officers take her car for a search.

The court finds:

5. While at the defendant’s job, they asked for

consent to search her car after they learned it was a black Nissan Sentra which

had been described as possibly linked to the offense they were investigating.

6. The defendant freely and voluntarily agreed

to the search of her vehicle . . . .

The record supports these findings. In the consent form signed by her, appellant made the

following acknowledgements:

In giving this consent, I authorize the officers to

seize any and all letters, papers, materials, and other property that they

desire.

I understand that I have the right to refuse to give

this consent to search and can refuse to sign this form.

I further state that no promises, threats, force,

physical nor mental coercion of any kind have been used against me in order for

me to agree to sign this document and to consent to the search(es) that I have

authorized above.

Appellant correctly notes that her car keys and possibly her

house keys went with her towed car.

Officer Arnold’s trial testimony explained that the car keys likely went

with the car and tow truck driver, and that the house keys may have been with

the car keys. Although he testified inconsistently at the pretrial motion

to suppress hearing by claiming that no one took appellant’s car or house keys,

Officer Arnold’s trial testimony stated, “[W]e keep the keys so the tower, the

wrecker driver[,] can do what he needs to do if he needs to turn the

wheel.” The fact that the officers

towed her car and took her keys cannot be a basis for concluding appellant

believed she was in custody because the record shows appellant consented to

those actions. See Dancy v. State , 728

S.W.2d 772 , 777–79 (Tex. Crim. App. 1987) (finding no custody when suspect voluntarily

came with police to station, voluntarily answered questions, consented to give hair

samples, consented to allow police to take his shoes to run print comparisons,

and was arrested at conclusion of interview).

b. Cell Phone

Appellant claims

officers took her cell phone so she could not call anyone, and Hawkins states that

she tried to reach appellant by cell phone but could not that day. However, the trial court found the testimony

by appellant and Hawkins as lacking in credibility. In contrast, the trial court found credible

the testimony by the officers who said they did not take the cell phone so it

must have been with appellant. Sergeant

Motard said appellant was free to call her mother if she wished and she did not

ask to use the telephone. He

acknowledged, however, that he did not offer her the use of a telephone. Because the evidence found credible by the

trial court showed that her cell phone was not taken from her by the officers,

appellant could not reasonably believe she was in custody for that reason.

c. Ride in Patrol Car

Although appellant states she “felt

like [she] had to go with them because they told [her] to,” the trial court

found her testimony not to be credible.

The findings of fact by the trial court determined appellant voluntarily

rode in the back seat of a patrol car from her work to the police station. The findings of fact by the trial court state,

7. The defendant voluntarily agreed to go to the

police station to be interviewed.

8. She was driven in a patrol car to the

station, but she was not held against her will, handcuffed, or forced to

accompany the officer.

9. She could have declined to go with police or

she could have requested to be returned to her job or home at any time. Police would have complied with her request,

but she did not make one.

The record

supports the trial court’s findings. Evidence

shows that Officer Arnold asked appellant if she “minded” going to the police

station to give a statement. Officer

Arnold explained that the reason she rode in the patrol car rather than an

unsecured car was because all the homicide officers with unsecured cars were

unavailable. Appellant was not

handcuffed. Officer Arnold said that although she

was in a marked patrol car with no door handles on the inside, if appellant had

wanted to get out she could simply have asked the patrol officer to let her out

of the car. Furthermore,

having voluntarily consented to having her car towed, appellant understood that

the reason she was riding in the patrol car was merely for a ride to the

station to give a statement, and not because she was in custody. The ride in the police car would not

reasonably cause appellant to believe she was in custody because she consented

to have officers take her car to be searched, she was not in handcuffs, she was

asked if she minded going to the police station to give a statement, she

voluntarily agreed to go with the officers to the police station, the marked

police car was the only car available to drive appellant to the police station

to give a statement, and the officers would have honored any request by her to

not accompany them.

d. Free to Leave

Although

appellant claims she was not told she was free to leave, the trial court

expressly made findings contrary to that assertion when it stated,

11. Before taking any statements, Sergeant Motard

informed the defendant that she was not under arrest and that she could leave

at any time.

