A more complete discussion of the underly ing fac ts ma

y be found in this Court’s opinions 1 aff irming the convictions of two of H arr is’s three c o-def endants. Se e Al ligoo d v . S tat e , No. 03-06- 00516-CR, 2007 Tex. App. L EXI S 5473 (Tex. App.—Austin J uly 12, 2007, no pet. ) (me m. op., no t des ig nate d f

or pu bli c a tio n) ; Ha mm oc k

v . S tat e , N o . 0 3
- 0 6
- 0 0 5 2 3
- C R , 2 0 0 7 T e x . A p p . LE X IS 5474 (Tex. App.—Austin J uly 11, 2007, pet. ref’d) (mem. op., not desig nated f or publication). As o f t h e d at e o f t h i s o p i n i o n , t h e ap p ea l o f a t h i rdco -d ef en d an t , E ri c S i p er k o , re m ai n s p en d i n g. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 325 -CR

M at th e w All e n Ha r r is , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF B ELL COUNTY , 264TH JUDICIAL DISTRICT NO. 5954 3 , HO NORAB LE MARTH A J. TRUDO , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
A j u ry co n v icted MatthewAllen Har ris of the off

ense of capital murde r. S

ee Tex. P enal Code A nn. § 19.03(a) (2) ( West S upp. 20 0 7 ). Punishment was assesse d at life imprisonment. I n a single issue on appea l, H arr is c halleng es the district cour t’s denial of his motion to s up pr e ss s ta te me nts he ma de to l aw e nf or c e me nt o ff

ic e rs . We wi ll a ff

ir m th e jud g me nt.
BACK GR OUND We will discuss the facts of t his case to the ex tent they are rele vant to our disposition of Ha rr is’ s a pp e a l. The stateme nts that Harr is sought to s uppress we re obta ined by law enf orce ment 1I ron Jacket was the name of the stree t on which the victim lived. 2
2 office rs during thei r i n v est igation into t he murde r of Jason Gonzalez in J une 2005. The murder
a lle g e dly ha pp e ne d d ur inga ro bb e ry of Go nza le z’s ho me . O ne of the su sp e c ts i n th e c ri me was Rus s el l Al ligood. Police obtaine d a stateme nt from Alligood in whic h he admitted being involved in the murder a

nd named thre e other

participa nts: Br andon Hammock, Eric Siperko, a nd
a pe rs on wh om A lli g oo d kn e w on ly a s “ Rom e o. ” Of fi c e rs su sp e c te d th a t “ Rom e o” wa s a nic kn a me be lon g ingto H arr is.

On J une 16, 2005, Detectives Ga ry Hall and Ed Pec k of the Ha rker Heig hts Pol ice Depa rtment drove to Harris’s r esidenc e to ver ify that Har ris was “ Romeo.” De tective Ha ll testified that they wer e in pla in c lothes and traveling in an unmarke d police vehic le. When they arr ived, they knocked on the door, and Har ris answe red. When the detec tives asked Ha rris if he w as “Romeo,” Ha rr is r e sp on de d th a t he wa s. Ha ll the n a sk e d Ha rr is if he c ou ld ste p ou tsi de and sp e a k to him . H a ll testified that Har

ris ag ree d. Hall also testified t hat he did not make Ha rris any promises or thre aten hi m i n any

way to ge t him to t alk or c ome out of his house. As they walked outside, H all asked H ar r i s , “ Y o ut e l l m e w h a th a p p e n e d o nI r o nJ a c k e t ?” 2 Detec tive Hall explained that af t er he aske d this question, Harris wa s “[r]ather g ushing w ith information” about what happene d. Acc ording to Hall, Har ri s t o l d h i m that he, Alligood, Hammock, and Siperko had kicke d in the door to Gonzalez’s house. Har ris and Allig ood then enter ed the house from one side while Hammock a nd Siperko enter ed it from the other side. Har ris told Hall that he hear d someone y ell, “Ge t dow n, g et down,” a nd then hea

rd a gunshot. The3

four then le ft the house, but Ha rris and A lligood re turned to take Gonzalez’s truck. When Hall aske d Har ris wher e the truc k was now loc ated, Harris tol d him, “Out there i n the lake.” Hall then aske d Har ris, “Mr. Ha

rri s , y o u h av e a lot of infor mation, valuable infor

mation. I ’d like to g et that from y ou. I f y ou would please , I ’d like to us e y o u fo r a wi t n ess. Would y ou come down to the police d e p art m e n ts o Ic ang e tt h i s o nv i d e o t a p e ?” At trial, the State aske d Detec tive Hall t he following questions about his encounte r with Harr is at his house: Q: Di d y ou

arr e st h im? A: No, sir. Q : D i d

yo up l a c e h i m i nc u s t o dy? A: No, sir. Q : D i d

yo ut e l l h i m h e w o u l d

b e ar r e s t e d o r p l a c e d i n c u s t o dy? A: No.

