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

CLERK
INTERESTED PARTIES

 

APPELLANT

Juan Salgado

Texas Department of Criminal Justice

Correctional Division

TRIAL COUNSEL

Gilbert Villareal

1419 Franklin St.

Houston, Texas 77002

Maverick Ray

1419 Franklin St.

Houston, Texas 77002

APPELLATE COUNSEL

J. Sidney Crowley

214 Morton St.

Richmond, Texas, 77469

STATE OF TEXAS

Devon Anderson

District Attorney, Harris County

1201 Franklin St.

Houston, Texas 77002

Amanda Jean Greer

Assistant District Attorney

Harris County, Texas

2
TABLE OF CONTENTS

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

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

STATEMENT REGARDING ORAL ARGUMENT................................................5

STATEMENT OF THE CASE..................................................................................6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE.....................7

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

GROUND FOR REVIEW NUMBER ONE

The Court of Appeals erred when that Appellant was not illegally

arrested.............................................................................................................9

PRAYER FOR RELIEF...........................................................................................14

CERTIFICATE OF COMPLIANCE.......................................................................15

CERTIFICATE OF SERVICE................................................................................15

APPENDIX A. (OPINION BELOW).....................................................................16

3
LIST OF AUTHORITIES

 Cases

 Bell v. State, 724 S.W.2d 780 (Tex.Crim.App. 1986)............................................12

Black v. State , 362 S.W.3d 626, 630 (Tex.Crim.App. 2012).................................10

Brown v. Illinois, 422 U.S. 590,604-05, 95 S.Ct. 2254 (1975)...............................11

Farmah v. State, 883 S.W.2d 674 (Tex.Crim.App. 1994).......................................12

Hardesty v. State, 667 S.W.2d 130, 133 (Tex.Crim.App. 1984)...............................10

Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705

(1985)................................................................................................................9

Jackson v. State, 649 S.W.2d 317(Tex.App.-Amarillo 1983)...................................12

Reed v. State, 809 S.W.2d 940,944(Tex.App.-Dallas 1991)....................................10

Self v. State, 709 S.W.2d 602,666 (Tex.Crim.App.1986)........................................12

Weems v. State ,167 S.W.3d 350 (Tex.App.-Houston [14

th Dist.] 2005, ref’d)........12

4
STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral argument is not necessary in this case.

5
STATEMENT OF THE CASE

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant was convicted by a jury of the felony offense of indecency with a child.

The court assessed his punishment at confinement in the Texas Department of

CriminalJustice, Correctional Division , for a period of eighteen years years and a fine

of $5000.

6
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

Appellant’s appeal was affirmed in an published opinion of the First Court of

Appeals rendered December 23, 2014. No motion for rehearing was filed.

7
 GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

The Court of Appeals erred when it held that Appellant was not illegally

arrested.

8
GROUND FOR REVIEW NUMBER ONE

The Court of Appeals erred when it held that Appellant was not illegally

arrested.

Argument and Authorities

The Court of Appeals held that Appellant was not under arrest when he was

transported from the restaurant where he worked to the police station in order to

determine whether he was the correct suspect. The court then held that the statement

Appellant gave was not the product of an illegal detention. The court of appeal’s

holding is simply not justified by the record.

A fair reading of the facts demonstrates that Appellant was involuntarily detained for

further investigation. Officer Martinez herself stated that Appellant was being

“detained”. Appellant was transported to the police station in handcuffs. Martinez

testified that if the complainant had not identified him he would have been released,

which indicates that Appellant was in fact not free to leave while at the police station.

The protection of the Fourth and Fourteenth Amendmentsistriggered when the police,

without probable cause or a warrant, forcibly remove a person from his home or place

where he is entitled to be and transport him to the police station, where he is detained,

although briefly, for investigative purposes. Hayes v. Florida, 470 U.S. 811, 816, 105

S.Ct. 1643, 1647, 84 L.Ed. 705 (1985). Such seizures, at least where not under judicial

9
supervision, are sufficiently like arrests to invoke the traditional rule that arrests may

constitutionally be made only on probable cause. Id. at105 S.Ct. 1647. A detention for

investigatory purposes must be limited; it must be temporary and last no longer than

necessary to effect the progress of the stop. In Appellant’s case he was not merely

briefly questioned where he was but was taken to a police station so he could be

identified and he was not free to leave. These factors indicate that he was under arrest

at the time he was photographed. Reed v. State, 809 S.W.2d 940, 944 (Tex.App.-

Dallas, 1991).

At the hearing on Appellant’s motion to suppress, there was no testimony

adduced from which the trial court could determine whether there was probable cause

for the arrest. When appellate courts are asked to determine whether the trial court

erred in overruling a pretrial motion the general rule is that the appellate court

considers only evidence adduced at the hearing on the motion and may not resort to

testimony subsequently elicited at trial because the ruling in issue was not based on

the latter. Black v. State, 362 S.W.3d 626, 630, fn 13 (Tex.Crim.App. 2012); Hardesty

v. State, 667 S.W.2d 130, 133 fn 6 (Tex.Crim.App. 1984). At the hearing Martinez

testified simply that she was investigating a case of aggravated sexual assault. She

related no facts of the alleged assault, the identity of the complainant, nor did she

inform the court any of information thatshe had received concerning the offense from

10
the complainant or from anyone else, or factsthat would even establish that an offense

had been committed. Her entire testimony concerned establishing Appellant’s identity.

