NUMBER 13-11-00249-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE ANTONIO PIZANO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza A jury convicted appellant, Jose Antonio Pizano, of capital murder committed in
the course of committing or attempting to commit aggravated robbery. See TEX. PENAL
CODE ANN. § 19.03(a)(2), (b) (West Supp. 2011). The trial court sentenced him to life
imprisonment without the possibility of parole. See id. § 12.31(a)(2), (b)(2) (West 2011). By four issues, appellant contends: (1) the trial court erred in denying his motion to
suppress certain oral statements made during a custodial interrogation; (2) the trial
court erred in admitting certain DNA evidence because the search warrant authorizing
the DNA evidence was not based on sufficient probable cause; and (3) the evidence is
legally and factually insufficient to support his conviction. We affirm.
I. BACKGROUND
On April 9, 2009, around 9:30 p.m., Alberto Marin (“Marin”), his wife, Nora Elia
Zuniga, and other family members returned home from a church service. Upon entering
their home, they were confronted by an armed masked man demanding money. Shortly
thereafter, a second masked man entered the house through a kitchen window. Both
men wore gloves and carried guns; they asked for money and demanded to know the
location of the safe. The men took Marin into a bedroom and forced the other family
members to stay in the living room. A few moments later, the family heard shots from
the bedroom. The two intruders ran out of the house. Marin staggered out of the
bedroom and fell to the floor.
A police officer, responding to an emergency call regarding the home invasion,
approached the neighborhood in his vehicle. He observed a man in black clothing
running across the road. The officer lost sight of the man, but shortly thereafter
encountered another man, later identified as Alberto Pizano (“Alberto”), appellant’s
brother. Alberto, who had blood stains on his shoes and clothing, was arrested.
Pursuant to information obtained over the next several weeks, appellant was arrested.
II. THE EVIDENCE1
1 We have summarized only the testimony most pertinent to the issues raised. See TEX. R. APP.
2 A. Carlos Garcia
Carlos Garcia, an investigator with the McAllen Police Department, assisted
Officer Isaac Tamez with the investigation of the case. Officer Garcia interviewed
Zuniga and Marin’s brother, Oscar Duque Marin (“Oscar”). Officer Garcia learned from
Oscar that Alvaro DeArmas had rented a room from Oscar for the past two to three
years. Officer Garcia requested that Oscar and DeArmas come to the station to be
interviewed. They arrived together; Oscar was interviewed first. When Officer Garcia
returned to the lobby to interview DeArmas, however, DeArmas had left the station and
did not return. DeArmas did not return to Oscar’s house to retrieve his possessions.
Attempts to locate him were unsuccessful. The police later issued a warrant for his
arrest, but DeArmas was never apprehended.
On April 10, 2009, the day after the invasion, Officer Garcia visited with
appellant’s sister, Esperanza Perez. Perez directed Officer Garcia to appellant, who
lived next door. Officer Garcia and Detective Tony Carrizales contacted appellant at his
residence. Appellant told the officers that around 6:30 that morning, he had reported his
van was stolen. The officers asked appellant about Alberto; appellant said he had not
seen Alberto for several days and that they did not spend much time together. Officer
Garcia asked appellant if he had a cell phone number; appellant said he did not.
On April 14, 2009, Officers Garcia and Tamez interviewed appellant a second
time at the supermarket where he was employed. The officers showed appellant a
photograph of DeArmas and asked if appellant recognized him. Appellant said he did
not.
P. 47.1.
3 Officer Garcia noticed that a pair of Wells Lamont gloves recovered from the
crime scene appeared to be new. Sergeant Xavier Garcia learned that the Wal-Mart in
Palmhurst—near appellant’s residence—had recently sold two pair of the same brand
and style of gloves. One of the sales occurred shortly before April 9 and the second
sale occurred after April 9. Officers Garcia and Tamez met with security personnel at
the Palmhurst Wal-Mart. After viewing the store’s video surveillance recording of the
pre-April 9 glove purchase, the officers discovered that Alberto and appellant purchased
a pair of the Wells Lamont gloves on March 29, 2009.
