No. 05-09-00784-CR.
Opinion Filed January 31, 2011. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-50829-WI.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
ROBERT M. FILLMORE, Justice.
A jury convicted Devin Sharif Bridges of murder, sentenced him to life imprisonment, and assessed a $10,000 fine. In six issues, Bridges asserts (1) the evidence is legally and factually insufficient to support the conviction, (2) the trial court erred by admitting Bridges's oral statement into evidence, (3) his right to due process and a fair trial was violated by the State's failure to timely disclose a witness that provided an alibi for him, and (4) the trial court erred by failing to instruct the jury on the lesser included offenses of manslaughter and criminally negligent homicide. We affirm the trial court's judgment.
Background
According to Murlene Tasby, her sister, Stella Tasby, was in a relationship with Bridges in January 2008, and Bridges was the father of Stella's child. Murlene testified that, although Stella and Bridges did not live together, Stella loved Bridges and wanted to be with him. However, Stella was also seeing "Ace" in January 2008. According to Starya Hicks, Stella's friend and co-worker, Stella loved Bridges and told Starya that "Ace" was just a friend. Jamie Hicks, a friend of Stella's, testified she was at Stella's apartment sometime in early January 2008. Bridges was also at the apartment. Jamie saw a black handgun sitting on the mantel in the apartment. Stella picked up the gun and gave it to Bridges. Starya testified that at approximately 7:00 a.m. on Friday, January 18, 2008, she and Stella went to buy a car for Stella. In the early afternoon, Starya and Stella left the car dealership in separate cars to go to the insurance office so that Stella could purchase insurance for the car. When Stella left the car dealership, she was not dressed in clothes that she would wear to work that evening. According to Starya, Stella got lost and did not make it to the insurance office. Stella and Starya were supposed to be at work by 6:00 p.m. and had made plans to follow each other to work. Starya talked to Stella by telephone at approximately 5:35 p.m. and then waited for Stella. Stella did not show up. Starya called Stella again, but Stella did not answer the phone. Starya then went to work without Stella. Murlene also worked with Stella and confirmed Stella did not come to work that evening. Starya and Murlene both repeatedly tried to call Stella, but Stella did not answer the phone. Andrew Tasby, Stella and Murlene's brother, was babysitting Stella's daughter. After Stella did not pick up her daughter on Saturday, Andrew asked a friend to go to Stella's apartment. No one answered the door to the apartment. On Sunday, Starya and her baby's father, Terry Smith, went to Stella's apartment. Although in her statement to the police, Starya said she went to Stella's apartment while Smith remained in the car, at trial Starya testified she remained in the car while Smith went to the apartment. When Smith knocked on the door to Stella's apartment, it opened. Smith then returned to the car, and both Starya and Smith went into the apartment. They saw Stella's body in the bedroom, left the apartment, called the police, and contacted the apartment management. According to Starya, Stella was wearing khaki pants, black and red socks, and white tennis shoes. These were clothes that Stella would wear to work. Peter Serrano, a patrolman with the Dallas Police Department, responded to the call. He went inside Stella's apartment, confirmed she was dead, and called for reinforcements. According to Serrano, Stella's body was in the bedroom in the back of the apartment. The body was laying at the doorway to the closet, with the upper part of the body in the closet and the lower part of the body in the bedroom. Detective Marshall McLemore processed the apartment for evidence. Although a number of fingerprints were collected from the apartment, the police were unable to identify anyone from the fingerprints. McLemore found two fired cartridge cases, one immediately inside the bedroom doorway and one inside the walk-in closet. The cartridges were stamped "Win 9-millimeter Luger." McLemore also recovered a bullet from the back wall of the bedroom. Detective John Palmer testified he responded to the crime scene and was asked to canvas a group of people standing in the apartment complex and to knock on doors in the complex to locate witnesses. A woman in the group of people approached him. She had a cellphone on speaker and was talking to Bridges. Palmer heard Bridges say something to the effect that he had last seen Stella the previous Tuesday. Palmer asked Bridges to come talk to the police at the police station, and Bridges agreed to