COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

FELICIA KAYE MURRAY , a/k/a FELICIA KAYEK MURRAY, a/k/a FELICIA K. MURRAY, Appellant ,

v. THE STATE OF TEXAS , Appellee. § § § § § § No. 08

- 11

- 00 344

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Appeal from the Criminal District Court No. 1 of Tarrant County , Texas (TC# 1225055D )

O P I N I O N Felicia Murray appeals from the trial court’s judgment convicting h er of aggravated

ro bbery with a deadly weapon and sentencing her to thirty years’ imprisonment

– a sentence enhanced pursuant to the habitual

- offender statute

. In a single issue , Appellant contends that the trial court erred b y denying her motion to suppress i nculpatory statement s made to police detectives because she was in custody and had not been advised of her Miranda rights

. For the reasons that follow, w e affirm.

FACTUAL AND PROCEDURAL BACKGROUND Following a robbery at gun point during which a witness observed the robber leave in a vehicle driven by an African

- American woman, a police officer spotted a vehicle matching the description provided by the witness. The vehicle, registered to Appellant , was spotted in front of2

the house inside of which police encountered Appellant and two males, one of whom was the robber. Appellant was handcuffed and placed in the back of a patrol car. T he police officer testified that he did so for officer safety because he did not have an opportunity to search Appellant for a weapon when one had been reported and she was suspect ed of being involved in the robbery

. Appellant remained handcuffed in the car for an indet erminate amount of time until Detective
Desmara is arrived and ordered t he handcuffs removed

. Appellant was then placed in Detective Desmarais ’ vehicle and driven to the police administration building for an interview

. When Appellant arrived at the police administration building, she was not in handcuffs. During her interview with Detectives Desmarais and Ransford, Appellant was asked if she understood that she was not under arrest and that she was there voluntarily. Appellant initi ally responded that she understood, but then stated “Naw I didn’t know that, but now I know.” Detective Desmarais reiterated that she was not under arrest. S econds after uttering “O k ” in response to Detective
Desmarais pronouncement, Appellant stated “ I didn’t know I came on my own free will . . . .” Appellant continued to speak with the detectives. She admitted she was at the scene of the robbery and knew the robber and had given him rides before, but denied she was his getaway driver

. Near the conclu sion of the interview, Detective Desmarais informed Appellant that he could arrest her then, but would not do so. After the 35

- minute interview ended, Detective Desmarais drove Appellant home. CUSTODIAL INTERROGATION Appellant argues that she was in custody when she was left handcuffed in the patrol car for an indeterminate period and , notwithstanding that t he handcuffs were removed, remained in3

custody for the duration of her encounter with the police . We disagree

. Standard of Review
Be cause questions of custody present a mixed question of law and fact, we afford almost

t otal deference to a trial judge’ s “custody” determination when the questions of historical fact tu rn on credibility and demeanor. See Herrera v. State , 241 S.W.3d 520, 526

- 27 (Tex.Crim.App. 2007) ; see also Jeffley v. State , 38 S.W.3d 847, 853 (Tex.App.

- - Houston [14th Dist.] 2001, pet. ref’d). When, however, the questions of historical fact do not turn on credibility and de meanor, we review a trial judge’ s “custody” dete rmination de novo

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

- 27 ; Jeffley , 38 S.W.3d at 853. The defendant, not the State, carries the initial burden of establishing that a statement was the product of custodial interrogation. Herrera , 241 S.W.3d at 526. Applicable Law Article 38.22 of the Texas Code of Criminal Procedure prohibits the admiss ion of an accused’ s statement resulting from a custodial interrogation unless she was advised of h er Miranda rights and voluntarily waived those rights. T EX .C ODE C RIM .P ROC .A NN
. art. 38.22, §§ 2(a), 2(b), 3(a)(2)(West 2005); see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Herrera , 241 S.W.3d at 526 (“Our construction of ‘custody’ for purposes of Article 38.22 is consistent with the meaning of ‘custody’ for purposes of Miranda .”). However, the warnings required by Article 38.22 and Miranda only apply when a suspect is in custody. See Herrera , 241 S.W.3d at 526. A person is “in custody” if, under the circumstances, a reasonable person would b elieve h er freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v. California , 511 U.S. 318, 322

- 24, 114 S.Ct. 1526, 1528

- 30, 128 L.Ed.2d 293 (1994); Dowthitt v.4

State , 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). We d etermine custody based on objective circumstances, and any subjective intent of law enforcement officers or the person being questioned are not controlling. Stansbury , 511 U.S. at 323, 114 S.Ct. at 1529. As the Court of Criminal Appeals noted in Dowthitt , Texas courts have identified four general situations that may constitute custody: (1) when the suspect is physically deprived of her freedom of action in a significant way; (2) when a law

- enforcement official tells a suspect s he cannot leave; (3) when l aw - enforcement officers create a situation that would lead a reasonable person to believe that h er freedom of movement has been significantly restricted; and (4) if there is probable cause to arrest and law

