OPINION BACKGROUND Appellant, Che Mandrill Hopkins, appeals the trial court’s admission of his videotaped interview and requests reversal of his conviction.[1] We affirm. Factual Background This matter arose when the complaining witness accused Appellant of committing several acts of sexual assault and indecency with a child. On September 12, 2016, Detective Hurt of the Copperas Cove Police Department was called to Appellant’s residence. The complaining witness was at the scene and accused Appellant of sexually assaulting her at his residence the day prior. During Detective Hurt’s initial encounter with Appellant, she informed Appellant he had been accused of sexual assault. Appellant acknowledged knowing the victim, but denied having any sexual contact with her and requested a “rape kit” be conducted. Appellant agreed to submit to a DNA test and Detective Hurt asked Appellant to come down to the police station to give his DNA sample. Appellant agreed and voluntarily drove to the station in his own vehicle; Appellant left for the station before Detective Hurt. Upon arrival, Appellant waited for Detective Hurt to arrive and once she did, she led him through the police station and into an interview room. Detective Hurt testified the door to the interview room was closed, but not locked. Appellant’s Videotaped Interview Appellant was asked to provide a DNA sample. A conversation and questioning followed between Appellant, Detective Hurt, and Detective Nunez, which occurred in an interview room at the police station. The interview was recorded, and a redacted version was offered into evidence and published at trial.[2] The video begins with Detective Hurt preparing to collect the DNA sample. Before collecting the DNA sample, Detective Hurt first has Appellant sign a consent form. The DNA sample is then collected from Appellant via mouth swab. As Detective Hurt finishes with the sample, Appellant receives a phone call and tells the caller he will call him back in a second. After he hangs up, Detective Hurt tells Appellant he has just submitted to a DNA sample and Appellant begins to tell the detectives about a different, prior incident where he believed he was falsely accused. About seven minutes into the interview, Appellant says, “let’s do whatever it is y’all need to do to get this over with.” Appellant then tells the detectives he will be leaving to Missouri for about a week for training for a job. Detective Hurt asks Appellant if will be returning and Appellant confirms he will be. Detective Hurt never tells Appellant he cannot leave the State. At about nine minutes in, Detective Hurt asks Appellant to tell her about the previous night and the interaction he had with the victim. Appellant recounts he offered to give the victim a ride home and “let her out” at or near her home. He describes the exact route he took from the point he picked her up, to the point he dropped her off, then claims he went home—in this version, Appellant states they never went to his house. However, Appellant later changes his story when Detective Hurt asks him how it is possible the victim knows where he lives if they never went to his house. Appellant then admits that after he picked the victim up, he did stop at his house “to grab a beer.” At about fifteen minutes in, Appellant gets upset, raises his voice, and says he is offended because he took the young woman home promptly. Appellant confirms the victim went inside his home and claims, “she sat on my sofa while I did whatever I did and we left.” Detective Hurt tells Appellant the victim was only fifteen years old, and Appellant appears surprised and responds the victim told him she was eighteen. Appellant denies anything sexual occurred. At about twenty minutes in, Appellant continues to deny anything sexual occurred. At Detective Hurt’s request, Appellant checks his phone to see if he has text messages to verify the exact time he picked the victim up. At this point, Appellant receives a second phone call and tells the caller he is not home and is “just trying to take care of a little bit of something,” and will call back “in a minute.” Detective Hurt then begins to repeat Appellant’s account of the night. After a few minutes, Appellant interjects and says he did not mean “the little girl” any harm, wanted to show her his home, which he refers to as “a little touch of hospitality.” Detective Hurt states hospitality would have been picking her up and taking her home. Appellant then responds, “Okay, well, I f***** up. I f***** up trying to do a good thing. Run your [rape] kit.” Detective Hurt then asks Appellant for contact information of any next of kin who would be able to contact him if she were unable to get ahold of him; Appellant assures the detectives he will be present. Detective Hurt thanks Appellant for coming in and tells him she wanted to give him the opportunity to tell them what happened. Appellant responds that the situation is distressful, then proceeds to tell the detectives about the morning after the alleged abuse occurred when the victim and her friend came to his home looking all “angry this that and the other.” At around thirty- three minutes into the video, the detectives attempt to end the interview a second time, tell Appellant they will give him a call, and both detectives stand up. Appellant appears to be the first one to leave the room, with both detectives following behind. Detective Hurt can be heard telling Appellant he can go out the same way he came in. Procedural Background Appellant was indicted for sexual assault of a child (Count I and II) and indecency with a child (Count III). TEX.PENAL CODE ANN. §§ 22.011(a)(2), 21.11(d). Appellant filed a pre-trial motion to suppress his videotaped interview, which he claimed was taken during a custodial interrogation. A hearing on the motion was held and the trial court denied Appellant’s motion to suppress. After a