No. 10-04-00164-CR
Opinion delivered and filed August 3, 2005. DO NOT PUBLISH.
Appeal fromthe 85th District Court, Brazos County, Texas, Trial Court No. 03-02321-Crf-85. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
Gilberto Gonzalez was charged by indictment with murder. Gonzalez moved to suppress statements he made to officers. After a hearing, the trial court denied Gonzalez's motion to suppress. Gonzalez pled not guilty, but a jury found him guilty. The jury assessed punishment at life imprisonment. In a single issue, Gonzalez appeals arguing the trial court erred in finding that his statements made to officers were admissible at trial. We will affirm the judgment.
BACKGROUND
On April 5, 2003, Officer James Berndt and Detective Lori Anderson were dispatched to a trailer park in Bryan, Texas, in response to a shooting. They found the victim of the shooting lying on his back with a gunshot wound to his head. Two witnesses at the scene stated they were with the victim before and during the shooting. The witnesses described a man who was at the scene before and after the shooting. They stated the man called 9-1-1. At about 1:45 a.m. on April 6, Officer Berndt noticed a man who matched the witnesses' description in a mobile home adjacent to the crime scene. Officer Berndt asked the man, who was later identified as Gonzalez, to step outside of his mobile home. Gonzalez told Officer Berndt that he was behind his mobile home going to the bathroom when the shooting occurred. He said he found the victim on the ground and called 9-1-1, but he did not hear the shot. Officer Berndt testified that Gonzalez stated: "he had kids to feed and he — and if we tried to take him, he would protect himself — in other words, if we attempted to arrest him for any reason, he was going to fight us. . . ." Officer Berndt testified that at the time of this statement: (1) Gonzalez was not responding to a question from him; (2) Gonzalez was not under arrest; (3) Gonzalez was not placed in handcuffs; (4) he was "keeping him there as a witness so the detectives could talk to him. . . ."; (5) Gonzalez was not a suspect; and (6) if Gonzalez attempted to walk away, he was not going to allow him to leave. Detective Lance Mathews took over "keeping an eye" on Gonzalez at about 4:00 a.m. Officer Mathews asked Gonzalez if he would allow an atomic absorption test to be done on his hands, and Gonzalez stated "yes" and bent down and rubbed his hands on the ground. Officer Mathews asked him what he was doing, and Gonzalez responded "my daddy didn't raise no fool." Detective Mathews testified that at the time of this statement: (1) Gonzalez was just a witness to an unsolved murder — not a suspect; (2) he did not ask Gonzalez any questions regarding the murder; (3) he would not have let Gonzalez walk away if he tried to because they needed to speak to him as a witness; and (4) he did not tell Gonzalez that he was under arrest. Detective Lori Anderson was the lead investigator. When she interviewed Gonzalez in his mobile home, he told her that "if we made it so his kids went without shoes, that you know, something could happen to us or our families. . . ." Detective Anderson testified that at the time of this statement: (1) Gonzalez was not under arrest; (2) Gonzalez was not told he was a suspect; (3) Gonzalez was told that "he was going to be detained until we could find out what he knew and what he witnessed. I didn't know at the time if he was scared to come forward because he was intimidated by someone, whether — you know, I didn't know what the deal was."; (4) Gonzalez was not read his Miranda warning because he was not a suspect at the time; and (5) Gonzalez gave a tape-recorded statement outside his mobile home, and after the interview, he was free to leave. Gonzalez became a suspect on April 25, when Detective Anderson picked him up and took him to the police department. He was read his Miranda warnings and then questioned. Gonzalez filed a motion to suppress all statements made during custodial interrogation, including the three statements discussed above. The trial court denied the motion, and these three statements were then admitted at trial. ADMISSIBILITY
Gonzalez argues that these three statements were obtained in violation of the law because he was a suspect who was detained and not free to leave, and he was not read his Miranda warnings. The State argues that the three statements were properly admitted because Gonzalez was detained for questioning as a witness and the statements in question were made voluntarily. Article 38.22 and the Fourth Amendment do not preclude the admission of non-custodial statements. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5; Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). A statement is "custodial" 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, 931 S.W.2d at 254. Subjective belief about custody is irrelevant unless that belief is shown in words or actions. Id. Although the investigation's focus and the existence of probable cause are relevant, the determination of custody must be made by considering all objective circumstances. Id. at 254-55. A person held for investigative detention is not in "custody." See id. at 255. 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, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). The detention's scope must be temporary, lasting no longer than necessary to effectuate its purpose, and must involve actual investigation and use the least intrusive means possible. See Davis v. State, 947 S.W.2d 240, 244-45 (Tex.Crim.App. 1997); Burkes v. State, 830 S.W.2d 922, 925 (Tex.Crim.App. 1991). However, the passage of time alone is not determinative. See Smith v. State, 945 S.W.2d 343, 346-47 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding detention of almost four hours was valid because the police diligently pursued the suspect's "vision" that he used to lead a search for victim's body). Police conduct may elevate non-custodial interrogation to custodial interrogation. Dowthitt, 931 S.W.2d at 255. We examine each progressive level of intrusion to determine its reasonableness under the circumstances based on the information known to the officer at the time. Francis v. State, 896 S.W.2d 406, 411 (Tex.App.-Houston [1st Dist.] 1995, pet. dism'd). In Dowthitt, custody was inferred in an usual circumstance when: (1) a very long time period elapsed during which interrogation occurred, (2) the police exercised control over the defendant, and (3) the defendants' admission to being present at the scene of the crime manifested probable cause. Dowthitt, 931 S.W.2d at 257. In Berkemer v. McCarty, the U.S. Supreme Court stated that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation," and whether treatment by the police can be fairly "characterized as the functional equivalent of formal arrest." Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). When Gonzalez made all three statements, he (1) had never been told that he was a suspect, (2) was never told he was under arrest, (3) was told that the detectives wanted to question him as a witness, and (4) was never placed in handcuffs. We find nothing in the record that indicates Gonzalez should have been given Miranda warnings at any point prior to the three statements at issue in this appeal. Gonzalez has failed to demonstrate that, when he made these three statements, he was subjected to restraints comparable to those associated with a formal arrest. See Berkemer, 468 U.S. at 441-42, 104 S.Ct. at 3151; Dowthitt, 931 S.W.2d at 255. Because Gonzalez was told he was not free to leave, at most, these statements were made during an investigative detention. See Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879-80. We do not find that police conduct elevated the non-custodial interrogation or the investigative detention into a custodial interrogation. See Dowthitt, 931 S.W.2d at 255. Thus, we find that these statements were properly admitted by the trial court. We overrule this issue. CONCLUSION
Having overruled the single issue, we affirm the judgment.