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considering in its legal sufficiency review: the cause of the child victim's injuries; who was with the victim during the time frame in which the injury occurred; and the defendant's explanations that were inconsistent with the medical evidence of how the injuries occurred
Summary of this case from Ramirez v. StateOpinion
No. 05-16-00100-CR
05-30-2017
MARIA MENDOZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1335520-R
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
Appellant Maria Mendoza appeals her conviction for causing serious bodily injury to her thirty-three-month old daughter, Z.M., leading to her death. In two issues, appellant argues the evidence is legally insufficient to support her conviction, and the trial court erred in admitting the contents of her statements to police. We affirm appellant's conviction. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
A. Facts and Procedure
Appellant was the mother of five children, including Z.M. who suffered from a chromosomal defect known as Turner Syndrome. As a result of her chromosomal defect, Z.M. spent the first four to five months of her life in the hospital, during which time she underwent surgeries to address a variety of medical issues. Once Z.M. was released from the hospital, she began working with physical, speech, and occupational therapists. Although Z.M.'s motor skills were improving with therapy, at the time of her death, she could not stand or walk on her own. She could only sit and scoot on her bottom.
Z.M. had one younger and three older siblings. During the day, appellant stayed home with the three youngest children, while the two oldest children attended school and appellant's husband worked at a restaurant.
On December 11, 2013, at approximately 10:30 a.m., appellant called her neighbor, who also has a child with Turner Syndrome, and asked for help, stating something was wrong with Z.M. It just so happened the neighbor's child's therapist was at the neighbor's home at the time. Appellant's neighbor and the therapist responded to appellant's call. When they arrived at appellant's apartment, they found Z.M. on the floor with her eyes closed. The neighbor called for an ambulance while the therapist performed CPR on Z.M. The attempts to revive Z.M. were unsuccessful, and Z.M. was pronounced dead at 11:23 a.m.
Due to the nature of Z.M.'s death, an autopsy was performed. The medical examiner ruled the cause of death homicide due to blunt force trauma. An investigation ensued, and police detectives asked appellant and her husband to come to the police station, which they did. One of the detectives, Detective Mayorca, spoke Spanish, the language spoken by appellant and her husband. The detectives interviewed appellant and her husband at the station. The interview was recorded. During the interview appellant indicated she was the only person in the care, custody, and control of Z.M. and admitted to having recently hit Z.M. on the head. At that point, the detectives stopped the interview and read appellant her Miranda rights. Appellant was arrested and charged by indictment with the capital murder of Z.M. She entered a plea of not guilty.
B. Evidence at Trial
Both the State and appellant presented evidence at trial. In support of its case-in-chief, the State presented expert testimony concerning the nature of Z.M.'s injuries and the cause of her death, as well as testimony from Detective Wyatt concerning the investigation, and lay testimony concerning Z.M.'s appearance and behavior the day before her death and appellant's demeanor following Z.M.'s death.
As to the nature of Z.M.s injuries and the cause of her death, Dr. Ogden, the medical examiner who performed the autopsy, testified she began the autopsy with an external examination of Z.M.'s body. In doing so, she noticed redness in both of Z.M.'s eyes, bruises on her eyelids, two bruises on the inside of her right elbow, bruises on the right and left sides of her head, abrasions or scabs throughout her scalp, a raised bruise on her left forehead, and bruises on the top of her ears—which, she indicated, is a "red flag" because it is not a typical place for bruising. The external examination revealed at least five different impact sites, four of which created internal bruises. The internal examination revealed blood in the right temporalis muscle of Z.M.'s brain, blood inside her skull, and a hematoma on the back of her head. Dr. Ogden explained that a great deal of force was required to cause these injuries. She believed the injuries that killed Z.M. occurred within four to twelve hours of her death. None of Z.M.'s injuries were consistent with Z.M. falling from a standing position onto carpet or bumping her head under the bed, two of the explanations appellant gave for Z.M.'s injuries. Z.M.'s injuries were consistent with being thrown against a bed or a wall or being beaten across the head. Dr. Ogden did not believe another child—specifically appellant's youngest son who appellant and others suggested had aggressive tendencies—could have caused the kind of injuries Z.M. suffered.