do so. Bridges said he needed a ride, and Palmer and another detective went to Bridges's apartment to pick him up. At the apartment, Palmer had a conversation with Bridges and Bridges's girlfriend about whether Bridges needed bus fare home. Palmer indicated a police officer would take Bridges home. Palmer explained to Bridges that he was not under arrest. Bridges was not handcuffed and rode in the backseat of the police car with Palmer. According to Palmer, Bridges was not a suspect at this point and would have been allowed to leave if he had asked to do so. At the police station, Palmer had a discussion with Detective Scott Sayers about Bridges needing a ride home. Sayers, the lead homicide detective on Stella's murder, interviewed Bridges. Witnesses had told the police they needed to talk not only to Bridges, but to "Ace" and another of Stella's boyfriends as well. Further, Palmer told Sayers the police needed to talk to Bridges because several people at the apartment complex said that Bridges knew Stella and was possibly the last person she had been with prior to her death. According to Sayers, he did not consider Bridges a suspect. Bridges was not handcuffed and was free to leave if he wished to do so. Sayers told Bridges that someone would give him a ride home when they were finished with the interview. Sayers testified that Bridges was calm and cooperative. Sayers questioned Bridges about his relationship with Stella. Sayers testified he was ready to "turn [Bridges] loose," but requested that Bridges consent to a buccal swab and a gunshot residue (GSR) test. Bridges consented to the tests. While waiting for the technician, Bridges asked Sayers a few questions about the GSR test. Sayers responded that the GSR test would show if someone had handled or fired a gun and would show whether Bridges killed Stella. Bridges became emotional and started to cry. Sayers decided to continue talking to Bridges to "find out where this emotion was coming from." When Bridges admitted he saw Stella on Friday, Sayers read Bridges his Miranda rights. Bridges subsequently confessed to shooting Stella. At this point in the trial, the video recording of Bridges's interview was played for the jury. In the interview, Bridges said he had been with his girlfriend, KeyArrow Hudson, for five years. However, he had been in a sexual relationship with Stella for approximately two years. Bridges initially indicated he had a child with Stella, but then stated Stella was in a sexual relationship with other men and he was not sure he was the father of the child. Bridges first stated he had last seen Stella the previous Tuesday and had sex with her at that time. He tried to call Stella twice on Thursday. The first time there was no answer, and the second time a friend of Stella's answered the phone. Bridges denied talking to Stella on Friday. He indicated that on Friday he applied for a job in the morning. He returned home at approximately 11:00 a.m. and spent the rest of the day at home with his girlfriend, Hudson. On Saturday, he and Hudson went to the mall with their children. Bridges stated that Stella was threatening to cause trouble between him and Hudson. Stella wanted to "be with" Bridges and would get mad when he attempted to leave her apartment. Bridges then admitted seeing Stella on Thursday and said that, when he tried to leave, Stella hit him and grabbed him. He pushed Stella when he left the apartment. Bridges tried to call Stella on Friday, but she would not take his calls. He then said he talked to Stella on Friday. Stella told Bridges that she was going to buy a car with her friend and would then come by and get him. Bridges again denied seeing Stella on Friday. At this point in the interview, approximately one hour after Sayers first met with Bridges, Sayers read Bridges his Miranda rights. Bridges waived his rights and agreed to continue to talk to Sayers. Less than fifteen minutes after he was advised of his rights, Bridges told Sayers that he had sex with Stella on Friday around 5:00 p.m. When he tried to leave the apartment, he and Stella started fighting. Bridges first denied shooting Stella, but quickly admitted that he shot her. Bridges claimed he did not do it "on purpose." Bridges stated Stella was "hitting on him" and the gun "just went off" twice. Bridges said that he and Stella were in the back room of the apartment at the time. After he shot Stella, she "hit the floor." Bridges described the gun as a black and chrome nine millimeter that he bought a "couple of weeks ago." He bought the gun because Stella and her family were threatening him and Hudson. Bridges originally claimed he took the bus home from Stella's apartment. He then admitted he took Stella's car and left it running beside the freeway. He said he gave the gun