- enforcement officials do not tell the suspect tha t s he may leave. Dowthitt , 931 S.W.2d at 255, citing Shiflet v. State , 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). The restraint upon freedom in the first three situations must be equivalent with that associated with an arrest as opposed to an investigativ e detention. See Dowthitt , 931 S.W.2d at 255. In th e fourth situation, the officer’ s knowledge of probable cause must be manifested to the suspect, and such manifestation, considered in the totality of the circumstances, must lead a reasonable person

to believe s he is not free to leave. Id

. Analysis
C onsidering the totality of the circumstances, s e veral factors tend to demonstrate that Appellant was not in custody when she was interviewed by the d etectives. The record does not reflect that she was under formal arrest at any point during her en counter with the police. The patrol officer who handcuffed her testified he did so for officer safety. Detective Ransford testified that Appellant was not under arrest when he and Detective Desmarais interviewed her.
A lthough Detective Desmarais informed Appellant near the conclusion of the 35

- minute interview5

that they had sufficient evidence to arrest her, in the same breath he told her that he was not going to arrest her

. And in fact, he did not. Nor does t he record reveal that any officer communicated to Appellant that she was not free to leave. There is no evidence that the patrol officer or the detectives informed her that she was not free to leave. Indeed the facts are to the contrary. More importantly, at the outset of the interview, Detectives Desmarais and Ransford advised Appellant that s he was not under arrest and that s he was giving a voluntary statement. I t is thus evident that t he restraint upon Appellant’s
freedom of movement is not equivalent to that associated with an arrest

. See Dowthitt , 931 S.W.2d at 255. Appellant maintains that the use of handcuffs is a significant factor, if not the key factor, in concluding that she was in custody for purposes of Miranda . The State acknowledges that the use of handcuffs “is an important factor in determining whether that person is in ‘custody’ for purposes of [ Miranda ]

. . . ” but counters that, in and of itself, the use of handcuffs does not always constitute a formal ar rest or restraint to the degree associated with a formal arrest. None of the cases cited by Appellant hold that placing a suspect in handcuffs automatically equates to custody. Indeed, the Texas Court of Criminal Appeals has reiterated that the mere act of handcuffing, by itself, does not establish custody, but is only one of a range of relevant factors in determining t hat a suspect is in custody. State v. Ortiz , 382 S.W.3d 367, 374 (Tex.Crim.App. 2012) ; see Balentine v. State , 71 S.W.3d 763, 771 (Tex.C rim.App. 2002)(t he placing of handcuffs on a defendant does not, in and of itself, mean he is in custody)

. T he other cases cited by Appellant have concluded that the use of handcuffs is significant, but not decisive , in determining if a suspect is in custody

. More importantly, because the case s have additional, material facts not present here, they are inapposite

.6

For example, in U.S. v. Henley , 984 F.2d 1040, 1042 (9th Cir. 1993) , the court held that a defendant questioned by an FBI agent while sitt ing handcuffed in the back of a police car was in custody. Likewise, in United States v. Newton , 369 F.3d 659, 675

- 77 (2d Cir. 2004) , the court held that a suspect questioned by six officers while sitting in his apartment handcuffed and in his underwear w as in custody. I n contrast to the defendants in Ortiz , Henley , and Newton , Appellant

was not questioned at the scene while handcuffed; she was questioned at the police administration building without handcuffs

. Appellant attempts to diminish the significa nce of having her handcuffs removed. First, she argues that “once she was taken into custody, she remained in custody, since there was no evidence that she was released from custody

. . . .” In so arguing, she posits that the police officer’s testimony that he removed her handcuffs before placing her in Detective Desmarais’
vehic le “is no evidence of a break in custody.” She cites no authority in support of this proposition nor does she explain why this is nece ssarily so . Moreover , because the officer’s testimony is a historical fact that turns on credibility and deme anor , w e defer to the trial judge’ s implicit determination that the officer was a credible witness whose testimony supported t he conclusion that A ppellant was not in custody. See Herrera , 241 S.W.3d at 526. Appellant next suggests that, when other facts are considered, “the fact that the handcuffs were removed prior to any questioning becomes unimportant

. . . .” She identifies these facts as: (1) the interview occurred at the police administration building and it was accusatorial in nature; (2) she was dependent on transportation to and from the interview; and (3) there is no evidence that her handcuffs were removed before she accompanied Detec tive Desmarais to the interview. As with her first argument, Appellant neither cites no r applies any law in support of this argument.7

More importantly, she fails to provide a reasoned explanation how these facts collectively

c onstitute custody given that each fact standing alone do es not constitute custody. See Dowthitt , 931 S.W.2d at 255( station

- house questioning does not automatical ly constitute custody); Meek v.
State , 790 S.W.2 d 618, 621 (Tex.Crim.App. 1990)(being the focus of the investigation does not equate to being in custody); Rodriguez v. State , 191 S.W.3d 428, 441

- 42 (Tex.App.

-- Corpus Christi 2006, pet. ref’ d) (person transported to a law enforcement facility by an officer in the course of an investigation is not in custody if he voluntarily acc ompanied the officer upon the officer’s invitation, request, or urging without the threat that he would be taken in a forcible manner). Appellant has failed to carry her burden of establishing that she was in custody when she made her inculpatory statements

. S ee Herrera , 24 1 S.W.3d at 526. It is clear that there was no significant deprivation of f reedom of mov ement, and a reasonable person would not consider herself in custody in thi s particular situation. S he spoke to th e detectives for thirty

- five minutes and a t the conclusion of the interview, she was permitted to leave. Finding no error, we deny Appellant’s sole issue and affirm the judgment of the trial court below.

March 6, 2013 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Antcliff, JJ. Antcliff, J. (Not Participating) (Do Not Publish)