NO.

IN THE COURT OF CRIMINAL APPEALS OF

OF THE STATE OF TEXAS
AT AUSTIN, TEXAS

_______________________________________________________________ No.14-14-00014-CR IN THE COURT OF APPEALS

FOR THE FOURTEENTH SUPREME JUDICIAL DISTRICT

AT HOUSTON

__________________________________________________________________ JUAN SALGADO § APPELLANT
V. §
STATE OF TEXAS § APPELLEE

__________________________________________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________

J. SIDNEY CROWLEY 214 Morton St. Richmond. Tx. 77469 TBC No. 05170200 Attorney for Appellant PD-0094-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 1/21/2015 5:21:35 PM Accepted 1/28/2015 9:43:16 AM

ABEL ACOSTA CLERKINTERESTED PARTIES

APPELLANT J u an Sal gad o Tex as Dep art m en t o f Cri m i n al J u s t i ce Co rrect i o n al Di vi si o n

TRIAL COUNSEL Gi l b ert Vi l l areal 1 4 1 9 Fran k l i n St

. Ho u s t o n , Tex as 7 7 00 2

M av eri ck Ray 1 4 1 9 Fran k l i n St

. Ho u s t o n , Tex as 7 7 00 2

APPELLATE COUNSEL J . Si d n ey Cro wl ey 2 1 4 M o rt o n St

. Ri ch m o n d , Tex as , 7 7 4 6 9

STATE OF TEXAS Dev on An d ers o n Di s t ri ct At t o rn ey , Harri s Co un ty 1 2 0 1 Fran k l i n St

. Ho u s t o n , Tex as 7 7 00 2

Am an d a J ean Greer As s is t an t Di st ri ct At t o rn ey Harri s Co u n ty , Tex as

2TABLE OF CONTENTS

INTERESTED PARTIES..........................................................................................2

LIST OF AUTHORITIES..........................................................................................4

STATEM ENT REGARDING ORAL ARGUM ENT................................................5

STATEM ENT OF THE CASE..................................................................................6

STATEM ENT OF THE PROCEDURAL HISTORY OF THE CASE.....................7

GROUNDS FOR REVIEW .......................................................................................8

GROUND FOR REVIEW NUM BER ONE Th e Co u rt o f Ap p eal s erred wh en t h at Ap p el l an t was n o t i l l eg al l y
arres t ed .............................................................................................................9

PRAYER FOR RELIEF...........................................................................................1 4

CERTIFICATE OF COM PLIANCE.......................................................................1 5

CERTIFICATE OF SERVICE................................................................................1 5
APPENDIX A. (OPINION BELOW ).....................................................................1 6

3L IST OF AUTHORITIES

Cas es

Bel l v . St at e, 7 2 4 S.W .2 d 7 8 0 (Tex .Cri m

. Ap p . 1 9 8 6 )............................................1 2

Bl ack v . St at e , 3 6 2 S.W .3 d 6 2 6 , 6 3 0 (Tex

. Cri m .Ap p. 2 0 12 ).................................1 0

Bro w n v

. Il l i no i s , 4 2 2 U.S. 5 9 0,6 0 4 -0 5 , 9 5 S.Ct . 2 2 5 4 (1 9 7 5 )...............................1 1

Farm ah v . St at e, 8 8 3 S.W .2 d 6 7 4 (Tex .Cri m .Ap p . 1 9 9 4 ).......................................1 2

Hard es t y v

. St at e, 6 6 7 S.W .2 d 1 3 0 , 1 3 3 (Tex

. Cri m .Ap p

. 1 9 8 4 )...............................1 0
Hay es v . Fl o ri d a, 4 7 0 U.S. 8 1 1 , 8 1 6, 1 05 S.Ct . 1 6 4 3, 1 6 4 7 , 8 4 L.Ed .2 d 7 0 5
(1 9 8 5 )................................................................................................................9

J ack s on v

. St at e, 6 4 9 S.W .2 d 3 1 7 (Tex .Ap p .-Am ari ll o 1 9 8 3 )...................................1 2