. . . . Q: Did y ou place Matthew Har ris in the back of y our car or did he ride with y ou down to the Har

ker H eig hts police station? A: He dr ove his own vehic le. Q: Did he follow y ou there ? A: No, sir. Q: So y ou went straig ht f rom the house . . . down to the Ha rker Heig hts Pol ice De pa rtme nt? A: Cor

re c t.See M iranda v. Arizona , 384 U.S. 436 (1966). 3 4 Q: How long wer e y ou at t he Harker Heig hts Pol ice De partment be fore Matthew Har ris showed up? A: Ibelieve a

pproxi mately

30 minutes, if not longer
. Whe n a sk e d w hat ha

pp e ne d w he n H arr is a

rr ive d at th e po li ce depar tme nt, Ha ll te sti fi e d, “ He sh ow e d up and we wen t in and too k h im r ig ht i nto the int e rv ie w r oo m w he re it
was a lrea dy

set up, sat him down a

nd Ihanded him a Miranda form.[ ] He initi aled it, sig ned one 3 of them. And then w e we nt into the conversation fr o m t h er e. ” Har ris also signe d and initialed a “voluntary

appea ranc e for m.” Acc ording to Hall, at this t i m e, Harris wa s not in custody . When asked if he thoug ht at this point that Har ris “wa s a witness or he was more involved than that and could be a

suspect ,” Ha ll testified, “More involved, c ould be a suspec t.” Howe ver, H all did not know exactly

what off ense H arr is could be cha

rg ed with, only

that what Ha

rris had told him at the house wa s enoug h to ge t him charg ed with “something .”

On cr oss-examination, Detec tive Hall t estified that, during the i nterviewat the police de pa rtme nt, Ha

rr is a sk e d H a ll i f h e wa s “g oin g to g ive him any ro pe to h ang[him se lf ].” Ha ll t old Har ris, “L ike I told y ou out there at the house, I ’d like to use y ou for a witness.” Ha

rris then a sked, “just a witness? ” Hall responde d, “just a witness.” Def ense c ounsel then aske d Hall, “Now , if he’s just a witness, why

did y ou have him si g n off on Miranda wa rn ing s?” H a ll a

ns we re d th a t hi s lieutenant told him to do so “just prior” to the interview.

Detec tive Hall testified that, at the c onclusion of the videotaped interview, he had probable cause to a

rre st H arr is. Howeve r, he told Ha rris that he was fr ee to lea ve. Ha ll then spoke5

with h i s s u p er v i s or, De tective Char les Gee , who informed H all that he wa s supposed to have ob ta ine d a

wr itt e n s ta te me nt f

ro m H arr is p ri or

to r e le a sin g him
. De te c tiv e Ge e and

De te c tiv e Pe c k th e n we nt t o H arr is’ s p la c e of e mpl oy me nt t o a sk Harris to r e tu

r n to th e p o li c e s tati o n an d p r o v id e a w r itte n s tate me n t. G e e te s ti f ie d, “And I introduced my self to Mr. Ha rris and I told him, ‘I ’m Dete ctive Ge e with the Ha rker Heig hts Pol ice Depa rtment, Ineed yo u
— I wo u l d like for you to come up and g ive a voluntar y statement of what transpire d on y our video stateme nt.’” Ge e fur ther testified: Q: Di d

y o ut el l h i m t h at y o up re fe rr edt h at i tb e i nwr i t i n g? A: Yes, I

said, “We nee d to ge t it in writi ng , tie up the loose ends.” Q: And what wa s his response? A: He sa id, “Well”—he said, he would. He sa id he would when he had a chanc e to ge t off of w ork. Isaid, “Oka

y , that’s fine.” Isaid, “I t’s a voluntary

statement. You’ll be a

ble to leave and come back.” Ap pr oximate ly tw o to thr e e ho ur s la te r, Ha rr is re tur ne d to the po lic e statio n, ag a in in his own vehi cl e. De t ec tive Gee met Har ris in the lobby

and took him to his office. Ge e then asked L ieutentant L oretta Fox, the department’s admini strative divi sion lieutenant, to come into the office and ty

