COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00193-CR

KIMBERLY DANIELLE MILWICZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR12256

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MEMORANDUM OPINION1

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Appellant Kimberly Danielle Milwicz appeals her conviction for murder. In 

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

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

police officers. We affirm.

 1

See Tex. R. App. P. 47.4.
2

Background Facts

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

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

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

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

house.

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

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

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

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

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

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

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

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

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

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

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

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

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

ask her to return his house keys.

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

set to open at 7 a.m.) to prepare a bank deposit of money collected during the 
3

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

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

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

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

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

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

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

out of the wall.

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

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

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

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

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

and that the bullet had not exited his body.

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

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

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

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

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

window and noticed that appellant’s car and possessions were gone.
4

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

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

witnesses testified that Sabin’s keys were never found.

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

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

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

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

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

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

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

believed to be related to the robbery and murder.

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

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

been involved in the murder.3

 Ranger Stoner, along with other officers, found 

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

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

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

truck had been stolen.

 2

Lewis was affiliated with the Aryan Brotherhood and was known as 

“Flash” because he could change moods quickly and acted differently while on 

drugs.

3

Ragan and Lewis had visited the bar occasionally. Lewis had been 

barred from entering the bar because he had threatened an employee.
5

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

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

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

methamphetamine paraphernalia there. Ranger Stoner wanted to contact 

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

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

working in El Paso.

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

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

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

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

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

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

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

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

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

Mexico pursuant to a warrant.

 4

Ragan said that he had locked Sabin in a closet and that he did not plan 

on shooting Sabin until Sabin escaped from it. Ranger Stoner was skeptical 

about Ragan’s ability to put Sabin, who was over six feet tall, in the closet, which 

was small.
6

A grand jury indicted appellant, through multiple alternative paragraphs,

with murder and capital murder.5

 She filed several pretrial motions, including a 

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

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

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

The court found that appellant had not received Miranda6 warnings before 

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

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

 

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

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

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

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

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

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

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

 5

See Tex. Penal Code Ann. § 19.02(b) (West 2011), § 19.03(a)(2) (West 

Supp. 2013).

6

See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630 

(1966).

7

At the two-hour-and-fourteen-minute mark of the interview, Ranger Wright

informed appellant that a warrant was being prepared for her arrest. The trial 

court, pursuant to the State’s concession and citing Dowthitt v. State, found that 

appellant’s custody began when Ranger Wright made that statement. 931 

S.W.2d 244, 254–55 (Tex. Crim. App. 1996).
7

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

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

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

trial and brought this appeal.

Evidentiary Sufficiency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

App. 2013).

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

cases; circumstantial evidence is as probative as direct evidence in establishing 
8

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

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

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

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

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

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

on January 17, 2012 in Hood County, she 

did then and there intentionally or knowingly commit or attempt to 

commit an act clearly dangerous to human life, to wit: shooting 

[Sabin] with a firearm, that caused the death of [Sabin], and the 

defendant was then and there in the course of intentionally or 

knowingly committing a felony, to wit: robbery, and said death of 

[Sabin] was caused while the defendant was in the course of and in 

furtherance of the commission or attempt of said felony[.]

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

contained language explaining that appellant could be criminally responsible for 

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

circumstances.9

 8

The jury charge correctly stated that a person commits robbery “if, in the 

course of committing theft and with intent to obtain and maintain control of 

property of another, he intentionally or knowingly causes bodily injury to another.” 

See Tex. Penal Code Ann. § 29.02(a)(1) (West 2011).

9

“It is well accepted that the law of parties may be applied to a case even 

though no such allegation is contained in the indictment.” Montoya v. State, 810 

S.W.2d 160, 165 (Tex. Crim. App. 1989), cert denied, 502 U.S. 961 (1991); see 

Murkledove v. State, No. 02-12-00194-CR, 2014 WL 2013438, at *2 (Tex. App.—

Fort Worth May 15, 2014, no pet. h.).
9

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

facts of this case, the evidence11 is sufficient to prove appellant’s guilt for murder 

 10Because we hold below that the evidence is sufficient to support 

appellant’s guilt for murder through her participation in a conspiracy under 

section 7.02(b), we need not determine whether the evidence is sufficient to 

prove her guilt as a party under section 7.02(a)(2). See Tex. Penal Code Ann. 

§ 7.02(a)(2); Tex. R. App. P. 47.1; Washington v. State, 417 S.W.3d 713, 723 n.7

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

11A reviewing court may look to “events before, during, and after the 

commission of the offense” to determine whether an individual is a party to an 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

offense, and it may rely on circumstantial evidence to prove party status. Gross 

v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012).
11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

emotionally unstable.

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

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

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

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

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

murder, Ragan and Lewis left Eubank’s house in Ragan’s truck. Later that 
12

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

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

“where to find the money.”

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

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

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

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

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

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

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

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

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

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

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

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

saying.

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

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

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

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

conversations, however, that a crime at TJ’s would occur. According to Cleere,
13

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the bar.