Reed v

. St at e, 8 0 9 S.W

. 2 d 9 4 0 ,9 4 4 (Tex .Ap p.-Dal l as 1 99 1 )....................................1 0

Sel f v . St at e, 7 0 9 S.W .2 d 6 0 2 ,6 66 (Tex .Cri m .Ap p .1 9 8 6 )........................................1 2

W eem s v

. St at e ,1 6 7 S.W .3 d 3 5 0 (Tex .Ap p .-Ho u s t o n [1 4 t h Di s t .] 2 0 0 5 , ref’ d)........1 2

4STATEM ENT REGARDING ORAL ARGUM ENT

Ap p el l an t b el i ev es t hat o ral arg u m en t i s n o t n eces s ary i n t h i s cas e.

5STATEM ENT OF THE CASE

TO THE HONORABLE COURT OF CRIM INAL APPEALS:
Ap p el l an t was co n v ict ed b y a ju ry o f t he fel o n y o ffen s e o f i n d ecen cy wi t h a ch i l d.

Th e co u rt as s es sed h i s p un i s h m e n t a t c o n fi n em en t i n t h e Tex as Dep art m en t o f

Cri m i n al J u st i ce, Co rrect i o n al Di v i s i o n , fo r a p eri od of ei g h t een y ears y ears an d a fi n e

o f $ 50 0 0

.

6STATEM ENT OF THE PROCEDURAL HISTORY OF THE CASE

Ap p el l an t ’ s ap p eal was affi rm ed i n an p u b li s h ed o p i n i o n o f t h e Fi rs t Co u rt o f
Ap p eal s ren d ered Decem b er 2 3 , 2 0 14 . No m ot i on fo r reh eari n g was fi l ed

.

7GROUNDS FOR REVIEW

GROUND FOR REVIEW NUM BER ONE:

Th e Co u rt o f Ap p eal s erred wh en i t h el d t h at Ap p el l an t was n o t i l l eg al l y

arres t ed

.

8GROUND FOR REVIEW NUM BER ONE

Th e Co u rt o f Ap p eal s erred wh en i t h el d t h at Ap p el l an t was n o t i l l eg al l y

arres t ed

.
A rg u m en t an d Au t h ori t ies

T h e Co u rt o f Ap p eal s h el d t h at Ap p el l an t was n ot u n d er arres t wh en h e w a s

t ran s p o rt ed f

r o m t h e res tau ran t wh ere he wo rk ed t o t h e p o l i ce s t at i o n i n o rd er to

d et erm i n e wh et h er h e was t h e co rrect s u s p ect

. Th e co u rt t h en h el d t h at t h e s t at em en t

A p p el l an t g av e was n o t t he p ro d u ct o f an il l eg al d et en t i o n

. Th e co urt o f a p p e a l ’s

h o l di n g i s s i m

p l y n ot ju s t i fi ed b y

t h e reco rd

.
A fai r read i n g o f t h e fact s d em o n s t rat es t h at Ap p el l an t was i n v o l u n t ari l y d et ai n ed fo r

fu rt h er i n v es ti g at i o n

. O ffi cer M art i nez h ers el f s t at e d t h a t Ap pel l an t was b ei n g

“ d et ai n ed ”. Ap p el l an t w as tran s p o rt ed t o t h e p ol i ce s tat i on i n han d c u ffs

. M art i nez

t es t i fi ed t h at i f t h e co m

p l ai n an t h ad n o t i d en t i fi ed h i m h e wo u ld h av e b een rel eas ed ,
wh i ch i n d i cat es t h at Ap p el lan t was in fact n ot free t o l eav e wh i l e at t h e p o li ce s t at i o n.

