NUMBER 13-18-00260-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AARON QUINTANILLA RAMIREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Contreras Appellant Aaron Quintanilla Ramirez was convicted of possession of a controlled
substance in an amount between one and four grams, a second-degree felony. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112(c). By two issues, appellant argues that the trial
court erred when it denied his motion to suppress. Specifically, he argues the trial court
should have suppressed: (1) the statements he made to police indicating where drugs were located, because he was in custody and not Mirandized and because the statements
were involuntary; and (2) the drugs recovered as a result of his statements. We affirm as
modified.
I. BACKGROUND
In July 2017, appellant was indicted for possession of between four and two
hundred grams of cocaine with intent to deliver, a first-degree felony. See id.
§§ 481.102(3)(D), 481.112(a). The indictment alleged that appellant committed the
offense within a school zone. See id. § 481.134. Appellant moved to suppress
statements he made to police before his arrest and the evidence seized in connection
with his statements.
At the hearing on appellant’s motion, the trial court heard testimony from Randy
Ybarra, an investigator with the McAllen Police Department. Ybarra explained the Special
Investigative Unit received numerous calls from appellant’s neighbors informing them that
narcotics were being sold and distributed out of appellant’s home. As a result, Ybarra
sent a confidential informant to purchase narcotics from the home while he monitored the
transaction from about twenty feet down the street. The confidential informant walked up
to the house and purchased cocaine. Ybarra then drove to the police department and
prepared a probable cause affidavit for a warrant to search appellant’s home for narcotics.
After Ybarra had the warrant signed by a judge but before he could execute it,
investigators surveilling appellant’s home informed Ybarra that appellant had left his
home in his vehicle. Ybarra radioed Officer Herbert Castellano and instructed him to stop
appellant, detain him, and transport him back to the house.
Castellano also testified at the suppression hearing; he explained he pulled
appellant over without observing a traffic violation. Castellano then informed appellant of
2 the investigation and that a search warrant was being executed at his home.1 Castellano
asked appellant if he would accompany him back to the house, and appellant voluntarily
agreed. Castellano testified that appellant was free to leave and not under arrest and
that appellant’s car was left on the side of the road. Consistent with department policy
when transporting an individual in a police car, Castellano placed handcuffs on appellant
and placed him in the back of his patrol unit during the drive back to appellant’s home.
Once they were in the front lawn of appellant’s home, the handcuffs were removed, and
Ybarra approached appellant.
Ybarra testified that appellant was not under arrest at this point and that he did not
read him his Miranda warnings.2 Ybarra explained that he asked appellant for his
cooperation in finding the narcotics. When asking for appellant’s cooperation, Ybarra
pointed out to appellant that the investigation’s focus could expand to include appellant’s
daughter, because she ran into the home after appellant left and that, as a result, Child
Protective Services could also potentially become involved.3 Appellant agreed to
cooperate. Ybarra and appellant went inside the home, and appellant indicated to Ybarra
how to retrieve the drugs from the shower drain in one of the bathrooms. Ybarra located
thirty-two grams of cocaine and an unspecified amount of synthetic marijuana. At no point
during their interaction did Ybarra or Castellano tell appellant he was not free to leave,
that he was free to leave, or that he was under arrest. Appellant did not testify at the
suppression hearing, and the trial court denied the motion.
1 According to the record, appellant is a former police officer. 2 See Miranda v. Arizona, 384 U.S. 463, 444 (1966).
3 The age of appellant’s daughter is unclear from the record. 3 Following the denial of appellant’s motion to suppress, the trial court issued
findings of fact and conclusions of law.4 In sum, the trial court found that appellant was
not in custody before his interaction with Ybarra and that appellant voluntarily told Ybarra
where the narcotics were located. Subsequently, appellant entered into a plea agreement
with the State for a lesser-included offense, signed a judicial confession, and stipulated
to the evidence. The trial court accepted the plea deal, found appellant guilty of the
second-degree felony offense for manufacture or delivery of a substance in penalty group
1, sentenced him to a probated sentence of six years in the Texas Department of Criminal
Justice—Institutional Division, and assessed a $1,000 fine. See id. §§ 481.102(3)(D),
481.112(c). This appeal followed.
