COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00407-CR
CHARLES SAMUEL BURGESS II APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
A jury convicted Appellant Charles Samuel Burgess II of one count of
continuous sexual abuse of young children and one count of indecency with a
child. See Tex. Penal Code Ann. § 21.02 (West Supp. 2013), § 21.11 (West
2011). The jury assessed his punishment at 99 years’ confinement for the
1 See Tex. R. App. P. 47.4. continuous sexual abuse conviction and 20 years’ confinement for the indecency
with a child conviction. The trial court sentenced him accordingly, ordering the
sentences to run concurrently. In six issues, Burgess appeals his convictions.
We will affirm.
II. FACTUAL BACKGROUND
At the time of the events at issue here, Burgess was married to Shirley.
They had recently moved from Ohio to Arlington, Texas. Their adult daughter
Sarah lived with her husband and four children in Frisco.2 Burgess and Shirley
proposed that each of Sarah’s children celebrate his or her birthday by spending
time with ―Popo‖ (Burgess) and ―Gaga‖ (Shirley) at their house in Arlington.
A. Amber and Burgess
Sarah’s oldest child is Amber. For Amber’s eleventh birthday, she stayed
at her grandparents’ house for a few nights. She spent most of the trip with
Shirley, doing ―girly stuff.‖ There were times, however, when Shirley had to work,
and Amber was left alone with Burgess. One day while Burgess was looking
after Amber, he joined her in an upstairs entertainment room. Amber was sitting
down, watching television. Burgess began to massage her back. He started
near her neck and progressively moved his hands down her spine. At some
point, he reached his hand inside of her clothing and touched her female sex
2 To protect the anonymity of the children in this case, we will use aliases to refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 organ. He then removed her clothing and continued to touch her sex organ for
approximately thirty minutes until he fell asleep. Amber then escaped to a guest
bedroom, where she locked the door, put her clothes back on, and waited for
Shirley to return home. Amber did not tell Shirley what happened.
A year later, Amber returned to her grandparents’ house to celebrate her
twelfth birthday. On the first two days of her visit, while Shirley was at work,
Burgess once again removed Amber’s clothing and used his hand to touch her
sex organ. On the second day of her visit, Burgess also kissed her on the
mouth.
On another occasion, Burgess was at Sarah’s home in Frisco babysitting
all four of the children. Everyone was watching a movie together. Burgess sat
with Amber on the couch behind the other three children. While the movie was
playing, Burgess led Amber’s hand inside of his clothing and had her grasp his
penis. The touching lasted for the duration of the movie.
B. Kelsey and Burgess
Sarah’s second oldest child is Kelsey. Kelsey took a birthday trip to her
grandparents’ house to celebrate her ninth birthday. During the visit, Shirley took
her horseback riding. Once while Burgess was alone with Kelsey, he removed
her clothing and touched her chest area. He also touched and penetrated her
sex organ with his fingers. Kelsey and Burgess played a game of ―strip Connect
4‖ during the visit. According to Kelsey, the game required the loser of each
round to remove an article of clothing.
3 C. Amber’s and Kelsey’s Outcry
Amber and Kelsey first spoke of their encounters with Burgess by telling
their friend, Heather. The girls made Heather promise not tell anyone, but
Heather eventually told her mother, who then told Sarah. Sarah spoke to Amber
and Kelsey individually, and each girl confirmed that the information Sarah had
received was accurate. Sarah took the girls to the Children’s Advocacy Center of
Denton, where they gave detailed accounts to a child forensic interviewer and a
sexual assault nurse.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Burgess contends that Amber and Kelsey were not
credible witnesses and that, without their testimonies, the evidence is insufficient
to sustain his convictions.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey v.
State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see also Banda v. State,
890 S.W.2d 42, 50 (Tex Crim. App. 1994), cert. denied, 515 U.S. 1105 (1995)
(―The jury is the exclusive judge of the credibility of witnesses and of the weight
to be given their testimony.‖); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
4 App. 1986) (―The jury . . . could choose to believe or not believe the witnesses, or
any portion of their testimony.‖), cert. denied, 488 U.S. 872 (1988).