Th e p ro t ect i o n o f t h e Fo u rt h a nd Fo u rt een t h Am en d m en t s is t ri gg ered wh en t he p o l i ce,

wi th o u t p ro b ab le cau s e o r a warran t, fo rci b l y rem o v e a p ers o n fro m hi s h o m e o r p l ace

wh ere h e i s en t i t led t o b e an d t ran s p o rt h i m t o t h e p o l i ce s t at i o n , w h ere h e i s d et ai n ed ,
al t h o u gh b ri efl y , fo r i n v es t i g at i ve p u rp o s es

. Hay es v

. Fl ori d a, 4 7 0 U.S. 8 1 1 , 8 1 6 , 1 0 5

S.Ct

. 16 4 3 , 1 6 4 7, 8 4 L.Ed

. 70 5 (1 9 8 5 ). Su ch s ei zu res , at l eas t wh ere n o t u n der ju d i ci al

9s u perv i s i o n , are su ffi ci en t l y l i ke arres t s t o in vo k e t he trad i t io n al ru l e t hat arres t s m ay

co ns t i t u t i o n al l y be m ad e o nl y on p ro b ab l e cau s e. Id

. at 1 0 5 S.Ct

. 16 4 7

. A d et en t i o n fo r

i n v es t i g at o ry pu rp os es m u s t b e l i m i t ed ; i t m

u s t b e t em

p o rary an d las t n o l o n g er t h an

n eces sary t o effect t h e p ro g res s o f t h e st o p

. In Ap p el l an t’ s cas e h e w a s n o t m erel y

b ri efl y q u es t i o n ed wh ere h e w as b u t was t ak en to a po l i ce s t a t i o n s o h e co u l d b e

i d en t i fi ed an d h e was no t free t o l eav e. Th es e fact o rs i n di cat e t hat h e was u n der arres t

at t h e t i m e h e was p h o t o g rap h ed

. Reed v

. St at e, 8 0 9 S.W .2 d 94 0 , 9 4 4 (T e x .Ap p .-
Dal l as , 1 99 1 ).

At t h e h eari n g o n Ap p el l an t ’ s m o t i o n t o s u p p r e s s , t h ere was n o t es t i m o ny

ad du ced fro m wh i ch t h e t ri al co u rt co u ld d et erm i n e wh et h er t here was p ro b ab l e cau s e

fo r t h e arres t

. W hen ap p el l a t e c o u rt s are as k ed t o d et erm i n e wh et h er t h e t ri al co u rt

erred i n ov erru l i n g a p ret ri al m o t i o n t he g en eral ru l e i s t h at t h e ap p el lat e co u rt

co ns i d ers o nl y ev i den ce ad d u ced at t he h eari n g o n t h e m o t i on an d m ay no t res o rt to

t es t i m o n y s u b s eq u en t l y el ici t ed at t r i a l b ecau s e t h e ru l i ng i n i s s u e w as n o t b as ed o n

t h e l at t er. Bl ack v

. St at e, 3 6 2 S.W .3 d 6 2 6 , 6 30 , fn 1 3 (Tex .Cri m .Ap p

. 2 0 12 ); Hard es t y

v

. St at e, 6 6 7 S.W

. 2d 13 0 , 1 3 3 fn 6 (Tex .Cri m .Ap p

. 1 98 4 ). At th e h e a r i n g M a r t i nez

t es t i fi ed s i m

p l y t h at s h e w as i n v es t i g at i n g a cas e o f ag g rav at ed s ex u al as s au l t

. Sh e

rel at ed n o fact s of t h e al l eg ed as s au l t , t h e id en t i t y o f t h e co m p l ai nan t , no r d i d s h e

i n fo rm t h e co urt an y o f i n fo rm at io n t h at s h e h ad recei v ed co n cern i n g th e o ffen s e fro m

1 0t h e co m

pl ai nan t o r fro m an y o n e el s e, o r fact s t h at wo u ld ev en es t ab l i s h t h at an o ffen s e

ha d been co m

m i t t ed

. Her en t i re t es t i m o n y co n cern ed es t ab l i s h i n g A ppe lla nt’ s ide ntity

.
Ev en i f h er t ri al tes ti m o n y i s co n s i d ered , i t i s s im il arl y l ac k i n g i n i n fo rm at i o n