to a man at a DART station on Saturday. The entire interview lasted less that two hours. Sayers then testified that both Starya and Smith initially said that Starya went to the door of Stella's apartment first. He also confirmed Stella's neighbor told the police that she heard a loud thump about 10:00 p.m. on Saturday. Even though Sayers had information that "Ace" had been assaulting and threatening Stella, he did not attempt to find "Ace" and did not know "Ace's" real name. Sayers confirmed that none of the fingerprints taken from Stella's apartment were identified as Bridges's fingerprints and that no DNA evidence connected Bridges to the crime scene. Further, Bridges's fingerprints were not found in Stella's car after it was recovered. Sayers admitted the physical evidence did not match a story that Stella was fighting with Bridges. Sayers testified he believed Bridges's statement and that Bridges killed Stella. Vicki Hall, a trace evidence examiner for Southwestern Institute of Forensic Sciences (SWIFS) testified she examined samples taken from Stella's and Bridges's hands for GSR. There was no GSR on the samples taken from Bridges. Hall testified this means Bridges either did not fire a weapon, the weapon involved did not leave significant amounts of residue, or Bridges had wiped or washed his hands prior to the samples being taken. In Hall's opinion, it is essentially impossible to find GSR in a sample taken from a live person two days after the weapon was purportedly fired. The optimum time for taking a sample is within two hours of the weapon being fired. After six hours from the time the weapon was fired, the chances of finding GSR on a live person are remote. Hall found GSR on the samples taken from both Stella's right and left hand. This means Stella either fired a gun or had her hands close to a discharging weapon. A gun will usually deposit residue particles on an object within three feet of the end of the barrel or within two feet of the side of the barrel. Raymond Cooper, a firearm and tool mark examiner with SWIFS, testified a casing stamped "9-millimeter Luger" is typically fired from a nine millimeter caliber handgun. April Stowe testified she was a trace evidence examiner at SWIFS in 2008. She examined Stella's clothes for bullet defects. She found a bullet defect in the front of Stella's shirt and apparent bullet defects in the back of the shirt and in the jacket. She found lead, gunpowder, nitrate residue, and soot on the front of the shirt. In Stowe's opinion, soot will generally travel six inches, nitrate residue will travel three to five feet, and lead will travel eighteen inches. Stowe believed she could comfortably say the muzzle of the gun was less than eighteen inches from Stella's clothing when the shots were fired. Keith Pinkard, a medical examiner at SWIFS, testified Stella was shot twice, once in the head and once in the chest, and died from the wounds. Based on stippling on Stella's skin, Pinkard believes the gun was within a few feet of Stella when it was fired. The jury found Bridges guilty of murder, sentenced him to life imprisonment, and assessed a $10,000 fine. Bridges then brought this appeal. Sufficiency of the Evidence
In his first two issues, Bridges asserts the evidence is neither legally nor factually sufficient to support the conviction. Bridges specifically argues the evidence failed to establish that he intentionally or knowingly caused Stella's death. The Texas Court of Criminal Appeals has overruled its opinion in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), that had adopted a factual sufficiency standard in criminal cases. The court held that the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979) is now "the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Therefore, we will address Bridges's first two issues under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The jury was instructed it could find Bridges guilty of murder if it found that he intentionally or knowingly caused Stella's death by shooting her with a firearm. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). A person acts intentionally with respect to the result of his conduct when it is his conscious or objective desire to cause the result. Id. § 6.03(a). A person acts knowingly with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A culpable mental state is generally proved by circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978); Krause v. State, 243 S.W.3d 95, 111 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). A jury may infer intent from "circumstantial evidence such as acts, words, and the conduct" of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see also Jackson v. State, 115 S.W.3d 326, 329 (Tex. App.