Ricardo Olivarez v. the State of Texas

Affirmed and Memorandum Opinion filed January 10, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00491-CR
RICARDO OLIVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1567655
MEMORANDUM OPINION
A jury found appellant guilty of the first-degree felony of murder. Tex.
Penal Code Ann. § 19.02. The trial court assessed punishment of imprisonment for
40 years. Tex. Penal Code Ann. § 12.32(a). In two issues, appellant challenges the
trial court’s denial of his pretrial motion to suppress two statements he made to
police. In issue 1, appellant contends the statements were inadmissible due to use
of an improper two-step interrogation method. In issue 2, appellant argues the
statements were inadmissible because they were the product of custodial
interrogation conducted without the warnings required by Miranda v. Arizona and
Code of Criminal Procedure article 38.22. See Miranda, 384 U.S. 436, 444 (1966);
Tex. Code Crim. Proc. Ann. art. 38.22. We affirm.
I. BACKGROUND
On October 15, 2017, sergeant Francisco Garcia was dispatched to
appellant’s home and advised that appellant and his common-law wife, the
complainant, had been involved in a struggle over a gun during which complainant
was accidentally shot. Appellant was handcuffed and placed in a patrol vehicle for
approximately four hours. Garcia asked appellant if he was willing to do a
recorded “walkthrough” at the scene; appellant agreed. Appellant was not
handcuffed during the “walkthrough statement,” which took approximately 15
minutes. During the walkthrough, appellant told police that he and complainant
had been in a physical altercation, and that a gun they were fighting over
discharged during the struggle.
Garcia asked appellant if he was willing to take a voluntary polygraph
examination, to which appellant agreed. Appellant was transported in a patrol
vehicle to the Harris County Sheriff’s homicide office (the “station”). Before
transport, Garcia explained to appellant that appellant was not under arrest, and
appellant acknowledged that he understood. Appellant’s handcuffs were removed
when he left the police vehicle. Appellant met with deputy Roxy Simmons, who
advised appellant that the polygraph examination was voluntary and that appellant
was free to leave at any time. While preparing for the exam, Simmons asked
appellant if appellant would be able to answer “no” to the question, “Did you
intentionally shoot your wife?” Appellant indicated he would not be able to
honestly state that he did not shoot his wife. Simmons suggested appellant speak to
Garcia and appellant agreed.
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Garcia questioned appellant in an interview room at the station (the “station
statement”). Appellant was not handcuffed or otherwise restrained during the
interview. Before taking the second recorded statement, Garcia informed appellant
that the statement was voluntary and appellant was free to leave. Appellant stated
that he understood his statement was voluntary and did not request to leave. During
the recorded statement, Garcia interrupted appellant and again confirmed that
appellant was agreeing to give a voluntary statement. Garcia asked appellant
whether he understood that he was not under arrest and that he was free to leave at
any time. Appellant said he understood. During the station statement, appellant
said that, after complainant scratched him and attempted to take the gun from him,
he shot her because he was afraid for his life. Appellant was then given Miranda
warnings, following which he gave a third statement to the police.
Complainant died from the gunshot wound and appellant was charged with
murder. Before trial, appellant moved to suppress the walkthrough statement and
the station statement, as well as the third statement taken at the station after
appellant had been given Miranda warnings. The trial court suppressed the third,
post-Miranda statement, but denied appellant’s motion to suppress the
walkthrough and station statements.
II. ANALYSIS
A. Two-step interrogation
In issue 1, appellant argues that the trial court erred by denying his motion to
suppress his pre-Miranda warning statements because the officers involved
employed an impermissible “two-step” interrogation technique. “A ‘two-step’ or
‘question first, warn later’ interrogation occurs when the police interrogate a
suspect without giving him his Miranda warnings, obtain a confession from him,
then give him the Miranda warnings, and get him to repeat the confession he made
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previously.” Vasquez v. State, 483 S.W.3d 550, 553 (Tex. Crim. App. 2016) (citing
Missouri v. Seibert, 542 U.S. 600, 605–06 (2004)). Under such circumstances, the
Miranda warnings are ineffective, as “there is no practical justification for
accepting the formal warnings as compliance with Miranda, or for treating the
second stage of interrogation as distinct from the first, unwarned and inadmissible
segment.” Seibert, 542 U.S. at 612. Accordingly, post-Miranda warning statements
obtained by the two-step process are inadmissible. See Martinez v. State, 272
S.W.3d 615, 620–27 (Tex. Crim. App. 2008)
The situation here, however, is different because the trial court suppressed
the statement that appellant gave after the Miranda warning. In contrast to the
cases discussed above, the question here is not whether post-Miranda warning
statements should be suppressed, as the only statement meeting that description
was, in fact, suppressed. Instead, the case concerns whether pre-Miranda warning
statements should be suppressed. And the way to answer that question is to
determine, as we address in issue 2, whether the pre-Miranda statements were the
result of custodial interrogation. If appellant was in custody when the statements
were given, then the lack of Miranda warnings renders the statements
inadmissible. See Miranda, 384 U.S. at 444. If, on the other hand, appellant was
not in custody when he gave the statements, then Miranda warnings were not
required at all. See California v. Beheler, 463 U.S. 1121, 1121–25 (1983). Either
way, the reasoning of Siebert and other cases discussing the two-step interrogation
method, addressing circumstances in which post-Miranda warning statements may
be inadmissible, is inapplicable.