pe out H ar ri s’s statement. L ieutenant F ox testified that Har ris basica lly

just dictated the state me nt to h e r w hil e sh e ty pe d it . O c c a sio na lly , F ox e xpla ine d, wh e n H arr is g ot “ too g e ne ra l” in his statement and used t he word “we ,” Fox “would ask who ‘we’ were and he would tell [ her].” Gee testifi ed t h at as Ha rris was dictating the statement to Fox, he went in and out of his off ice,6

working on other things. At one point, Ge e rec ounted, “I believe I even of fer ed him a coke .” Af

ter the statement wa s completed, F ox printed it out and handed i t to Gee
. Gee testified t hat he “went over the statement with Mr. Ha rris word f

or word,” and t h en “h ad h i m i n itial the left and rig ht of
e a c h p a g e , b e g inn ingand

e nd of e a c h pa g e .” Ha

rr is a lso sig ne d the la st pa g e of the state me nt. Ne xt, Ge e e xpla ine d, Ha

rr is g a ve his c on se nt fo r the po lic e to s e arc h h is v e hic le . D ur ingthe se arc h, Ha rr is g ave G ee a

rada r dete ctor that Ha

rris believe d was stolen prope rty . After th at , Ge e t es t i fied, “ I thanked him ver

y much for his c ooperation and he lef t. He wa s fre e to g o.” Th e ne xt day , D e te c tiv e Ha ll o bta ine d a rr e st w arr ants fo r a ll f

our s us pe cts . Harr is was subseque ntly

arr ested a

nd char g ed with ca

pital murder. Pr ior to t ri a l, H arr is s ou g ht t o s up pr e ss t he or a l st a te me nt he ma de to D e te c tiv e Ha ll at the house, the videotaped statement he made during his interview at the police s t at i o n , an d the written st atement he dictated to L ieutenant Fox. In his moti on to suppress, Har ris contende d that the state me nts he ma de we re ob ta ine d a ft e r law e nf or c e me nt o ff

ic e rs le d h im t o b e lie ve tha t he wa s o nly a witn es s an d n o t a suspec t in the crime. The ref ore, a ccor ding to Ha

rris, his statements wer e not “fr eely and volunt arily

made without compulsion or per suasion.” See Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005).

The district cour

t denied Ha

rris’s motion to suppress. On t he record, the district court
rec ited its findings of f

act a nd conclusions of law , incl u d i n g t h at Har ris was not in custody

at the tim e he ma de his state me nts , tha t he vol un tari ly we nt to the po lic e de pa rtme nt p ri or

to g ivi ngbo th his vide otaped statement and his w ritten statement, that his statements we re voluntar ily made, a nd that his statements were not the product of c ustodial interrog ation.7 Th e st ateme nts we re a dmi tte d in to e vid e nc e a t tr ia l, a nd Ha rr is w a s su

bs e qu e ntl y convicted of

capital murde r. This appe al followed.

STA ND AR

D O F RE VI EW A t ri al court’s ruling on a motion to s uppress is re viewed on a ppeal f or abuse of discretion. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006). I n other wor ds, the trial court’s r uling wil l b e u p h el d if it is reasonably supported by

the re cord a

nd is corre ct under any applicable leg al theory
. Id
. Th e tr ia l jud g e is the so le tr ie r of fa c t and jud g e of the c re dib ili ty of the witnesse s and the we ight to be g iven to their testimony
. Sta te v . R os s , 32 S.W .3d 853, 855 (T e x. Cr im. Ap p. 20 00 ); Gu zm an v . S tat e , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997) . We give trial
co u rt s alm ost complete def ere nce in de termining historical fa cts, but we re view de novo the trial court’s a pplication of the la w. Car mo uc he v . S

tat e , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000).
AN AL YSI S At th e heari ngon

his mot ion

to s up pr e ss, Ha

rr is a rgue d th a t hi s st a te me nts sh ou ld be suppre ssed pursuant to ar ticle 38.21 of t he code of criminal procedure
. Under article 38.21, “A state me nt o f a

n a c c us e d may be us e d in evi de nc e a g a ins t him if it a pp e ars that the same wa s f re e ly and voluntarily

made without compulsion or persuasion[.] ” Tex. Code Crim. Proc. Ann. art. 38.21. A s ta te me nt m ay

be de e me d “ inv olu

nta ry” un de r t

hr e e dif fe re nt t he or ie s: ( 1) fa ilure to c omp ly wi th
art ic le 38 .2 2 o f t

he c od e of

c ri min a l pr oc e dure (t

he Te xas c on fe ssi on statut e ); (2 ) f a ilure to c omp ly with the dictates of