. Sh e

s t at ed t h at s h e rev i ewed t h e co m p l a i n an t ’ s reco rd ed i n t erv i ew an d i n t erv i ewed t h e

co m p l a i n a n t n ear t h e b eg in n i n g o f t h e i n v es t i g at i o n b u t n ev er d et ai l ed wh at

i n fo rm at i o n s h e l earn ed fro m th o s e s o u rces p ri o r t o Ap p el l an t ’ s arres t

. Th ere was n o

ev id en ce in t h e reco rd at t h e m o t i o n h eari ng or at t ri al fro m wh i ch t h e t ri al co u rt co u ld

h av e d et erm i n ed t h at M art i n ez h ad s u ffi ci en t i n fo rm at i o n t o co n s t i t ut e p ro b ab l e cau s e

fo r t h e arres t . Th e arres t was cl earl y i l l eg al

. Ap p el l an t ’s r e c o r d e d s t at em en t t o M art in ez was t h e fru i t o f t h e i l l eg al

d et en ti o n

. Ev i d en ce p ro cu red as t h e res u l t of an i n i ti al i l l eg al i t y m ay b e ad m i t t ed i f t h e

co nn ect i o n b et ween t h e i l l eg al i t y an d th e m ean s t h ro ug h w h i c h th e ev i d en ce was

s ecu red is s o at t en u at ed as t o d i s s i p at e t he tai n t. T h e Un i t ed St at es Su p rem e Co u rt , in

d et erm i n i n g wh et h er t h e t ai n t i nfect i n g t h e ev i d en ce o b t ai n ed aft er an il l eg al arres t i s

s u ffi ci en t ly at t en u at ed to p erm i t u s e o f t h e ev i d en ce at t ri al h as i d en t i fi ed fo u r fact o rs

t o b e co n s i d ered : 1 ) w h et h er M i ran d a warn i n gs were g i v en ; 2 ) t h e tem p o ral p ro x i m i t y

o f t h e arres t an d co n fes s i o n ; 3 ) th e p res en ce o f i n terv en i n g ci rcu m s t an ces ; an d 4 ) t h e

p u rp o s e an d fl ag ran ce o f t h e offi ci al m i s co n du ct

. Bro wn v. Il li n oi s , 4 2 2 U.S. 5 9 0 , 6 0 4

-

1 10 5 , 9 5 S

. C t

. 2 2 5 4, 4 5 L.Ed

. 2 d 4 1 6 (1 9 7 5 ); Sel f v

. St at e, 70 9 S.W

. 2 d 6 6 2 , 6 6 6

(Tex .Cri m .Ap p . 1 9 8 6 ).

M iran d a w arn i n g s al o ne are n o t en o u g h t o pu rg e th e t ai n t o f an o t h erwi s e i l l eg al

arres t

. Bel l v

. St at e, 7 2 4 S.W .2 d 7 8 0 (Tex .Cri m .Ap p

. 1 98 6 ). In Ap p el l an t ’ s cas e t h e

warn i ng s were read o n ly

o n e t i m e b efo re t h e s tat em en t was g i v en

.
Th e s t at em en t was ta k e n ap p ro x i m at el y an h o u r aft er Ap p el lan t ’ s arres t , wi th

n o s i g n i fi can t i nt erv en i n g ci rcu m s t an ces

. T h e fact t h at th e co m p lai n an t i d en ti fi ed h i s

p h o t o p r i o r t o t h e s t at em en t d o es n o t m i t i g at e t h e t ai n t s i n ce t h e p h o t o o f Ap p el l an t

was it s el f t h e fru it o f t h e i l leg al arres t

. See. J ack s o n v

. St at e, 6 4 9 S.W .2 d 3 1 7
(Am ari ll o , 1 9 8 3 ). Ap p el l an t was n o t warn ed by a m ag i s t rat e b efo re h e co n fes s ed

. Th e

s eco n d an d t h i rd fact ors m i l i t at e ag ai n s t t he ad m i s s ib i li t y of t h e s t at em en t