We overrule issue 1.
B. Custodial interrogation
In issue 2, appellant argues that the trial court reversibly erred by not
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suppressing the walkthrough statement and the station statement. Appellant argues
that both statements were products of custodial interrogation without the requisite
warnings under Miranda and Code of Criminal Procedure article 38.22.1 See
Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. Ann. art. 38.22.
Under Miranda, the State may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. 384 U.S. at 444. Likewise, article 38.22 provides that
“[n]o oral . . . statement of an accused made as a result of custodial interrogation
shall be admissible against the accused in a criminal proceeding unless,” among
other things, “prior to the statement but during the recording the accused is given
the warning in Subsection (a) of Section 2 above and the accused knowingly,
intelligently, and voluntarily waives any rights set out in the warning.” Tex. Code
Crim. Proc. Ann. art. 38.22, § 3(a).
Determining whether a custodial interrogation occurred involves examining
both whether the accused was “in custody” and whether he was “interrogated.” See
Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a). The
parties do not dispute that the questioning by police during the walkthrough and
station statements was “interrogation” for purposes of Miranda and article 38.22.
1
At oral argument, the State contended that a dashcam recording taken before the
walkthrough statement showed that appellant had been given Miranda warnings. This video,
however, was not offered or admitted into evidence at the suppression hearing. Moreover, at the
suppression hearing, the State did not attempt to prove that appellant had been given the requisite
warnings before making the walkthrough statement or present evidence that the walkthrough
statement was a continuation of some earlier line of questioning. Finally, the parties did not
attempt to relitigate this issue at trial. See Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App.
2012) (“In cases in which the trial court is never asked, or is asked but declines, to exercise its
discretionary authority to reopen the suppression hearing, appellate review of its ruling on the
motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the
evidence that was before the court at the time of its decision.”). Accordingly, we will not
consider the dashcam recording as part of the suppression analysis. See id.5
Cf. Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (“[T]he term ‘interrogation’
under Miranda refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.”).
Accordingly, issue 2 requires a determination of whether appellant was “in
custody” when giving the statements. Cf. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007) (meaning of “custody” is same for purposes of both
Miranda and article 38.22). A person is considered “in custody” if a reasonable
person in the same circumstances would have perceived his physical freedom to be
restricted “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)). “The determination of custody must be made on an ad hoc basis,
after considering all of the (objective) circumstances.” Dowthitt, 931 S.W.2d at255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). The
court of criminal appeals has established four general situations which may
constitute custody: (1) if the suspect is physically deprived of his freedom in any
significant way; (2) if a law-enforcement officer tells the suspect not to leave; (3) if
a law-enforcement officer creates a situation that would lead a reasonable person to
believe that his freedom of movement has been significantly restricted; or (4) if
there is probable cause to arrest the suspect, and the law-enforcement officer does
not tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex.
Crim. App. 2009).
In reviewing the trial court’s ruling on a motion to suppress statements made
as a result of custodial interrogation, we apply a bifurcated standard of review.
Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman v.
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State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review the ruling in light of
the totality of the circumstances, giving total deference to the trial court on
questions of historical fact, as well as its application of law to fact questions that
turn on credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza v. State, 351
S.W.3d 344, 349 (Tex. Crim. App. 2011). But we review de novo the trial court’s
rulings on questions of law and mixed questions of law and fact that do not depend
on credibility determinations. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349.
We view the record in the light most favorable to the trial court’s ruling and
reverse the judgment only if it lies outside the zone of reasonable disagreement.
Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011).
1. Walkthrough statement
According to the trial court’s findings, before the walkthrough statement,
appellant had been handcuffed and placed in a police car for approximately four
hours. There are no findings, and no evidence in the record, that appellant was ever
told he was not under arrest or that he was free to go. During the walkthrough
statement itself, appellant’s handcuffs were removed, and appellant was told the
statement was voluntary. The video shows that, during the walkthrough of the
house, appellant was accompanied by three officers.