On April 18, 2009, Officers Garcia and Tamez visited appellant at his residence
and asked that he come to the police station for an interview. Officer Garcia stated that
appellant was a “person of interest,” but was not in custody or under arrest. At the
station, the officers showed appellant a photo of the Wells Lamont gloves recovered
from the crime scene. Appellant did not recognize the gloves. The officers told
appellant about the video showing him and Alberto purchasing the gloves at the
Palmhurst Wal-Mart. The video shows appellant and Alberto entering the store, going
directly to the glove-display area, and then proceeding directly to the register. They did
not purchase any other items. Appellant paid for the gloves at the register, and the two
men left the store. After appellant was told about the video, he insisted that he did not
recall purchasing the gloves. During the interview, appellant became upset with Officer
Tamez because Officer Tamez kept asking questions about Alberto.
Officer Garcia asked appellant to provide a buccal swab as a DNA sample, but
he refused. Officer Carrizales stayed with appellant at the station while Officers Garcia
and Tamez obtained a search warrant authorizing the taking of a blood sample from
4 appellant. The officers escorted appellant to the hospital where a blood sample was
obtained. The officers then took appellant home. During the interview, appellant did not
ask to leave and was not handcuffed.
Officer Garcia subpoenaed cell phone records from various members of Marin’s
family, as well as DeArmas. DeArmas’s cell phone records showed that on April 9,
2009, the day of the invasion, DeArmas received two calls from a cell phone number
that was later identified as appellant’s number. According to Officer Garcia, he did not
have probable cause to arrest appellant until he learned that appellant called DeArmas
twice on April 9, about three hours before the home invasion. After obtaining this
information, a warrant was issued for appellant’s arrest, and he was arrested on May 1,
2009. Appellant’s cell phone records show that he requested to close the cell phone
account on April 10, 2009, the day after the murder, but the account was actually closed
a month later, on May 10, 2009.
On June 18, 2009, appellant’s van was found in McAllen. After obtaining a
search warrant, Officer Garcia found several items in the van, including black zip ties
very similar to ones found at the crime scene, gray duct tape similar to that found at the
crime scene, and a hooded blue jean jacket.
On cross-examination, defense counsel established that DeArmas’s cell phone
records show that DeArmas did not answer the first call appellant made to him; rather,
the call was forwarded because DeArmas was using the phone at that time. Counsel
also established that when appellant went to the police station on April 18, the officers
did not tell him that he was not required to come. Officer Garcia stated that it was not
necessary to advise appellant of his rights because he was not in custody. If appellant
5 had asked to be taken home, Officer Garcia would have taken him home.
B. Isaac Tamez
Isaac Tamez, an investigator with the McAllen Police Department, testified that
he investigated the crime scene and followed up on the arrest of Alberto. On April 14,
Officer Tamez and Officer Garcia questioned appellant at his workplace regarding
Alberto’s associates. Appellant said he did not spend time with Alberto and did not
know Alberto’s friends. On April 17, Officers Garcia and Tamez viewed the Wal-Mart
video showing appellant and Alberto purchasing the gloves on March 29. The video
shows appellant purchasing the gloves and handing the bag to Alberto.
On April 18, Officers Tamez and Garcia picked appellant up at his residence and
took him to the police station for questioning. The officers showed appellant a picture of
the gloves; appellant said he did not recognize them. Appellant also said he did not
recall purchasing the gloves at Wal-Mart with Alberto. During the questioning, Officer
Tamez suggested that appellant was not being honest. Appellant became upset and
said he would continue talking to Officer Garcia, but did not want to continue talking to
Officer Tamez. Officer Tamez left the room, and Officer Garcia continued the interview.
On cross-examination, Officer Tamez stated that he prepared the probable cause
affidavit supporting the search warrant authorizing the taking of a blood sample from
appellant. When Officer Tamez left the police station to obtain a judge’s signature on
the search warrant, he asked Detective Carrizales to “keep an eye” on appellant.
C. Larry Tineo
Officer Larry Tineo stated that he responded to a report of the home invasion. As
6 he approached the area, he saw a man in black clothing running across the road. 2
Officer Tineo lost sight of the man, but encountered a second man, later identified as
Alberto. When Officer Tineo brought Alberto back to the crime scene, he noticed that
he had red stains on his shoes and clothing.
D. Maria Esperanza Del Angel
Maria Esperanza Del Angel, then a crime scene investigator with the McAllen
Police Department, testified regarding evidence collected from the crime scene. Among
other items, a Wells Lamont glove was found in the back yard of the residence at the
crime scene. The matching Wells Lamont glove was found in a nearby irrigation ditch.