II. DISCUSSION
By his first issue, appellant argues the trial court erred when it denied his motion
to suppress the statements he made to Ybarra because (1) he made the statements made
while he was in police custody and without receiving his Miranda warnings, and (2) the
statements were coerced.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard
of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total
deference to the trial judge’s findings of historical facts as well as mixed questions of law
and fact that turn on an evaluation of credibility and demeanor. Abney v. State, 394
S.W.3d 542, 547 (Tex. Crim. App. 2013). The trial judge is the sole judge of witness
4The trial court issued supplemental findings of fact and conclusions of law after this Court abated the appeal. 4 credibility and the weight to be given to witness testimony. Ex parte Moore, 395 S.W.3d
152, 158 (Tex. Crim. App. 2013). Second, we review de novo the trial court’s application
of the law to the facts. Valtierra, 310 S.W.3d at 447.
“As a general rule, appellate courts view the evidence in the light most favorable
to the trial judge’s ruling, regardless of whether the judge granted or denied the
suppression motion.” State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
“Thus, courts afford the prevailing party ‘the strongest legitimate view of the evidence and
all reasonable inferences that may be drawn from that evidence.” Id. (quoting State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).
B. Applicable Law
There are three types of interactions among police officers and citizens: (1)
consensual encounters, (2) investigative detentions, and (3) arrests or their custodial
equivalent. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); State v. Perez, 85
S.W.3d 817, 819 (Tex. Crim. App. 2002). “An encounter is a consensual interaction which
the citizen is free to terminate at any time.” Crain, 315 S.W.3d at 49. “On the other hand,
an investigative detention occurs when a person yields to the police officer’s show of
authority under a reasonable belief that he is not free to leave.” Id. “When the court is
conducting its determination of whether the interaction constituted an encounter or a
detention, the court focuses on whether the officer conveyed a message that compliance
with the officer’s request was required.” Id. “The question is whether a reasonable person
in the citizen’s position would have felt free to decline the officer’s requests or otherwise
terminate the encounter.” Id.
Both a detention and an arrest involve a restraint on one’s freedom of movement;
the difference is in degree. State v. Sheppard, 271 S.W.3d 281, 290–91 (Tex. Crim. App.
5 2008); State v. Whittington, 401 S.W.3d 263, 272 (Tex. App.—San Antonio 2013, no pet.).
An arrest is a comparatively greater degree of restraint on an individual’s freedom of
movement than is an investigative detention. Sheppard, 271 S.W.3d at 290. The test for
whether a person has been arrested is whether the facts demonstrate the individual’s
liberty of movement was actually restricted or restrained. TEX. CODE CRIM. PROC. ANN.
art. 15.22; Amores v. State, 816 S.W.2d 407, 411–12 (Tex. Crim. App. 1991).
A defendant seeking the suppression of a statement on Miranda grounds has the
threshold burden of clearly establishing that his statements were given during custodial
interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). A person
is “in custody” for Miranda purposes when there is either (1) a formal arrest or (2) a
restraint on the person’s freedom of movement to the degree an objectively reasonable
person would otherwise associate with a formal arrest. Nguyen v. State, 292 S.W.3d 671,
677 (Tex. Crim. App. 2009); see Miranda v. Arizona, 384 U.S. 463, 444 (1966); State v.
Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013); Koch v. State, 484 S.W.3d 482, 491
(Tex. App.—Houston [1st Dist.] 2016, no pet.).
Although there is no “bright-line” rule to distinguish the two, . . . Texas cases are generally categorized as an “arrest” or “detention” depending upon several factors, including the amount of force displayed, the duration of a detention, the efficiency of the investigative process and whether it is conducted at the original location or the person is transported to another location, the officer’s expressed intent—that is, whether he told the detained person that he was under arrest or was being detained only for a temporary investigation, and any other relevant factors.
Sheppard, 271 S.W.3d at 291; see Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim.
App. 1996); Ortiz v. State, 421 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d).
The Texas Court of Criminal Appeals has outlined at least four general situations
which may constitute custody: (1) when the suspect is physically deprived of his freedom 6 of action in any significant way, (2) when a law enforcement officer tells the suspect that
he cannot leave, (3) when law enforcement officers create a situation that would lead a
reasonable person to believe that his freedom of movement has been significantly
restricted, and (4) when there is probable cause to arrest and law enforcement do not tell
the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255. We make the
determination of when an investigatory detention escalates into full custody on an ad-hoc
basis, taking into account the totality of the circumstances. See Saenz, 411 S.W.3d at
496–97. In the first through third situations, the restriction on freedom of movement must
amount to the degree associated with an arrest as opposed to an investigative detention.