Appellant argues that a reasonable person in the same circumstances would
have perceived his physical freedom to be restricted to the degree associated with a
formal arrest. Dowthitt, 931 S.W.2d at 254; see also Ortiz v. State, 421 S.W.3d
887, 891 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“The defendant bears
the initial burden of demonstrating that a statement was the product of custodial
interrogation, and the State has no burden to show compliance with Miranda until
the defendant meets the initial burden.”) (citing Wilkerson v. State, 173 S.W.3d
521, 532 (Tex. Crim. App. 2005)). The State argues that appellant’s circumstances
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were consistent with an investigative detention, which is not considered formal
arrest for purposes of the Fourth Amendment. See U.S. Const. amend IV; Terry v.
Ohio, 392 U.S. 1, 13 (1968).
The court of criminal appeals recently reiterated the standards for whether an
interrogation is “custodial” when the circumstances involve an investigative
detention. The court explained that, when the basis for custody is restriction of
movement, “the restriction upon freedom of movement must amount to the degree
associated with an arrest as opposed to an investigative detention.” Wexler v. State,
625 S.W.3d 162, 168 (Tex. Crim. App. 2021). The court emphasized, however,
that the “‘ultimate inquiry’ pertinent to the custody question for Miranda
purposes” remains “whether a reasonable person in the defendant’s circumstances
would have believed that her freedom of movement was restricted to the degree
associated with a formal arrest.” Id. at 169.
In the instant case, the sheer length and circumstances of the detention—
appellant was in a police car, handcuffed, for four hours—weighs heavily in favor
of concluding appellant was “in custody” for purposes of the walkthrough
statement. While the Supreme Court has not adopted a bright-line rule for when the
duration of a detention transforms the detention into an arrest, the Court has held
that a 90-minute detention violated the Fourth Amendment. See United States v.
Place, 462 U.S. 696, 709–10 (1983) (“Thus, although we decline to adopt any
outside time limitation for a permissible Terry stop, we have never approved a
seizure of the person for the prolonged 90-minute period involved here and cannot
do so on the facts presented by this case.”) (applying Terry, 392 U.S. 1). Moreover,
in United States v. Sharpe, the Supreme Court explained, “In assessing whether a
detention is too long in duration to be justified as an investigative stop, we consider
it appropriate to examine whether the police diligently pursued a means of
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investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe,
470 U.S. 675, 686 (1985). Here, there is no evidence in the record as to why four
hours were required to investigate the crime scene.
These circumstances rise above the level of an investigative detention under
Supreme Court precedent. See Place, 462 U.S. at 709–10; Sharpe, 470 U.S. at 686;
see also Wexler, 625 S.W.3d at 167–68 (for interrogation to be custodial due to
deprivation of freedom of action or movement, “the restriction upon freedom of
movement must amount to the degree associated with an arrest as opposed to an
investigative detention”). Likewise, a reasonable person handcuffed for four hours
in the back of a patrol car, without ever being told he was not under arrest or that
he could leave, would believe his freedom of movement had been significantly
restricted, to the degree associated with formal arrest. See Dowthitt, 931 S.W.2d at254–55. We conclude the trial court erred when it declined to suppress the
walkthrough statement, given that appellant gave the statement in response to
interrogation from officers, while he was in custody, and before he had been
warned under Miranda and article 38.22. See Miranda, 384 U.S. at 444; Tex. Code
Crim. Proc. Ann. art. 38.22.
2. Station statement
After the walkthrough statement, appellant agreed to take a polygraph test at
the station, after which Garcia explained to appellant that appellant was not under
arrest. While appellant was handcuffed during the drive to the station, it was
explained to him that this was due to departmental policy, and appellant’s
handcuffs were removed after transport to the station. Before the polygraph
examination began, Simmons told appellant the exam was voluntary and that
appellant was free to leave at any time. After appellant consented to speak with
Garcia, he was taken to an interview room where he was not handcuffed or
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otherwise restrained. Before taking the statement, Garcia informed appellant that
the statement was voluntary and appellant was free to leave, and several minutes
into the statement Garcia reiterated that the statement was voluntary, and that
appellant was not under arrest and was free to leave.
Applying the Dowthitt factors, appellant was not physically deprived of his
freedom of action in any significant way and was not told by a law-enforcement
officer that he could not leave during the station interview. See Dowthitt, 931
S.W.2d at 255 (factors 1 and 2). Likewise, the law-enforcement officers involved
did not create a situation that would lead a reasonable person to believe his
freedom of movement had been significantly restricted; instead, appellant was not
handcuffed or confined and was told on several occasions he could leave.2 See id.(factor 3). Finally, even if there had been probable cause to arrest, law-enforcement
officers did not withhold from appellant that he was free to leave, but rather told
him that he was, in fact, free to leave. See id. (factor 4). Accordingly, none of the
Dowthitt scenarios support appellant’s argument that he was “in custody” during
the station statement. See id.; see also Estrada v. State, 313 S.W.3d 274, 295 (Tex.