Miranda v. Arizona , 3 8 4 U. S
. 4 36 (1966); or ( 3) fa ilure to comply with due proce ss or due c ourse o f l aw be cause the statement wa s not free ly g iven (e .g . coer cion, improper8

influence s, incompetenc y ). W olf e v . S tat e , 917 S. W .2d 270, 282 (Tex. Crim. App. 1996); Mo or e
v . S tat e , 2 33 S.W. 3d

32 , 4 4 ( Te x. Ap p. —H ou sto n [1st Di st .] 2007 , n o p e t.) . In th is c a se , H arr is
asser ts that his statements were obtained in violation of due proce ss beca use (1) they

wer e obtained throug h “dec eption,” and ( 2) they “we re not prope rly

Mirandized.”
Cus to dy We will first address the issue of compliance with Miranda
. Police office rs ar e not require d to administer Miranda war nings to e veryone whom they question, nor is this requireme nt of war nings to be imposed simply beca use the que stioning take s place in the police station. Oregon v. Mathiason , 429 U.S. 492, 495 (1977). Miranda war nings are only

require d wher e ther e has be en
a re striction on a per son’s fre edom as to re nder him in “c ustody .” Id
.

“A pe rson is in c ustody if, under the totality of the c ircumstance s, a re asonable person would believe his fr eedom of movement was r estraine d to the deg re e as s o ciated w ith a formal
arr est.” Sta ns bu ry

v . Ca lif or nia , 5 11 U. S. 3 18 , 3 22 (1 99 4) ; Do wth itt v . S tat e , 931 S.W .2d 244, 25 4- 55 (T e x. Cr im. Ap p. 19 96 ); Ho us ton v . S tat e , 185 S.W .3d 917, 920 (Tex. App.—Austin 2006, pet. re f’d) . “The ‘re asonable person’ test presupposes a n innocent

person.” Florida v. Bostick , 50 1 U .S. 42 9, 43 8 ( 19 91 ) ( e mph a sis in o ri g ina l) ; Do wth itt , 931 S.W .2d at 254. Moreove r, the initial deter mination of custody

depends on the o b

j ec t i v e cir cumstance s of the interr og ation, not the subjective views of t he poli ce or the per son being questioned. Sta ns bu ry , 5 11 U. S. at 32 3; Do wth itt , 93 1 S. W.2 d at 254 ; Houston , 185 S.W .3d at 920. The subjec tive views of the police reg arding custody may be re levant as a circumstance of t he int err og ation if they are convey ed to t he individual being questi oned, but only to the extent that the communication of those views would a ffe ct9

a re asonable person’ s understanding o f h i s fre edom of a ction. Se e Sta ns bu ry , 511 U.S. at 325; Do wth itt , 9 31 S.W. 2d

a t 25 4; Houston , 185 S.W .3d at 920. As a g ener al rule, w hen a pe rson voluntarily acc ompanies law e nforc ement to a
cer tain location, even though he knows or shoul d know that law e nforc ement suspec ts that he may have c omm itt e d or may

be imp lic a te d in

c omm itt inga

c ri me , th a t pe rs on

is n ot r e str a ine d o r “ in custody .” Liv ing

sto n v . S tat e , 7 39 S.W. 2d

31 1, 32 7 (Tex
. Cr im. Ap p. 19 87 ); Mi lle r v . S tat e , 196 S.W .3d 256, 264 (Tex. App.—For t Worth 2006, pet. ref’d) . More spe cifica lly , so long a s the circ umstances show that a per son is acting only upon the invitation, re quest, or even urg ing of law
e n f o r c e m e n t , an d

t h e r e ar e n o t h r e a t s , e i t h e r e x p r e s s o r

i mp l i e d , t h a th e w i l l b e t a k e nf o r c i b l y, the acc ompaniment is voluntar y , and such per son is not in custody
. An de rso n v . S tat e , 932 S.W .2d 50 2, 50 5 ( Te x. Cr im. Ap p. 19 96 ); Miller , 196 S.W .3d at 264. Howe ver, the mere fac t that an interrog at i o n b egi n s as noncustodial does not pre vent custody from ar ising late r; police c onduct during the enc ounter may

cause a consensual inquiry to esca late into custodial interrog ation. Us se ry
v . S tat e , 6 51 S.W. 2d