Saenz, 411 S.W.3d at 496; Dowthitt, 931 S.W.2d at 255. The fourth situation requires
that an officer’s knowledge of probable cause be manifested to the suspect. Saenz, 411
S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255). “[T]he mere fact than an
interrogation begins as noncustodial does not prevent custody from arising later; police
conduct during the encounter may cause a consensual inquiry to escalate into custodial
interrogation.” Dowthitt, 931 S.W.2d at 255 (citing Usser v. State, 651 S.W.2d 767, 770
(Tex. Crim. App. 1983)).
C. Analysis
Here, appellant argues that the underlying facts trigger the first, third, and fourth
scenarios outlined by the court of criminal appeals as constituting custody. See id.
First, appellant argues that his freedom of movement was restricted to a degree
associated with an arrest because Officer Castellano handcuffed appellant and
transported him in the backseat of a police unit to appellant’s home. We disagree. If a
person voluntarily agrees to accompany police officers to a different location to answer
questions, the police officers advise the person that he will be handcuffed for officer safety
7 during transport, and the handcuffs are removed upon arrival at the second location, then
these facts alone do not invoke custody. Martinez-Hernandez v. State, 468 S.W.3d 748,
758 (Tex. App.—San Antonio 2015, no pet.); Turner v. State, 252 S.W.3d 571, 579–80
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (“Considering the totality of the
circumstances, we conclude handcuffing appellant based on customary safety concerns,
and only for the duration of the transport in a car lacking a safety cage, does not show
custodial status”); see Dancy v. State, 728 S.W.2d 772, 778–79 (Tex. Crim. App. 1987)
(concluding that, even though defendant was handcuffed for officer-safety reasons before
he was placed in the backseat of an unmarked vehicle, the defendant had already
consented to voluntarily accompany the officers to the station; therefore, the defendant
was not in custody when he gave his statement to the officers)). But if after transport, the
person continues to be physically restrained and a reasonable person would believe that
his freedom of movement was restrained to the degree associated with a formal arrest,
then he is in custody. Martinez-Hernandez, 468 S.W.3d at 758. “When a person
voluntarily accompanies officers to an interview, and he knows or should know that the
police suspect he may be implicated in the crime under investigation, he is not ‘restrained
of his freedom of movement’ and is not in custody.” State v. Vasquez, 305 S.W.3d 289,
294 (Tex. App.—Corpus Christi–Edinburg 2009, pet. ref’d).
Here, the trial court found that appellant voluntarily agreed to accompany
Castellano back to the residence and was transported in handcuffs in the back of the
police unit because of department policy and for officer safety. The trial court also found
that the physical restraint on appellant did not continue after he arrived at his home—the
handcuffs were removed, and appellant was allowed to stand on the lawn and talk with
Ybarra, but he was not allowed to enter the residence. These findings by the trial court
8 are supported by the record, and we defer to them. See Valtierra, 310 S.W.3d at 447.
Thus, the evidence supports a conclusion that appellant was not in custody during the
transportation to his home. See Sheppard, 271 S.W.3d at 283 (“[A] person who has been
handcuffed has been ‘seized’ and detained under the Fourth Amendment, but he has not
necessarily been ‘arrested.’”); Crain, 315 S.W.3d at 49; Rhodes v. State, 945 S.W.2d 115,
117 (Tex. Crim. App. 1997) (“[O]fficers may use such force as is reasonably necessary
to effect the goal of the stop: investigation, maintenance of the status quo, or officer
safety”); Dancy, 728 S.W.2d at 778–79; Koch, 484 S.W.3d at 490; Martinez-Hernandez,
468 S.W.3d at 758; In re D.J.C., 312 S.W.3d 704, 713 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“When the circumstances show that the individual acts upon the invitation
or request of the police and there are no threats, express or implied, that he will be forcibly
taken, then that person is not in custody at that time.”).
We also note that Castellano took and retained the keys to appellant’s vehicle after
appellant agreed to accompany Castellano back to his home. Although this is an
additional restraint on appellant’s freedom of movement, it is generally not enough to
escalate a detention into an arrest. See, e.g., Whittington, 401 S.W.3d at 275 (concluding
trial court erred when it found defendant was arrested after officer took her keys, moved
his police vehicle, and conducted an investigation regarding a collision between
defendant’s car and a third party); Campbell v. State, 325 S.W.3d 223, 235 (Tex. App.—
Fort Worth 2010, no pet.) (concluding defendant was not in custody when, after he was
found passed out inside his car, an officer took his car keys and asked him questions as
part of a continuing investigation); Horton v. State, 16 S.W.3d 848, 852 (Tex. App.—
Austin 2000, no pet.) (concluding defendant was detained for investigation when officers
took his keys, ordered him out of his car, and prevented him from reentering the car); see
9 also White v. State, No. 08-06-00050-CR, 2007 WL 853134, at *1, 4 (Tex. App.—El Paso
Mar. 22, 2007, no pet.) (concluding defendant was not in custody when officer took his
keys; rather, he was still being detained because the officer’s suspicion that appellant
was intoxicated had not been dispelled or confirmed). We conclude that Castellano’s
retention of appellant’s car keys while transporting appellant voluntarily to his house for
investigatory purposes did not escalate his transportation into a custody scenario.