As proof that the girls fabricated their testimonies, Burgess points to
portions of the record that demonstrate that the girls’ behavior—both their
general demeanor and their relationship with him—did not materially change
after their birthday visits. Specifically, he notes the following: (1) Kelsey testified
that Amber did not act differently when she returned home from her first birthday
trip, (2) Sarah testified that she did not notice any change in the girls’ behavior
that alarmed her, (3) Sarah testified that the girls’ relationship with Burgess did
not change after their birthday trips and that Amber went for her second birthday
trip without complaint, and (4) the girls’ aunt testified that she attended a family
gathering after the birthday visits and that both girls were affectionate toward
Burgess. Burgess argues that this evidence is inconsistent with allegations that
he maintained a sexual relationship with the girls. But the jury heard this
evidence, and it heard Amber and Kelsey’s testimonies describing the sexual
encounters. After hearing and weighing all the evidence, the jury apparently
resolved any inconsistencies in favor of the State. See Banda, 890 S.W.2d at
50; Sharp, 707 S.W.2d at 614. And because Amber and Kelsey were under
seventeen years of age at the time of the sexual assaults, their testimonies, even
without corroboration, are sufficient to support Burgess’s convictions. See Tex.
Code Crim. Proc. Ann. art. 38.07 (West Supp. 2013); Sennett v. State, 406
S.W.3d 661, 666 (Tex. App.—Eastland 2013, no pet.). Because this court must
5 defer to the jury on matters of the weight and credibility of evidence, we overrule
Burgess’s first issue. See Tex. Code Crim. Proc. Ann. art. 38.04; Winfrey, 393
S.W.3d at 768.
IV. LESSER-INCLUDED-OFFENSE INSTRUCTION
In his second issue, Burgess argues that the trial court erred by denying
his request for a lesser-included-offense instruction on assault by contact.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.
Here, Burgess was charged with one count of continuous sexual assault of
young children, one count of aggravated sexual assault, and three counts of
indecency with a child. At trial, Burgess denied touching the girls’ sex organs
and Kelsey’s chest, but he said that he may have touched the girls on their hips.
Based on this testimony, Burgess argues he was entitled to a jury instruction on
the lesser offense of assault by contact because there was some evidence that a
6 jury could find him guilty of that lesser offense. But before we engage in the
second step of our analysis, as Burgess requests, we must determine whether
assault by contact comes within article 37.09 of the code of criminal procedure.
See Tex. Code Crim. Proc. Ann. art. 37.09; Moore, 969 S.W.2d at 8.
Under article 37.09(1)—the applicable subsection here—an offense is a
lesser-included offense of another offense if the indictment for the greater-
inclusive offense either: (1) alleges all of the elements of the lesser-included
offense or (2) alleges elements plus facts (including descriptive averments, such
as non-statutory manner and means, that are alleged for purposes of providing
notice) from which all of the elements of the lesser-included offense may be
deduced. Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on
reh’g). Both statutory elements and any descriptive averments alleged in the
indictment for the greater-inclusive offense should be compared to the statutory
elements of the lesser offense. Id. If a descriptive averment in the indictment for
the greater offense is identical to an element of the lesser offense, or if an
element of the lesser offense may be deduced from a descriptive averment in the
indictment for the greater-inclusive offense, this should be factored into the
lesser-included-offense analysis in asking whether all of the elements of the
lesser offense are contained within the allegations of the greater offense. Id.
Burgess urges us to consider his testimony about touching the girls’ hips in
deciding whether he was entitled to a lesser-included instruction. But in the first
step of our analysis, we do not look to the facts presented at trial; rather, we look
7 to the evidence legally required to prove the elements of the charged offenses.
See Tex. Code Crim. Proc. Ann. art. 37.09(1); State v. Meru, No. PD-1635-12,
2013 WL 6182420, at *3 (Tex. Crim. App. Nov. 27, 2013) (―The first step of the
analysis is a question of law that does not depend on the evidence presented at
trial.‖); McKithan v. State, 324 S.W.3d 582, 593 (Tex. Crim. App. 2010) (―The
relevant inquiry is not what the evidence may show but what the State is required
to prove to establish the charged offense.‖).