76 7, 77 0 ( Te x. Cr im. Ap p. 19 83 ); Miller , 196 S.W .3d at 264. T e xa s c o u rt s h a v e r e c o g n i z e d a tl e a s tf o u r g e n e r a l s i tu a t i o n s w h i c h m ay c o ns tit ute
c u s t o dy: ( 1 ) w h e nt h e s u s p e c ti s p h ys i c a l l y d e p r i v e d o f h i s f r e e d o m o f a c t i o ni nan y s i g n i f

i c an tw ay, (2) whe n a law e nforc ement office r tells the suspect that he ca nnot leave, ( 3) whe n law enf orce ment officer s cre ate a

situation that would lead a re asonable person to believe that his free dom of movement has been si g nificantly restric ted, and (4) when there is probable c ause to a rre st and law enfor ceme nt office rs do not t el l the suspect that he is fr ee to lea ve. Do wth itt , 931 S.W .2d at 255; Tre jos v . S tat e , 243 S.W .3d 30, 44 (Tex. App.—Houston [1s t Dist.] 2007, pet. re f’d) . “Conce rningAs support for this argument, Har ris relies on Ru th v . S

tat e , 64 5 S. W.2 d 4 32 (T e x. Cr im. 4 App. 1979), in which the co u rt o f criminal appeals he ld, “The a ppellant’s stateme nt that he had sh ot t he vic timimm e diate ly

fo c us e d th e in ve sti g a tio n o n h im a nd fu rn ish e d p ro ba

ble c a us e to believe that he had c ommitt ed an of fense . After

that time, the conti n u ed interrog ation must be c on sid e re d a

c us tod ia l on e .” 64 5 S. W.2 d at 43 6. We n ote , h ow e ve r, that Ru th was de cided be fore Do wth itt v . S tat e , 9 31 S.W. 2d 24 4 (T e x. Cr im. Ap p. 19 96 ), in wh ic h the c ourt of c ri min a l a

pp e a ls held that “c ustody

is established if the manife station of probable cause , combi n ed with ot her circumstance

s , w ou ld l e a d a

re a so na ble pe rs on

to b e lie ve that he is u

nd e r r e str a int to the degree as so c iat e d wi th a n a rre

st .” 931 S.W.2d at 255 (emphases a dded).

10 the fo ur th s itu a tio n, the of

fi c e rs ’ k no wl e dg e of

pr ob a ble c a us e mus t be manife ste d to the su sp e c t; such m anife station could occur if information substantiating proba ble ca use is related by

the offic ers to t he su sp e c t or

by thesu sp e c t to theoff

ic e rs .” Trejos , 243 S.W .3d at 44 (e mphasis added)
. Her e, Ha rris conte nds t h at the four th situation was impli cate d. He a rg ues that as
soon as he beg an telling Detec tive Hall about his involveme nt in Gonzalez’s mur der, Hall had pr ob a ble c a us e to a rr e st h im. A tt h a tp o i n t , H ar r i s c o n t e n d s , h e w a s i nc u s t o dy. 4 We a g re e wi th H arr is that th e re c or d s up po rt s a fi nd ing that H a ll h a d p ro ba ble
c a us e to a rr e st H arr is a s soona s H arr is e xpla ine d h is i nv olv e me nt i n th e mur de r. I n f a c t, H a ll acknow ledg ed in his testimony that he had probable cause to arre st Harr is at least as e arly as whe n Har ris completed his videotape d interview at the pol ice department. And, Hall testified, eve n befor e Har ris arr ived at the police depar tment, Hall knew that what H arr is ha d told him at the house was
e no ug h to g e t H arr is c ha

rg e d w ith“ so me thing.” How e ve r, e ve n if Ha ll’ s k no wl e dg e of

pr ob a ble
cause was “ manifeste d ” to Har ris, s e e Do wth itt , 9 3 1 S
. W
. 2 d at 2 5 7 (h o l d i n g t h at o ff

i ce r’ s k n o wl ed ge of proba ble ca use wa s manifested to suspec t when suspec t admitted to office r “that he was pr esent during the murder s . . . and a r easona ble pers o n wo u l d have r ealized the incr iminating natur e of the a d mi s s io n . ” ) , it w o u ld n o t, w it h o u t mo r e , e s ta

b li s h c u s to dy . Cu s to dy is e s ta b li s h e d “if the11

ma nifestation of proba

ble ca use, combined with other circum stances , wo u l d lead a rea sonable pe rson to be lie ve that he is und e r r e str a int to t he de gr e e as so c iat e d wi th a n a rre st .” Do wth itt , 931 S.W .2d at 255 (e mphases adde d). In Do wth itt , for e x ample, these other c ircumstance s included a le ngthy int e rr og a tio n la sti ngov e r 1 2 h ours fr om t he tim e the su sp e c t fir st ap pe are d at the po lic e statio n to the time he made the incriminating statement, police of fice rs acco m p an y i n g the suspect to the restroom, a

