Affirmed and Memorandum Opinion filed December 16 , 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00817

- CR

JAIRO FRANCISCO LOPE Z , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the Co unty Crim inal C ourt at Law No. 13 Harris County, Texas Trial Court Cause No. 1803236



### MEMORANDUM OPINION Appellant J airo 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 o fficer without being administered
Miranda warnings and statutory warnings. We affirm.B ACKGROUND 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 soun d 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 f eet, 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

automat ed teller machine when he lost co ntrol 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 . Williams on 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. Th e 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

2issue that the trial court erred in denying his motion to suppress.

A NALYSIS

A ppellant 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 stateme nts 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 bifurc ated 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.3 d 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 afford s 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 applic ation 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. P roc. 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 Fifth

3Amendment 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. 161 2. Miranda warnings are required only if the person is “ in custody .” See Oregon v. Mathiason , 429 U.S. 492, 495, 97 S. Ct. 711, 71 4, 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 receive d 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 sta tements. 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 Crim inal 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

4determination 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 c an 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 e nforcement 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 a rrest 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

oppose d 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 substantiatin g 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 manifestati on 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 conside r. 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

5he 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 app ellant 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 h e 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, 82 8

– 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
the se statements on the grounds that he did not receive Mira nda warnings or statutory warnings.

6C ONCLUSION 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. Accordingl y, 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

— T EX

. R. A PP

. P. 47.2( b).

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