## NUMBER 13

- 20

- 00 181

- C R

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

JOSHUA HUIZ A R

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the County Court at Law No. 11

of Bexar C ounty, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva

Memorandum Opinion by Justice Silva

Appellant Joshua Huizar appeals his conviction of assault causing bodily injury

,

family violence, a Class A misdemeanor

. 1 See T EX

. P ENAL C ODE A NN

. § 22.01( a ) (1)

. By

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket

- equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001. Because this is a transfer case, we are bound to apply the precedent of the transferor court to

the extent it differs from our own. See T EX

. R. A PP

. P

. 41.3.2 one issue, Huizar argues the trial court abused its discretion in denying his motion to

suppress evidence of his statements to officers

. 2 We affirm.

I. B ACKGROUND

At a hearing on Huizar ’ s motion to suppress evidence, San Antonio Police

Department (SAPD) O fficer Christopher Lloyd testified he was dispatched to a n

apartment complex on October 22, 2017, following reports of an assault

. Officer Lloyd

said the information he was provided at the outset had been limited: “ T here was a person

with a broken nose and that was the information.” 3

When Officer Lloyd arrived at the residence, it was approximately 9:40 p.m., and

he was greeted at the door by Bertha Miranda. 4 Miranda had blood on her face, neck,

and chest. Miranda told Officer Lloyd that Huizar punched her twice, he was upstairs

, and

he had access to a firearm. At 9:42 p.m.

, Officer Lloyd entered the residence with his

weapon drawn. In a span of two minutes

, t he following transpired

. Officer Lloyd ordered

2 As a preliminary matter, we note that following a hearing on Huizar’s motion to suppress

evidence, the trial court denied Huizar’s motion “ as to statements of the defendant up to approximately the

17

- minute mark.” The record provided on appeal does not co ntain a video exhibit with a “17

- minute mark.”

Rather, the exhibit recordings of two officer body cameras in evidence have all been severed . A lthough

presented chronologically, the longest video is six minutes and thirty seconds in length. Thus, we constru e

the trial court’s order as suppressing all statements made after 9:55 p.m., seventeen minutes into the first

officer’s arrival on scene. For this reason, we denote timestamps where appropriate based on the officers’

body camera recordings

.

3 Two 9

- 1

- 1 c all recordings were admitted into evidence at the suppression hearing. In the first

recording, Huizar tells the 9

- 1

- 1 operator, “I need police now.” A woman Huizar later identified as his

girlfriend, Bertha Miranda, can be heard repeatedly screaming, “Help me please!” Miranda claimed that

Huizar punched her nose

, and she was bleeding. Huizar told the 9

- 1

- 1 operator that Miranda attacked him,

was still “trying to hurt” him, and “hurt herself” trying to get inside the home. Huizar said he had locked

himself i n a separate room in the home to get away from her. Huizar ignored the operator’s inquiries

regarding whether he had struck Miranda as she claimed.

In the second recording, Huizar stated he was still waiting for police to arrive, and he claimed his

girlfr iend “punched” him and was actively “trying to get in [his] room.”

4 Officer Lloyd ’ s body camera footage was admitted into evidence.3 Huizar to descend the stairs with his hands up. Huizar did not immediately follow Officer

Lloyd ’ s commands

. O nce Huizar began making his way down the stairs, Huizar stated,

“ S hoot me. I don ’ t give a f

- ck, man.” 5 Huizar then disregarded Officer Lloyd ’ s commands

that he “ stop right there and turn around

. ” Officer Lloyd rushed forward and placed

handcuffs on Huizar

, yelling, “What part of listening [sic] don ’ t you understand ? Hands

behind your back

. ” Huizar responded, “Calm the f

- ck down, man

. . . . Dude, s he f

- cking

attacked me. ” Officer Lloyd replied, “ Where’s y our f

- cking wound? Her face is bloody as

f

- ck,” before instructing Huizar to “take a seat” on a couch in the living room at

approximately 9:43 p.m. 6

After Huizar was handcuffed, SAPD Officer C hris Udero 7 remained with Huizar

,

while Officer Lloyd exited the residence and attempted to speak to Miranda outside. As

indicated by Officer Udero’s body camera recording, Huizar immediately, without

prompting, told Officer Udero that he was “mixing this sh i t up” and that Miranda had

attack ed him. Officer Udero replied, “ Alright. We’ll get it sorted out

, ” and instructed Huizar

to “hold on” while he tried to adjust Huizar ’s handcuffs. Huizar continued to mutter

expletives and maintain that he “didn’t do shit

. ”