nd police off

icer s ignor ing the suspect’s r equests to see his wife. Id . at 257. The re cord suppor

ts an implied finding by

the district court that such c ircumstance s
we re no t pr e se nt in this c a se . A t th e ho us e , H arr is e xpla ine d to De te c tiv e Ha ll h is i nv olv e me nt i n the c ri me . H arr is d id s o, Ha ll t e st if ied , wi th ou t H a ll m a kin g any thr e a ts o r p ro mis e s. I n f a c t,
acc ording to Hall, Har

ris was “ rathe r g ushing w ith inf o rm at i o n ” ab out what happe ned. Ha ll then told Ha rr i s , “M r. Ha rris, y ou have a lot of information, valuable information. I ’d like to g et that fromy o u . I f

y o uw o u ld

p le a s e , I ’ d

li k e to u s e y o uf

o r a w it n e s s . Wo u ld

y o uc o me d o w nto the police dep ar t m en t so Ican g et this on videotape? ” Ha rris ag ree d. There is no indication in the
rec ord that De tectives Ha ll and Peck eng ag ed in co n d u ct at Har ris’s house that would “ cause a
co n s en s u al i nquiry

to esca late into custodial interrog ation.” Se e Us se ry , 6 5 1 S. W. 2 d a t 7 7 0 . To the co n t ra ry , Ha ll testified that he did not make any promises or thre ats to Harr is during the encounte r at the house
.

After Har ris ag ree d to go to the police depar tment, the officers left the house a nd went to the police de partment una ccompa nied by Har ris. Har ris trave led t o the police de partment separ ately in his own ve hicle and arr ived approximately 30 minutes a fter the office rs arr ived. Upon his arriva l, Harr is was taken to a n interview r oom. He sig ned a “ voluntary appea ranc e for m” whichWe note that t h e re ading of Miranda war nings doe s not automatically transfor m a non- 5 custodial setting into a c ustodial interrog ation. Se e Un ite d S tat es v . B au tis ta , 145 F.3d 1140, 1148 (1 0th Cir . 1 99 8) ; Sprosty v. Buc hler , 79 F. 3d 63 5, 64 2 ( 7th Cir . 1 99 6) ; Davis v. Allsbrooks , 778 F.2d 16 8, 17 2 (4t

h Ci r. 19 85 ) ( to h old

that Miranda wa

rn ing s c re a te c us tod

y “ wo uld c on ve rt a dmi ra ble prec autionary

measure s on t h e p ar t of off icer s into an investigatory obstruction”). H oweve r, the g iving of Miranda wa

rn ing s is a

fa c tor in t he de te rm inatio n o f w he the r a re a so na ble pe rs on

wo uld believe that he is in custody
. Se e Ba uti sta , 1 45 F .3 d at 11 48 ; Sp ro sty , 79 F.3d at 642. The re cord in this case supports an implied f inding by the district c ourt that this one fac tor sug g esting custody was outwe ighe d by

the other f

actor s sugg esting that Ha rr i s was not in custody , including the statement in the “voluntar y appeara n ce fo rm ” t hat Har ris was “ not under a

rre st or detention and I may stop any interview a

nd voluntarily

leave these pre mises at any time.” 12 provided, “ Iam her e of my own fre e wi l l an d u n der no c oerc ion from any peac e off

icer , person, or other a g ency . Ifurther under s t an d t h at Iam not under a rre st or detention and I

may stop any int e rv ie w a

nd vo lun tari ly

le a ve the se pr e mis e s at any time. ” Th e re c or d a lso re fl e c ts that H arr is
rea d, initialed, and sig ned wr it ten Miranda wa rn ing s. There is no indication in the recor d of any

5
c on du c t by

De te c tiv e Ha ll o r a

ny oth e r o ff ic e r b e fo re , d

ur ing , o r a ft e r t

he int e rv ie w that w ou ld “ca use a consensua l inquiry to esca late into custodial interrog ation.” Se e id . After the interviewwas complete, De tective Ha ll told Harris that he wa s fre e to leave
.