The State's other medical expert, Dr. Cox, a pediatrician specializing in child abuse cases, testified he reviewed Z.M.'s medical records, as well as the autopsy report and photos, and concluded Z.M. was the victim of child abuse. He reached this conclusion due to the number of injuries Z.M. had and the fact that the injuries were localized to her head. He indicated that based upon Z.M.'s known developmental abilities, she could not have inflicted these injuries on herself. He explained ear bruising, such as that seen on Z.M., is a classic inflicted or abusive-type injury. In addition, he stated the fact that Z.M. had multiple impact sites is inconsistent with a single short fall, as reported by appellant immediately after Z.M. became non-responsive, or what would be a routine injury in a child Z.M.'s age. In his experience, when there truly is a single short fall the explanation for the injury does not change and corresponds to the injuries—usually injuries to a single site, which was not the case here.
Appellant's neighbor testified about her acquaintance with appellant and about the day of Z.M.'s death. She explained she often visited appellant at her apartment. She did not see appellant's husband often because he was usually working. During her visits, she usually saw appellant, Z.M., a baby girl, and appellant's youngest son. On the morning of December 11, 2013, appellant asked for her help by telephone because something was happening with Z.M. When she arrived at appellant's apartment, she noticed appellant was very frightened and nervous. She was surprised to find appellant had not yet called for an ambulance and did not ask her to call for one when she spoke with appellant on the phone. She viewed Z.M. laying on the floor in front of the couch. She asked appellant what had happened to Z.M. Appellant responded that Z.M. had been walking near the TV stand, threw up, and fell backwards. The story did not make sense to appellant's neighbor because she did not believe such a fall would have caused Z.M. to be unconscious and unresponsive, Z.M.'s body was near the door, not the TV stand, and there was no vomit on Z.M.'s clothing or on the floor.
The property manager for appellant's apartment complex testified she and her housekeeper and painter went over to appellant's apartment the day after Z.M. died to give their condolences and support. The property manager testified that appellant looked nervous and scared and as if she was trying to cry. She described appellant's behavior as odd. She asked appellant what had happened to Z.M. and appellant first told her Z.M. was sick, she had heart problems and that she was throwing up and she choked on her vomit, and then told her she dropped Z.M., Z.M. fell from the walker, and Z.M. fell from the entertainment center. She wondered at the time why appellant was telling her so many different stories about what had occurred. She recalled leaving the apartment thinking that appellant had hurt her daughter.
Z.M.'s pediatric occupational therapist testified about Z.M.'s limited mobility, her appearance prior to her death, and appellant's treatment of her children. She had been Z.M.'s occupational therapist for seven months. She saw Z.M. twice a week for thirty minutes each time. She last saw Z.M. on the day before her death. At the time of her death, Z.M. could not crawl on her own and could sit with minimal assistance. She testified Z.M. was very cautious. She would stay in a sitting position because she was scared. She never saw Z.M. fall. According to Z.M.'s therapist, appellant was interested in Z.M.'s progress and very compliant, but showed her other children more attention than she showed Z.M. In the months prior to Z.M.'s death, appellant appeared tired. Sometimes Z.M. was inappropriately dressed for the weather. For instance, on a very cold day in November or December she was dressed in a spaghetti strap outfit. She recalled that near the time of her death, Z.M. did not appear to be bathed as frequently as she had been before.