Even if her trial testimony is considered, it is similarly lacking in information. She

stated that she reviewed the complainant’s recorded interview and interviewed the

complainant near the beginning of the investigation but never detailed what

information she learned from those sources prior to Appellant’s arrest. There was no

evidence in the record at the motion hearing or at trial from which the trial court could

have determined that Martinez had sufficient information to constitute probable cause

for the arrest. The arrest was clearly illegal.

Appellant’s recorded statement to Martinez was the fruit of the illegal

detention. Evidence procured asthe result of an initial illegality may be admitted if the

connection between the illegality and the means through which the evidence was

secured is so attenuated as to dissipate the taint. The United States Supreme Court, in

determining whether the taint infecting the evidence obtained after an illegal arrest is

sufficiently attenuated to permit use of the evidence at trial has identified four factors

to be considered: 1) whether Miranda warnings were given; 2) the temporal proximity

of the arrest and confession; 3) the presence of intervening circumstances; and 4) the

purpose and flagrance of the officialmisconduct. Brown v. Illinois, 422 U.S. 590, 604-

11
05, 95 S.Ct. 2254, 45 L.Ed. 2d 416 (1975); Self v. State, 709 S.W.2d 662, 666

(Tex.Crim.App. 1986).

Miranda warnings alone are not enough to purge the taint of an otherwise illegal

arrest. Bell v. State, 724 S.W.2d 780 (Tex.Crim.App. 1986). In Appellant’s case the

warnings were read only one time before the statement was given.

The statement was taken approximately an hour after Appellant’s arrest, with

no significant intervening circumstances. The fact that the complainant identified his

photo prior to the statement does not mitigate the taint since the photo of Appellant

was itself the fruit of the illegal arrest. See. Jackson v. State, 649 S.W.2d 317

(Amarillo, 1983). Appellant was not warned by a magistrate before he confessed. The

second and third factors militate against the admissibility of the statement. The facts

in Appellant’s case are very similar to those of Weems v. State, 167 S.W.3d 350

(Tex.App.-Houston [14

th Dist.] 2005, ref’d). In Weems, a case involving an arrest on

an invalid warrant, this Court held that the first confession obtained shortly after the

arrest was insufficiently purged of the taint of the arrest where the confession was

taken two and a half hours after the arrest and there were no intervening

circumstances. Appellant’sstatement wassimilarly tainted and inadmissible. See also,

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

12
Under a fair reading of the testimony adduced at the hearing and at trial, a

reasonable person in these circumstances would believe hisfreedomof movement was

restrained to the degree associated with a formal arrest. The Court of Appeals

disregarded a common sense evaluation of all the indicators of an involuntary

detention that was associated with Appellant’s statement.

13
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this Petition for Discretionary Review, that the case be set for submission; that

after submission thisCourt reverse the judgement of the Court of Appeals and remand

for a new trial.

 Respectfully submitted,

 /s/ J. Sidney Crowley

 J. Sidney Crowley

 214 Morton St.

 Richmond, Tx. 77469

 (281)232-8332

 TBC No. 05170200

14
CERTIFICATE OF COMPLIANCE

I certify that the foregoing document contains 1599 words, generated by

computer.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument has been eserved to the Harris County District Attorney’s Office, and to Lisa C. McMinn, State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, this the 21

st

day of

January, 2015.

 /s/ J. Sidney Crowley

 

15
Affirmed 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 his 

recorded statement. We affirm.

I. BACKGROUND

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 no 
2

knowing and intelligent waiver of his rights. The 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 appellant 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. The complainant testified that appellant got on 

top of her, and “pulled out 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 assistant 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 Juan 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 approached 
3

him calling him, “Juan.”1The 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 transported 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 station 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 police 

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 

understood 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 appellant 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. 

At the hearing, appellant 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 denied 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 

complainant, 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.2The jury 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 “Que 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 Martinez 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 motion to 

suppress the statement.

II. STANDARD OF REVIEW

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.] 2009, pet. ref’d). 

We review the evidence in the light most 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. App.—Houston [14th Dist.] 2008, pet. ref’d). We afford almost total 

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 deference 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 suppression hearing because the ruling was based on it rather than 
7

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 suppression issue during the trial on the merits. Id.

III. MOTION TO SUPPRESS

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

the statement he made to Officer Martinez 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, 384 

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 “safeguard an uncounseled individual’s 

constitutional 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. art. 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 degree 
8

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 (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 implicated 

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 

force, 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 

responded 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 unmarked 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 court 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.

The 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, 771 
9

(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 (Tex. 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 not 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).