At 9:45 p.m., Officer Udero began questioning Huizar :

5 SAPD Officer Chris Udero arrived at this point to assist Officer Lloyd . Although Officer Udero was

not visible on Officer Lloyd’s body camera recording, Officer Udero’s body camera recording was also

admitted as evidence without objection from Huizar and confirmed Officer Udero’s presence.

6 At the hearing, Officer Lloyd testified, “[Huizar] was just being detained while we conducted the

investigation for our safety due to the nature of the injuries that were presented and the statements that

there was a firearm accessible.” Officer Lloyd tes tified that Huizar’s “suicidal ideations” also provided a

cause for concern.

7 Officer Udero was not permitted to testify at the hearing following a finding by the trial court that

Officer Udero had “ violated ‘ the rule ’ ” when he convers ed with another witn ess about the case while waiting

to testify

. See T EX

. R. E VID

. 614.4 Officer Udero: Alright so let ’ s start with your name. What ’ s your last

name?

Huizar : Joshua Huizar

.

Officer Udero: Spell your last name

.

Huizar : H

- U

- I

- Z

- A

- R.

Officer Udero: H

- U

- R

- I

- Z

- R [sic]?

Huizar : Zar. How come she doesn’t have handcuffs?

Officer Udero: Ok ay . Well, right now

—

Huizar : Well, just, the way

—

Officer Udero: Listen, Listen

—

Huizar :

— you handled her

. [ Inaudible

. ]

Officer Udero: Ok ay

.

Huizar : Go look at the door.

Officer Udero: Hold on

.

Huizar : Dude

, she attacked me

.

Officer Udero: Ok ay, listen

. Right now her face is busted

, o kay ?

Huizar : Yeah

.

Officer Udero:

— so it looks like she ’ s a victim, ok ay? Okay, listen

. H e ’ s asking her what happened. Once I get the

information from you, we’re going to ask you what

happened

, and we ’ re going to put it all together, ok ay ?

Huizar : Okay.

Officer Udero: Alright. But w hen we got here, uh, you know, you

weren’t the most cooperative guy. You were upstairs

.

Huizar : I came out.5 Officer Udero: Ok ay, you came out but

—

Huizar :

— I didn’t hear you.

Officer Udero: Ok ay, w ell

.

Huizar : I didn’t

—

Officer Udero: It went down

.

Huizar :

— I swear.

Officer Udero: It went down the way it did

.

Huizar : She was attacking me.

Officer Udero: I t went down the way it did

, so you’re detained. Okay.

You’re detained. It ’ s safer for us. We ’ re able to conduct

business without worrying about whether you ’ r e going

to do something or not do something. I know you said

you wouldn’t. We don’t know you

—

Huizar : Of course not.

Officer Udero: Ok ay . Alright. Ok ay

. H

- U

- R

- Z

- A

- R ?

Huizar : H

- U

- I

- Z

- A

- R

. I didn’t come out uncooperative . I came

out

—

Officer Udero: Ok ay . Okay. We got it. Alright, so w hat ’ s your , what’s

your first name?

Officer Udero collect ed Huizar ’s identifying information and explained that, contrary to

Huizar ’s characterization that he and Officer Lloyd w ere “f

- cking freaking out” in response

to seeing blood on Miranda

, they w ere just trying to assess the situation because they

had been told that Huizar “possibly had a gun

. ” Huizar c onfirmed that he had a “f

- cking

Glock ” upstairs and stated it was because he used to be in law enforcement

.6 After Officer Udero explained that they were “going to do what [they had to] do to

stay sa fe ,” which included placing handcuffs on Huiz a r, Officer Udero asked Huizar to

explain what happened. Huizar said that he and Miranda had been drinking outside,

“mourning a friend” of Huizar ’s who had recently passed away, when Miranda became

jealous. “[S] he just started

, ‘ why [sic] you mo u rning her s o much ? ’ She just started getting

very jealous. She broke my phone ,” said Huizar

. After Miranda broke his phone, Huizar

said she proceeded to “attack[] [him] with the phone,” and “she went at [him].” Huizar said

he “blocked her out of self

- defense

, ” and she was hit with his for e arm

. Huizar then “bolted”

inside

, tried to lock her out, ran upstairs, and called 9

- 1

- 1.