Detective Wyatt, the investigating officer, testified he was dispatched because the hospital treating Z.M. was not sure what had precipitated her injury or death. He was advised that Z.M. suffered from a lot of health issues so he instructed the hospital to do a sudden-death report. The following day, after learning of the medical examiner's conclusion, he and Detective Mayorca went to appellant's apartment. They began by establishing a time line in order to ascertain who was actually in charge of the child at the time of her death. They discovered appellant's husband worked from 10 a.m. to 10 p.m. six days a week. Appellant told them that on the day of Z.M.'s death, her husband left for work at around 9 a.m. He had already taken the two older children to school at around 7 a.m. Appellant indicated she and the three youngest children were at the apartment sleeping. According to appellant, Z.M. began coughing and later—around nine o'clock—she started to vomit. After Detective Wyatt told appellant and her husband the doctors concluded that something hit Z.M. very hard, appellant told them that could not be so because she always watched the children and took care of them. At first appellant indicated she only disciplined her children by slapping their hands. She later admitted that she had recently hit Z.M. in the head with her knuckles two or three times. During the interview, appellant gave Detective Wyatt various accounts for how Z.M. might have been injured including sudden falls, falls from the bed, and bumping her head while crawling under the bed. As to events of the morning of her death, appellant claimed she left Z.M. in a toy walker in the living room and then went to the bedroom to get Z.M.'s shoes when she heard a thud and what sounded like Z.M. vomiting. She relayed that when she returned to the living room, Z.M. was vomiting while lying on the floor near the television, and her eyes were half white and half purple. Appellant and her husband confirmed to the detectives that they were the only adults in the home and that appellant was always the one in charge of Z.M. In addition to interviewing appellant and her husband, Detective Wyatt also interviewed Z.M.'s therapists. Based upon what they told him, he concluded appellant's stories about Z.M. crawling under the bed and falling from a standing position did not make sense because Z.M. was physically incapable of crawling and standing. Detective Wyatt also testified that while Z.M.'s four-year old brother was known to display aggressive behavior, he was not likely to be the cause of Z.M.'s death.
Appellant testified in her own defense. As to potential causes for injuries to Z.M.'s head, she testified Z.M. would sometimes hit her head when she crawled under the bed with the youngest child, the day before she died, Z.M. fell off the bed, and on the day of Z.M.'s death, she saw her youngest son hit Z.M. on the back of the head with a toy. As to her statement to the detectives that she had rapped Z.M. on the head with her knuckles two or three times and she may have gotten carried away, she testified that when she made the statement she was tired and that was the only thing she could think of to say to the detectives to get them to let her husband go so he could take care of the children. She indicated that, at the time, she was afraid the police were going to arrest both her and her husband. On cross examination, appellant admitted that the night before her death, Z.M. slept in the bed with her, that Z.M. could not have hit her head at any point between the time she went to sleep, which was around 10 p.m., and when she woke up the next morning. Appellant relayed that on the evening of December 10 she brushed Z.M.'s hair and she did not feel any bumps or bruises on her head. Appellant recalled that on the morning of December 11 she woke up a little before 7 a.m. and went back to bed with the two other children after the older children left for school. From approximately 7 a.m. until Z.M. became unresponsive, appellant admitted she was the only adult with access to Z.M. Her husband was either sleeping or not there.
The defense also called various therapists and family members to discuss their observations and concerns about Z.M. and the aggression of appellant's youngest son.
The physical therapist assistant who worked with Z.M. testified she worked with Z.M. for a year and a half prior to her death. She saw Z.M. twice a week for approximately thirty minutes each time. She worked with Z.M. on moving from sitting to crawling to walking. Z.M. could sit and scoot on her bottom. She could not crawl. She could stand with assistance, but not for very long. She did not see Z.M. fall during any of her visits. Appellant was very involved in the process. The therapist saw Z.M. the day before her death. On that day, Z.M. was very lethargic, very tired. She was congested. She did not notice any bruising on Z.M.'s ears or knots on Z.M.'s head, but did notice purple coloring, bruising on the corners of her eyes. She acknowledged that if Z.M. had bruising on her ears and a bump on her forehead at the time of her death, those injuries had to have occurred sometime after she saw Z.M. on the morning of December 10.
Z.M.'s speech therapist testified she worked with Z.M. for a year and a half. She saw Z.M. twice a week for thirty minutes each time. She indicated appellant was extremely compliant and asked questions to figure out what she could do to help Z.M. progress. As to her observations of Z.M.'s mobility, she recalled Z.M. could not walk and primarily just scooted on her bottom. She did not see her stand. She was concerned about the interaction of Z.M.'s youngest brother with Z.M. She understood he had low intellect and noticed his behavior had become more forceful over time, especially in the month prior to Z.M.'s death. She saw him pull toys out of Z.M.'s hands, throw toys at her head and body, and push her down. She was concerned that with the child's low intellect he might not realize his own strength and would not appreciate that he needed to be careful with her. She thought Z.M.'s brother was capable of hurting a small child. She acknowledged that a medical doctor or a medical examiner would be in a better position than she to understand the force required to kill Z.M. The last time she saw Z.M. was the day before her death. The visit was very difficult as Z.M. had been sick for a couple of weeks, her color was off, she had small bruises under her eye, and her lips were blue. She noted that during the two month's prior to Z.M.'s death, Z.M. was not groomed as well as she had been and the apartment was not as clean as usual.