. Th e fact s

i n A p p el l an t ’ s cas e are v ery s i m i l ar t o t ho s e o f W eem s v

. St a t e , 16 7 S.W .3 d 3 5 0
(Tex .Ap p

. -Ho u s t o n [1 4 t h Di s t .] 20 0 5 , ref’ d ). In W eem s , a cas e in v ol v i n g an arres t o n

an in v al i d warran t , t h is Co urt h el d t h at t h e fi rs t co n fes s i on o b t ai n ed s h ort l y aft er t h e

arres t was i n s uffi ci en t l y pu rg e d o f t h e t ai n t o f t h e arres t wh ere t h e co n fes s i o n was

t ak en t wo an d a h a l f h o u rs aft er t h e arres t an d t here were n o in terv en i n g

ci rcu m s tan ces

. Ap p el lan t ’ s sta t em en t was s i m i l arl y tai n t ed an d in ad m i ss i bl e. See al s o,

Farm a h v. State, 883 S.W .2d 674 (Tex.Crim .App. 1994)

.

1 2U n d e r a fai r read in g o f t h e t es t i m o ny ad d u ced at t h e h eari ng an d at t ri al , a

reas o n ab l e p ers on i n t h es e ci rcu m s t an ces wo u ld b el iev e h is freed o m o f m o v em en t was

res t rai n ed t o t he deg ree as s o ci at ed wi t h a fo rm al arres t

. Th e Co u r t o f A p p e al s

d i s reg ard ed a co m

m o n s en s e ev al u at i o n o f al l th e i n d i c a t o rs of an i nv o l u n t ary

d et en ti o n t h at was as s o ci at ed wi t h Ap p el l an t ’ s s t at em en t

.

1 3PRAYER FOR RELIEF

W HEREFORE, PR E M I S E S CONSIDERED, Pet i t i o n er pray s t h at t h i s Co u rt

g ran t t hi s Pet i t i on fo r Di s cret i o n ary Rev i ew, t h at t he cas e b e s et fo r s ub m i s s i o n ; t h at

aft er s u b m i s s i o n th i s Co u rt rev ers e t h e ju d g em en t o f t h e Co u rt o f Ap p eal s an d rem an d

fo r a n ew t ri al

.
Res p ect fu l l y s u b m i tt ed ,
/ s / J

. Si d n ey

Cro wl ey

J . Si d n ey Cro wl ey 2 1 4 M o rt o n St

. Ri ch m o nd , Tx . 7 7 4 6 9 (2 8 1 )2 3 2 -8 3 3 2 TBC No . 0 5 17 0 2 0 0

1 4CERTIFICATE OF COM PLIANCE

I cert i fy t h at t h e f

o reg o i n g do cu m en t co n t ai n s 1 5 9 9 wo rd s , g en erat ed by

co m p u t er.

CERTIFICATE OF SERVICE

I cert i fy t h at a t ru e an d co rrect co p y o f t h e fo reg o in g i n s tru m en t h a s b e e n e
s erv ed to th e Harri s Co un t y Di s tri ct At t o rn ey ’ s Offi ce, an d to Li s a C. M cM in n , St at e

P r o s e c u t i n g At to rn ey , P.O. Bo x 1 2 4 0 5 , Au s t in , Tex as 7 87 1 1 , t h i s t h e 2 1 s t d ay o f

J an u ary , 2 0 15

.
/ s / J . Si d n ey

Cro wl ey

1 5Affirmed and Memorandum Opinion filed December 23 , 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00014

- CR

JUAN SALGADO , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 351st District Court

Harris County, Texas Trial Court Cause No. 1348922

M E M O R A N D U M O P I N I O N

Appellant Juan Salgado appeals his conviction for indecency with a child on the ground that the trial court erred in overruling his motion to suppress h is
recorded statement. We affirm.