At approximately 9:51 p.m., Officer Lloyd returned to speak with Huizar , and Huizar

reiterated what he told Officer Udero. 8 Huizar , however, added that Miranda “punched

[him] a couple of times.” Officer Lloyd thereafter documented Huizar ’ s full name, date of

birth, and i n juries, noting that Huizar had some “red puffin g ” on the right side of his face. 9

As the conversation progressed, it became more casual

. Officer Lloyd offer ed to

get water for Huizar ’ s pets

, and Huizar plac ed his pets outside before returning back to

the living room at approximately 9: 57 p.m. Huizar spoke unprompted during periods of

silence

. At 10:07 p.m., in response to Huizar ’ s jokes about his excessive weight gain

,

Officer Lloyd adjusted Huizar ’ s handcuffs and explained

, “I ’ m giving you two sets [of hand

cuffs] until I sort all this out, figure out what she ’ s doing. I gotta [sic] talk to her

again

. . . . As soon as my partner comes back in here, I ’ ll go back out and talk to her ;

8 At one point, Miranda re

- entered the home, interrupting Huiz a r’s statement to police. Officer Lloyd

ordered Miranda to exit the home so that he could continue to speak to Huiz a r. Officer Udero escorted

Miranda outside.

9 The trial court suppressed statements made by Huizar after this point

.7 maybe she ’ s calmed down a little bit more.” At 10:16 p.m., Officer Lloyd ask ed another

officer whether “EMS [wa s ] don e ” with Miranda

. S everal minutes later, Officer Lloyd and

Huizar discuss ed Huizar ’ s DVD collection. Officer Lloyd left Huizar unattended for a few

minutes, and when he return ed at 10:23 p.m.

, Huizar ask ed Officer Lloyd if he c ould leave.

In response, Officer Lloyd said :

I gotta [sic] talk to her again. You know how it goes

. . . . Family violence is

like a big button in Texas, uh it ’ s a hot button, so we ’ re expected to do

something so I gotta [sic] talk to her one more time to figure out where we ’ re

g o nna [sic] go with this situation. But because we were called out for family

violence and you ’ ve got injuries and she ’ s got injuries, we gotta [sic] do

something

. . . . I gotta [sic] talk to her again and get her to clarify her story

one more time and see if anything, if there ’ s any inconsistencies in her story

after I ’ ve been away from her for thirty minutes now.

Officer Ud e r o enter ed the residence with Miranda at 10:25 p.m., and Officer Lloyd

instruc ted Miranda to go upstairs

. After she depart ed

, while still in Huizar ’ s presence

,

Officer Lloyd told another officer, “ Let me go talk to her one more time to get clarification

on her story. She was all over the place when I was talking to her earlier.” Before walking

upstairs, Officer Lloyd once more ask ed Huizar to describe where they were when the

assault first started. One minute later at 10:26 p.m.

, Officer Lloyd join ed Miranda upstairs,

where she was being photographed to document her injuries. At 10:33 p.m., Officer Lloyd

return ed to the living room and place d Huizar under arrest. Huizar protest ed

, re

- asserting

that Miranda had instigated the assault

. Officer Lloyd explain ed that he was arresting

Huizar based on the severity of Miranda ’ s injuries.

On cross

- examination, Officer Lloyd conceded ten s ions were high during the start

of the encounter

, but he denied ever threatening Huizar

. Officer Lloyd confirmed that had

Huizar tried to run away, Officer Lloyd “would have attempted to stop him.”8 Huizar also testified at the hearing. Huizar stated his initial comment to Officer

Lloyd , asking that Officer Lloyd “just shoot [him] ,” had been uttered as a “nervous

response” to the officer’s presence. Huizar testified that he interpreted Officer Lloyd ’ s

question, “Where ’ s [sic] your f

- cking wounds, huh

, ” as a “direct threat ” and believed that

when he was placed in handcuffs, he was already under arrest.