The Chief Operating Officer of a pediatric home health agency testified that she saw Z.M. the day before her death during a supervised visit with the physical therapist. On that day, she observed Z.M. walk across the room with her toy walker. Walking with the toy was dangerous for Z.M. because of her instability and because the toy did not provide adequate support. The only things Z.M. could do on her own were to sit and scoot on her bottom. The only injuries she saw the day before Z.M.'s death were the bruises under her eyes. Z.M., while happy, appeared as if she was suffering from allergies or a cold.
Appellant's brother testified appellant was a loving mother. He indicated appellant's youngest son was a "little hyper," a little jealous, and a little aggressive. He had seen his nephew throw things, throw himself on the ground, and shove other children, but not Z.M. He testified he believed appellant's youngest son could have caused most of Z.M.'s injuries, but not the brain injury.
Appellant's husband testified his youngest son had a lot of strength and was a little jealous. He indicated he did not believe appellant did anything to harm Z.M. because she was a good mother and loved her children very much.
After the close of evidence, the jury found appellant guilty of causing serious bodily injury to a child. The jury assessed punishment at fifty years' confinement.
SUFFICIENCY OF THE EVIDENCE
In her first issue, appellant challenges the legal sufficiency of the evidence to support her conviction for causing serious bodily injury that resulted in the death of Z.M.
A. Standard of Review
In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We must give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (citing Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). Our role is only to ensure that the jury reached a rational conclusion, not to re-evaluate the weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
B. Discussion
In challenging the sufficiency of the evidence to support her conviction, appellant urges the State lacked direct evidence about who or what caused Z.M.'s injuries, and instead had only direct evidence she was the only adult alone with Z.M. on the morning of her death.
1. Cause of Injuries Leading to Death
In homicide cases, the cause of death may be established by circumstantial evidence. Tellez v. State, 286 S.W.2d 154, 155 (Tex. Crim. App. 1955). The cause of an injury can be established by both expert medical testimony and circumstantial evidence. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.—San Antonio 1997, pet. ref'd). Here, the State presented expert medical testimony concerning the cause of the serious bodily injuries to Z.M. From this and other testimony, the jury could have concluded beyond a reasonable doubt that nothing other than forceful hitting, not a short fall or bump, could have caused Z.M.'s serious bodily injuries.
Dr. Ogden, the medical examiner who performed the autopsy, testified the injuries sustained by Z.M. were consistent with severe blunt force trauma to Z.M.'s head by being thrown against a bed or wall, or being beaten across the head. She further testified that none of Z.M.'s injuries were consistent with Z.M. falling from a standing position onto carpet or bumping her head under the bed. Likewise, the pediatrician testified Z.M. had multiple impact sites and her injuries were not consistent with a short fall.
2. Identity
The State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Phillips v. State, 297 S.W.2d 134, 135 (Tex. Crim. App. 1957). Identity may also be proved by direct or circumstantial evidence, and by reasonable inferences from such evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). When the evidence shows an adult defendant had sole access to a child at the time his injuries are sustained, the evidence is sufficient to support a conviction for injury to the child. Gutierrez v. State, No. 05-07-01330-CR, 2009 WL 1335154, at *3 (Tex. App.—Dallas May 14, 2009, pet. ref'd) (citing Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref'd)). Inconsistencies between a defendant's version of events and the medical evidence concerning how an injury must have been inflicted can be circumstantial evidence of guilt. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). Thus, the jury could consider appellant's inconsistent explanations as to what had occurred and her admission of abuse as circumstantial evidence of guilt.