-Dallas 2003), aff'd, 160 S.W.3d 568 (Tex. Crim. App. 2005). A jury may also infer intent to cause death from the use of a deadly weapon in a deadly manner. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury may infer intent to kill from use of deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from use of weapon); Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (if deadly weapon used in deadly manner, inference is "almost conclusive" that defendant intended to kill); Jackson, 115 S.W.3d at 329. A handgun is a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2010). Bridges claims the evidence is insufficient to support the conviction because he told Sayers that he did not intend to kill Stella. However, Bridges stated he bought the gun because Stella and her family were threatening him and Hudson. He also said he had been involved in fights with Stella, that she had hit him and grabbed him, and that he pushed her on Thursday. Despite the threats and the physical altercations, Bridges brought a loaded gun to Stella's apartment on Friday. Bridges claimed that he and Stella started fighting when he tried to leave the apartment. Bridges said the gun "just went off" twice during the fight, and he did not intend to shoot Stella. However, both bullets hit Stella. Further, the physical evidence showed Stella was within eighteen inches of the gun when at least one of the bullets was fired. When a deadly weapon is fired at close range, and death results, the jury can infer an intent to kill. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (rational jury could infer intent to kill from, among other evidence, the distance from which defendant fired and the nature of injury inflicted); Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd), cert. denied, 131 S. Ct., 178 L.Ed.2d 94 (2010) ("When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill."). The jury was free to infer that Bridges intended to kill Stella when he a pointed gun at her at close range and the gun "went off" twice. Further, after shooting Stella, Bridges left the apartment complex in Stella's new car. He left the car running by the freeway and took the bus home. The jury could have inferred consciousness of guilt from Bridges's efforts to avoid apprehension shortly after the offense. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Gonzalez v. State, 296 S.W.3d 620, 626-27 (Tex. App.-El Paso 2009, pet. ref'd) ("The fact that A.C. shot Potts in the chest with a .22 and fled the scene with Appellant reinforces the notion that there was intent to kill."). Bridges argues the State's evidence is insufficient because it is based on his "coerced" confession. However, the jury viewed the video recording of Bridges's entire statement and was instructed in the charge that it could not consider the statement as evidence against Bridges unless it was "freely and voluntarily made without compulsion or persuasion." See Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (West 2005). The jury was the sole judge of the witnesses' credibility and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Isassi v. State, No. PD-1347-09, 2010 WL 3894792, at *3 (Tex. Crim. App. Oct. 6, 2010). We may not substitute our judgment for that of the jury. Id. We conclude there is sufficient evidence to support the conviction. We overrule Bridges's first and second issues. Admissibility of Statement
In his third and fourth issues, Bridges contends the trial court erred by denying his motion to suppress and admitting his oral statement into evidence because (1) the statement was obtained by Sayers's use of the "question-first" tactics condemned by the United State Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004), and (2) the statement was obtained by coercion and, therefore, was not given voluntarily by Bridges. Relevant Facts
In an omnibus pretrial motion, Bridges requested a sub rosa hearing to determine whether his statement was voluntary. At the pretrial hearing on the admissibility of the statement, Palmer testified that he responded to the crime scene and was asked to canvas a large number of onlookers and the nearby apartments for possible witnesses. Several women in the crowd suggested he speak to Stella's baby's father, Bridges. Someone in the crowd called Bridges and put the call on speaker phone. Palmer heard Bridges say the last time he saw Stella was the previous Tuesday. Several women in the group said that was a lie. Bridges agreed to come to the police station for an interview, but said he needed a ride. Palmer and another detective went to Bridges's apartment to pick him up. Palmer told Bridges and his girlfriend that Bridges did not need bus fare and that someone would take him home. Palmer also told Bridges that he was not under arrest, and Bridges was not handcuffed. According to Palmer, if