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

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

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

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

that she had a role in causing his death.

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

she had talked with Lewis more than once (on separate days) about why no one 
14

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

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

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

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

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

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

Nonetheless, appellant later told Ranger Wright that committing a robbery 

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

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

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

and “wolfing.”

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

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

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

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

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

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

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

 12Appellant characterized herself as “throw[ing] the idea [of committing a 

robbery at TJ’s] out there.”

13For example, Lewis suggested going through a side door at the bar, but 

appellant told him that the side door had recently been replaced.
15

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

removed from the bags.

While appellant admitted during her interview with Ranger Wright that she 

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

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

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

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

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

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

not want to “be involved.”

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

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

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

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

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

the presence of someone named “Ray Ray.”

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

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

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

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

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

January 18 (the day after the murder) and that appellant had called her back that 
16

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

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

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

she testified that to her knowledge, no funeral occurred.

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

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

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

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

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

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

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

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

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

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

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

crime at TJ’s with Lewis.

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

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

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

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

 14Appellant grew up in California and moved to Texas only about a year or 

two before Sabin’s murder because of disputes with her father.
17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 15Contrary to an argument in appellant’s brief, the State was not required 

to prove that appellant conspired with both Lewis and Ragan; rather, the penal 

code required the State to prove that appellant agreed with “one or more persons 

that they or one or more of them” would engage in the robbery. See Tex. Penal 

Code Ann. § 15.02(a) (emphasis added).
18

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

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

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

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

the murder.

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

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

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

Appellant made statements during the interview that contradicted each other and 

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

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

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

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

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

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

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

appellant used methamphetamine.

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

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

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

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

funeral, the evidence shows that appellant did not leave Texas until after the 
19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sustaining appellant’s first issue would require substituting inferences in 

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

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

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

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

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

evidence and substitute our judgment for that of the factfinder. Isassi v. State, 
20

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

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

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

S.W.3d at 360.

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

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

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

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

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

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

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

appellant’s first issue.

Denial of Motion to Suppress

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

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

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

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

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

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

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

evaluation of credibility and demeanor, but we review de novo application-of-lawto-fact questions that do not turn on credibility and demeanor. Amador, 221 
21

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

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

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

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

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

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

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

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

221 S.W.3d at 673.

Appellant contends that her recorded statement was inadmissible because 

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

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

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

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

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

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

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

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

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

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

custody during the first part of the interview. We agree with the State.
22

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

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

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

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

surrounding the interrogation, a reasonable person would have perceived that 

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

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

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

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

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

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

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

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

As the court of criminal appeals has stated,

In evaluating whether a reasonable person would believe his 

freedom has been restrained to the degree of formal arrest, [courts 

look] only to the objective factors surrounding the detention. The 

subjective beliefs of the detaining officer are not included in the 

calculation of whether a suspect is in custody. But if the officer 

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

officer’s subjective belief becomes relevant to the determination of 

whether a reasonable person in the detainee’s position would 

believe he is in custody. Conversely, any undisclosed subjective 

belief of the suspect that he is guilty of an offense should not be 

taken into consideration—the reasonable person standard 

presupposes an “innocent person.”
23

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

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

considering all objective circumstances, but four nonexclusive categories that 

may constitute custody for purposes of Miranda and article 38.22 are 

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

in any significant way, (2) when a law enforcement officer tells the 

suspect that he cannot leave, (3) when law enforcement officers 

create a situation that would lead a reasonable person to believe 

that his freedom of movement has been significantly restricted,[16]

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

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

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

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

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

S.W.2d at 254).

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

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

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

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

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

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

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

 16“In the first three situations, the restriction on freedom of movement must 

amount to a degree associated with arrest rather than investigative detention.” 

Burgess v. State, No. 02-12-00407-CR, 2014 WL 70090, at *7 (Tex. App.—Fort 

Worth Jan. 9, 2014, no pet. h.) (mem. op., not designated for publication).
24

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

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

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

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

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

similarly). Several precedential decisions demonstrate this principle.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the defendant that he did not have to talk and that he was not under arrest, took 
25

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

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

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

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

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

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

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

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

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

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

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

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

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

food or water.

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

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

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

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

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

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

appellant used her cell phone several times for phone calls and text messages. 
26

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

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

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

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

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

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

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

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

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

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

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

searched, fingerprinted, handcuffed, or photographed. Although appellant

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

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

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

investigation does not equate to custody.”

17 Cedillos v. State, 250 S.W.3d 145, 

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

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

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

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

 17During his testimony in front of the jury, Ranger Wright said that when he 

was sent to talk with appellant, he was not sure that she would be arrested.
27

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

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

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

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

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

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

lasted several hours).

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

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

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

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

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

Conclusion

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

judgment of conviction.

/s/ Terrie Livingston

TERRIE LIVINGSTON

CHIEF JUSTICE

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

GARDNER, J., concurs without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 10, 2014