Then, whe n Har

ris wa s later a sked to retur n to the police depa

rtment to provide a written statement, Ha

rris told Detec tive Gee that he would come in after he g ot off fr om work. Detec tive Gee told Har

ris, “Oka y , that’s fine.” Gee added, “I t’s a volunt ary statement. You’ll be able to leave and c ome back.” Ag ain, Har ris drove himself to the police depa rtment. Once there , he wa s ta k en t o Ge e’s office, w here Har ris dictated his statement to L ieutenant F ox , who was the only office r present in the room the entire time. Gee was “in and out” of t he off ice a nd even of

fer ed, at one p o i n t , t o g et Har

ris “a c oke.” T here is no indication in the recor d that either F ox or Ge e
e ng a g e d in

any c on du c t be fo re , d

ur ing , o r a ft e r t

he dic ta tio n of Ha

rr is’ s st a te me nt t

hat w ou ld “ c a

us e13

a consensual i nquiry to esca late into custodial interrog ation.” Se e id . After Har ris finished dictating his statement, he wa s ag ain told that he was f ree to leave. On nume ro us oc c a sio ns , c ir c ums tanc e s si milar t o th e a bo ve have be e n h e ld t o not constitute custody
. See, e .g. , Calif ornia v. Be heler , 463 U.S. 1121, 1124-25 (1983) (finding no custody when suspec t voluntarily

acc ompanied police to station, talked f or less than 30 minutes, and
wa s p e rm itt e d to re tur

n h ome ); Mathiason , 4 29 U. S. at 49 5 ( same ); Me e k v . S tat e , 790 S.W .2d 618, 62 2 ( Te x. Cr im . App . 1 99 0) (f ind ingno c us tod

y wh e n s us pe c t c a me to s ta tio n v olu nta ri ly a t ti me of his own choosing , was a llowed to step outside building and g o unacc ompanied to his car during interviews, a

nd “a f ew hour s” later

was a l l o wed to leave unhinder ed af ter stateme nts were
c omp le te d) ; Da nc

yv . S tat e , 728 S.W .2d 772, 777-79 (Tex. Crim. App. 1987) (finding no custody wh e n s us pect vo lun tari ly c a me wi th p oli c e to s ta tio n, vo lun tari ly ans we re d q

ue sti on s, g a ve ha ir samples, allowed police to take his shoes to run print compar isons, and was a rre sted at conc lusion of 38 -m inute int e rv ie w) ; Tur ne r v . S tat e , 685 S.W .2d 38, 41-43 (Tex. Crim. App. 1985) (finding no custo d y wh en wi tness who was not suspec t was conta cted by police, voluntarily

went to police station to make statement, and was immediately rea d war nings when he made statement that cause d po lic e to s us pe c t hi m) ; Trejos , 2 43 S.W. 3d a t 46 -4 7 ( fi nd ingno c us tod y wh e n s us pe c t “ ro de wi th
a po lic e of fi c e r t o th e statio n” and

“ wa s o nly

int e rv ie we d b y

on e po lic e of

fi c e r, wh o w a s in

pla in
c lot hes , and in a

n o ff ic e -l ike se tti ng .” ); Houston , 185 S.W .3d at 921 (findingno custody when suspect voluntarily

came to police station and “the detec tives specific ally told [ the suspect] that he
wa s n ot u nd e r a rr e st an d impl ie d thro ug h th e ir qu e sti on ingthat he c ou ld l e a ve .” ); Ga rc ia v . S tat e , 106 S.W .3d 854, 858-59 (Te x . App.—Houston [1st Dist.] 2003, pet. re f’d) (finding no custody when14

suspect “voluntar ily

went to the police de partment, a nd afte r he w as told that he could l ea v e, he
vo lu nt ari ly

gave a vi deo tap ed s ta

te me nt. ” ); W

h itev . S tat e , 931 S.W .2d 736, 742 (Tex. App.—Corpus Christi 1996, pet. ref’d) (finding no custody when suspect voluntarily came to police depa rtment on multipl e occ asions, g ave multiple statements, and w as told he was fre e to le ave afte r ea ch stateme nt).