Moreover, the evidence established Z.M. was fatally injured four to twelve hours before her death. Z.M. was pronounced dead at 11:23 a.m. Therefore, the fatal injuries were inflicted sometime between approximately 11:30 p.m. on December 10 and 7:30 a.m. on December 11. The only people who had access to Z.M. during that time, were her family members, most of whom were children. While appellant presented some evidence suggesting her youngest son might have injured Z.M., the medical examiner, who testified in detail about the multiple impact sites and the blunt force trauma inflicted upon Z.M., stated she did not believe another child could have inflicted the injuries that resulted in Z.M.'s death, nor could they have been caused by a fall from a short distance or by a bump on the head as appellant claimed. The investigating officer testified likewise. A reasonable inference from this evidence is that an adult caused the injuries to Z.M. That left appellant and her husband as the only possible perpetrators of the crime.
Appellant's husband slept on a couch in the living room, while appellant and the children slept in the bedroom. There was no evidence appellant's husband saw Z.M. during the time frame in which she was fatally injured, and, unlike appellant, he did not attempt at any time to explain how Z.M. could have been mortally injured. The jury was entitled to reasonably infer from the evidence that appellant's husband was not the perpetrator of the crime against Z.M. That left the jury to consider whether appellant was the perpetrator.
In considering whether appellant was the perpetrator of this crime, the jury was allowed to consider direct and circumstantial evidence, and was permitted to draw multiple reasonable inferences as long as each inference was supported by the evidence presented at trial. Hooper, 214 S.W.3d at 15.
Although no one saw appellant strike Z.M., appellant admitted to the detectives that she had recently rapped Z.M. on the head with her knuckles two or three times and she may have gotten carried away. While appellant testified she made up that story so that the detectives would let her husband go, the jury, as the exclusive judge of the credibility of the witnesses, was free to resolve the conflict in evidence against appellant. See Colella v. State, 915 S.W.2d 834, 843-44 (Tex. Crim. App. 1995). In addition, the evidence showed appellant was the only adult caring for Z.M. during the time in which Z.M. was injured, and appellant's accounts of events that might have led to Z.M.'s injuries were inconsistent with the medical evidence concerning how the injuries were inflicted. This evidence is sufficient to support appellant's conviction. See Gutierrez, 2009 WL 1335154, at *3; Kemmerer, 113 S.W.3d at 516.
Viewing the evidence in the light most favorable to the verdict, we conclude a jury could have reasonably concluded appellant caused serious bodily injury that resulted in the death of Z.M. Accordingly, we overrule appellant's first issue.
STATEMENTS TO POLICE
In her second issue, appellant argues the trial court erred in admitting appellant's statements to the detectives because the statements were made involuntarily and during a custodial interrogation without proper warnings.
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, an appellate court must apply an abuse of discretion standard and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). We give almost complete deference to the trial court's determination of historical facts and mixed questions of law and fact that rely upon an assessment of the credibility and demeanor of a witness, but apply a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Id. at 923. We must uphold the trial court's ruling if it is reasonably supported by the record and correct under any applicable theory of law. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Hereford v. State, 339 S.W.3d 111, 117-18 (Tex. Crim. App. 2011).
B. Voluntary Statements
Article 38.21 of the Texas Code of Criminal Procedure provides "[a] statement of an accused may be used in evidence against him or her if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed." TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005); see Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). In assessing whether the voluntariness requirement of article 38.21 has been met, we consider the totality of the circumstances surrounding the acquisition of the statement. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997); Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007). A confession will not be considered involuntary absent police coercion causally related to the confession. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995), overruled on other grounds by, Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008). "The ultimate question is whether the suspect's will was overborne by police coercion." Creager, 952 S.W.2d at 852. In answering this question, we may consider various relevant factors, including the length of detention, incommunicado or prolonged detention, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality. Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds by, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).
The record reflects that the detectives questioned appellant for approximately 30 to 40 minutes. Appellant presented no evidence that family was denied access to her, or that she requested and was refused the opportunity to make a telephone call, or was subjected to physical brutality. While appellant testified she felt pressured because the detectives wanted her to submit to a lie detector and told her they would get CPS involved, the detectives testified they did not threaten appellant, coerce her, or promise her anything. Detective Mayorca testified he did not scream or yell at appellant. While some of appellant's accounts conflicted with the detectives', the trial court, as the sole judge of the credibility of the witnesses, was entitled to resolve those conflicts against appellant. At the end of the hearing, the trial court found there was no coercion. The trial court's ruling is reasonably supported by the record.