Appellant also argues that, once at his home, his freedom of movement was
restricted to a degree associated with an arrest, triggering the first and third scenarios in
Dowthitt. See Dowthitt, 931 S.W.2d at 255. Appellant argues that he “was met with at
least three uniformed officers outside his home, six uniformed officers and a canine inside
and searching his home while he [was] made to stay outside in the driveway.” However,
the trial court’s supplemental findings of fact state that “Ybarra was the only officer outside
the home in contact with [appellant]; the other officers conducting the search remained
within the home, and the ‘two or three’ uniformed officers outside the home did not have
contact with [appellant].” These findings by the trial court are supported by the record,
and we defer to them. See Valtierra, 310 S.W.3d at 447. Thus, appellant was only in
contact with Ybarra while he was outside his home and without handcuffs. Also, there is
nothing in the record indicating any police control over appellant once he arrived at his
home and the handcuffs were removed—appellant was not told he was not free to leave
and law enforcement did not deny him any request for a bathroom break or to speak to
his family. Cf. Dowthitt, 931 S.W.2d at 257. The trial court further found that “nothing in
the record indicates that any officer brandished a weapon at appellant or any other
person.” See Whittington, 401 S.W.3d at 273.
10 Furthermore, the trial court found that the length of the investigation at his home—
i.e., the questioning of appellant—“extended considerably less than one hour . . . .” The
length of this interrogation also supports a conclusion that appellant was not in custody.
See United States v. Sharpe, 470 U.S. 675, 678–79, 687–88 (1985) (rejecting the notion
that twenty-minute detention is unreasonable when the investigation was done in “a
diligent and reasonable manner”); California v. Beheler, 463 U.S. 1121, 1122–23 (1983)
(concluding suspect was not in custody when he voluntarily accompanied the police to
the station, talked for less than thirty minutes, and was permitted to return home); Dancy,
728 S.W.2d at 775 (concluding that suspect was not in custody when he voluntarily
accompanied officers to the police station, answered questions posed by law enforcement
officials, gave hair samples, and the interview lasted about thirty-eight minutes); State v.
Ortiz, 382 S.W.3d 367, 374 n.30 (Tex. Crim. App. 2012) (mentioning duration of
investigatory detention among the “accretion of objective circumstances” equating to
custody under Miranda); Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d) (concluding suspect was not in custody when he came to station
voluntarily at time of his own choosing, was allowed to step outside building and go
unaccompanied to his car during interviews, and “a few hours” later was allowed to leave
unhindered after statements were completed); State v. Rodriguez, 986 S.W.2d 326, 330
(Tex. App.—El Paso 1999, pet. ref’d) (determining appellant not in custody although
interrogation lasted several hours); cf. Dowthitt, 931 S.W.2d at 256 (concluding defendant
was in custody after, among other factors, approximately six hours of interrogation).
Viewing the totality of the circumstances objectively, we conclude that a
reasonable person would not believe his freedom was restrained to the degree of formal
arrest and reject appellant’s argument that the first and third Dowthitt scenarios were
11 triggered. See Ortiz, 382 S.W.3d at 372; Dowthitt, 931 S.W.2d at 255. Here, the degree
of incapacitation does not appear more than necessary to simply safeguard the officers
and assure the suspect’s presence during a period of investigation, which suggests the
appellant was, if anything, detained and not in custody. See Sheppard, 271 S.W.3d at
291; Ortiz, 421 S.W.3d at 891.
The fourth Dowthitt scenario is triggered when there is probable cause to arrest
and law enforcement officers do not tell the suspect he is free to leave. Dowthitt, 931
S.W.2d at 255. The officer’s knowledge of probable cause must be manifested to the
suspect, and such manifestation could occur “if information substantiating probable cause
is related by the officers to the suspect or by the suspect to the officers.” Dowthitt, 931
S.W.2d at 255; Garcia v. State, 237 S.W.3d 833, 837 (Tex. App.—Amarillo 2007, no pet.);
see Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. [Panel Op.] 1979). However,
the manifestation of probable cause does not automatically establish custody. Garcia,
237 S.W.3d at 837; see Saenz, 411 S.W.3d at 496. “Even a clear statement from an
officer that the person under interrogation is a prime suspect is not, in itself, dispositive of
the custody issue.” Saenz, 411 S.W.3d at 497 (citing Stansbury v. California, 511 U.S.