After viewing the recording s

, the district court issued an order denying in part and

granting in part Huizar ’ s motion to suppress and issued the following findings of fact and

conclusions of law relevant to the issue on appeal:

The Court finds that when the defendant was handcuffed inside the

residence, he was detained and not under arrest. An investigative detention

occurs when an individual is temporarily detained by law enforcement for

purposes of an investigation. Castro v. State

, 373 S.W.3d 159, 164 (Tex.

App.

— San Antonio, 2012, no pet). This will be viewed from the perspective

of a reasonable officer at the scene, rather than using hindsight. Rhodes v.

State

, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997). The reasonableness

of this detention is going to turn on a review of the totality of the

circumstances and using common sense. Id [ .;] State v. Weaver

, 349

S.W.3d 521, 526 (Tex. Crim. App. 2011). In reviewing the totality of the

circumstances, the detention of the defendant was reasonable. The

defendant was placed in handcuffs to maintain the status quo while the

officers sought additional information regarding an assault claim.

. . . The

detention did not escalate to a full arrest based upon the use of handcuffs

nor the defendant ’ s dubious testimony that he felt intimidated while being

detained. The tone of the conversations once the defendant was handcuffed

do not show intimidation, and he was further told that he was only being

detained. He was not transported away from the location while being

detained. A reasonable person would not believe his freedom of movement

was restrained to the degree associated with formal arrest. He was still in

his own home.

The Court finds that the statements made by the defendant to Officer [] Lloyd

and Officer Udero upon initial questioning were voluntary. Viewing the

totality of the circumstances, including the tone of the conversation and

miscellaneous statements voluntarily made regarding the defendant ’ s

history as a jailor clearly indicate a lack of custodial interrogation.

. . . The

Court therefore DENIES the Motion to Suppress as to statements of the9 defendant up to approximately the 17

- minute mark

. This is specifically

pertaining to the first conversation with Officer Lloyd

. However, in the

Court ’ s opinion, after this, it is clear that the officer has made the decision

to arrest, based upon probable cause. Statements made subject to officer

questioning following this decision to arrest from that point forward are to

be suppressed.

The trial court also granted the motion to suppress as to the following specific

statements on grounds not pertinent to this appeal : (1) “Officer Lloyd ’s unfairly prejudicial

initial commentary in confrontation with the defendant, in which he states [,] ‘ W here’s your

f[

- ]cking wounds [?] [H] er face is bloody as f[

- ]ck ’ ”; (2) Miranda’s statements to EMS

following their treatment of her injuries ; and (3) “spontaneous statements of [ Miranda ]

regarding any alleged prior incidents as referenced in [specific findings provided by the

court]

. ”

Huizar thereafter pleaded guilty to the offense as charged and retained his right to

appeal. This appeal followed.

II. M OTION TO S UPPRESS

By his sole issue, Huizar asserts that as soon as he was handcuffed, he was being

held as part of a custodial interrogation, and the officers ’ failure to administer Miranda

warnings rendered Huizar ’ s subsequent statements inadmissible. See Miranda v.

Arizona

, 384 U.S. 463, 444 (1966).

A. Standard of Review

“ ‘ We review a trial court ’ s denial of a motion to suppress for an abuse of discretion

and apply a bifurcated standard of review, affording almost complete deference to the

trial court ’ s determination of historical facts, especially when those determinations are

based on assessments of credibility and demeanor. ’ ” Wells v. State

, 611 S.W.3d 396,10 405

– 06 (Tex. Crim. App. 2020) (quoting Furr v. State

, 499 S.W.3d 872, 877 (Tex. Crim.

App. 2016) )

. We review de novo mixed questions of law and fact s that do not hinge on

assessments of credibility or demeanor. Id. We will sustain the trial court ’ s ruling i f the

ruling is correct under any applicable theory of law

. Id.

B

. Applicable Law

A defendant seeking the suppression of a statement on Miranda grounds has the

threshold burden of clearly establishing that his statements were given during custodial

interrogation before the burden shifts to the State to show compliance with Miranda

.

Herrera v. State

, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); see Miranda

, 384 U.S. at

444 ; s ee also Martinez

- Hernandez v. State

, 468 S.W.3d 748, 758 (Tex. App.

