NUMBER 13-11-00011-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

GERARDO LEAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court

of Jackson County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Vela and Perkes

Memorandum Opinion by Justice Benavides

After a bench trial, appellant Gerardo Leal was convicted of evading detention 

with a vehicle, a state-jail felony. He was sentenced to fifteen months’ imprisonment 

and fined $2,500. See TEX. PENAL CODE ANN. § 38.04 (West 2011). By three issues,1

 

1 We recognize that under the “Issues Presented” section of Leal’s brief, he lists four issues: (1) 

whether the trial court erred in admitting custodial statements elicited from [Leal] without Miranda warnings 
2

Leal appeals his conviction and asserts that: (1) the trial court erred in admitting his 

custodial statements for evidentiary purposes when Miranda2 warnings were not given; 

(2) the trial court erred in admitting testimony about the immigration statuses of his 

passengers at the time of his arrest; and (3) the trial court erred in admitting pictures that 

were recovered from his mobile phone at the time of his arrest for the limited purpose of 

punishment. We affirm. 

I. BACKGROUND

On December 18, 2008, Texas Department of Public Safety Corporal Brandon 

Curlee clocked Gerardo Leal’s vehicle traveling at a high rate of speed on U.S. Highway 

59 in Jackson County, Texas. Because of the position and location of his patrol unit 

relative to Leal’s lane of travel, Curlee was not immediately able to stop Leal’s vehicle. 

As a result, Curlee lost sight of Leal’s vehicle, and radioed for assistance from Edna 

Police Officer Kent Bubela. Bubela eventually located Leal’s vehicle, secured a 

roadside stop, and waited for Curlee’s arrival. 

Once Curlee arrived, he removed Leal from the car, asked him to step to the rear 

of the vehicle, and began questioning him. At some point during this initial inquiry, Leal 

stated “I ain’t going to lie, I was speeding.” Curlee then placed Leal under arrest, and 

into custody, when Leal voluntarily stated that he “didn’t want to get a ticket” as to why he 

 

for evidentiary purposes; (2) whether the trial court erred in admitting testimony about the immigration 

statuses of the passengers in [Leal’s] vehicle at the time of his arrest; (3) whether the trial court erred in 

admitting pictures that were on [Leal’s] mobile phone at the time of the arrest; and (4) whether the evidence 

was legally sufficient to support a finding that [Leal] evaded detention or arrest by an officer knowing the 

officer was attempting to detain him. 

While Leal briefed his first three issues, he failed to brief the fourth. Accordingly, Leal’s fourth 

issue is waived and will not be addressed in this opinion. See TEX. R. APP. P. 38.1(h). 

2 See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).
3

exited off from the highway from Curlee. At the point that these statements were made, 

no Miranda warnings had been given to Leal. 

After Curlee arrested Leal, he approached Leal’s vehicle and questioned two 

passengers inside the vehicle. The passengers were later identified as undocumented 

immigrants from Mexico. Additionally, while processing Leal’s vehicle, three cellular 

phones were retrieved from inside the vehicle and pictures were found on the phone 

depicting Leal holding what appeared to be wads of cash and an assault rifle. 

During his bench trial, Leal’s statements to Curlee were deemed admissible after 

the trial court overruled Leal’s motion to suppress. Furthermore, evidence of the 

immigration status of Leal’s passengers was deemed admissible during trial, and the 

photos of Leal were admitted solely for punishment purposes. Leal was found guilty, 

sentenced, and this appeal ensued. 

II. ADMISSIBILITY OF ARTICLE 38.22 AND MIRANDA STATEMENTS

In his first issue, Leal contends that the trial court erred in admitting Leal’s 

statements to Curlee about speeding because they were made during a custodial 

interrogation without the protections afforded under Miranda.

3

A. Applicable Law and Standard of Review

Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of 

statements into evidence made by an accused during a custodial interrogation. See 

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). The statute mandates that 

warnings—virtually identical to the ones prescribed by Miranda, with one exception—be 

given to an accused prior to making any custodial interrogation statements. See id. § 

 

3

See Miranda, 384 U.S. at 444–45.
4

2(a) (requiring that the accused be properly warned that: (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.); Herrera v. State, 241 S.W.3d 520, 526 (Tex. 

Crim. App. 2007). Finally, the accused must “knowingly, intelligently, and voluntarily 

[waive] the rights set out in the warning.” Id. § 2(b). 

