Affirmed and Memorandum Opinion filed December 16, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00817-CR

JAIRO FRANCISCO LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Cause No. 1803236

MEMORANDUM OPINION

Appellant Jairo Francisco Lopez challenges his conviction for driving while 

intoxicated on the grounds that the trial court erred in admitting into evidence 

statements he made to a responding police officer without being administered 

Miranda warnings and statutory warnings. We affirm.
BACKGROUND

Sergeant John Guerra, an officer with the City of West University Place, was 

on duty when he heard a loud crash. His investigation into the crashing sound took 

him across the street, just outside his jurisdiction and into the surrounding city of 

Houston, where he located appellant outside a nearby bank. Appellant was on the 

phone calling a wrecker to tow a vehicle that had hit a tree and was parked in the

median of the road. Guerra informed appellant that he needed to wait at the scene 

until the Houston Police Department officers arrived and filed a police report 

because the accident caused damage to bank property. Because appellant was 

unsteady on his feet, Guerra asked him to sit on the curb while waiting. Guerra 

asked appellant what happened and appellant stated that he had an accident. 

Appellant later disclosed that he had been driving from a nearby bar to an 

automated teller machine when he lost control of the vehicle. 

Officer David Williamson of the Houston Police Department arrived at the 

scene about twenty minutes later. Williamson saw appellant’s car wrapped around 

a pole and also observed several signs of intoxication in appellant. Williamson 

stated that appellant emitted a strong odor of a fruity alcoholic beverage, 

appellant’s speech was slurred, and appellant was stuttering. According to 

Williamson, appellant swayed as he stood and he cycled between acting nice and 

acting belligerent. 

Appellant was charged by information with driving while intoxicated

(DWI). Before trial by jury, appellant filed a motion to suppress to the statements 

he made to Sergeant Guerra, asserting he was in custody and was not provided 

with Miranda warnings. The trial court denied appellant’s motion to suppress and

during trial Guerra testified regarding appellant’s statements. The jury found 

appellant guilty as charged. Appellant timely filed this appeal, asserting in a single 

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issue that the trial court erred in denying his motion to suppress.

ANALYSIS

Appellant contends that the trial court erred in denying his motion to 

suppress statements he made to Guerra on the grounds that the statements were 

involuntary because he was in custody and was not provided with Miranda

warnings or warnings required by Texas Code of Criminal Procedure Article 

38.22, which governs when statements of an accused may be used in evidence 

against him. This court reviews a trial court’s ruling on a motion to suppress under 

a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. 

App. 1997). At a suppression hearing, the trial court is the sole finder of fact and 

is free to believe or disbelieve any or all of the evidence presented. Weide v. State, 

214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to 

the trial court’s determination of historical facts, especially when the trial court’s 

fact findings are based on an evaluation of credibility and demeanor. Guzman, 955 

S.W.2d at 89. This court affords the same amount of deference to the trial court’s 

application of the law to facts if the resolution of those ultimate questions turns on 

an evaluation of credibility and demeanor. Id. This court reviews de novo the trial 

court’s application of the law to facts if resolution of the ultimate questions does 

not turn on an evaluation of credibility and demeanor. Id. 

Appellant asserts that the trial court erred in denying his motion to suppress 

statements he made to Guerra because Guerra interrogated him without providing 

him the benefits of warnings set out by the United States Supreme Court in 

Miranda v. Arizona and the warnings required by Article 38.22 of the Texas Code 

of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West, Westlaw 

through 2013 3d C.S.); Miranda v. Arizona, 384 U.S. 436, 442–57, 86 S.Ct. 1602,

1611–18, 16 L.Ed.2d 694 (1966). It is a violation of an individual’s Fifth3
Amendment right against self-incrimination for the State to use unwarned 

statements obtained as a result of custodial interrogation in a criminal proceeding 

during its case-in-chief. Id. at 444, 86 S.Ct. 1612. Miranda warnings are required 

only if the person is “in custody.” See Oregon v. Mathiason, 429 U.S. 492, 495, 97 

S. Ct. 711, 714, 50 L.Ed.2d 714 (1977).

Similarly, article 38.22 governs the admissibility of statements made by a 

defendant during a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 

(Tex. Crim. App. 2007). It is undisputed that appellant had not received any 

Miranda warnings or statutory warnings when he made the statements in question. 