T h e r e ar e n o f

a c ts p r e s e n t h e r e th a t d is ti n g u is h th is c a s e f r o m th e a b o v e c a s e s . We conclude that the rec ord supports the district court’s f inding that Ha

rris wa s not in custody

when he provided his statements to the police. There fore , the re quirements of Miranda wer e not implicated.
Dec eption Even in

th e a bsence of custody , due proc ess may be violated by

admitting conf

essions that are n o t voluntarily

g iven. W

olf e v . S tat e , 917 S.W .2d 270, 282 (Tex. Crim. App. 1996); Ma rti ne z v . S tat e , 131 S.W .3d 22, 24 (Tex. App.—San Antoni o 2003, no pet.). A state ment is not voluntary if there was “ officia l, coer cive c onduct of such a nature that any

statement obtained the re by wa s unli ke ly

to h a ve be e n th e pr od

uc t of an ess e nti a lly

fr e e and un c on str a ine d c ho ic e by

its maker .” Al

v arad o v . S tat e , 9 12 S .W .2 d 199, 21 1 ( Te x. Cr im. Ap p. 19 95 ); Martinez , 131 S.W .3d
a t 24 -2 5. Ha

rr is c on te nd s th a t hi s st a te me nts we re no t vo lun tari ly given beca us e De te c tiv e Ha ll de c e ive d h im i nto be lie vin g that he wa s o nly a wi tne ss t o th e c ri me and

no t a su sp e c t. The issue he re is not whethe r De tective Ha ll was dec eptive (a s the State co ncede d
a t th e su pp re ssi on

he ari ngthat he wa s) , b ut w he the r t his de c e pti on

re nd e re d H arr is’ s st a te me nts involuntary . Th is Court has previously held, “Voluntar iness is not destroy ed, and a confe ssion ind uc e d b y de c e pti on

or tr ic ke ry is n ot i na dmi ssi ble , unle ss t he me tho d u se d w a s c a lc ulate d to15

produce an untruthful confe ssion or wa s offe nsive to due proc ess.” Do tse yv . S tat e , 630 S.W .2d 343, 349 (Tex. App.—Austin 1982, no pet.).

The de ception of which Har ris complains was the statement by Detec tive Hall on two
occa sions (at Har

ris’s house and during the interview at the police depa rtment) that he w ould like to use Har

ris “as a witness” whe n, in fac t, Hall believed that Harr is “could be a suspect” and, as we explained e arlier , had probable cause to a rre st Harr is as soon as Har ris first explained the nature of his involvement in the murder. Howeve r, there is nothing in the rec ord to indicate that this particular dece ption was “c alculate d to produce an untruthful conf ession or wa s offe nsive to due proc ess.” Ra the r, Ha ll’ s d e c e pti on

is s imi lar to p oli c e c on du c t th a t ot he r c ourt s h a ve fo un d to no t vi olate due proc ess. S

e e, e.g. , Gr e e n v . S

tat e , 934 S.W .2d 92, 100 (Tex. Crim. App. 1996) (finding that misrepre sentation by police “that there was an ey ewitness to the m urder ” did not rende r conf ession inv olu nta ry be c a us e state me nt “ dir e c tly

re la te [d] to a

pp e lla nt’ s g uil t” ); Sn ow v . S

tat e , 721 S.W .2d 943, 946 (Tex. A

pp.—Houston [1st Dist.] 1986, no pet.) (f inding that state ment by

police off icer that
su sp ect “ wa s b e ingint e rv ie we d o nly a s a wi tne ss” did

no t vi olate du e pr oc e ss) ; see also Frazier v. Cupp , 394 U.S. 731, 737-39 (1969) ( ref usin g t o fi n d t h at def

endant who c onfesse d, afte r being falsely told that his codefenda nt has turned State’ s evi d en ce, did so involuntarily ); Holland

v . M c Gi nn is , 9 6 3 F
. 2 d

1 0 4 4 , 1 0 5 1
- 5 2 ( 7 t h C i r . 1 9 9 2 ) ( “ O f t h e n u m e r o u s v ar i e t i e s o f p o l i c e t r i c k e r

y, howeve r, a lie that relate s to a suspect’s c onnection to the cr ime i s the least likely to rende r a confe ssion involunt ary”); bu t se e Ly nu mn v . I lli no is , 372 U.S. 528, 533-34 (1963) ( holding
c on fe ssi on

inv olu nta ry wh e n p oli c e dis tort e d s us pe c t’ s r a tio na l c ho ic e by de c e ivi nghe r i nto believing “that state f

inancial a id for her

infant childre n would b e cu t off, a nd her c hildren take n16

from her , if she did not ‘coope rate .’”) . We conclude that t h e re cord suppor ts the district court’s finding that Har

ris’s statements to the police w ere voluntarily made. Th e dis tr ic t c ourt

did no t a bu se its dis c re tio n in de nying Ha rr is’ s mo tio n to su

pp re ss. We o ve rr ule Ha rr is’ s so le iss ue on

a pp e a l.
CO NC LU SION We a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop Affir med Filed: Jul y

11, 2008 Do No t Pu

bli sh