318, 325 (1994)). Rather, custody attaches if the manifestation of probable cause,
combined with other circumstances of the interview, such as duration or factors of the
exercise of police control over a suspect, would lead a reasonable person to believe that
he is under restraint to the degree associated with an arrest. Saenz, 411 S.W.3d at 496;
Dowthitt, 931 S.W.2d at 255; Garcia, 237 S.W.3d at 837. Additionally, situations where
the mere manifestation of probable cause triggers custody are unusual. State v.
Stevenson, 958 S.W.2d 824, 829 n.7 (Tex. Crim. App. 1987); Hodson v. State, 350
S.W.3d 169, 174–75 (Tex. App.—San Antonio 2011, pet. ref’d); Garcia, 237 S.W.3d at
12 837. Illustrative is Dowthitt, where probable cause gave rise to custody when the
defendant made an incriminating statement after an hours-long interrogation session
during which he experienced a substantial period without food, his complaints of
exhaustion and requests to see his wife were ignored, and he was accompanied on
restroom breaks by authorities. See Dowthitt, 931 S.W.2d at 252–54, 257; see also State
v. Frazier, No. 01-17-00160-CR, 2018 WL 1597648, at *6–7 (Tex. App.—Houston [1st
Dist.] Apr. 3, 2018, no pet.) (mem. op., not designated for publication).
“[T]he question turns on whether, under the facts and circumstances of the case,
‘a reasonable person would have felt that he or she was not at liberty to terminate the
interrogation and leave.’” Ervin, 333 S.W.3d at 205 (quoting Nguyen, 292 S.W.3d at 678).
The reasonable person standard presupposes an innocent person. Dowthitt, 931 S.W.2d
at 254. The subjective intent of law enforcement officials to arrest is irrelevant, unless
that intent is somehow communicated or otherwise manifested to the suspect. Ortiz, 382
S.W.3d at 372–73; Dowthitt, 931 S.W.2d at 254.
Here, the trial court found that, once at his home, Ybarra informed appellant of law
enforcement’s suspicion that illicit drugs were being kept within the home. Ybarra also
did not tell appellant he was free to leave or that he was not free to leave. See Dowthitt,
931 S.W.2d at 255. However, the trial court found that Ybarra did not manifest his
suspicion as to appellant specifically or any other possible occupant of the house; rather,
Ybarra simply communicated a suspicion that illicit drugs were being kept within the
home. Nevertheless, the brevity of the questioning conducted by Ybarra, combined with
the other surrounding circumstances, show that appellant was at the residence voluntarily
and not restrained in a way typically associated with an arrest. See Hodson, 350 S.W.3d
at 174–75 (concluding defendant was not in custody during sixty-minute interview during
13 which defendant admitted involvement in murder); Garcia v. State, 106 S.W.3d 854, 858–
59 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (concluding reasonable person in
Garcia’s situation would not have believed he was in custody because, although there
was probable cause to arrest Garcia, he voluntarily went to police station, was told that
he could leave, statement took thirty minutes, only two unarmed officers were with him,
and he was in a visitor’s room with his girlfriend); Scott v. State, 165 S.W.3d 27, 42 (Tex.
App.—Austin 2005), rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007)
(“Although probable cause to arrest arose early in the questioning, the officers never
suggested by word or deed that Scott was not free to leave.”). As previously concluded,
the evidence and trial court’s findings of fact regarding the surrounding circumstances
support a conclusion that a reasonable person would not believe he was restrained to a
degree associated with an arrest. Accordingly, we reject appellant’s argument that the
fourth scenario in Dowthitt was triggered.
Here, appellant was informed of a search warrant being executed at his home, and
appellant voluntarily agreed to accompany Castellano back to his house. Appellant was
handcuffed for officer safety and due to law enforcement protocols, but the handcuffs
were removed when they arrived at his property. The questioning of appellant by Ybarra
was brief and done for investigatory purposes, and the police investigation was short and
effective. While there were multiple officers searching the inside of the house, appellant
was not in contact with them, and the force exerted by police was minimal. And while
appellant was not told he was free to leave, he was also not told he was not free to leave.