Maria Del Angel also identified photographs of appellant’s van after it was recovered.
Close-up photographs of the van’s keyholes were admitted to show that there was no
evident keyhole damage suggesting a break-in. Officer Del Angel also testified that
duct tape and black zip ties were found in the van.
E. Roberto Del Angel3
Roberto Del Angel, also a crime scene investigator for the McAllen Police
Department, testified regarding various items collected from the crime scene and
nearby locations. Several items were collected in a nearby construction yard, including
a roll of tape, a white shirt, and a brown Stanley glove. Several more items were
collected from a nearby irrigation ditch, including security ties, a black shirt, a cell phone
holster, a screwdriver, a Stanley glove, a Wells Lamont glove, and a hoodie-type mask.
F. Edna Lissette Zavala 2 When Officer Tineo saw the man running across the road, his vehicle’s video recorder was activated. The video was introduced into evidence. 3 Roberto Del Angel was asked if he was related to Maria Esperanza Del Angel; he said “yes,” but was not asked to elaborate.
7 Edna Lissette Zavala, a forensic scientist in the DNA and serology section of the
Texas Department of Public Safety Crime Lab, testified generally regarding DNA testing
and how it is conducted. Ms. Zavala testified that the DNA profile of scrapings obtained
from State’s Exhibit 8-A—the Wells Lamont glove found in the irrigation ditch—was
consistent with a mixture of appellant’s DNA and that of an unknown individual.
Although the scrapings from Exhibit 8-A contained a mixture of DNA, appellant’s DNA
was present in larger quantities and constituted the “major component” of the DNA
profile. Ms. Zavala also testified that the DNA profile obtained from State’s Exhibit 28-
A—the matching Wells Lamont glove found at the crime scene outside the kitchen
window—was consistent with appellant’s DNA profile. The DNA profile obtained from a
hoodie-type mask found in the irrigation ditch was consistent with a mixture of DNA
which included appellant, Alberto, Marin, and an unknown individual.
On cross-examination, Ms. Zavala admitted that appellant’s DNA, found on the
Wells Lamont glove recovered from the crime scene, could have been deposited on the
glove on March 29, 2009, when the gloves were purchased.
G. Oscar Duque Marin
Oscar testified that DeArmas lived in his home for approximately a year and a
half. In the six months before his death, Marin went to Oscar’s house almost every day
for discussions about the Bible. Marin often talked about his businesses when
DeArmas was present. Marin had a real estate business and had owned a jewelry
business in the past. DeArmas knew that Marin owned a safe because he and Oscar
had helped move the safe from a jewelry store to Marin’s garage.
On the evening of April 9, Oscar and other family members returned from church
8 to Marin’s house. The other family members entered the house first. When Oscar got
to the door, he saw someone inside with a gun in his hand. Oscar ran to a neighbor’s
house next door; the neighbor retrieved a weapon, and the men went back to Marin’s
house. When they reached the door, however, they heard gunshots; frightened, the
neighbor returned home. Oscar saw two men running from Marin’s house, one taller
than the other; neither man was DeArmas. Oscar had not seen DeArmas since he
abruptly left the police station.
III. SUFFICIENCY OF THE EVIDENCE
By his third and fourth issues, appellant contends the evidence is factually and
legally insufficient to support his conviction. In his combined argument regarding both
issues, appellant argues that: (1) although his DNA was found on a glove at the crime
scene, there is no evidence establishing when the DNA was deposited on the glove,
and “there is no other evidence to support [appellant’s] involvement”; and (2) DeArmas
knew Marin had a safe at his house, but the only evidence of a relationship between
appellant and DeArmas is appellant’s phone call to DeArmas about three hours before
the home invasion.
Appellant does not separately argue his legal and factual sufficiency challenges.
Appellant acknowledges that the Texas Court of Criminal Appeals has directed
intermediate courts to apply a single standard of review—the Jackson v. Virginia
standard—to legal and factual sufficiency challenges in criminal cases. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Notwithstanding Brooks, appellant asserts that
“[t]he Court of Criminal Appeals has no authority to abrogate the specific provisions of
9 the Texas Constitution or state statutes” and argues that “this Court has the
constitutional and statutory authority to review factual and legal sufficiency issues.”