I. B ACKGROUND Prior to trial appellant filed a motion to suppress his statement in which he argued that his recorded statement was obtained by an illegal arrest, and with no2

knowing and intelligent waiver of his rights. T he trial court held a hearing at which Officer Miraida Martinez and appellant testified. At the conclusion of the hearing the trial court denied appellant’s motion to suppress.
Appellant, a distant relative of the complainant and her mother, was living in the front room of a duplex where the complainant lived. Appellant occasionally picked up the complainant from school and drove her to a babysitter’s home where the complainant stayed until her parents finished work for the day. On one of those occasions ap pellant took the complainant to his room in the duplex where they all lived. When they entered the room appellant lowered his zipper and told the complainant to pull down her pants. T he complainant testified that appellant got on top of her, and “pulled ou t his thing and he put it in mine.” Afterward the complainant cleaned herself in the bathroom, and appellant took her to the babysitter’s house. The complainant did not immediately tell anyone what happened, but later made an outcry to a teacher’s assistan t at her school.

Officer Martinez was assigned to investigate after the complainant’s outcry
, and was given appellant’s name as a suspect. The mother told Martinez that appellant worked at a nearby restaurant she thought was named “Brenda’s.” The mother also described appellant as having tattoos and silver teeth. During her investigation, Martinez determined that appellant might work at Brennan’s

restaurant . She went to Brennan’s and asked for appellant, but the manager told her
no one named Ju an Salgado worked there. Martinez later learned that appellant might be using the name Jose Najera at Brennan’s

. Martinez and another officer went to the restaurant and asked the manager for Jose Najera. The manager pointed out an employee and Martinez ap proached3

him calling him, “Juan.” 1 The employee, later identified as appellant, responded, saying, “Que paso?” Martinez noticed the employee had silver teeth , and tattoos
that had been described to her earlier in the investigation . Martinez explained that she was investigating a sexual assault case, and asked if appellant was willing to

come to the police station to determine whether he was the suspect she was seeking. Appellant agreed to accompany her

. Martinez explained to appellant that
he would be trans ported in a patrol car in handcuffs per police department policy. They waited approximately 15 minutes for a patrol car to arrive and transport appellant to the police station.
When Martinez and appellant arrived at the police station, Martinez took a picture of appellant and generated a photo array to show the complainant. Martinez drove approximately 15 minutes to the complainant’s location. Appellant waited at the police stati on while Martinez visited the complainant. When Martinez showed the photo array to the complainant, the complainant identified appellant as the person who had sexually assaulted her.
After the complainant identified appellant
, Martinez drove back to the p olice station, and decided to question appellant. Prior to questioning appellant
, Martinez read him his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 444

– 45 (1966) , and article 38.22 of the Texas Code of Criminal Procedure . Appellant indicated he

un derstood his rights and waived them prior to making a statement. Martinez did not obtain an arrest warrant prior to the interview because she had reason to believe appellant would flee if he were released. She based this conclusion on the facts that appell ant had previously fled to Mexico, and had used multiple identities in the past.

1 The record reflects that appellant only speaks Spanish. When speaking with appellant Martinez also spoke Spanish.4

Appellant’s videotaped statement was then played at the hearing. In his

statement appellant admitted that the complainant’s babysitter had asked him to pick the complainant up from school approximately three times. Appellant admitted taking the complainant into his bedroom , and rubbing his penis on the complainant’s leg

. A t the hearing, a ppellant testified that he was handcuffed while in the restaurant, and placed in a car for more than an hour while waiting for the patrol

car

. Appellant testified that despite telling Martinez that he understood his rights, he did not understand his rights at the time he made his statement. At the conclusion of the hearing the trial court denie d appellant’s motion to suppress. After the trial court denied appellant’s motion to suppress
, he pleaded not guilty and proceeded to trial on the charge of aggravated sexual assault of a child. At trial, the State presented the testimony of the teacher’s assistant to whom the complainant made outcry, the forensic interviewer who interviewed the

co mplainant, the physician who examined the complainant, the complainant’s mother, and the complainant. Martinez testified to her investigation and the taking of appellant’s statement. The State also admitted appellant’s statement over his objection. 2 The ju ry found appellant guilty of the lesser