Assault by contact, which Burgess contends is a lesser-included offense
here, requires that the defendant knew or reasonably believed that the
complainant would regard the contact as offensive or provocative. Tex. Penal
Code Ann. § 22.01(a)(3) (West Supp. 2013). None of the charged offenses, as
alleged, requires such proof. In other words, proof that Burgess knew the girls
would be offended by his touching, or would find the touching provocative, is not
required to prove continuous sexual assault of young children, aggravated sexual
assault, or indecency with a child. See id. §§ 21.02, 21.11, § 22.021 (West 2011
& Supp. 2013). Because this additional fact must be proved for assault by
contact but not for the charged offenses, assault by contact is not a lesser-
included offense under article 37.09(1).3 See Tex. Code Crim. Proc. Ann. art.
3 And because the first part of the lesser-included-offense instruction analysis is not satisfied, we do not need to reach the second part of the analysis—whether some evidence exists in the record that if Burgess is guilty, he is guilty only of the lesser offense. See Hall, 225 S.W.3d at 528; Rousseau, 855 S.W.2d at 672–73.
8 37.09(1); McKithan, 324 S.W.3d at 583; Watson, 306 S.W.3d at 273; see also
Lopez v. State, No. 13-09-00523-CR, 2012 WL 256103, at *7 (Tex. App.—
Corpus Christi Jan. 26, 2012, no pet.) (mem. op., not designated for publication)
(holding that assault by contact is not a lesser-included offense of aggravated
sexual assault); Silber v. State, No. 13-05-00238-CR, 2006 WL 347167, at *2–3
(Tex. App.—Corpus Christi Feb. 16, 2006, pet. ref’d) (mem. op., not designated
for publication) (holding that assault by contact is not a lesser-included offense of
indecency with a child); Shea v. State, 167 S.W.3d 98, 106 (Tex. App.—Waco
2005, pet. ref’d) (holding that assault by contact is not a lesser-included offense
of indecency with a child); Ramos v. State, 981 S.W.2d 700, 701 (Tex. App.—
Houston [1st Dist.] 1998, pet. ref’d) (holding that assault by contact is not a
lesser-included offense of aggravated sexual assault or indecency with a child).
Because assault by contact is not a lesser-included offense in this case,
the trial court did not err by refusing Burgess’s request for a jury instruction. See
Tex. Code Crim. Proc. Ann. art. 37.09; Watson, 306 S.W.3d at 273. We overrule
Burgess’s second issue.
V. TESTIMONY OF RECENT ALLEGATION
In his third issue, Burgess complains that the trial court abused its
discretion by admitting evidence of the extraneous act of his playing ―strip
Connect 4‖ with Kelsey. He contends that because the State failed to provide
him with adequate notice of its intent to introduce the extraneous act, the trial
court should have excluded the evidence.
9 Article 38.37, section 3 of the code of criminal procedure provides that a
defendant who requests notice of the State’s intent to introduce extraneous acts
during the State’s case-in-chief is entitled to notice ―in the same manner as the
state is required to give notice under Rule 404(b).‖ Act of May 24, 2005, 79th
Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192 (amended 2013)
(current version at Tex. Code Crim. Proc. Ann. art. 38.37, § 3 (West Supp.
2013)). Rule 404(b) requires that the State ―give reasonable notice in advance of
trial.‖ Tex. R. Evid. 404(b). ―The purpose behind the notice provision is to
adequately make known to the defendant the extraneous [acts] the State intends
to introduce at trial and to prevent surprise to the defendant.‖ Martin v. State,
176 S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.). We review a trial
court’s ruling as to the admissibility of extraneous acts under an abuse-of-
discretion standard. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App.
1996).
Here, Burgess objected to Kelsey’s testimony that she played strip
Connect 4 with Burgess, arguing that the State did not provide him with timely
notice under article 38.37,4 but he did not request a continuance. By not
requesting a continuance, Burgess did not preserve the issue he urges on appeal
on the basis of surprise. See Martines v. State, 371 S.W.3d 232, 249 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); Martin, 176 S.W.3d at 900; Koffel v.
4 Kelsey did not inform the State about the game until the day before trial began.
10 State, 710 S.W.2d 796, 802 (Tex. App.—Fort Worth 1986, pet. ref’d) (citing
Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982)).