“As an intermediate court of appeals, we are bound to follow the precedent of the
court of criminal appeals.” Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d). The court of criminal appeals has characterized Brooks as
“abolish[ing] factual-sufficiency review.” See Howard v. State, 333 S.W.3d 137, 138 n.2
(Tex. Crim. App. 2011). Accordingly, we apply only the Jackson sufficiency standard to
complaints styled as legal or factual sufficiency challenges. See Ervin, 331 S.W.3d at
54.
A. Standard of Review and Applicable Law
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing the Jackson
standard as: “Considering all of the evidence in the light most favorable to the verdict,
was a jury rationally justified in finding guilt beyond a reasonable doubt”). The fact-
finder is the exclusive judge of the credibility of witnesses and of the weight to be given
to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.
2008)). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive
province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must
resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
10 In reviewing the legal sufficiency of the evidence, we look at events occurring
before, during, and after the commission of the offense, and we may rely on actions of
the appellant that show an understanding and common design to do the prohibited act.
See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not
point directly and independently to the appellant’s guilt, so long as the cumulative effect
of all the incriminating facts is sufficient to support the conviction. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
307 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
A person commits capital murder if he intentionally or knowingly causes the
death of an individual and intentionally commits the murder in the course of committing
or attempting to commit robbery or aggravated robbery. TEX. PENAL CODE ANN. §
19.02(b)(1) (West 2011), § 19.03(a)(2); Ervin v. State, 333 S.W.3d 187, 200 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d); Hernandez v. State, 198 S.W.3d 257, 261
(Tex. App.—San Antonio 2006, pet. ref’d). A person commits robbery if, in the course
of committing theft and with intent to obtain or maintain control of the property, he
intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death. TEX.
11 PENAL CODE ANN. § 29.02(a) (West 2011); Ervin, 333 S.W.3d at 200. Aggravated
robbery is robbery with the use or exhibition of a deadly weapon. TEX. PENAL CODE ANN.
§§ 29.02, 29.03 (West 2011). A firearm is a deadly weapon. Id. § 1.07(a)(17) (West
Supp. 2011).
Capital murder is a result-of-conduct oriented offense; the crime is defined in
terms of one’s objective to produce, or a substantial certainty of producing, a specified
result, i.e., the death of the named decedent. Roberts v. State, 273 S.W.3d 322, 329
(Tex. Crim. App. 2008). “A person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a)
(West 2011). “A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause the result.”
Id. § 6.03(b).
In deciding whether the defendant had the culpable mental state to commit
murder, the jury weighs the evidence introduced at trial. Childs v. State, 21 S.W.3d
631, 635 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A person’s knowledge and
intent may be inferred from the “acts, words, and conduct” of the accused. Sholars v.
State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Hart
v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the
extent of the victim’s injuries, the method used to produce the injuries, and the relative
size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
1995). In a murder case, a particularly brutal or ferocious mechanism of death inflicted
on a helpless victim can be controlling upon the issue of intent or knowledge. Martin v.
12 State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (concluding
evidence of severe brain injuries was legally and factually sufficient to show intent to kill
ten-month-old and support a capital murder conviction). Intent and knowledge are fact
questions for the jury, and are almost always proven through evidence of the
circumstances surrounding the crime. Childs, 21 S.W.3d at 635. Intent to kill may be
inferred from the use of a deadly weapon. Henderson v. State, 825 S.W.2d 746, 749
(Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). “When a deadly weapon is fired at
close range, and death results, the law presumes an intent to kill.” Ervin, 333 S.W.3d at
200 (quoting Sholars, 312 S.W.3d at 694).
Here, the jury was instructed that it could find appellant guilty of capital murder as
a principal or as a party.4 The jury returned a general verdict; therefore, if the evidence
is sufficient to support a finding under either of the allegations submitted, we must
uphold the jury’s verdict. See Hernandez, 198 S.W.3d at 261.
Although appellant was not indicted as a party, the charge authorized his
conviction as a party to capital murder pursuant to penal code section 7.02(a)(2) or (b).