C. Custodial Interrogation
The warnings required by Miranda and article 38.22 of the Texas Code of Criminal Procedure are intended to safeguard a person's privilege against self-incrimination during custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). "At trial, the defendant bears the initial burden of proving that a statement was the product of 'custodial interrogation.'" Id. (quoting from Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Police are not required to give Miranda warnings to everyone whom they question; the warnings are required "only where there has been such a restriction on a person's freedom as to render him 'in custody.'" Wicker v. State, 740 S.W.2d 779, 786 (Tex. Crim. App. 1987) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
The appropriate inquiry in determining whether a person is in custody "is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Wicker, 740 S.W.2d at 786 (emphasis added) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). The determination depends on the objective circumstances, not on the subjective views of either the interrogating officers or the person being questioned. See Stansbury v. California, 511 U.S. 318, 323 (1994). Under Miranda, "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time"; rather, "the only relevant inquiry is how a reasonable person in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The "reasonable person" standard presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438 (1991); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Stationhouse questioning is not, in and of itself, custodial although custody may arise later during such questioning. Dowthitt, 931 S.W.2d at 255 (citing Oregon v. Mathiason, 429 U.S. at 496); Houston v. State, 185 S.W.3d 917, 920 (Tex. App.—Austin 2006, pet. ref'd). Being the focus of an investigation is not the equivalent of custody. See State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997).
There are four general situations that 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;Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255. For the first three situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. For the fourth situation, the officers' knowledge of probable cause must be manifested to the suspect. Id. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Id. Even then, custody is established only "if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Id.
(3) 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) There is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave.
During the hearing on appellant's motion to suppress, Detective Wyatt, Detective Mayorca, appellant and her husband testified. Relevant to the issue of whether appellant was in custody when she admitted to having hit Z.M. is the following evidence. Detectives Wyatt and Mayorca went to appellant's apartment to talk to appellant and her husband because they needed to investigate the offense and find out who was alone with the child and who could have harmed her. At that time, they had no suspects, were not expecting to arrest appellant, and anticipated a long investigation into the circumstances of the death of Z.M. They wanted to interview appellant and her husband in a more controlled environment than their apartment, one with video and audio recording capability, and where there would be no interruptions. Detective Wyatt asked appellant and her husband to come to the police station. Detective Wyatt claimed he did not force appellant and her husband to come to the station. He indicated he made sure appellant and her husband knew they were free to drive themselves or ride with the detectives and that their speaking with them was voluntary. They chose to ride with the detectives in an unmarked police car. The car had no cage and appellant was not handcuffed. The detectives interviewed appellant's husband first, then appellant, and then they talked to both of them together. Detective Wyatt told appellant at the station she was free to leave. Appellant never stated she wanted to stop the interview or leave the station. Had she voiced such a wish, she would have been allowed to leave.
The detectives told appellant that Z.M.'s death had been ruled a homicide. As part of the interview technique, Detective Wyatt implied that appellant knew more than she was telling him. Towards the end of the interview, appellant said she had hit Z.M. in the head with her knuckles and demonstrated on a table how she did so. Appellant indicated the hitting occurred recently. Even though the hitting demonstrated by appellant by itself may not have been evidence of capital murder, Detective Wyatt stopped the interview at that point, he and Detective Mayorca went and conferred with their supervisor, and Detective Mayorca went back and read appellant Miranda warnings before attempting to resume the questioning. Appellant indicated she did not want to speak any further.
During the hearing, appellant claimed: she never heard the detectives say she and her husband could go to the police station in their own car; she believed she was not free to leave; she thought she had to answer the questions; and she believed she was under arrest.
At the conclusion of the hearing, the trial court found appellant's statement was the result of a non-custodial interrogation, and denied her motion to exclude. On the record before this Court, and deferring to the trial court to assess the credibility and demeanor of the witnesses, we conclude the trial court did not abuse its discretion in concluding appellant's statement was the result of a non-custodial interrogation. None of the situations that may constitute custody for purposes of Miranda and Article 38.22 existed and appellant's expression of her subjective belief she was under arrest is not relevant to the custody inquiry. Stansbury, 511 U.S. at 323. Accordingly, we overrule appellant's second issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160100F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1335520-R.
Opinion delivered by Justice Schenck. Justices Lang and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 30th day of May, 2017.