Even assuming, without deciding, both that Burgess preserved error and
that the trial court abused its discretion by overruling his objection regarding the
timeliness of the notice, the record does not demonstrate that Burgess suffered
harm. The erroneous admission of an extraneous act is a nonconstitutional
error, meaning that the error is reversible only if the appellant’s substantial rights
were affected by not receiving timely notice. See Tex. R. App. P. 44.2(b);
McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). The record
does not suggest that Burgess’s trial strategy would have changed if he had
received advanced notice that the State intended to introduce evidence of the
Connect 4 game. When prosecutors met with Kelsey in the week before trial,
she could not remember Burgess touching her sex organ or chest area. The
State provided Burgess with advanced notice of the information prosecutors
obtained during the meeting with Kelsey. On cross-examination of Kelsey,
Burgess drew attention to the discrepancy, asking her why she could not recall
the touching in her meeting with prosecutors but could remember it at trial.
Similarly, when questioning Kelsey about the Connect 4 game, Burgess drew
attention to the discrepancy. He asked her about testifying at trial to the details
of a game that she never mentioned to anyone until the day before trial. Burgess
does not explain on appeal how his defense strategy would have differed had he
received notice of the Connect 4 evidence. Without any explanation from
11 Burgess, we cannot determine that his trial strategy was adversely affected,
much less substantially and injuriously affected, by a lack of notice, especially in
light of his cross-examination of Kelsey on the issue. See McDonald, 179
S.W.3d at 578–79; Martines, 371 S.W.3d at 249–50.
We overrule Burgess’s third issue.
VI. OUTCRY TESTIMONY
In his fourth issue, Burgess complains that the trial court abused its
discretion by permitting the State to designate Rebecca Truette, the family
services coordinator who interviewed Amber and Kelsey at the Children’s
Advocacy Center, as its outcry witness. Burgess contends that Sarah was the
proper outcry witness because she was the first person over eighteen years of
age to whom the girls told about Burgess’s misconduct.
In pertinent part, article 38.072 of the code of criminal procedure allows for
hearsay testimony to be admitted as substantive evidence in the prosecution of
sexual offenses committed against children under the age of fourteen, provided
that the witness was the first person, other than the defendant and who was age
eighteen or older, to whom the children made a statement about the offense.
Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1(1), 2 (West Supp. 2013); Duran v.
State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no pet.). The term
―statement about the offense‖ means ―more than words which give a general
allusion‖ of sexual abuse; rather, it means ―a statement that in some discernible
manner describes the alleged offense.‖ Garcia v. State, 792 S.W.2d 88, 91 (Tex.
12 Crim. App. 1990). A trial court has broad discretion in determining the proper
outcry witness, and we will not reverse the trial court absent an abuse of that
discretion. Id. at 92.
At trial, Sarah testified that before she took the girls to the Advocacy
Center, she asked them, individually, if ―anything bad‖ was happening to them.
Amber said that Burgess ―had been touching her private areas and that he made
her touch his as well.‖ Kelsey simply said that Burgess had been touching her.
Sarah testified that each of these conversations lasted two or three minutes.
Sarah did not press the girls for details, nor did the girls provide her with any
details.5 Sarah then took the girls to the Advocacy Center, where each girl gave
a detailed account to Truette.
Because article 38.072 demands more than a general allusion of sexual
abuse, we conclude that the trial court did not abuse its discretion by determining
that Truette, not Sarah, was the proper person to testify as an outcry witness.
See Tex. Code Crim. Proc. Ann. art. 38.072; Garcia, 792 S.W.2d at 91–92.
Truette was the first person over eighteen years of age to whom the girls
provided a detailed account of their encounters with Burgess. See Smith v.
State, 131 S.W.3d 928, 930–31 (Tex. App.—Eastland 2004, pet. ref’d) (holding
that trial court did not abuse its discretion by ruling that counselor at child
5 When asked why she did not press the girls for details, Sarah responded: ―I didn’t want to know the details really, first of all. And I just wanted to ask each of them separately to make sure that what they were saying, you know, was the truth. And I don’t know, I didn’t want to know what they said.‖
13 advocacy center was proper outcry witness when child first told mother and
doctor that child had been performing oral sex on appellant but did not give any
other details); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet.
ref’d) (holding that trial court did not abuse its discretion by ruling that mother
was not proper outcry witness when child first told mother that appellant had
been touching child’s ―private parts‖ but did not give any other details); Schuster
v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d) (holding
that trial court did not abuse its discretion by ruling that mother was not proper
outcry witness when child first told mother that appellant had touched her but did
not provide any other details). We overrule Burgess’s fourth issue.
