Deleon, Luis Ramon v. State

Affirmed and Memorandum Opinion filed October 18, 2005 Affirmed and Memorandum Opinion filed October 18, 2005. In The Fourteenth Court of Appeals _______________ NO. 14-03-01314-CR _______________ LUIS RAMON DELEON, Appellant V. THE STATE OF TEXAS, Appellee ____________________________________________________________ On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 938,869 ____________________________________________________________ M E M O R A N D U M   O P I N I O N A jury convicted appellant, Luis Ramon Deleon, of capital murder and assessed a life sentence. In two issues, appellant contends (1) the trial court erred in denying his motion to suppress, and (2) the evidence is legally and factually insufficient to support the verdict. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background George Parker, appellant=s life-long friend, testified that over the years, he has bought marijuana from appellant=s family. On the evening of February 8, 2003, Parker and his girlfriend, Bobbie Weaver, were in Parker=s home when appellant and a man, later identified as Robert Flores, arrived to deliver a pound of marijuana. As appellant and Flores entered the home, Flores pointed a pistol at Parker and threatened to kill him if he moved. While in the home, Flores bound Parker and Weaver with duct tape, broke a glass ashtray over Parker=s head, demanded Parker=s money, and took Parker=s truck keys and $500 from his pocket. Meanwhile, appellant gathered gun cases from Parker=s bedroom and stacked them in the living room. Parker asked appellant why he was doing this, and appellant responded, AI=ve got to feed my baby.@ Next, Flores carried Weaver outside and then came back inside. Flores then heard a commotion outside which prompted him to throw Parker into a wall with such force that Parker=s head broke through the sheetrock. At that point, Parker did not know where appellant was, but he was not in the immediate area. Flores then ran back outside. Parker freed himself from the duct tape and also ran outside where he again met Flores who knocked him down. Flores and appellant then fled in a car. Parker=s neighbors, Raymond Martinez and Roland Reyes, both testified they were at Martinez=s home when they heard a woman scream Acall the police@ and heard a Apop@ or gunshot at Parker=s home. They saw a car speed away from Parker=s home, and they called 911. Raymond=s father, Richard Martinez, ran towards Parker=s house carrying a pistol and told Parker he heard a gunshot. Parker then found Weaver lying on the driveway with blood on her temple. Paramedics transported her to the hospital where she died of a gunshot wound to the head. Four days later, appellant turned himself in to the Cameron County Sheriff=s Office in Brownville, Texas, and made several oral statements to Lieutenant Manuel Trevino implicating himself in Weaver=s murder. II. Motion To Suppress In his first issue, appellant contends the trial court erred by denying his motion to suppress some of his oral statements. Lieutenant Trevino testified at the hearing on appellant=s motion to suppress and at trial.[1] Lieutenant Trevino was in the field when his secretary called and said that an individual at the station wanted to turn himself in. When Lieutenant Trevino returned to the station, he met appellant and his parents in the main lobby and asked appellant to step into another lobby. Lieutenant Trevino asked appellant why he wanted to turn himself in. Appellant responded, AI shot a lady.@ Lieutenant Trevino then escorted appellant into his office and asked him to sit down. Appellant was holding a newspaper clipping, and Lieutenant Trevino saw the headline which mentioned a murder in Houston. Lieutenant Trevino read appellant the Miranda warnings. Then, Lieutenant Trevino asked appellant what he had done. Appellant said, AI shot this girl up in the north side of Houston.@ Appellant also said she was the girlfriend of his friend. Lieutenant Trevino asked, Ayou believe you=re wanted?@ Appellant answered, Ayeah.@ Next, Lieutenant Trevino=s department determined that there were warrants for appellant=s arrest for capital murder and possession of a controlled substance. In addition, while appellant was in his office, Lieutenant Trevino spoke by telephone with Houston police officers who confirmed the warrants for appellant=s arrest. They asked if appellant was willing to provide a written statement, but he refused and requested an attorney. According to Lieutenant Trevino, he took appellant into custody after the telephone conversation ended. Lieutenant Trevino did not ask appellant any more questions other than routine booking questions. Appellant challenges the trial court=s refusal to suppress (1) his initial statement in the station lobby, and (2) his statements in Lieutenant Trevino=s office. In reviewing a trial court=s ruling on a motion to suppress evidence, we apply a bifurcated standard of review giving almost total deference to a trial court=s determination of historic facts and reviewing de novo the court=s application of the law to the facts. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact supported in the record that buttress its conclusion. See id. at 327B28. Appellant contends his oral statements were inadmissible pursuant to article 38.22, section 3(a)(1) of the Texas Code of Criminal Procedure, which provides that an oral statement of an accused made as a result of Acustodial interrogation@ is not admissible against the accused unless an electronic recording is made of the statement. See Tex. Code Crim. Procedure Ann. art. 38.22 '3(a)(1) (Vernon 2005). A person is Ain custody@ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). Stationhouse questioning does not, in and of itself, constitute custody. Id. at 255. The custody determination must be made on an ad hoc basis, after considering all the objective circumstances. Id. The 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 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 officers do not tell the suspect that he is free to leave. Id. Appellant does not specifically argue that any of these situations was satisfied although he suggests he was in custody because his freedom of movement was restricted. Thus, the essential inquiry is whether appellant=s freedom of movement was restricted to the degree associated with a formal arrest, as opposed to an investigative detention. See Dowthitt, 931 S.W.2d at 255; Rodgers v. State, 111 S.W.3d 236, 241 (Tex. App.CTexarkana 2003, no pet.). Initial Statement in the Station Lobby First, appellant argues that his initial statement in the station lobby, AI shot a lady,@ resulted from custodial interrogation. We disagree. Lieutenant Trevino=s testimony supports the trial court=s conclusion that appellant had not been arrested or otherwise restrained when he made this statement. Lieutenant Trevino had simply asked appellant to step from the main lobby into a second lobby and inquired why he wanted to turn himself in. According to Lieutenant Trevino, he was not aware at that point of any murders in Houston or that appellant was wanted for any crime. Instead, the record shows he had met appellant just moments before when appellant voluntarily appeared at the station. Under these circumstances, appellant=s freedom of movement was not restricted at all, much less to the degree associated with a formal arrest. Accordingly, we conclude that appellant=s statement was not the product of custodial interrogation. Statements in Lieutenant Trevino=s Office Next, appellant challenges the admissibility of his responses to the questioning in Lieutenant Trevino=s office. Specifically, he argues that his statement, AI shot this girl up in the north side of Houston,@ his statement that she was the girlfriend of his friend, and his affirmative answer to Lieutenant Trevino=s question, Ayou believe you=re wanted?@ resulted from custodial interrogation.[2] Again, we disagree. When appellant uttered these admissions, he had not been arrested or otherwise restrained. He had merely been escorted from the lobby into Lieutenant Trevino=s office and asked to sit down. Nevertheless, appellant argues that he was in custody because Lieutenant Trevino testified he was not free to leave. Lieutenant Trevino=s testimony is somewhat unclear relative to whether he considered appellant free to leave.[3] Regardless, determination of the custody issue is based on objective circumstances, and not the subjective views of the police officer except to the extent those views are communicated, or otherwise manifested, to the suspect. Dowthitt, 931 S.W.2d at 254 (citing Stansbury, 511 U.S. at 323B26). Significantly, there is no indication in the record that Lieutenant Trevino told appellant he was not free to leave. Further, there is no indication that appellant wanted to leave considering he had voluntarily appeared at the station. Moreover, even if appellant was not free to leave, he was not in custody but was, at most, subject to an investigative detention. An investigative detention is a detention of a person reasonably suspected of criminal activity to determine identity or maintain the status quo momentarily while obtaining more information. See Terry v. Ohio, 392 U.S. 1, 20B21 (1968); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); Dean v. State, 938 S.W.2d 764, 768 (Tex. App.CHouston [14th Dist.] 1997, no pet.). When Lieutenant Trevino escorted appellant into his office, the only statement appellant had made was, AI shot a lady.@ Appellant emphasizes he had shown Lieutenant Trevino the newspaper article reporting that appellant was wanted for Weaver=s murder. However, Lieutenant Trevino testified he had seen a portion of the headline which mentioned a murder in Houston, but he had not read the body of the article.[4] Thus, his testimony demonstrates he did not know appellant had been charged with a specific crime. More importantly, Lieutenant Trevino=s questions to appellant reflect he did not know appellant had been charged with any crime. In fact, Lieutenant Trevino told appellant he needed to ask him some questions, so he could determine if he was wanted. Consequently, the record demonstrates that Lieutenant Trevino was still trying to determine what crime, if any, appellant had committed and why he had appeared at the sheriff=s office a few minutes before. Based on these circumstances, appellant=s freedom of movement was not restricted to the degree associated with a formal arrest, as opposed to an investigative detention. Finally, appellant suggests he was in custody because Lieutenant Trevino had read the Miranda warnings. However, Lieutenant Trevino testified he read the Miranda warnings Ajust to be on the safe side@ because appellant was informing him he had participated