.

. . .

16. Sergeant Motard did not threaten, coerce, or

promise the defendant anything in exchange for her statement.

.

. . .

18. The defendant agreed in her first written

statement that Sergeant Motard had told her she was not under arrest . . . .

The trial court found credible the

testimony by Sergeant Motard, who testified that app ellant was not handcuffed, was not in

custody, and was told by him that “she was not under arrest and she was free to

go anytime she wanted to.” Sergeant

Motard explained that he did not view her as a suspect, but instead as the girlfriend

of one of the suspects and that her car may have been involved in the

offense. Furthermore, the first

statement itself states, “I have been told I am not under arrest.” The record, therefore, supports the trial court’s findings

that appellant knew she was not under arrest because she was expressly advised

of that fact. See Oregon v. Mathiason ,

429 U.S. 492, 495 , 97 S. Ct. 711, 714 (1977) (holding person not in custody

when he came voluntarily to police station, was immediately informed that he

was not under arrest, participated in interview, and left police station

without hindrance).

Although

her keys went with her car to the police station to be searched, we conclude,

based on the trial court’s findings and the record, that appellant was not in

custody when she arrived at the police station.

Appellant voluntarily consented to accompany the officers to the police

station, and to have the officers search her car and take her keys. The officers did not take her cell phone or prevent

her from making telephone calls. Furthermore,

when she arrived at the police station, she was specifically told she was not

under arrest and could leave at any time.

3. Length

of Interrogation

Appellant

was at the police station for four hours when she made the two written

statements. The findings of fact state,

“The defendant remained at the station from approximately 6:00 p.m. until

approximately 10:00 p.m.” From 4:30 p.m.

to 6:00 p.m. before she got to the police station, appellant was in the mall parking

lot with Officer Arnold, and then she rode with another police officer to the

police station.

For approximately the first hour

from 6:00 p.m. to 7:05 p.m., appellant gave a statement about the Aparece and

Ngo capital murder that she witnessed when she was a passenger in her black

car. Between 7:05 p.m. and 8:30 p.m.,

Sergeant Motard discussed with other officers what appellant had revealed to

him and he was asked to find out if she knew anything about the Davis case. Briefly, just before 8:30 p.m., Sergeant

Motard asked appellant if she knew anything about the Davis case and she said

she did. He “asked her if she would make

another statement as to that, and she agreed.”

The second statement began at 8:30 p.m. and ended at 9:15 p.m.

Here, the four

hour period of time at the police station does not constitute a length of time

that would cause a reasonable person to believe that she was in custody because

that length of time was necessary due to the amount of information being

received from appellant about the multiple crimes committed by the group of

people with whom she associated.

Appellant revealed extensive information about how she witnessed four

people commit a capital murder of two people, an auto theft report to the

police when Keithron had her car, the robbery of a lady at a bus stop, and the

capital murder of Davis. The amount of

information, combined with the other circumstances that show appellant was at

the police station voluntarily, demonstrate that she did not reasonably believe

she was in custody when she was with police officers at the police station for

four hours. See Meek v. State , 790

S.W.2d 618, 622 (Tex. Crim. App. 1990) (finding no custody when suspect came to

station voluntarily at time of his own choosing, was allowed to step outside

building and go unaccompanied to his car during interviews, and “a few hours”

later was allowed to leave unhindered after statements were completed); State v. Rodriguez , 986 S.W.2d 326, 330

(Tex. App.—El Paso 1999, pet. ref’d) (determining appellant not in custody

although interrogation lasted several hours); Bradley v. State , 960 S.W.2d 791 , 794–95 (Tex. App.—El Paso 1997,

pet. ref’d) (determining interrogation lasting approximately six hours was

noncustodial).

4. Access

to Relatives and Friends

Appellant

had access to her relatives and friends.

She spoke to Dexter privately after she made the second statement. The trial court made findings of fact, as

follows:

25. After giving both statements, Sergeant Motard

learned that Dexter wanted to speak with the defendant.

26. Sergeant Motard asked the defendant if she

wanted to speak with Dexter, and she stated that she did.