VII. VOIR DIRE REMARKS
In his fifth issue, Burgess argues that the trial court erred by not granting a
mistrial sua sponte during voir dire based on remarks from the State.
During voir dire, a prospective juror asked the prosecutor why he chose to
specialize in crimes against children. The prosecutor responded:
Well, when you deal with drug dealers, you deal with robbers, people like that. There are always circumstances where maybe they’ve had a—grew up in a poor neighborhood, maybe they had a bad family life. Unfortunately, some of the murder cases I’ve tried are, you know, a husband is cheating on his wife and his wife, you know, kills him.
I mean, I’m not saying it’s okay. But I’m just saying a lot of people we deal with aren’t the savoriest of characters. And in my mind there’s just—there’s nothing worse than hurting a child. So that’s why I do these cases, because I think they’re the worst criminals.
14 Burgess did not object to these remarks and, consequently, did not
preserve his complaint for review. See Tex. R. App. P. 33.1(a)(1) (requiring a
timely request, objection, or motion stating the specific grounds for the desired
ruling to preserve a complaint for review); Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012); see also Espinosa v. State, 194 S.W.3d 703, 708 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (―When appellant complains about an
improper remark by the prosecutor during voir dire, appellant must object when
the remark is made.‖).
Without an objection at trial, Burgess argues that the trial court should
have granted a mistrial sua sponte because the prosecutor’s remarks were so
inflammatory that they deprived him of his constitutional right to a fair trial. But a
trial court has the power to declare a mistrial sua sponte only when manifest
necessity exists. See Torres v. State, 614 S.W.2d 436, 442–43 (Tex. Crim. App.
[Panel Op.] 1981). Here, the prosecutor’s general statements about those who
commit crimes against children do not rise to the level of manifest necessity for a
mistrial. See Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (―Manifest
necessity exists when the circumstances render it impossible to arrive at a fair
verdict, when it is impossible to continue with trial, or when the verdict would be
automatically reversed on appeal because of trial error.‖); Torres, 614 S.W.2d at
442 (―The power ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.‖) (quoting U.S. v. Perez,
22 U.S. 579, 580 (1824)). See generally Brown v. State, 907 S.W.2d 835, 839–
15 40 (Tex. Crim. App. 1995) (reviewing cases in which the court held that manifest
necessity did not exist). We overrule Burgess’s fifth issue.
IIX. SUPPRESSION OF ORAL STATEMENTS
In his sixth issue, Burgess complains that the trial court erred by denying
his motion to suppress evidence of his interview with police because it was
obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
The State may not use a defendant’s statements, whether exculpatory or
inculpatory, stemming from a custodial interrogation unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-
incrimination. Id. at 444, 86 S. Ct. at 1612. Article 38.22 of the code of criminal
procedure also precludes the use of statements that result from a custodial
interrogation without compliance with its procedural safeguards. See Tex. Code
Crim. Proc. Ann. art. 38.22 (West Supp. 2013). Before an investigation reaches
the accusatorial or custodial stage, a person’s Fifth Amendment rights have not
come into play, and the voluntariness in waiving those rights is not implicated.
Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990).
There are at least four general situations where a suspect’s detention may
constitute custody: (1) when the suspect is physically deprived of his freedom of
action in any significant way, (2) when a law enforcement officer tells the suspect
that he cannot leave, (3) when law enforcement creates 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
16 enforcement officers do not tell the suspect that he is free to leave. Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); McCulley v. State, 352
S.W.3d 107, 115–16 (Tex. App.—Fort Worth 2011, pet. ref’d). In the first three
situations, the restriction on freedom of movement must amount to a degree
associated with arrest rather than investigative detention. Dowthitt, 931 S.W.2d
at 255; McCulley, 352 S.W.3d at 116.
Because a trial court’s custody determination presents a mixed question of
law and fact, we give almost total deference to the trial court’s ruling when the
questions of fact turn on an evaluation of credibility and demeanor. Herrera v.