in, or committed, a murder. Mere recitation of Miranda warnings is more indicative of proper cautiousness than it is of an officer=s intent to arrest. See Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App. 1987); Bates v. State, 15 S.W.3d 155, 159 (Tex. App.CTexarkana 2000, pet. ref=d). Thus, Lieutenant Trevino=s reading the Miranda warnings did not transform his subsequent questions into custodial interrogation. Accordingly, the trial court did not err by denying appellant=s motion to suppress the statements he made in Lieutenant Trevino=s office. We overrule appellant=s first issue. III. Sufficiency of the Evidence In his second issue, appellant contends the evidence is legally and factually insufficient to support his capital murder conviction. In reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light and will set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). Appellant does not dispute that he was involved in the robbery at Parker=s home.[5] Instead, he contends there is insufficient evidence that he shot Weaver or solicited, encouraged, aided, or attempted to aid Flores in shooting Weaver. We note that no witness testified to seeing appellant shoot Weaver. However, there is sufficient evidence that appellant shot Weaver. Appellant turned himself in to Lieutenant Trevino only four days after Weaver=s murder. At trial, Lieutenant Trevino testified regarding appellant=s admissions although he could not recall appellant=s exact words. In the station lobby, appellant said something to the effect that he shot a lady in Houston. When he made this admission, he was holding a newspaper article with a headline stating, AMan charged in death of woman in robbery.@ The body of the article, which specifically mentions Weaver, was not admitted into evidence. However, based on appellant=s subsequent statements, the jury could have reasonably concluded that the lady he shot was Weaver. After Lieutenant Trevino read the Miranda warnings, appellant said either that he shot or he killed the girlfriend of his friend. Further, while Lieutenant Trevino was subsequently asking appellant routine booking questions, appellant blurted out, AI was just trying to sell a pound, the guy=s an asshole and everything went bad.@ Appellant does not cite any contrary evidence other than suggesting that Parker=s neighbor, Richard Martinez, may have shot Weaver. Appellant asserts that the police were Aquick to point out@ appellant as a suspect instead of determining whether Martinez=s gun had been fired. However, the evidence demonstrates Martinez was not involved in the robbery and/or shooting; rather, he went to appellant=s house to investigate the gunshot that killed Weaver. Consequently, the jury could have determined beyond a reasonable doubt that appellant shot Weaver. Moreover, the evidence supporting the verdict is not too weak to sustain the finding of guilt beyond a reasonable doubt, and the contrary evidence is not so strong that the State did not meet its burden of proof beyond a reasonable doubt. Accordingly, the evidence is legally and factually sufficient to support the verdict. We overrule appellant=s second issue. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed October 18, 2005. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Lieutenant Trevino=s testimony at the motion-to-suppress hearing was slightly different from, but substantially similar to, his trial testimony. We will recite his testimony at the motion-to-suppress hearing when considering the denial of the motion to suppress. We will recite his testimony at trial when considering appellant=s challenge to the sufficiency of the evidence to support his conviction. [2] Appellant also complains that the trial court did not suppress another statement he made in Lieutenant Trevino=s office. During the telephone conference, one of the Houston police officers asked if a man named ARobert@ or ARuben@ had also been involved. Appellant responded, Ano@ and that he had been alone. However, the trial court did suppress this statement, but appellant=s counsel, nonetheless, elicited testimony regarding this statement at trial. [3] On cross-examination, Lieutenant Trevino testified that if appellant had wanted to leave, Lieutenant Trevino Acouldn=t let him go@ because he was conducting an investigation and needed to confirm what appellant told him. Later, on redirect examination, Lieutenant Trevino repeated that he would not have let appellant leave; however, he also stated that appellant was not under arrest, and if a person is not under arrest, Athey can go.@ [4] At the motion-to-suppress hearing, appellant introduced an article from the Houston Chronicle=s website. The headline stated, AMan charged in death of woman in robbery.@ The body reported that appellant had been charged with capital murder for shooting Bobbie Weaver during a robbery. Lieutenant Trevino=s testimony is somewhat unclear regarding whether appellant showed him the article when they first met in the station lobby or after they went into his office. Regardless, the article Lieutenant Trevino saw was not a webpage article, but rather a small newspaper cut-out, and he did not read the body. [5] At trial, appellant=s counsel asked the jury to convict appellant of aggravated robbery only. In his brief, appellant asserts the incident was merely a Abotched up aggravated robbery@Cnot a capital murder.