27. Sergeant Motard and [Officer] Abbondondalo

permitted the defendant and Dexter to converse privately for approximately five

minutes.

The record shows

that after she completed the second statement, appellant spoke to Dexter

because, according to Sergeant Motard, “she was not under arrest,” and she

wanted to speak to him when she was told that he wanted to speak to her. Appellant walked alone from Sergeant Motard’s

cubicle to Officer Abbondondalo’s cubicle where Dexter was, and the two spoke

privately for several minutes before she came back to Sergeant Motard’s

cubicle. When she returned to the

cubicle, she appeared teary eyed and emotional.

Sergeant Motard believed she was upset about “everybody’s circumstance

that are her friends.” This private

visit with Dexter away from the officers shows appellant did not reasonably

believe she was in custody. See Meek ,

790 S.W.2d at 622 (finding no custody in part because Meek was allowed to step

outside building and go unaccompanied to his car during interviews).

Hawkins said the officers told her she could

not go with them when they went to talk to appellant at the McDonalds, but the

trial court found her testimony as lacking in credibility. The record, therefore, does not support the

claim that Hawkins was denied access to appellant before appellant went to the

police station and while she was there.

Furthermore, appellant went home after she

made the statements. The trial court

found that “Sergeant Motard and [Officer] Abbondondalo then drove the defendant

home and left her there.” Sergeant

Motard drove appellant home at around 10:30 p.m. or 11:00 p.m. and told her

mother that appellant was hanging out with some bad guys and needed to stop

doing that. Evidence that appellant went

home after making the two statements shows that she did not reasonably believe

that she was in custody. See California v. Beheler , 463 U.S. 1121 ,

1124–25, 103 S. Ct. 3517 , 3519–20 (1983) (holding person not in custody based

on facts that he voluntarily accompanied police to station, talked to officers,

and was permitted to return home). We

conclude that appellant’s access to her friend, Dexter, when she was at the

police station, and to her family when she went home after making the second

statement, are facts that show she did not reasonably believe she was in

custody during the time she was at the police station making the first two

statements.

5. Degree of Control Exercised

Appellant

testified that she did not feel like she could leave, was scared, and felt she

had to do whatever the officers asked so that she would be allowed to go home. She also claims she did not feel comfortable

requesting to go to the restroom even though she needed to go. The trial court, however, found her testimony

as lacking credibility and made findings contrary to these assertions.

The trial court’s finding states, “ Police did

not restrict the defendant’s freedom of movement while she was at the police

station.” The record shows officers did not

handcuff appellant nor restrict her freedom of movement in any way while she

was at the police station. She walked

alone to speak privately with Dexter.

Furthermore, the court found, and the record shows, that “Sergeant

Motard spoke to the defendant in a conference room, and then he took her to his

cubicle where he typed out a written statement while she described the events.”

The trial

court determined that appellant was offered basic necessities, as shown by a finding

of fact that states, “Sergeant Motard offered the defendant food and drink, but

she declined.” The trial court also

found that “the defendant did not request to use the restroom; but had she

requested it, he would have directed her to a nearby restroom.” The record shows that Sergeant Motard

explained that an officer would have shown appellant where the restroom was

because she would not know how to get there, but appellant never requested to

go to the restroom. He also offered her

the opportunity to go to the restroom before she began the first statement.

The trial

court made findings specifically determining that appellant voluntarily signed

the second written statement, as follows:

22. The defendant signed the statement after

Sergeant Motard told her to sign it “if it’s correct.”

23. Sergeant Motard did not threaten, coerce, or

promise the defendant anything in exchange for the second written statement.

24.

The defendant chose of her own free will to sign the second statement.

The record supports these findings

and shows that Sergeant

Motard did not promise appellant anything for her giving the statement.

Because the evidence shows the

officers did not exercise the degree of control associated with an arrest, the

evidence fails to show appellant reasonably believed she was in custody. Compare

with Jones , 119

S.W.3d at 776 (finding person in custody based on facts that he was incarcerated

in jail, taken to small room to meet with two officers, and confronted with information

that someone had identified him as murderer).