2
At oral argument, appellant’s lawyer cited a recent case from the First Court of Appeals,
In re J.J., for the proposition that a person may be in custody even if he is told he can leave. J.J.,
651 S.W.3d 385, 395–96 (Tex. App.—Houston [1st Dist.] 2022, pet. denied) (en banc). The facts
of that case are substantially different, however. In J.J., a juvenile was interrogated at school.
The First Court explained, “the request from two police officers to talk to them in an isolated
interrogation room was not framed as a choice with full information, but as a condition to return
to class.” Id. During the station statement in this case, by contrast, the decision to talk to the
police was framed as a choice without conditions.
Appellant’s lawyer also discussed United States v. Cavazos, in which the Fifth Circuit
determined that law enforcement’s statements to an individual that an interview was
“non-custodial” were not determinative of the custody issue. Cavazos, 668 F.3d 190, 195 (5th
Cir. 2012). The Fifth Circuit explained that, “to a reasonable lay person, the statement that an
interview is ‘non-custodial’ is not the equivalent of an assurance that he could terminate the
interrogation and leave.” Id. (quotation omitted). Here, unlike in Cavazos, the trial court’s
unchallenged findings indicate that law enforcement made statements to appellant before and
during the station statement that appellant was, in fact, free to leave.
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Crim. App. 2010) (questioning at station was not custodial when “the police told
appellant several times that he was free to leave, that appellant also acknowledged
that he came to the station voluntarily and did not ‘have to be [t]here anymore,’
and that appellant stated several times that he wanted to leave and go home”).
We conclude appellant was not “in custody” when he made the station
statement and accordingly the trial court did not err by declining to suppress the
station statement.
3. Harm
In a criminal case, the erroneous denial of a motion to suppress a statement
taken in violation of Miranda is constitutional error subject to review under the
standard set forth in Texas Rule of Appellate Procedure 44.2(a). Tex. R. App. P.
44.2(a). Under Rule 44.2(a), “[i]f the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of appeals
must reverse a judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” Id. The emphasis of the harm analysis under Rule 44.2(a) should not
be on the propriety of the outcome of the trial. Scott v. State, 227 S.W.3d 670, 690
(Tex. Crim. App. 2007). Specifically, “the question for the reviewing court is not
whether the jury verdict was supported by the evidence. Instead, the question is the
likelihood that the constitutional error was actually a contributing factor in the
jury’s deliberations in arriving at that verdict.” Id. In reaching that decision, we
may consider (1) whether the recorded statement was cumulative of other
evidence, (2) the importance of the recorded statement to the State’s case, (3) the
probable weight a juror would place upon the recorded statement, (4) the presence
or absence of evidence corroborating or contradicting the recorded statement on
material points, and (5) the overall strength of the prosecution’s case. See id.;
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Jones v. State, 119 S.W.3d 766, 778 (Tex. Crim. App. 2003)
As previously discussed, the trial court erred when it did not suppress the
walkthrough statement, during which appellant indicated that the gun had gone off
by accident during a struggle between him and complainant, but did not err by
admitting the station statements, during which appellant indicated that he
intentionally shot complainant when she threatened to take the gun from him. The
jury ultimately found appellant guilty of murder, which under the facts of this case
constitutes either (1) intentionally or knowingly causing the death of an individual
or (2) intending to cause serious bodily injury and committing an act clearly
dangerous to human life that causes the death of an individual. Tex. Penal Code
Ann. § 19.02(b)(1), (2). Accordingly, to reach its verdict, the jury necessarily must
have disbelieved appellant’s walkthrough statement in which he indicated the gun
went off accidentally, as the jury was required to determine that appellant acted
intentionally to convict appellant of murder. Moreover, while the conflicting nature
of the walkthrough and station statements may have damaged appellant’s
credibility, the State’s case was premised on the station statement in which
appellant indicated that he intentionally shot complainant, not the erroneously
admitted walkthrough statement in which appellant indicated the shooting was an
accident. See Foyt v. State, 602 S.W.3d 23, 45 (Tex. App.—Houston [14th Dist.]
2020, pet. ref’d) (concluding that, “although appellant’s falsehoods tend to
incriminate him,” error in admitting statements was not harmful in light of other
evidence). Indeed, it was appellant, not the State, who based his defense on the
purportedly accidental nature of the shooting as related in the walkthrough
statement. Under the particular facts of this case, we conclude beyond a reasonable
doubt that the erroneous admission of the statement did not contribute to the jury’s
verdict. See Tex. R. App. P. 44.2(a); Foyt, 602 S.W.3d at 44–45.
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Determining no harm resulted from the trial court’s error, we overrule issue
2.
III. CONCLUSION
We affirm the trial court’s judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Poissant, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
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