For purposes of admissibility of evidence under Miranda and the warnings of 

article 38.22, the defendant bears the initial burden to prove that the statements that he 

wishes to suppress were the product of a “custodial interrogation.” See Herrera, 241 

S.W.3d at 526 (citing Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). 

A trial court decides “custody” as a mixed question of law and fact, see Herrera, 241 

S.W.3d at 526 (quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)), with our 

appellate review giving almost total deference to the trial court on questions of historical 

fact dealing with credibility and demeanor, while we review the legal application of facts 

to law de novo. See Herrera, 241 S.W.3d at 526–27; Guzman v. State, 955 S.W.2d 85, 

89 (Tex. Crim. App. 1997) (en banc). When a trial court overrules a motion to suppress 

and does not enter findings of fact, “we assume that the trial court made implicit findings 

of fact that support its ruling as long as those findings are supported by the record.” 

Herrera, 241 S.W.3d at 527.
5

Custody is determined on an ad-hoc basis, after considering all objective 

circumstances. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). 

Four general factors have been outlined to constitute custody for purposes of Miranda: 

(1) when the suspect is physically deprived of his freedom of action in any 

significant way; 

(2) when a law enforcement officer tells the suspect that he cannot leave; 

(3) when law enforcement officers create a situation that would lead a 

reasonable person to believe that his freedom of movement has been 

significantly restricted; and 

(4) when there is probable cause to arrest and law enforcement officers 

do not tell the suspect that he is free to leave.

Id. (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985) (en banc)). 

Other factors pertinent to the custody determination include, but are not limited to, the 

language used to summon the accused and the physical surroundings of the 

interrogation. See Herrera, 241 S.W.3d at 532. 

B. Discussion

In this case, Leal argues that at the time he made the speeding statement, he was 

already in custody to trigger article 38.22 and Miranda safeguards. We disagree. 

Curlee’s questioning of Leal was pursuant to a traffic stop, and a traffic stop by itself 

does not constitute “custody” for purposes of Miranda. See State v. Stevenson, 958 

S.W.2d 824, 828 (Tex. Crim. App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420, 437 

(1984)). Questioning during a traffic stop mitigates the danger presented under 

Miranda because traffic stops are presumptively brief and temporary, unlike a police 

station interrogation, and are more open in public so as to lessen the police dominance 

over a defendant. See Berkemer, 468 U.S. at 437–38. A noncustodial encounter 

may, however, escalate into custodial interrogation based entirely on objective 

circumstances. See Stevenson, 958 S.W.2d at 828. Here, Leal’s initial encounter with 
6

Bubela and Curlee was non-custodial questioning incidental to a traffic stop under 

Stevenson and did not escalate into custody until he was placed under arrest and his 

freedom of action was deprived. See id. The record shows that Leal was questioned 

about his speeding at the rear of his vehicle on a public road and was arrested and 

placed into custody only after he admitted to Curlee that he was speeding. Accordingly, 

we conclude that the trial court did not err in denying Leal’s motion to suppress based on 

an implicit finding that Leal was not in custody under Stevenson and Berkemer at the 

time the statement was made. See Dowthitt, 931 S.W.2d at 255. Leal’s first issue is 

overruled. 

III. ADMISSIBILITY OF OTHER EVIDENCE

In his second and third issues, Leal contends that the trial court erred in admitting 

(1) the immigration status of Leal’s passengers; and (2) photos of Leal posing with cash 

and weapons retrieved from his cell phone. 

A. Standard of Review

“The trial court should be allowed the discretion to exclude or admit evidence 

before the jury and an appellate court should not set aside the trial court's rulings absent 

a showing in the record that the trial court has abused that discretion.” Montgomery v. 

State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991) (op. on reh’g); see Morales v. State, 

222 S.W.3d 134, 141–42 (Tex. App.—Corpus Christi 2006, no pet.). Our review will not 

disturb the trial court’s ruling absent a showing that it is supported by the record and 

correct under any theory of law applicable to the case. See Morales, 222 S.W.3d at 

142. 
7

B. Immigration Status of the Passengers

Leal argues that the immigration statuses of his vehicle’s passengers were 

irrelevant to his charge of evading detention. Under Texas Rule of Evidence 401, “if 

evidence tends to make an elemental fact more or less probable, or if it inferentially 

supports or challenges an elemental fact, it is relevant.” Blakeney v. State, 911 S.W.2d 

508, 513 (Tex. App.—Austin 1995, no writ) (citing Montgomery, 810 S.W.2d at 387); see 

TEX. R. EVID. 401.