See TEX. PENAL CODE ANN. § 7.02(a)(2), (b) (West 2011).5 A person “is criminally
4 The jury was instructed that it could convict appellant if it believed from the evidence beyond a reasonable doubt that either: (1) appellant caused Marin’s death by shooting him with a firearm and appellant was in the course of committing aggravated robbery of Marin; or (2) that Alberto caused Marin’s death by shooting him with a firearm, and appellant was in the course of committing aggravated robbery of Marin, and appellant encouraged, directed, aided or attempted to aid Alberto in committing capital murder by purchasing a pair of gloves used in the robbery, planning the robbery with DeArmas, aiding Alberto by threatening Marin with bodily injury or death, or entering Marin’s home with Alberto without Marin’s consent. 5 Texas law does not require that an individual be indicted as a party; if the evidence supports a charge on the law of parties, the trial judge may include an instruction on the law of parties despite the lack of such an allegation in the indictment. Marable v. State, 85 S.W.3d 287, 287–88 (Tex. Crim. App. 2002); see also Gomez v. State, No. 13-09-619-CR, 2010 Tex. App. LEXIS 10250, at *7–8 (Tex. App.— Corpus Christi Dec. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (explaining that “the law of parties is not required to be included in the indictment, and may be included in a jury instruction if
13 responsible for an offense committed by the conduct of another if . . . acting with intent
to promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2).
Evidence is sufficient to convict under the law of parties where the accused is physically
present at the commission of the offense and encourages its commission by words or
other agreement. Hernandez, 198 S.W.3d at 261. In determining whether an accused
participated as a party, the fact finder may examine the events occurring before, during,
and after the commission of the offense and may rely on actions of the accused that
show an understanding and common design to commit the offense. Id. Further,
circumstantial evidence may be used to prove party status. Id.
Also under penal code section 7.02(b), if:
[I]n the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
TEX. PENAL CODE ANN. § 7.02(b) (West 2011).
A conspiracy exists when two or more persons, as shown by words or deeds,
agree to do an unlawful act. Butler v. State, 758 S.W.2d 856, 860 (Tex. App.—Houston
[14th Dist.] 1988, no pet.). An agreement may be inferred from the parties’ acts, Snow
v. State, 721 S.W.2d 943, 948 (Tex. App.—-Houston [1st Dist.] 1986, no pet.), and the
State may prove a conspiracy by circumstantial evidence. Butler, 758 S.W.2d at 860.
The agreement must be before or contemporaneous with the criminal event. Beier v.
State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). An agreement of the parties to act
the evidence supports such an instruction as a possible means by which the crime was committed”).
14 together in a common design seldom can be proven by direct evidence; reliance,
therefore, may be placed upon the actions of parties, showing by either direct or
circumstantial evidence an understanding and common design to do a certain act.
Rivera v. State, 990 S.W.2d 882, 887 (Tex. App.—Austin 1999, pet. ref'd).
B. Discussion
Here, appellant argues that his DNA evidence found on a glove at the crime
scene is only a “modicum” of evidence that does not rationally support his conviction.
We disagree. The evidence established that: (1) on March 29, 2009, appellant and
Alberto purchased a pair of Wells Lamont gloves like those found at the crime scene;
(2) appellant’s DNA was found on a Wells Lamont glove recovered at the crime scene;
(3) the matching Wells Lamont glove was found in a nearby irrigation ditch, along with
other items apparently used in the home invasion; (4) appellant’s cell phone records
show that he called DeArmas—who knew that Marin had a safe at his house—several
hours before the home invasion; (5) appellant initially told the police he did not have a
cell phone number and attempted to cancel his cell phone account the day after the
home invasion; (6) appellant’s van—which he reported as stolen the morning after the
home invasion and was recovered later—contained black zip ties and duct tape similar
to those found at and near the crime scene; (7) when recovered, the van showed no
signs that it had been broken into; and (8) when police attempted to interview DeArmas,
he abruptly disappeared and has not been seen since. Viewing the evidence in the light
most favorable to the verdict, see Brooks, 323 S.W.3d at 898–99, we hold there was
legally sufficient evidence to find appellant guilty as a party under section 7.02(a)(2).
See TEX. PENAL CODE ANN. § 7.02(a)(2). The jury could have found beyond a
15 reasonable doubt that appellant’s DNA on the glove and other evidence established that
he and Alberto attempted to rob Marin and appellant either (1) shot Marin himself or (2)
aided Alberto in shooting Marin. We overrule appellant’s third and fourth issues.