jury trial, Appellant was found guilty and was sentenced to ten years on Counts I and II in the Texas Department of Criminal Justice Institutional Division, with Count II stacked on Count I. As to Count III, Appellant was sentenced to five years in the Texas Department of Criminal Justice Institutional Division, to run concurrently with Count I. DISCUSSION In two issues, Appellant claims the trial court erred by admitting his videotaped interview in violation of Miranda and Article 38.22 of the Texas Code of Criminal Procedure. Miranda v. Arizona, 384 U.S. 436, 439 (1966); TEX. CODE CRIM. PROC. ANN. art. 38.22. Standard of Review We review a trial court’s ruling on a motion to suppress for abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). In reviewing the trial court’s decision, we view the evidence in the light most favorable to the trial court’s ruling. Saenz v. State, 564 S.W.3d 469, 472 (Tex.App.—El Paso 2018, no pet.). We afford almost total deference to a trial court’s determination of historical facts, while we review pure questions of law de novo. Id. We also afford almost total deference to a trial court’s resolution of mixed questions of law and fact if those questions turn on the credibility and demeanor of witnesses. Id. However, if credibility and demeanor are not necessary to resolve a mixed question of law and fact, we review the question de novo. Id. This same deferential standard applies to a trial court’s determination of historical facts, demeanor, and credibility, even if that determination is based on a recorded video. Id. When, as here, the trial court does not make explicit findings of fact, we “review the evidence in a light most favorable to the trial court’s ruling” and “assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion.” Id. (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000)). A reviewing court may uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. at 473. Applicable Law There are three categories of interactions that exist between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. Crain, 315 S.W.3d at 49. We defer to the totality of the circumstances in determining which category an interaction falls into. Id. An encounter is a consensual interaction in which a person is free to terminate the encounter at any time. Id. It is not considered a seizure that would trigger Fourth Amendment protection. Id. An encounter generally occurs when an officer approaches a person in a public place to ask questions, and the person is willing to listen and voluntarily answers. Id. On the other hand, an investigative detention occurs during an officer’s show of authority and a person yields to that show of authority under a reasonable belief that he is not free to leave. Id. In determining whether an interaction constitutes an encounter or a detention, the focus is whether the officer conveyed a message that compliance with the officer’s request was required. Id. The question then becomes whether a reasonable person in the person’s position would have felt free to decline the officer’s requests or otherwise terminate the encounter. Id.The United States Supreme Court has provided factors that may contribute to what a reasonable person might have perceived during an interaction with an officer; the following from Mendenhall is instructive, which provides: Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. U.S. v. Mendenhall, 446 U.S. 544, 554 (1980). The prosecution may not use statements from the custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. at 444. By custodial interrogation, the Court means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. According to the Court, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning . . . [h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Id. at 478-79. In addition, Article 38.22 establishes procedural safeguards for securing the right against self-incrimination.Joseph v. State, 309 S.W.3d 20, 23 (Tex.Crim.App. 2010).Article 38.22 provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless the statement was recorded, and prior to the statement, but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. TEX.CODE CRIM.PROC.ANN. art. 38.22 § 3(a)(1)(2). Analysis Appellant claims he was in custody and accordingly, he should have received the Miranda and Article 38.22 warnings. The resolution of both of Appellant’s issues turn on whether Appellant was in custody for purposes of Miranda.[3] The Texas Court of Criminal Appeals has outlined 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. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). Moreover, the Court has stated that whether a suspect is in custody turns on (1) a factual determination of the circumstances surrounding the interrogation, and (2) a legal determination of whether, under the factual circumstances, a reasonable person would feel he was not free to terminate the questioning and leave. Colvin v. State, 467 S.W.3d 647, 657 (Tex.App.—Texarkana 2015 pet. ref’d) (citing Thompson v. Keohane, 516 U.S. 99, 112-113 (1995)). Simply put, the ultimate inquiry is “whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983). The State concedes neither Miranda nor 38.22 warnings were given; however, the State contends the warnings were not required because at no time was Appellant in custody. We agree. According to Detective Hurt’s testimony, while at Appellant’s residence, she asked Appellant to come down to the police station and submit to a DNA sample. During this interaction at Appellant’s residence, Appellant was never handcuffed or told he was detained. Appellant agreed and voluntarily drove to the station on his own; Appellant left for the station before Detective Hurt and arrived before her. Upon arriving at the station, Appellant was waiting inside the lobby for Detective Hurt. Detective Hurt and Appellant rode an elevator together and walked through one