No. 4-05-00066-CR
Delivered and Filed: April 12, 2006. DO NOT PUBLISH.
Appeal from the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 04-396-CR, Honorable Dwight E. Peschel, Judge Presiding. Affirmed.
The Honorable Dwight E. Peschel presided over the plea hearing and sentencing. The Honorable Gus J. Straus presided over the hearing on the motion to suppress and entered the order denying the motion.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Christopher James Sewell appeals his conviction of injury to a child, asserting that the trial court abused its discretion in denying his motion to suppress. We affirm the trial court's judgment.
Because this is a plea bargain case, we are not authorized to address the issues raised in Sewell's supplemental brief relating to the voluntariness of his plea. Tex.R.App.P. 25.2(a)(2); Griffin v. State, 145 S.W.3d 645, 647-49 (Tex.Crim.App. 2004) (noting issues not permitted by Rule 25.2(a)(2) may be litigated by writ of habeas corpus). The trial court's reformation of the sentence during the punishment phase did not convert the plea bargain case to an open plea.
Background
Maureene Watson, a detective sergeant with the Seguin Police Department, began investigating a child abuse case on January 7, 2004, after a hospital determined that C.S., the four-month-old victim, had seventeen fractures to her extremities and a vertebrae that were in various stages of healing. Sewell was C.S.'s father. Watson went to Sewell's apartment. Sewell agreed to allow Watson to search the apartment and agreed to speak with Watson. Watson examined a swing that Sewell stated C.S. had fallen from when she was two months old after the tray accidentally opened on the swing. Watson was unable to open the tray without Sewell's assistance because it was too difficult to open. Sewell later agreed to give Watson a statement and followed her to the police station in his own vehicle. At the station, Watson advised Sewell of his Miranda rights. Watson told Sewell that he was not under arrest and was free to leave at any time. In his first statement, Sewell did not admit intentionally harming C.S. but detailed incidents in which C.S. may have been injured, including the incident involving the swing and an incident in which Sewell fell while holding C.S. Sewell left the station after providing his statement but stated that he would be willing to meet with other investigators. After doctors ruled C.S.'s injuries were non-accidental, Watson set an appointment for Sewell to take a polygraph test and to meet with other investigators on February 3, 2004. Sewell and his wife arrived for the appointment in their own vehicle. Watson was not present when Sewell's statement was taken that day. Martin Dellert, a sergeant with the Texas Department of Public Safety, was assigned to conduct the polygraph examination. Dellert stated his normal procedure is to read the subject his Miranda rights, have him sign a consent to take the polygraph exam, conduct a pre-interview for forty-five minutes to an hour, and then administer the test. Dellert informed Sewell of his Miranda rights at the beginning of the interview. Dellert stated that Sewell was free to leave at any time. During their meeting prior to the test, Sewell informed Dellert that on one occasion he became frustrated and upset while changing C.S., pulled on her arm, and heard a pop. Sewell stated that on another occasion, he dropped C.S. on her back while he was holding her. Shortly after the examination, Dellert informed Sewell that he had failed the polygraph. Michael D. Watts, a detective with the Seguin Police Department, met with Sewell following his polygraph test. Watts stated that Sewell was not in custody and was free to leave. Watts read Sewell his Miranda rights. When Watts took Sewell's statement, Sewell admitted pulling on C.S.'s arms and legs when he was frustrated. Sewell also admitted striking C.S. back-handed on the back causing a lump. After giving his statement, Sewell left the station with his wife. Sewell challenges the admissibility of the second statement given to Watts. The State responds that Sewell was not in custody when the statement was given; therefore, the statement is admissible. Standard of Review
A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). We view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Id. at 89. We review de novo the court's application of the law to the facts. Id. Discussion
A person is in "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). The Texas Court of Criminal Appeals has outlined four general situations that might 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. at 255. We are concerned here with the fourth situation. Under the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect and the manifestation, combined with other circumstances, must lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id. A manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Id. In Xu v. State, this court determined that five factors should be considered in determining when custody attaches in the fourth situation, including: (1) whether the suspect arrived at the place of interrogation voluntarily; (2) the length of the interrogation; (3) whether the suspect's requests to see relatives and friends are refused; (4) the degree of control exercised over the suspect; and (5) whether a pivotal admission established custody. 100 S.W.3d 408, 413 (Tex.App.-San Antonio 2002, pet. ref'd). Custody does not occur merely because questioning occurs at a stationhouse or because the suspect submits to and fails a polygraph test. Dowthitt, 931 S.W.2d at 255. In this case, Sewell arrived at the police station voluntarily. Although the record is not clear regarding the exact length of the interrogation, it does not appear to be overly lengthy. Sewell signed his waiver of rights in connection with Dellert's interview at 1:50 p.m., and he signed his waiver of rights in connection with his statement to Watts at 4:15 p.m. No request by Sewell was refused, and Sewell was free to leave at any time. Although Sewell admitted to one injury-causing incident in his pre-interview with Dellert, this was not a sufficiently "pivotal admission" to establish custody. Sewell was free to leave after his polygraph exam, but Watts understood that Sewell wanted to tell the truth after the polygraph test revealed deception. Sewell left the station with his wife after giving his statement. Based on the testimony presented, the trial court did not abuse its discretion in determining that Sewell was not in custody when he gave his statement. See Stone v. State, 583 S.W.2d 410, 413 (Tex.Crim.App. 1979) (holding appellant not in custody when statement given after appellant was advised he failed polygraph test and would "probably" be charged). Conclusion
The judgment of the trial court is affirmed.