Appellant then told Ybarra where the drugs were located and went inside the house with
Ybarra and instructed Ybarra how to retrieve them. Considering the totality of the
circumstances, we conclude the degree of restraint does not “appear [to be] more than
14 necessary to simply safeguard the officers and assure the suspect’s presence during a
period of investigation.” Sheppard, 271 S.W.3d at 291; see Whittington, 401 S.W.3d at
273–75. Therefore, we conclude the trial court did not err when it denied appellant’s
motion to suppress because appellant was not in custody.
Finally, appellant argues that his statements to Ybarra were the result of coercion
and, thus, involuntary. “A statement of an accused may be used in evidence against him
if it appears that the same was freely and voluntarily made without compulsion or
persuasion . . . .” TEX. CODE CRIM. PROC. ANN. art. 38.21; see Carter v. State, 309 S.W.3d
31, 41 (Tex. Crim. App. 2010). The fruits resulting from a defendant’s statement obtained
through actual coercion must be suppressed. See Michigan v. Tucker, 417 U.S. 433,
448–49 (1974); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997). “The United
States Supreme Court has held that the determination as to whether a confession was
voluntarily rendered must be analyzed by examining the totality of the circumstances.”
Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007) (citing Arizona v. Fulminante,
499 U.S. 279, 285–86 (1991)).
“In reviewing an allegation of coercive police conduct to determine whether a
defendant’s will was overborne such that his statement was involuntary, we consider
factors such as ‘length of detention, incommunicado or prolonged interrogation, denying
a family access to a defendant, refusing a defendant’s request to telephone a lawyer of
family, and physical brutality.” Martinez-Hernandez, 468 S.W.3d at 762–63 (citing
Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other
grounds by Mosley v. State, 983 S.W.2d 249, 264 n. 18 (Tex. Crim. App. 1998)).
Appellant argues that he encountered numerous officers when he arrived at his
house, and that this indicates that a coercive atmosphere existed during his interaction
15 with Ybarra; however, as noted previously, the trial court found that appellant only
interacted with Ybarra once at the house and encountered “two or three” additional
uniformed officers with whom he did not interact. Appellant also argues that Ybarra
threatened him when he informed appellant that the investigation’s focus could expand
to include appellant’s daughter and that Child Protective Services could get involved. This
statement made by Ybarra, however, does not constitute coercion. See Barker, 956
S.W.2d at 23 (citing Michigan v. Tucker, 417 U.S. 433 446–449 (1974)) (noting that
classical examples of coercion “ranged from torture, to prolonged isolation from family or
friends in a hostile setting, to a seemingly endless interrogation designed to exhaust the
accused”); Martinez-Hernandez, 468 S.W.3d at 762–63. Again, appellant was detained
for a short period of time, the questioning by Ybarra was brief, there was no denial of a
request to speak with family or to telephone a lawyer, and no physical brutality occurred.
See Martinez-Hernandez, 468 S.W.3d at 762–63. The trial court’s findings that (1)
appellant voluntarily told Ybarra where and how to retrieve the narcotics and that (2)
Ybarra did not use any coercion or threats are reasonably supported by the record. See
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Accordingly, we reject
appellant’s argument that the trial court erred in denying his motion to suppress because
the statements he gave were involuntary.
We overrule appellant’s first issue.5
III. MODIFICATION OF JUDGMENT
Appellant was originally indicted for the first-degree felony of possession of
cocaine, a substance in penalty group 1, in an amount between four and two hundred
5 Because we find appellant’s first issue dispositive, we need not address his second issue. See TEX. R. APP. P. 47.1. 16 grams with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). The
plea agreement and the hearing on the agreement make it clear that appellant pleaded
guilty to and was convicted of the second-degree felony that is a lesser included offense
of the offense alleged in the indictment. See id. § 481.112(c). However, the judgment
lists the statute of offense as Texas Health and Safety Code § 481.1121(B)(2), which
provides the second-degree felony offense for substances in penalty group 1a. See id.
§ 481.1121(B)(2). The Texas Rules of Appellate Procedure allow this Court to modify
judgments sua sponte to correct typographical errors and make the record speak the
truth. See TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi–Edinburg 1982,
pet. ref’d). We modify the judgment to reflect that the statute of the offense appellant was
convicted of is § 481.112(c) of the Texas Health and Safety Code. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(c)
IV. CONCLUSION
We affirm the trial court’s judgment as modified.
DORI CONTRERAS Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 27th day of June, 2019.