6. Probable Cause

Appellant

asserts that the police believed her to be a suspect when they went to her

house looking for Keithron. Hawkins

contends the officers knew appellant worked at McDonalds before Hawkins told

them that. But Officer Arnold testified

that appellant was not a suspect and that they learned where to find her from

what Hawkins told him. The trial court found

Officer Arnold more credible than Hawkins and appellant. Furthermore, even if appellant was the focus

of the investigation, it would not render her as being in custody for purposes

of Miranda or article 38.22. See

Gardner , 306 S.W.3d at 294 .

Appellant

suggests officers had probable cause to arrest her when she made the first

statement acknowledging she witnessed the Aparece and Ngo capital murder. In that statement, however, appellant said

she was merely present as a witness at the events. See

Valdez , 623 S.W.2d at 321 (mere presence

insufficient to convict). There was no

probable cause to arrest her for the Aparece and Ngo offense.

Appellant claims

that after she signed the first statement, Sergeant Motard left her and then

returned and told her that someone had informed him that she was the driver in

the Davis murder. Appellant also

contends Sergeant Motard was going back and forth to discuss her version with

the other officers while he was taking her statement. The record, however, does not support these

assertions. The trial court found

appellant’s testimony concerning these events not credible. Furthermore, Sergeant Motard explained that he

discussed appellant’s version of the Aparece and Ngo case with other officers

to attempt to reconcile her statement with the statements of the other people

who had given statements about that case, but he did so during the break

between the first and second statements.

He did not testify that he was going back and forth to talk to the

officers about what appellant told him as she was making the statement. Appellant was not considered a suspect until

she acknowledged she was the driver in the Davis case.

The trial

court made a finding of fact stating, “Sergeant Motard did not suspect the defendant in the Brady

Davis case, and he did not know her level of participation when he spoke to her

about it. She was not the focus of the

investigation because he believed she was, at most, a witness.” The record shows that when Sergeant Motard

asked appellant about the Davis case that it was a fishing expedition. When appellant admitted during the making of

the second written statement that she was the driver in the Davis case, the

officers first had probable cause to arrest her.

7. Four “Custody” Situations Did Not Occur

Deferring to the trial court’s

findings of fact based on the credibility of the witnesses, the first three

situations where custody is established are not shown here. More specifically, (1) appellant was not physically

deprived of her freedom of action in any significant way, (2) an officer told

her she was free to leave, and (3) the officers did not create a situation that

would lead a reasonable person to believe that her freedom of movement had been

significantly restricted. See Gardner ,

306 S.W.3d at 294 ; Dowthitt , 931

S.W.2d at 254 .

Concerning

the fourth situation where “custody” occurs, the record shows there was

probable cause to arrest appellant when she admitted being the driver in the

Davis case, but the officer never did anything to manifest to her that he

believed there was probable cause to arrest her. See Gardner , 306 S.W.3d at 295 n.48. The record does not show that appellant reasonably

knew that by admitting to being the driver in the Davis case that the officer

had probable cause to arrest her. See id.

Furthermore, the other circumstances detailed above would not lead a

reasonable person to believe that she was under restraint to the degree

associated with an arrest. See id.

Not only did she voluntarily make the written

statements, appellant went voluntarily to the police station, was told she

could leave, remained unhandcuffed throughout the statements, was at the

station four hours to discuss two separate capital murders, went unescorted to

speak privately with Dexter, and went home after she made the statements. Under these circumstances, a reasonable person

would not believe that she was under restraint to the degree associated with an

arrest. See id. ; Garcia v. State ,

106 S.W.3d 854 , 858–59 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding

reasonable person in Garcia’s situation would not have believed he was in

custody because, although there was probable cause to arrest Garcia, he

voluntarily went to police station, was told that he could leave, voluntarily

gave statement, statement took 30 minutes, only two unarmed officers were with

him, he was taken to visitor’s room where he was left, unguarded, with his

girlfriend, and nothing prevented him from simply leaving police station); Trejos v. State , 243 S.W.3d 30, 47 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (finding no custody when suspect “rode

with a police officer to the station” and “was only interviewed by one police

officer, who was in plain clothes, and in an office-like setting”); compare with

Dowthitt , 931 S.W.2d at 254

(“custody” began when Dowthitt admitted to his presence during murders because

“a reasonable person would have realized the incriminating nature of the

admission,” and other factors were present that “involv[ed] the exercise of

police control” over him, such as lengthy interrogation lasting over 12 hours,

police officers accompanying him to restroom, and police officers ignoring his

requests to see his wife).