Here, the purpose offering the immigration statuses of the passengers was to 

support the State’s theory that Leal was speeding, and subsequently evaded detention, 

because he had undocumented individuals as passengers. Whether the trial court, 

sitting as fact-finder, made that particular inference or discounted that testimony in its 

entirety and relied solely on Leal’s own admission to serve as the basis for its guilty 

verdict, does not speak to the relevance of the evidence. The trial court’s ruling on its 

admissibility is within the zone of reasonable disagreement and was not an abuse of 

discretion. See Rogers v. State, 853 S.W.2d 29, 32–33 (Tex. Crim. App. 1993) (en 

banc). 

In the alternative, Leal argues that this evidence should have been excluded 

under Texas Rule of Evidence 404(b) because the State’s support for utilizing the 

passenger evidence was for contextual background evidence. See TEX. R. EVID. 

404(b). Under rule 404(b), “the State must show the misconduct has some tendency to 

make more or less probable a fact of consequence to determination of the issue of 

persuasion—or at the very least, that the character or degree of persuasion the police 

used cannot be fully comprehended absent evidence of the misconduct.” England v. 
8

State, 887 S.W.2d 902, 915 (Tex. Crim. App. 1994) (en banc). We disagree with Leal’s 

argument. The State’s offer was to show motive on Leal’s part as to why he was 

speeding and attempting to evade detention. Evidence of motive is relevant as a 

circumstance to show commission of an offense, though it is not an element of the crime. 

See Crane v. State, 786 S.W.2d 338, 349–50 (Tex. Crim. App. 1990). The trial court 

could have found that the State met its burden that the passengers’ immigration statuses 

were more or less probable a fact of consequence to determine the larger issue of Leal’s 

evading detention. Accordingly, its ruling was within the zone of reasonable 

disagreement and not an abuse of discretion. See England, 887 S.W.2d at 915. 

Having found that the trial court did not abuse its discretion in admitting evidence 

of the immigration statuses of Leal’s passengers for the purpose offered, we overrule 

Leal’s second issue. 

C. Cell Phone Photos During Punishment

Leal argues that the cell phone photos, depicting him holding large amounts of 

currency and holding an assault rifle, were admitted in error during the punishment stage 

under rule 403 and rule 404(b). See TEX. R. EVID. 403, 404(b). We disagree. Article 

37.07 § 3(a)(1) of the Texas Code of Criminal Procedure states that:

evidence may be offered by the state and the defendant as to any matter 

the court deems relevant to sentencing, including but not limited to the prior 

criminal record of the defendant, his general reputation, his character, an 

opinion regarding his character, the circumstances of the offense for which 

he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of 

Evidence, any other evidence of an extraneous crime or bad act that is 

shown beyond a reasonable doubt by evidence to have been committed by 

the defendant or for which he could be held criminally responsible, 

regardless of whether he has previously been charged with or finally 

convicted of the crime or act.
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TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2011). “Relevant” as 

articulated in Rule 401 does not apply to article 37.07. See TEX R. EVID. 401; Sims v. 

State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). Instead, “relevant” to a 

punishment determination is anything that will assist the fact-finder in determining an 

appropriate sentence for a particular defendant in a particular case. See Sims, 273 

S.W.3d at 295. Furthermore, the article specifically excludes Rule 404 from 

consideration, if the extraneous act is shown beyond a reasonable doubt. See TEX.

CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). Thus, Leal’s Rule 404(b) argument is 

overruled. 

Leal also argues that under Rule 403, the cell phone pictures may be excluded 

because their probative value is substantially outweighed by the danger of confusing or 

distracting the jury from the main issues. While we agree with Leal that the probative 

value of these photos is minimal, we will not disturb the trial court’s discretion to find that 

the photos are not unfairly prejudicial to be precluded by Rule 403 as they are not 

inflammatory, it is undisputed that they depict Leal, and that it will assist the fact-finder 

determine an appropriate sentence. The trial court’s decision is within the “zone of 

reasonable disagreement,” and will not be disturbed because we do not find an abuse of 

discretion. See Johnson v. State, 988 S.W.2d 958, 960–61 (Tex. App.—Beaumont 

1999, no pet.). 

Leal’s third issue is overruled. 
10

IV. CONCLUSION

Having overruled all of Leal’s issues, we affirm the judgment of the trial court.

________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

26th day of April, 2012.