— San

Antonio 2015, no pet.) (providing that a suppressible statement may be “any inculpatory

or exculpatory statements that the prosecution might wish to introduce” at trial)

.

A person is “in custody” for Miranda purposes when there is either (1) a formal

arrest or (2) “a restraint on the person ’ s freedom of movement to the degree an objectively

reasonable person would otherwise associate with a formal arrest.” State v. Saenz

, 411

S.W.3d 488, 496 (Tex. Crim. App. 2013) ; see J.D.B. v. North Carolina

, 564 U.S. 261, 270

(2011) (“Because [ Miranda warnings] protect the individual against the coercive nature of

custodial interrogation, they are required only where there has been such a restriction on

a person ’ s freedom as to render him in custody.”) (internal quotations omitted)

. The Texas

Court of Criminal Appeals has recognized at least four general situations that may

constitute custody: (1) the suspect is physically deprived of his or her freedom of action

in any significant way ; (2) a law enforcement officer tells the suspect that he or she cannot11 leave ; (3) law enforcement officers create a situation that would lead a reasonable person

to believe that his or her freedom of movement has been significantly restricted ; or

(4) there is probable cause to arrest , probable cause is manifested to the suspect, and

law enforcement officers do not tell the suspect that he or she is free to leave. Saenz

, 411

S.W.3d at 496 (citing Dowthitt v. State , 931 S.W.2d 244, 25 5 (Tex. Crim. App. 1996)) ;

see State v. Ortiz

, 382 S.W.3d 367, 376

– 77 (Tex. Crim. App. 2012) ( indicating that the

four categories were intended to be “merely descriptive, not exhaustive”).

Notably

, many of the aforementioned situations may also be present during an

ongoing criminal investigation, and s imply being the focus of a criminal investigation or

being detained does not automatically equate to being in custod ial detention for Miranda

purposes. See Meadoux v. State

, 307 S.W.3d 401, 409 (Tex. App.

— San Antonio 2009),

aff ’ d

, 325 S.W.3d 189 (Tex. Crim. App. 2010); see generally State v. Whittington

, 401

S.W.3d 263, 274 (Tex. App.

— San Antonio 2013, no pet.) (“ [N]ot being free to leave is an

inherent feature of a temporary detention.”)

. Further, i n some situations, an officer may

reasonably draw a weapon, handcuff a suspect, or place a suspect in a patrol car to

conduct an investigative detention

— and the use of such force does not necessarily

transform the investigative detention into a custodial detention

. S ee, e.g.

, State v.

Sheppard

, 271 S.W.3d 281, 289

– 90 (Tex. Crim. App. 2008) ( concluding that hand cuffing

appellant was reasonable during an investigative detention after appellant had just

threatened another person with a large knife

, and the officer testified he needed to check

the residence for officer safety) ; Mount v. State

, 217 S.W.3d 716, 275

– 730 (Tex. App.

—

Houston [14th Dist.] 2007, no pet.) ( concluding the same where officers dr ew weapons12 on appellant , citing routine safety

, during a felony stop of a suspected stolen vehicle)

.

“[A]llowances must be made for the fact that officers must often make quick decisions

under tense, uncertain [,] and rapidly changing circumstances.” Kuether v. State

, 523

S.W.3d 798, 808 (Tex. App.

— Houston [14th Dist.] 2017, pet. ref ’ d) (citing Rhodes v.

State

, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997)). Thus, we evaluate “ custody on an

ad hoc basis, after considering all of the (objective) circumstances and apply [ ing ] the

reasonable person standard.” Herrera

, 241 S.W.3d at 532 (quoting Dowthitt

, 931 S.W.2d

at 254

– 55) (cleaned up) ; see J.D.B.

, 564 U.S. at 270. While the subjective views of the

interrogating officer and the person being questioned are generally irrelevant, “ if the

officer manifests his belief to the detainee that he is a suspect, then that officer ’ s

subjective belief becomes relevant to the determination of whether a reasonable person

in the detainee ’ s position would believe he is in custody. ” Ortiz

, 382 S.W.3d at 373

.

