Opinion issued February 4, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-12-00901-CR

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DANIEL SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1354971

MEMORANDUM OPINION

A jury convicted Daniel Smith of murder, and the trial court assessed his 

punishment at forty years’ confinement. On appeal, Smith contends that the trial 

court erred in admitting three recorded statements that he made to the police,
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claiming that he gave them while in custody without having received the requisite 

statutory warnings. Finding no error, we affirm.

Background

In September 2011, a group of police officers approached Smith while he 

was walking across a street and asked him if he would come with them to the 

police station. Smith agreed. At the police station, two officers interviewed him in 

an interview room. He was not handcuffed during the interview. The officers did 

not give Smith any of the warnings pursuant to article 38.22 of the Code of 

Criminal Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 

See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a)(2) (West 2005). 

Approximately seven minutes into the interview, before Smith had made any 

incriminating statements, one of the officers told Smith that he was not in custody 

and not under arrest. Smith indicated that he understood. The interview lasted 

approximately forty–four minutes. At the end of the interview, the officers asked 

Smith if he would return the next day to participate in a lineup. Smith agreed. 

After the interview, an officer drove Smith from the police station to Smith’s 

home. The next day, an officer picked up Smith and drove him to the station to 

participate in the lineup. After the lineup, Smith gave the police two additional 

statements. 
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During the jury trial, Smith objected to the admission of his three statements 

to the police. The trial court conducted a suppression hearing outside the presence 

of the jury and ruled that the statements were admissible. The State proffered, and 

the trial court admitted, Smith’s three statements at trial. 

Discussion

Smith contends that article 38.22 of the Texas Code of Criminal Procedure 

and article 1, section 10 of the Texas Constitution bar the admissibility of the three 

recorded statements, because he gave them while in custody without having 

received the requisite warnings.

Standard of review 

We evaluate a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 

The trial court is the sole trier of fact and judge of the weight and credibility of the 

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 

2007). Accordingly, we defer to the trial court’s determination of historical facts if 

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial 

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled 

to ‘the strongest legitimate view of the evidence and all reasonable inferences that 

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465 

(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241 
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(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably 

supported by the record and correct on any theory of law applicable to the case.” 

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. 

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

Analysis 

Article 38.22 of the Code of Criminal Procedure bars the admission of an 

accused’s statement resulting from a custodial interrogation unless he was advised 

of the enumerated rights and voluntarily waived those rights. TEX. CODE CRIM.

PROC. ANN. art. 38.22, §§ 2(a), 3(a)(2) (West 2005); see also Miranda, 384 U.S. at 

444–45, 86 S. Ct. at 1612; Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. 

App. 2007). The Article 38.22 warnings, however, are required only when a 

person is in custody. Herrera, 241 S.W.3d at 526. A person is “in custody” only 

if, under the circumstances, a reasonable person would believe that his freedom of 

movement is restrained to a degree associated with a formal arrest. Dowthitt v. 

State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. 

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1529–30 (1994)). In evaluating a 

custody determination, we examine the objective factors surrounding a detention; 

we do not examine the undisclosed, subjective beliefs of the detaining officer or 

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

undisclosed subjective belief of the accused that he is guilty of an offense should 
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not be considered; the reasonable person standard presupposes an “innocent 

person.” Id. at 373. 

The State proffered a video recording of Smith’s first statement. 

Approximately seven minutes into the recording, before Smith had made any 

incriminating statements, one of the police officers present told Smith that he was 

not in custody and not under arrest. Smith responded that he understood. After the 

interview, an officer drove Smith from the police station to Smith’s home. This 

evidence supports the trial court’s finding that Smith was not in custody. Because 

Smith was not in custody, the State did not need to advise him of his Miranda

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

Relying on Kaupp v. Texas, Smith contends that a reasonable person in his 

circumstances would not have believed he was free to leave the police station. 538 

U.S. 626, 632, 123 S. Ct. 1843, 1847 (2003). He testified that, as he was walking 

across a street, several police officers used their cars to trap him, then exited the 

cars and pointed their guns at him. He testified that the police ordered him to lie 

down on the ground and handcuffed him. Smith also testified that no one told him 

that he had the right to leave, contrary to his acknowledgement in the recorded 

statement. Having seen the recorded statement, the trial court was free to 

disbelieve Smith’s testimony. See Weide, 214 S.W.3d at 24–25. The facts in 

Kaupp are distinguishable from the facts here. There, a group of police officers 
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awakened the defendant in his bedroom in the middle of the night and handcuffed 

him. Kaupp, 538 U.S. at 628, 123 S. Ct. at 1845. Here, a group of police officers 

approached Smith in public and asked him if he would come with them to the 

police station, and Smith agreed. Given the totality of the circumstances, we hold 

that the trial court did not err in admitting the first recorded statement. 

Smith contends that his second and third statements to the police are 

inadmissible because they were fruit of the illegally obtained first statement. 

Because Smith’s first statement is admissible, this argument is unavailing. 

Accordingly, we hold that his second and third statements are also admissible.

Conclusion

Because Smith was not in custody when he made his initial statement to the 

police, we hold that the trial court did not err in admitting it or the subsequent 

statements not otherwise independently challenged. We therefore affirm the 

judgment of the trial court.

Jane Bland

Justice 

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).