IV. MOTION TO SUPPRESS
By his first issue, appellant contends the trial court erred in denying his motion to
suppress statements that he made during the April 18, 2009 interview at the police
station. Appellant argues he was in custody during the April 18 interview, was not given
Miranda warnings, and therefore, statements he made during the interview should have
been excluded. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although appellant
does not identify specific statements that he was harmed by, he argues that his “denials
of involvement with the purchase of the gloves was offered at trial as incriminating
evidence” and that his “denial of any connection to the gloves was harmful and was a
factor in the jury’s determination of guilt.” The State responds that the trial court did not
err in finding that appellant’s statements were not made during a custodial interrogation
and were made voluntarily.
Whether the trial court properly denied a defendant’s motion to suppress is
reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—
Corpus Christi 2009, no pet.). We give almost total deference to the trial court’s
determination of historical facts but review de novo the trial court’s application of law to
facts not turning on credibility and demeanor. Scardino, 294 S.W.3d at 405; see Ford v.
State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When, as in this case, the trial
16 court makes no explicit findings of historical fact, the evidence must be viewed in the
light most favorable to the trial court's ruling. St. George, 237 S.W.3d at 725. We must
uphold the trial court’s ruling if it is correct under any theory of law applicable to the
case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Estrada v. State,
154 S.W.3d 604, 607 (Tex. Crim. App. 2005). “Absent a clear abuse of discretion, the
ruling on the admissibility of evidence will not be disturbed.” Fonseca v. State, 881
S.W.2d 144, 149 (Tex. App.—Corpus Christi 1994, no pet.) (citing Rivera v. State, 808
S.W.2d 80, 96 (Tex. Crim. App. 1991)).
A trial court’s ultimate “custody” determination “presents a ‘mixed question of law
and fact.’” Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (quoting
Thompson v. Keohane, 516 U.S. 99, 112–13 (1995)). “Therefore, we afford almost total
deference to a trial judge’s ‘custody’ determination when the questions of historical fact
turn on credibility and demeanor.” Id. at 526–27. “Conversely, when the questions of
historical fact do not turn on credibility and demeanor, we will review a trial judge’s
‘custody’ determination de novo.” Id. at 527.
The United States Supreme Court’s decision in Miranda and article 38.22 of the
Texas Code of Criminal Procedure protect suspects subjected to custodial police
questioning. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West 2005); Herrera, 241
S.W.3d at 526 (stating that both article 38.22 and Miranda apply when persons are in
custody and being interrogated); Ervin, 333 S.W.3d at 225-27 (same). The failure to
comply with the Miranda requirements6 results in forfeiture of the use of any statement
6 Miranda warnings include a statement regarding the right to remain silent, that any statement made may be used as evidence, that you have the right to have an attorney present during questioning, and if you are unable to hire an attorney, you have the right to have an attorney appointed if you cannot
17 obtained during that interrogation. Ervin, 333 S.W.3d at 204. “If statements are not
made as a result of custodial interrogation, the requirements of Miranda and article
38.22 do not apply.” Rodriguez v. State, 191 S.W.3d 428, 448 (Tex. App.—Corpus
Christi 2006, pet. ref’d).
In determining whether an individual was in custody, the ultimate inquiry is
whether there was a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest. Id. at 440. The determination depends on the objective
circumstances, not on the subjective views of either the interrogating officers or the
person being questioned. Id. Moreover, the determination is made on an ad hoc basis.
Id. at 440–41.
Four general situations may constitute custody for purposes of Miranda and
article 38.22: (1) the suspect is physically deprived of his freedom of action in any
significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3)
law enforcement officers create a situation that would lead a reasonable person to
believe that his freedom of movement has been significantly restricted; or (4) there is
probable cause to arrest the suspect, and law enforcement officers do not tell the
suspect he is free to leave. Ervin, 333 S.W.3d at 205; Rodriguez, 191 S.W.3d at 441.
The fourth category applies only when the officer’s knowledge of probable cause is
communicated to the suspect or by the suspect to the officer; even then custody is
established only “if the manifestation of probable cause, combined with other
afford one. Miranda v. Arizona, 384 U.S. 436, 444 (1966). These warnings largely overlap with those required by the Texas Code of Criminal Procedure, Article 38.22, section 2(a), except that section 2(a) includes an additional warning that the accused “has the right to terminate the interview at any time[.]” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West 2005).
18 circumstances, would lead a reasonable person to believe that he is under restraint to
the degree associated with an arrest.” Ervin, 333 S.W.3d at 205 (quoting Gardner v.