secured door, which required a key card, before reaching the interview room. The interview room was comprised of a large table, and Appellant was asked to sit on one side, while Detective Hurt and Detective Nunez sat on the opposite end. Detective Hurt testified the door was closed, but was never locked. According to Detective Hurt, she first had Appellant sign a consent form for the DNA sample, then collected the DNA sample from Appellant via mouth swab. The interview video shows that once Detective Hurt finishes collecting the sample, Appellant receives a phone call. Appellant tells the caller, “Aye let me call you back in a second bro.” In the first four minutes of the interview video, Appellant’s voice and overall demeanor is calm. The video demonstrates Appellant and the detectives discussing the allegations against him. Appellant informs the detectives of a prior incident where he believed he had also been falsely accused. Then Appellant says, “let’s do whatever it is y’all need to do to get this over with.” Next, Appellant tells the detectives he would be leaving to Missouri for work. Detective Hurt asks if Appellant would be returning and Appellant confirmshe will be. In the video, Detective Hurt never tells Appellant he cannot leave the State. Around thirteen minutes into the interview view, Appellant changes his story and admits he did in fact stop at his house with the victim “to grab a beer.” Appellant then states, “Okay, well, I f***** up. I f***** up trying to do a good thing.” The video reflects, at Detective Hurt’s request, Appellant checking his phone to see if he has text messages to verify the exact time he picked the victim up. At this point, Appellant receives a second phone call and tells the caller he is not home and is “just trying to take care of a little bit of something,” and will call back “in a minute.” In our review of the video, after twenty-two minutes into the interview, Appellant’s voice and overall demeanor is still calm. The video also shows, after Appellant shares his side of the story, Detective Hurt restate Appellant’s version twice, repeating back to Appellant everything he had said. Detective Hurt testified Appellant never hesitated to discuss the allegations against him. According to Detective Hurt, Appellant appeared focused on the prior incident where he believed he was falsely accused andexplained the circumstances of that situation to avoid it occurringagain. The video confirms Detective Hurt’s testimony and shows Appellant volunteering information, calling her “sweetheart” and “baby” multiple times, and continuing to talk once the interview was done. The interview itself is about thirty-three minutes long and occurred at the police station, which Appellant agreed to, and drove to and from on his own. Throughout the interview video, Appellant answers two separate, personal phone calls, telling both callers he will call them back. He also checks his text messages. After Detective Hurt begins to wrap up the interview and thanks Appellant for coming in, Appellant prolongs the interview by continuing to talk, voluntarily, for about three more minutes. Detective Hurt testified, throughout the interview, Appellant was never handcuffed or placed in a holding cell. Further, the investigation room did not resemble a jail cell, and the door remained closed, but unlocked. According to Detective Hurt, she did not say anything that would have made Appellant feel he was not free to leave. She also testified it is in her practice to advise a suspect they are free to leave at any time, and she believes she admonished this warning to Appellant “on scene in order to assure the defendant that I wasn’t going to arrest or detain him or anything.” There are three factors that weigh in Appellant’s favor: during the interview, 1) both detectives possessed their holstered weapons, 2) Appellant was not explicitly told he was free to leave, and 3) the interview room door was closed. However, Appellant agreed to be interviewed and drove himself to and from the police station, appeared relaxed and cooperative throughout the interview, called Detective Hurt “baby” and “sweetheart” throughout, eagerly volunteered information (including a prior criminal incident), and offered incriminating statements about taking the victim to his residence. Appellant was never told he was not free to leave the room or the State when he mentioned he would be leaving to Missouri. He also took two personal phone calls during the interview and told both callers he would call them back, evidencing knowledge he would be leaving after the interview. Under a totality of the circumstances review, we believe a reasonable person in Appellant’s position would have felt free to decline the requests or terminate the encounter. Crain, 315 S.W.3d at 49. Appellant was not in custody at the time of his recorded interview. See Dowthitt, 931 S.W.2d at 255-57 (factors included whether defendant arrived voluntarily, length of interrogation, whether defendant’s requests to see relatives or friends were refused, and degree of control exercised over defendant, and “[s]tationhouse questioning does not, in and of itself, constitute custody.”). Accordingly, because Appellant was not in custody, neither Miranda nor Article 38.22 warnings were required. Herrera, 241 S.W.3d at 526 (“As with the Miranda warnings, the warnings . . . of Article 38.22 are required only when there is custodial interrogation.”). Viewing the evidence in the light most favorable to the trial court’s ruling, we hold the trial court did not abuse its discretion in concluding the complained of exhibit was not the product of custodial interrogation and was therefore admissible. See id. at 526-27. Issues One and Two are overruled. CONCLUSION For these reasons, we affirm. YVONNE T. RODRIGUEZ, Chief Justice January 17, 2023 Before Rodriguez, C.J., Palafox, and Soto, JJ. (Do Not Publish)