8. Conclusion

We conclude

the record shows that appellant did not reasonably believe she was in custody

because she voluntarily went to the police station, the length of the

interrogation was not so long that she would have believed she was in custody,

she had access to her friends and family, the officers did not exercise the

degree of control over her that would be associated with an arrest, the

officers did not have probable cause to arrest her until the point in her

second statement when she admitted driving Dexter and Keithron to and from the

aggravated robbery of Davis, and the officers did not manifest to her that they

had probable cause to arrest her nor did the circumstances show she was in

custody. The trial court made findings

of fact and conclusions of law supporting the conclusion that appellant was not

in custody, and those findings and conclusions are supported by the

record. We must afford almost total

deference to the trial court’s determination that appellant was not in custody

when she made the two written statements.

See Herrera , 241 S.W.3d at 526–27. We must do so because under these

circumstances the question of whether appellant was in custody is a mixed

question of law and fact that turns on the credibility determinations made by

the trial court, which found appellant and her mother not credible and the

officers who testified credible. See id.

Because appellant was not in custody when the first two statements

were made, Miranda warnings were not

required. Id.

We hold the trial court did not abuse its discretion by

denying the motion to suppress the two written statements by appellant and

admitting redacted portions into evidence at her trial.

We

overrule appellant’s first and second issues.

C. Analysis

of Third Statement

In her third issue, appellant

contends the third statement must be suppressed because, although she received Miranda warnings before the statement

was made, the statement was merely a rehash of the two earlier written

statements that were unlawfully obtained because they were made without the Miranda warnings. We address (1) the law concerning midstream

warnings, (2) appellant’s challenge premised on the invalidity of the first two

statements, (3) the evidence that the two step questioning tactic was not

employed, and (4) the evidence concerning whether curative measures were taken in

this case.

1. Law

Concerning Midstream Warnings

Midstream Miranda warnings are not permissible. See

Missouri v. Seibert , 542 U.S. 600,

601 , 124 S. Ct. 2601, 2604 (2004) (plurality holding that whenever two-stage

interview occurs and Miranda warnings

are delivered “midstream,” admissibility of post-warning statement depends on

whether warnings could have been effective to accomplish objective); Martinez v. State , 272 S.W.3d 615 , 621–27

(Tex. Crim. App. 2008) (holding that two-step interrogation technique was used

in calculated way to undermine Miranda

warning, as shown by totality of circumstances that Martinez was in custody;

officer did not give him Miranda

warnings before questioning him; Martinez made statements to polygraph

examiner; after Miranda warnings,

Martinez was confronted with facts learned from polygraph examiner; and entire

statement to officers occurred within short period of time at same police

station where polygraph occurred).

Courts should examine whether the officer

deliberately used a two-step, “question first, warn later” strategy. Carter

v. State , 309 S.W.3d 31, 36 (Tex. Crim. App. 2010). If the court finds a deliberate effort, then

post-warning statements must be excluded unless “curative measures” are taken

before the post-warning statement is made.

Id. “[C]urative measures should be designed

to ensure that a reasonable person in the suspect’s situation would understand

the import and effect of the Miranda

warning and of the Miranda

waiver.” Martinez , 272 S.W.3d at 621 .

An appropriate curative measure, for example, is a substantial break in

time and circumstances between the unwarned statement and the Miranda warning. Id. Curative measures allow the accused to

distinguish the two contexts and appreciate that the interrogation has taken a

new turn. Id.

Courts

should determine “whether the evidence shows that [the interrogating officer]

deliberately employed a two-step ‘question-first, warn later’ interrogation

technique to circumvent [the] appellant’s Miranda

protections.” Carter , 309 S.W.3d at 38 .