C

. Discussion

It is undisputed that Huizar was not given Miranda warnings prior to the time he

made the challenged statements to police

. See Miranda

, 384 U.S. at 444. Therefore, our

inquiry is whether Huizar was under custodial interrogation when he made th os e

statements he now seeks to suppress

.

On appeal, Huizar alleges that several factors indicat e he had been put “in custody

when he was placed on the couch” at approximately 9:4 5 p.m. : (1) Officer Lloyd had

probable cause to arrest Huizar for assault as soon as he entered the home; (2) d espite

the officers’ assurances that Huizar was simply being temporarily detained, Officer Lloyd ’ s

“actions tell otherwise” because Huizar was handcuffed at gunpoint while Officer Lloyd13 yelled profanity

- ridden accusat ions at him ; and (3) “the focus o f the investigation was

clearly on [ Huizar ]” although Huizar contacted 9

- 1

- 1 and identif ied Miranda as the primary

aggressor. See Saenz

, 411 S.W.3d at 496; Hawkins v. State

, 592 S.W.3d 602, 610 (Tex.

App.

— Corpus Christi

– Edinburg 2020, pet. ref ’ d)

. For reasons explained below, a

consideration of the entire circumstances surrounding Huizar’s detention does not yield

a finding of restraint to the degree associated with a formal arrest. See Saenz

, 411 S.W.3d

at 496.

When reviewing the amount of force utilized, we must consider the reasonableness

of the officer ’ s actions from the perspective of a reasonable officer present at the scene.

Rhodes

, 945 S.W.2d at 118 ; Castro v. State

, 373 S.W.3d 159, 165 (Tex. App.

— San

Antonio 2012, no pet.) (rejecting “a bright

- line test” in favor of allowing “ordinary human

experience to govern” when reviewing the amount of force utilized to determine the type

of detention). Prior to handcuffing Hu i zar

, within a two

- minute span, the following

occurred: (1) Officer Lloyd was greeted by Miranda, who claimed that she had been

assaulted by Huizar and that Huizar was upstairs with a gun in his possession; (2) Officer

Lloyd observed Miranda ’ s face, neck, and chest were covered in blood; and (3) Hu i zar

was initially nonresponsive to Officer Lloyd ’ s instructions and commented

, “ S hoot me. I

don ’ t give a f

- ck, man,” as he approached Officer Lloyd

, additionally ignoring Officer

Lloyd ’ s commands to “stop right there.” Under these circumstances

, Officer Lloyd ’ s

decision to have his weapon drawn and handcuff Huizar was no more than reasonably

necessary to investigate the situation

, preserve a peaceable status quo

, and ensure

officer safety. See Sheppard

, 271 S.W.3d at 289

– 90; Whittington

, 401 S.W.3d at 273 ;14 see also Ramirez v. State

, No. 13

- 15

- 00102

- CR, 2016 WL 3911223, at *3 (Tex. App.

—

Corpus Christi

– Edinburg July 14, 2016, pet. ref ’ d) (mem. op., not designated for

publication) (“ ‘ [O]fficers may use such force as is reasonably necessary ’ to effect a valid

goal of intervention: investigation, maintenance of the status quo, or officer safety.”

(quoting Zayas v. State

, 972 S.W.2d 779, 789 (Tex. App.

— Corpus Christi

– Edinburg

1998, pet. ref ’ d)))

.

Moreover, that Huizar was the focus of the investigation or that Officer Lloyd may

have had probable cause to arrest Huizar after speaking to Miranda and observing her

injuries did not alone elevate the investigat ive detention to a custodial detention when the

officers made it clear to Huizar that an investigative detention was underway

. See Saenz

,

411 S.W.3d at 496; Koch v. State

, 484 S.W.3d 482, 489 (Tex. App.

— Houston [1st Dist.]

2016, no pet.) ( “ ‘ [A] temporary detention, in which the person is not free to leave, while

the police officer investigates whether a crime has been committed ’ is constitutionally

permissible

. ” (quoting Sheppard

, 271 S.W.3d at 289) ) ; see, e.g.

, Castro

, 373 S.W.3d at

165

– 66 (concluding appellant was not in custody for purposes of Miranda where he had

been identified as “a person reasonably suspected of criminal activity” and was detained

for “twenty

- five to forty

- five minutes” while officers “engage[d] in an investigatory

procedure”) ; Bartlett v. State

, 249 S.W.3d 658, 668

– 69 (Tex. App.