State, 306 S.W.3d 274, 295 n.48 (Tex. Crim. App. 2009)); Rodriguez, 191 S.W.3d at
441. “[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 v. State, 292
S.W.3d 671, 678 (Tex. Crim. App. 2009)).
When a person is transported to a law enforcement facility by an officer in the
course of an investigation, if the person was acting upon the invitation, request, or even
the urging of an officer, there were no threats that he would be taken in a forcible
manner, and the accompaniment is voluntary, then the individual is not in custody.
Rodriguez, 191 S.W.3d at 441–42; see Zavala v. State, 956 S.W.2d 715, 724 (Tex.
App.—Corpus Christi 1997, pet. ref’d). Station-house questioning alone does not
constitute custody. Rodriguez, 191 S.W.3d at 442. However, police conduct during the
encounter may cause a consensual inquiry to escalate into a custodial interrogation. Id.
At trial, the defendant bears the initial burden of proving that a statement was the
product of custodial interrogation. Herrera, 241 S.W.3d at 526.
On January 26, 2011, the trial court held a pre-trial hearing on appellant’s motion
to suppress. The only witnesses were Officers Tamez and Garcia. Both officers
testified that they picked appellant up at his residence on April 18, 2009; appellant
agreed to go to the police station for questioning. Officer Tamez described appellant as
a “person of interest,” not a suspect. The officers were in an unmarked “undercover”
19 vehicle; appellant was not handcuffed and rode in the front seat. Appellant was offered
water or soda during the interview. Appellant was not forced to make any statements,
and did not ask to terminate the interview. On cross-examination, Officer Tamez stated
that when he and Officer Garcia left the station to obtain a search warrant, he instructed
Officer Carrizales to stay with appellant.
Officer Garcia gave similar testimony regarding the April 18 interview with
appellant. During the interview, Officer Garcia asked appellant if he wanted to provide a
written statement, but appellant declined because he cannot read or write. After telling
appellant that the officers had seen the Wal-Mart video of him and Alberto buying
gloves, Officer Garcia asked appellant why he was buying gloves; appellant did not
answer. Appellant was not a suspect at the time of the interview. Appellant became
angry with Officer Tamez and said he would rather talk to Officer Garcia. Appellant did
not ask to be taken home. The interview lasted about an hour and a half. On cross-
examination, Officer Garcia said that on April 18, he considered appellant a “person of
interest” but not a suspect. Officer Garcia asked appellant for a DNA sample, but he
refused. When Officer Garcia told him that he would obtain a search warrant
authorizing a blood sample, appellant said, “okay.” Officer Garcia said that on April 18,
he had no probable cause to arrest appellant.
Appellant’s counsel argued that the custodial interrogation began when the
officers started interviewing appellant at the station. Counsel argued that the officers
intended to confront appellant with the video and elicit incriminating responses from
him. Although counsel did not identify specific “incriminating responses,” he argued that
“anything said and anything revealed” by appellant should be suppressed. The State
20 argued that appellant went with the officers voluntarily and was not in custody. The
State introduced two exhibits, Officer Tamez’s and Officer Garcia’s investigative reports,
both of which included a chronological summary of the investigation.
On February 10, 2011, the trial court signed an order denying appellant’s motion
to suppress. The order states, in relevant part, that “the Court holds that [appellant’s]
statements, admissions or confessions were not a product of custodial interrogation and
were voluntarily made.”
Viewing the evidence in the light most favorable to the trial court’s ruling, see
Herrera, 241 S.W.3d at 527, we conclude that the trial court did not abuse its discretion
in concluding that appellant’s statements were not made as a result of custodial
interrogation and were therefore admissible. See Rodriguez, 191 S.W.3d at 448. The
trial court heard testimony that appellant accompanied the officers to the station
voluntarily. He was not handcuffed and was free to leave. See Ervin, 333 S.W.3d at
211 (finding appellant not in custody where she voluntarily went to police station, was
not handcuffed, was told she could leave, was questioned four hours, and went home
after making statements); Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1993)
(“[W]here the circumstances show that the person voluntarily accompanied the police in
the investigation of a crime, and he knew or should have known that the police might
suspect that he is implicated in the offense, whether he is acting upon the invitation,
urging, or request of police officers, and not being forced, coerced or threatened, the act
is voluntary and the person is not then in custody”); see also Bridges v. State, No. 05-
09-00784-CR, 2011 Tex. App. LEXIS 697, at *27 (Tex. App.—Dallas Jan. 21, 2011, pet.
ref’d) (not designated for publication) (same). Officers Tamez and Garcia both testified
21 that appellant was not in custody. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.