Because the “question of whether the interrogating officer deliberately

withheld Miranda warnings will

invariably turn on the credibility of the officer’s testimony in light of the

totality of the circumstances surrounding the interrogation,” a factual finding

regarding the officer’s credibility is entitled to deference on appeal and is

reviewed only for clear error. Id. at 39.

Where the two-step questioning tactic is not

deliberately employed, “a suspect who has once responded to unwarned yet

uncoercive questioning is not thereby disabled from waiving his rights and

confessing after he has been given the requisite Miranda warnings.” Oregon v. Elstad , 470 U.S. 298, 318 , 105

S. Ct. 1285, 1298 (1985); Carter , 309

S.W.3d at 36 . In this situation, where

the first statement is unwarned but not coerced, “the admissibility of any

subsequent statement should turn . . . solely on whether it is knowingly and

voluntarily made.” Elstad , 470 U.S. at 309 , 105 S. Ct. at 1293 ; Carter , 309 S.W.3d at 32 .

“Unless a deliberate two-step strategy is employed, Elstad applies.” See Carter , 309 S.W.3d at 37 .

2. Appellant’s Challenge

Appellant’s

entire reason for asking that the third statement be suppressed is her theory

that the first two statements were taken unlawfully because Miranda warnings were not given when she

made the statements while in custody. We

have already determined, however, that because appellant was not in custody

when the first two statements were given, Miranda

warnings were not required. Because

appellant’s challenge to the third statement is premised solely on the failure

to give Miranda warnings before the first

two statements were taken, a ground we have determined lacks validity because

appellant was not in custody, we hold the trial court properly admitted the

third statement by appellant. See Martinez ,

272 S.W.3d at 621–27.

3. Evidence that Two-Step Questioning Tactic

Not Employed

But even if

we assume the trial court erred by determining appellant was not in custody

when she made the first two statements, the trial court made findings supporting

the determination that the officers did not employ a two-step questioning

tactic to violate the principles of Miranda . The trial court found the officers’ testimony

credible when they explained that they did not read the warning to appellant

because they determined she was a witness to the events and not in custody. See

Seibert , 542 U.S. at 614 , 124 S. Ct. at 2611 (observing that Elstad court took care to mention that officer’s

initial failure to warn was “oversight” that may have been result of confusion

as to whether brief exchange qualified as “custodial interrogation”). Because the trial court found credible the

officers’ testimony that appellant was not in custody when she made the first

two statements, even if the officers erred in their belief that she was not in

custody, that error does not amount to a deliberate tactic to circumvent Miranda .

The trial court found credible Sergeant Motard’s explanation that

questioning appellant about the Davis case was a “fishing expedition,” and it

determined the circumstances showed appellant was not in custody when she

admitted her role in the Davis case. At

most, if the officers were wrong about whether appellant was in custody, that

error shows a mistake, but, in light of the trial court’s factual findings

based on the credibility of the witnesses, it does not show a deliberate tactic

to employ a two-step interrogation technique.

Additionally, the evidence fails to show that the third statement taken

after Miranda warnings were given to

appellant was calculated to undermine the Miranda

warning because the third statement was taken after appellant went home for the

evening to spend the night with her family and was taken only after she

returned to the police station around noon the next day. Cf.

Martinez , 272 S.W.3d at 621–27 (concluding

two-step interrogation technique was used in calculated way to undermine Miranda warning, based in part on

evidence that all statements to officers occurred within short period of time

at same place at police station).

We hold the

record fails to show the officers deliberately used a two-step, “question

first, warn later” strategy. See Carter ,

309 S.W.3d at 36 . The record, therefore,

fails to show the trial court committed clear error in admitting the third

statement. See id. In the absence of a deliberate

two-step questioning tactic, the principles in Elstad apply. Carter , 309 S.W.3d at 37 (“Unless a

deliberate two-step strategy is employed, Elstad

applies.”).