State, 241 S.W.3d 520, 526–27 (Tex. Crim. App. 2007); Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007); Johnson v. State, 68 S.W.3d 644, 652–
53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not
turn on the credibility and demeanor of the witnesses, we review the trial court’s
rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v.
State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–
53. Additionally, when, as here, the record is silent on the reasons for the trial
court’s ruling, or when there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court’s ruling if the evidence, viewed in
the light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Herrera, 241
S.W.3d at 527; see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
17 We then review the trial court’s legal ruling de novo unless the implied fact
findings supported by the record are also dispositive of the legal ruling. State v.
Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).
Here, Burgess complains about the admission of a recorded interview he
had with Arlington police nearly a month before a warrant was issued for his
arrest. Detective Donna Hubbard of the Arlington Police Department was in
charge of Burgess’s investigation. Early one morning, she telephoned Burgess
to ask if he wanted to come to her office to discuss the allegations made against
him. Burgess responded that he wanted to come in immediately. Detective
Hubbard knew that her partner, Detective Debbie Stansell, would have to drive
from Frisco to Arlington to attend the interview, so she scheduled the interview
for early that afternoon.
Detective Hubbard worked out of the Alliance for Children office in
Arlington. All guests to the Alliance office had to be ―buzzed into‖ the building.
When Burgess arrived for his interview, he was buzzed in, and Detective
Hubbard met him in the building’s lobby. She then showed him to the second-
floor interview room. In the interview room, Detective Stansell joined Detective
Hubbard and Burgess.
The detectives interviewed Burgess for approximately ninety minutes.
Neither detective advised him of his Miranda rights. At the conclusion of the
interview, he left both the room and the building without being buzzed out. Nine
days after the interview at Alliance, Detective Hubbard interviewed Burgess
18 again at another location. Twenty-nine days after his interview at Alliance, she
obtained a warrant for his arrest.
On appeal, Burgess complains that during the interview at Alliance, he was
in custody for Miranda purposes because (1) he had to be buzzed into the
building and (2) the interview room ―look[ed] like any other room where
statements are taken when a person is in custody.‖ But these facts do not
transform Burgess’s interview into a custodial interrogation. The court of criminal
appeals has held that these types of voluntary stationhouse interviews are non-
custodial:
Where a person 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, we are unable to hold that under the circumstances such a person is restrained of his freedom of movement. Under those circumstances, he is not in custody.
Dancy v. State, 728 S.W.2d 772, 778–79 (Tex. Crim. App.), cert. denied, 484
U.S. 975 (1987); see also Oregon v. Mathiason, 429 U.S. 492, 494–95, 97 S. Ct.
711, 713–14 (1977) (holding defendant’s freedom not restricted in any way when
defendant voluntarily met detective for interview at state patrol office); Estrada v.
State, 313 S.W.3d 274, 294–95 (Tex. Crim. App. 2010) (holding defendant was
not in custody when he voluntarily submitted to questioning and was in interview
room at police station for five hours), cert. denied, 131 S. Ct. 905 (2011);
Dowthitt, 931 S.W.2d at 255 (―Stationhouse questioning does not, in and of itself,
constitute custody.‖). The fact that Burgess had to be buzzed into the building
19 does not change our analysis. See Frame v. State, No. 02-05-00097-CR, 2006
WL 3627155, at *5–6 (Tex. App.—Fort Worth Dec. 14, 2006, pet. ref’d) (mem.
op., not designated for publication) (holding that defendant was not in custody
when she voluntarily went to police station for interview and was escorted to
interrogation room in restricted area); Scott v. State, 165 S.W.3d 27, 42–43 & n.6
(Tex. App.—Austin 2005) (holding that defendant was not in custody where
police questioned him in a ―secure area where the interview room was located‖),
rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007). Thus, the
record supports the trial court’s implied finding that Burgess was not in custody
during his interview at the Alliance office. See Dancy, 728 S.W.2d at 778.
Because he was not in custody, his Fifth Amendment rights had not yet come
into play and the voluntariness of his statement is not implicated. See Melton,
790 S.W.2d at 326. We overrule Burgess’s sixth issue.
IX. CONCLUSION
Having overruled Burgess’s six issues, we affirm the trial court’s judgment.
SUE WALKER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 9, 2014