Crim. App. 1997) (“The officer’s testimony is a factor to be considered, along with the
other facts and circumstances of the detention, in determining whether an arrest has
taken place.”). The testimony demonstrates that appellant understood that he could
decline to provide a written statement and a DNA sample and could refuse to continue
talking with Officer Tamez. Officer Garcia stated that on April 18, he did not have
probable cause to arrest appellant. Even if Officer Garcia believed he had probable
cause to arrest appellant on April 18, the record does not reflect that this was ever
manifested to appellant. See Gardner, 306 S.W.3d at 294–95 (finding even if officer
had probable cause to arrest, appellant not in custody where appellant said nothing to
officer that furnished probable cause and officer never told appellant he was a prime
suspect); see also Bridges, 2011 Tex. App. LEXIS 697, at *28–29 (finding initial non-
custodial interview escalated into custodial interrogation when appellant admitted
shooting the victim because admission established probable cause to arrest); Navarro
v. State, No. 10-11-00051-CR, 2011 Tex. App. LEXIS 8041, at *13–14 (Tex. App.—
Waco October 5, 2011, no pet.) (mem. op., not designated for publication) (finding no
custody even if officer believed he had probable cause to arrest appellant, as belief was
not manifested to appellant); State v. Roberts, No. 05-09-01328-CR, 2010 Tex. App.
LEXIS, at *12–13 (Tex. App.—Waco July 28, 2010, pet. ref’d) (not designated for
publication) (finding suspect not in custody during initial portion of interview because
even though officer had arrest warrant, the officer’s knowledge of probable cause was
not communicated or otherwise manifested to suspect and suspect provided no
information substantiating probable cause to officer during initial portion of interview).
22 After the interview was concluded, the officers left to obtain a search warrant.
Officer Tamez asked Officer Carrizales to stay with appellant, but there was no
evidence that appellant was told that he could not leave. As the State notes, Officer
Carrizales was asked to keep an eye on appellant after the interview was conducted;
thus, even if we assume, without deciding, that appellant was in custody during the time
that he was in Officer Carrizales’s care, there is no evidence that he was questioned
during or after that time.
Moreover, we note that appellant did not provide a harm analysis, other than to
assert, without elaboration or citation to authority, that “[a]ppellant’s denial of any
connection to the gloves was harmful and was a factor in the jury’s determination of
guilt.” Thus, we conclude that appellant’s claim that he was harmed by the trial court’s
denial of his motion to suppress was inadequately briefed. See TEX. R. APP. P. 38.1(i).
We overrule appellant’s first issue.
V. VALIDITY OF SEARCH WARRANT
By his second issue, appellant contends that the trial court erred in admitting
evidence regarding DNA testing of his blood sample because the warrant used to obtain
the sample was based on insufficient probable cause. The State responds that the
issue is not preserved because appellant did not: (1) challenge the search warrant
before the trial court; and (2) object to Edna Zavala’s trial testimony that she matched
DNA evidence from various items to appellant’s DNA profile. The State further argues
that even if we consider the merits of appellant’s complaint, the search warrant was
supported by sufficient probable cause.
23 We agree that it is unnecessary to decide whether the search warrant was based
on sufficient probable cause because defense counsel did not preserve this issue. The
validity of the search warrant used to obtain appellant’s blood sample was not
challenged at the suppression hearing or at trial. At trial, there was no objection to
Officer Tamez’s or Officer Garcia’s testimony regarding the search warrant used to
obtain the blood sample from appellant. Neither was there an objection to Edna
Zavala’s testimony regarding the DNA evidence or to the admission of the blood sample
evidence. “As a prerequisite to presenting a complaint on appeal, a party must have
made a timely and specific request, objection, or motion to the trial court. Grant v.
State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing TEX. R. APP. P.
33.1(a)(1)(A)). Here, appellant did not challenge the validity of the search warrant
before the trial court. Therefore, we conclude that this issue was not preserved for
appellate review. See TEX. R. APP. P. 33.1. We overrule appellant’s second issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA Justice
Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 31st day of May, 2012.