Under Elstad , the third statement is

admissible if appellant waived her rights after having been given the requisite

Miranda warnings and if she made the

statement knowingly and voluntarily. See Elstad , 470 U.S. at 309 , 105 S. Ct. at

1293 ; Carter , 309 S.W.3d at 32 . Because the tape recording shows that

Sergeant Motard read appellant her Miranda

rights at the start of the third statement and that she subsequently made

voluntary and knowing statements demonstrating her culpability in the crime, we

hold that even if the first two statements were inadmissible for failure to

give Miranda warnings to a person in

custody, the third statement would be admissible under Federal and Texas case

precedent. See Elstad , 470 U.S. at 309 , 105 S. Ct. at 1293 ; Carter , 309 S.W.3d at 32 . We also hold that the admission of the third

statement would render the erroneous admission of the first and second

statements harmless beyond a reasonable doubt because the first statement did

not mention the Davis case and the second statement’s contents were fully

contained within the third statement. See Jones , 119 S.W.3d at 777 .

4. Evidence of Curative Measures

We have

determined that the trial court properly admitted the three statements because

appellant was not in custody when the first two statements were made and Miranda warnings were not required. Alternatively, we have determined that,

assuming appellant was in custody when she made the first two statements so

that Miranda warnings were required,

the third statement, provided after Miranda

warnings were given, is admissible because a deliberate two-step

questioning technique was not employed and the third statement was voluntarily

made. We need not address, therefore, a

third alternative way of upholding the judgment, which would apply if the

record shows that curative measures were taken between the unlawful statements

and the lawful statement. See Seibert , 542 U.S. at 615 , 124 S. Ct.

at 2612 (stating that in Elstad “the

Court thought any causal connection between the first and second responses to

the police was ‘speculative and attenuated’”).

Here, the third statement was made after appellant waived her statutory

rights after she had been home for approximately 14 hours from 10:00 p.m. on

June 23 to noon on June 24. She was at

home with her family before she returned to the police station voluntarily,

unhandcuffed, and in an unmarked car to clarify her earlier statements.

Appellant focuses

on Sergeant Motard’s use of the word “rehash” when describing the contents of

the third statement in comparison to the contents of the second statement. As used in this case, “rehash” means that the

substance of the statements was the same—the events transpiring on the day

Davis was killed and on the day Aparece and Ngo were killed. The third statement, however, consists of approximately

a five minute narrative by appellant where she explains the events about the

Davis case and it was in this narrative that she made the inculpating

statements. Although the record includes

factors that weigh towards a finding that curative measures were taken between

the first two statements and the third statement, we need not decide whether the

break in time and circumstances between the second and third statements show

that the third statement was made independently of second statement so that the

Miranda warnings were effective. See

Martinez , 272 S.W.3d at 621

(observing that appropriate curative measure is substantial break in time and

circumstances between unwarned statement and Miranda warning). The reason

we need not reach this decision is because this would be a third alternative

way of upholding the judgment, which is unnecessary in light of our other

holdings.

We hold the

trial court properly admitted the third statement because the first two

statements did not violate the requirements of Miranda or the Code of Criminal Procedure due to the evidence that

appellant was not in custody when she made the first two statements, and,

alternatively, because the trial court’s findings and evidence do not show that

the officers deliberately employed a two-step strategy to circumvent the

requirements of Miranda .

We overrule

appellant’s third issue.

Conclusion

We affirm

the conviction.

Elsa

Alcala

Justice

Panel

consists of Justices Keyes, Alcala, and Hanks.

Justice Keyes, dissenting.

Publish. Tex. R.

App. P. 47.2(b).

[1]

It is suggested that an opinion

in an appeal, which concerns someone other than appellant, characterizes

appellant as having been arrested when she went to the police station. But that appellate opinion is not part of the

record in this case, and does not purport to make a legal analysis or determination

that appellant was under arrest.

Furthermore, in the record before us appellant did not introduce any

evidence that would impeach any of the officers with testimony they may have

given in another proceeding. No evidence

introduced in this case shows the officers testified inconsistently in another

proceeding. If that type of evidence

exists, then that may be a basis for a post-conviction habeas corpus challenge

that would assert trial counsel was ineffective for failing to present

impeaching evidence to the trial court.

But absent any evidence that shows inconsistent testimony by the

officers in other proceedings, and absent any prior appellate determination

that analyzes whether appellant was arrested, the record in this case fails to

show the trial court clearly erred by finding the officers credible.