- included offense of indecency with a child, and the trial court sentenced appellant to eighteen years in prison.
The trial court made the following pertinent findings of fact and conclusions
of law : Findings of Fact 7. Officer Martinez traveled to Brennan ’ s where she once again spoke

2 The videotaped statement is in Spanish. The trial court admitted a translated transcript of the statement into evidence.5

to the manager who directed her to an employee known as Jose Najera. 8. As Officer Martinez approached the defendant at the restaurant, she called out, “Juan” and the defendant asked “ Qu e paso? ” and smiled, showing silver teeth. 9. Officer Martinez detained the defendant in an effort to determine if he was in fact the perpetrator in the case under investigation. Officer Martinez transported the defendant to an HPD office in a patrol car. 10. Officer Martinez took a photo of the defendant, put it in a photo spread, and showed it to the complainant while the defendant waited in an office. 11. After the complainant positively identified the defendant as the man who raped her, Officer M artinez read the defendant his rights and recorded her interview with the defendant. 12. The defendant was under arrest after Officer Martinez observed the complainant identify the defendant as the person who sexually assaulted her. 13. Officer Martinez believed the defendant would escape or abscond immediately were she to allow him to leave, due to his having used at least three different names, having gone to Mexico immediately after sexually assaulting the complainant, and his lack of legitimate identification and/or legal status in the United States. 14. The defendant stated he understood his rights and wanted to speak with Officer Martinez about the investigation. 15. The defendant was not denied any basic necessities and was, in fact, offered a soda. 16. The defendant never invoked his right to counsel, nor did he ever attempt to cease the interview. 17. The Court finds the State’ s witness, Officer Martinez, credible and accepts her testimony as true. Conclusions of Law 1. Initially, the Court rules that the statement of the defendant was freely and voluntarily made. 2. The Court finds that the requirements of 38.22 were fulfilled.6

3. Lastly, the Court finds that statement of the defendant is admissible. In a single issue on appeal appellant argues that at the time he was placed in the patrol car at Brennan’s he was under arrest without a warrant or probable cause. As a result of that arrest, appellant argues his statement was tainted and inadmissible. The trial court therefore erred in denying appellant’s moti on to suppress the statement.

II. S TANDARD OF R EVIEW
We review a trial court’ s denial of a motion to suppress for abuse of
discretion. Johnson v. State , 414 S.W.3d 184, 192 (Tex. Crim. App. 2013) ; Thomas
v. State , 297 S.W.3d 458, 459 (Tex. App.

— Houston [14th Dist.] 200 9, pet. ref’d ). We review the evidence in the light mo st favorable to the trial court’ s ruling. Gutierrez v. State , 221 S.W.3d 680, 687 (Tex. Crim. App. 2007) . The trial court is the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) ; Turner v. State , 252 S.W.3d 571, 576 (Tex. A pp.

— Hous ton [14th Dist.] 2008, pet. ref’ d). We afford almost tot al deference to the trial court’ s determination of historical facts supported by the record, especially when the trial court’ s findings are based on an evaluation of credibility and demeanor. See Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) . We afford the same amount of defe rence to the trial court’ s ruling on mixed questions of law and fact if the resolution of these questions turns on an evaluation of credibility and demeanor. Id

. We review questions not turning on credibility and demeanor de novo. Id

. If the trial court’ s decision is correct under any theory of law applicable to the case, the decision will be sustained. Estrada v.
State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005)

. In reviewing a trial court ’ s ruling, we generally consider only evidence adduced at the suppre ssion hearing because the ruling was based on it rather than7

evidence introduced later. Rachal v. State , 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) . This general rule, however, does not apply when, as in this case, the parties consensually relitigate the s uppression issue during the trial on the merits. Id

. III. M OTION TO S UPPRESS Appellant argues that the trial court erred in denying his motion to suppress
the statement he made to Officer Mar tinez because he was in custody at the time he was detained at the restaurant, but was not read his rights until after the complainant identified him . He contends his statement made after receiving notification of his rights is the fruit of an illegal detention at the restaurant. Appellant asserts that because he did not receive these warnings until after the complainant identified him , all of his statements were inadmissible
, and should have been suppressed. See Tex. Code Crim. Proc. Ann. art 38.22 ; Miranda , 38 4
U.S. at 444

–

45 ; see also Missouri v. Seibert , 542 U.S. 600, 609

– 11 (2004) (plurality op.) (discussing admissibility of statements made when “mid

- stream”
Miranda warnings are given).