Appellant’s statements to Guerra were made in response to questioning by Guerra. 

Therefore, this court must decide whether appellant was in custody when he made 

the statements.

A person is in custody if, under the circumstances, a reasonable person 

would believe that his freedom of movement was restrained to the degree 

associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. 

Crim. App. 1996). The “reasonable person” standard presupposes an innocent 

person. Id. Moreover, the subjective intent of law enforcement officials to arrest

is irrelevant unless that intent is somehow communicated or otherwise manifested 

to the suspect. Id.

The Court of Criminal Appeals of Texas has recognized four factors relevant 

to determining custody: (1) probable cause to arrest, (2) subjective intent of the 

police, (3) focus of the investigation, and (4) subjective belief of the defendant. Id. 

But, under Stansbury v. California, 511 U.S. 318, 321–24, 114 S.Ct. 1526, 1528–

30, 128 L.Ed.2d 293, 298–99 (1994), factors (2) and (4) have become irrelevant 

except to the extent that they may be manifested in the words or actions of law 

enforcement officials. See Dowthitt, 931 S.W.2d at 254. The custody 

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determination must be made on an ad hoc basis, after considering all of the 

objective circumstances. Id. at 255. That an interrogation begins as non-custodial 

does not prevent custody from arising later; a consensual inquiry can escalate into 

a custodial interrogation. Id.

The Court of Criminal Appeals has outlined at least four general situations 

which may constitute custody:

(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. Concerning the first three situations, Stansbury indicates that the restriction 

upon freedom of movement must amount to the degree associated with an arrest as 

opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. Concerning 

the fourth situation, Stansbury dictates that the officers’ knowledge of probable 

cause be manifested to the suspect. Id. This manifestation can occur if 

information substantiating probable cause is relayed by the suspect to the officers 

or if such information is relayed by the officers to the suspect. Id. Furthermore, 

the fourth situation does not automatically establish custody; rather, custody is 

established if the manifestation of probable cause, combined with other 

circumstances, would lead a reasonable person to believe that he is under restraint 

to the degree associated with an arrest. Id. The length of time spent interrogating 

the suspect is one of the factors to consider. Id. at 256.

The record reflects that Guerra detained appellant at the scene, rather than 

another location, for an estimated fifteen to twenty minutes. Guerra testified that 

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he refrained from asking appellant whether he was intoxicated because Guerra 

wanted the Houston Police Department to take control of the scene. Guerra did not 

tell appellant that he was under arrest or that he suspected appellant had operated a 

motor vehicle while intoxicated. To the contrary, Guerra merely stated that 

appellant needed to remain at the scene so that the Houston Police Department 

could conduct an accident report. Guerra asked appellant to sit on the curb for 

appellant’s own safety but did not place appellant in handcuffs or in the police car 

or engage in any other conduct that suggested the officer was doing anything other 

than maintaining the status quo until police officers with jurisdiction arrived at the 

scene. Guerra informed appellant that he was being detained and he did not take 

any actions that indicated he was under arrest. Applying the foregoing legal 

standard to the case under review, the trial court did not err in concluding that 

appellant was not in custody at the time he made the statements to Guerra. See 

State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim. App. 1997) (holding that 

appellant was not in custody when he made statements during roadside DWI 

investigation). The trial court did not err in denying appellant’s motion to suppress 

these statements on the grounds that he did not receive Miranda warnings or 

statutory warnings. 

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CONCLUSION

The trial court did not err in denying appellant’s motion to suppress 

statements made to a responding officer because appellant was not in 

custody at the time he made the statements. Accordingly, we overrule 

appellant’s sole issue. 

The trial court’s judgment is affirmed.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

Do Not Publish — TEX. R. APP. P. 47.2(b).

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