—Austin 2008, pet.

ref ’ d) (concluding the same where appellant had been handcuffed, moved to a different

location, and asked to “tell his side of the story” following eyewitnesses’ complaints of a

“pretty severe” assault that left the complainant hospitalized); see also Collins v. State

,

No. 01

- 17

- 00920

- CR, 2018 WL 6421678, at *19 (Tex. App.

— Houston [1st Dist.] Dec. 6,15 2018, pet. ref ’ d) (mem. op., not designated for publication) (concluding the same whe re

appellant was interviewed for thirty

- four minutes in a vehicle parked outside his residence

while officers executed a search warrant for appellant ’ s electronics

, and after confessing

to possessing child pornography, appellant was required to sit in “a common area” of his

home with a uniformed officer while officers completed their search).

We further note that Officer Lloyd ’ s allegedly accusator y comments , made while

H uizar was being handcuffed, were in response to Huizar ’ s statement that Officer Lloyd

“calm the f

- ck down” and Huizar’s unprovoked claim that Miranda had “f

- cking attacked.”

A s Huizar acknowledges in his brief, once he was handcuffed

, “everything ha[d] calmed

down

. ” Neither Officer Lloyd nor Officer U dero w ere accusator y or threatening in their

brief initial quest ion ing of Huizar

, which spanned five minutes

, respectively, and wherein

both officers attempted to ascertain what had happened from Huizar ’s perspective

. 10 See

Martinez

- Hernandez , 468 S.W.3d at 758 ( “ ‘ [R]outine inquiries, questions incident to

booking, broad general questions such as “ what happened ” on arrival at the scene of a

crime, and questions mandated by public safety concerns are not interrogation

. ’ ” (quoting

State v. Ortiz , 346 S.W.3d 127, 134

– 35 (Tex. App.

— Amarillo 2011), aff’d , 382 S.W.3d at

367)); c f. Carter v. State

, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010) (indicating that an

accusator y

, hostile, and coercive interrogation supports a determination that a suspect is

10 Because the trial court suppressed evidence of Huiz a r ’ s statements made after Officer Udero

and Officer Lloyd ’ s initial questioning

— all statements made by Huizar after 9:55 p.m.

— we need not analyze

the circumstances present following these statements. Additionally, although the trial court addressed the

issue of voluntariness in its findings of fact and conclusions of law, having already concluded that Huizar

was not in custody at the time of his statements , the voluntariness of Huizar’s statements is no longer at

issue

. See Wolfe v. State , 917 S.W.2d 270, 282 (Tex. Crim. App. 1996) (“If an accused is not in custody

when he makes a statement, then the question of voluntariness does not arise.”); see also Robbins v. State

, No. 13

- 19

- 00349

- CR, 2020 WL 4812630, at *3 (Tex. Ap p.

— Corpus Christi

– Edinburg Aug. 13, 2020, pet.

ref’d) (mem. op., not designated for publication).16 in custody) ; Garza v. State

, 34 S.W.3d 591, 596 (Tex. App.

— San Antonio 2000, pet. ref ’ d)

( concluding the same)

. Huizar also spoke often and uninhibited, and though handcuffed,

he was permitted to move around the general area. See Herrera , 241 S.W.3d at 532; see,

e.g.

, Dorch v. State , 596 S.W.3d 871, 890

– 91 (Tex. App.

— San Antonio 2019, pet. ref’d)

( listing objective factors, such as that the appellant was given breaks during questioning

,

“provided with coffee [,] and permitted to use the restroom” during a three and one

- half

hour interview

, to support its determination that appellant was not in custody)

.

In light of the foregoing facts, we cannot conclude that Huizar was under custodial

detention as soon as he was “placed on the couch.” The record reflects that Huizar, within

the seventeen minutes wherein he made the statements he now seeks to suppress

, was

restrained to the degree reasonably associated with an investigative detention and not

with a formal arrest

. See Ortiz

, 382 S.W.3d at 372

– 73 ; Saenz

, 411 S.W.3d at 496.

Huizar ’s sole issue is overruled.

III. C ONCLUSION

We affirm the trial court ’ s judgment.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

15th day of July

, 202 1

.