Miranda warnings are given to “safe guard an uncounseled individual’ s

con stitutional privilege against self

- incrimination during custodial interrogation.”
Herrera v. State , 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) . Additionally,
article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of
statements made by an accused during custodial interrogation. Tex. Code Crim.
Proc. Ann. art. 38.22 ; see also Herrera , 241 S.W.3d at 526 . As with Miranda warnings, article 38.22 warnings are required only when the interrogation is
custodial. Tex. Code Crim. Proc. Ann. ar t. 38.22, §§ 3(a), 5 ; 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 was restrained to the degree8

associated with a formal arrest.” Dowthitt v. State , 9 31 S.W.2d 244, 254 (Tex.
Crim. App. 1996) (citing Stansbury v. California , 511 U.S. 318, 322 (1994) ). Our custody inquiry includes an examination of all objective circumstances surrounding the questioning. Herrera , 241 S.W.3d at 525 . A person is not in custody if he “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 impl icated in committing the crime.” Turner v. State , 252 S.W.3d 571, 579 (Tex. App.

— Houston [14th Dist.] 2008, pet. ref’ d). “Once the circumstances show the person is acting upon the invitation, urging or request of police officers, and not the result of
forc e, coercion or threat, the act is voluntary and the person is not then in custody.”
Id

. at 580

. In this case, there is evidence that appellant left Brennan’s freely with Martinez. According to Martinez, appellant met the description of the suspect and

res ponded to the name of the individual Martinez was investigating. Because she did not have positive identification, Martinez asked appellant to go to the police
station , and appellant agreed

. Martinez permitted appellant to sit in the backseat of
her unmark ed car until a patrol car arrived to transport him. Appellant testified that he did not understand his rights, and that he was handcuffed for over an hour before the patrol car arrived. While appellant’s testimony differs from that of Martinez, the trial c ourt was in the best position to evaluate the credibility of the witness and was free to disbelieve appellant’s testimony. See Mason , 116 S.W.3d
at 256

. In its findings of fact, the trial court found Martinez credible and accepted her testimony as true.

T h e placing of handcuffs on a defendant does not, in and of itself, automatically mean he is in custody. See Balentine v. State, 71 S.W.3d 763, 7719

(Tex. Crim. App. 2002) (holding appellant was not under arrest when officer placed him in handcuffs because while officer was conducting an investigation into shots being fired, officer learned the suspect had lied in response to previous questions and there was no bulletproof partition between the front and back seat); Rhodes v. State, 945 S.W.2d 115, 117

– 18 (T ex. Crim. App. 1997) (holding appellant was not under arrest because officer handcuffed suspect while his partner

was chasing second suspect in a high crime area at night). Martinez explained to appellant that she “had an investigation going on” and was no t sure if she “had the right person.” Martinez asked appellant if he was willing to come to the police station to make sure she had the right person, and appellant “said okay.” Martinez further testified that she handcuffed appellant for officer safety and explained to appellant that she typically handcuffed people she put in the backseat of a patrol car for officer safety.
Based on all of the evidence, we hold the trial court did not abuse its discretion in concluding appellant was not in custody prior to receiving his
Miranda and article 38.22 warnings . Accordingly, appellant ’ s statement was not the product of an illegal arrest. We overrule appellant ’ s sole issue and affirm the trial court’s judgment.

/s/ John Donovan Justice

Panel consists of Justices Christopher, Donovan, and Wise. Do Not Publish

— Tex. R. App

. P. 47.2( b)

.