Bridges had asked to leave, he would have been allowed to do so. Palmer stated the police normally interview the family members of the victim and he did not consider Bridges to be a suspect. At the police station, Palmer discussed with Sayers that Bridges needed a ride home Sayers testified Bridges was not handcuffed at the police station and was free to leave if he wanted to do so. Palmer told Sayers that Bridges was a witness. Further, other witnesses said Stella knew Bridges and was supposed to be with him before work on Friday. Sayers did not read Bridges his Miranda rights when Bridges arrived at the police station because Bridges was not a suspect. Sayers requested that Bridges take a GSR test and provide a buccal swab. Sayers testified that he was "going to cut [Bridges] loose" after the tests were completed, but became suspicious that Bridges might have had something to do with the murder when he became emotional and started to cry during the tests. Sayers then decided to question Bridges "a little bit more to figure what his emotion was about." After Bridges admitted he had seen Stella on Friday, Sayers advised Bridges of his Miranda rights. Bridges agreed to continue to talk to Sayers and confessed to shooting Stella. The trial court found Bridges's statement was voluntary. It also entered findings of fact and conclusions of law that (1) Bridges's statement was freely and voluntarily made and stemmed from a custodial interrogation; (2) prior to making the statement, Bridges did not request an attorney and did not assert his right to remain silent; (3) Bridges was not promised that the police would "go easy" on him if he cooperated and gave the statement; (4) the officers did not display their weapons during the questioning; (5) Bridges did not make the statement due to threats, compulsion, or coercion; (6) Bridges understood his constitutional and statutory rights prior to making the statement; and (7) Bridges freely, knowingly, and voluntarily waived his constitutional and statutory rights prior to making the statement. Standard of Review
We apply a bifurcated standard of review to the trial court's ruling on a motion to suppress evidence. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We do not engage in our own factual review; rather, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Valtierra, 310 S.W.3d at 447. We afford almost total deference to the trial court's rulings on (1) questions of historical facts, and (2) application of law to fact questions, also known as mixed questions of law and fact, that turn on an evaluation of credibility and demeanor. Hubert, 312 S.W.3d at 559; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of witnesses. Amador, 221 S.W.3d at 673. A trial court's ultimate determination of whether a defendant was in custody "presents a `mixed question of law and fact.'" Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). When, as here, the trial court makes findings of fact, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the trial court's legal conclusion de novo unless the explicit fact findings supported by the record are also dispositive of the legal conclusion. Id. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of the law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). Custodial Interrogation
The State may not use statements, 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. Miranda v. Arizona, 384 U.S. 436, 444, (1966); Wilkerson v. State, 173 S.W.3d 521, 526 (Tex. Crim. App. 2005). A defendant must generally be in custody before Miranda rights are triggered. See Miranda, 384 U.S. at 444, 478-79 (requirement that police advise person of rights prior to questioning applies if the person has been taken into custody or otherwise deprived of his freedom of action in any significant way); Herrera, 241 S.W.3d at 525-26. Bridges contends that he was in custody when he arrived at the police station, but was not immediately advised of his Miranda rights. Rather, after interviewing Bridges for a little over one hour, Sayers advised him of his rights. Bridges agreed to continue talking to Sayers and, shortly after being advised of his rights, admitted he shot Stella. Bridges asserts Sayers attempted to circumvent Miranda by using impermissible "question-first tactics" to obtain his confession. In Seibert, the Supreme Court considered whether statements made after the police give "midstream" warnings may be inadmissible. See Seibert, 542 U.S. at 604; see also Martinez v. State, 272 S.W.3d 615, 624 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 53, 175 L.Ed.2d 232 (2009). A "midstream warning" occurs when police begin a custodial interrogation without advising the suspect of his Miranda rights, obtain incriminating statements, and then continue questioning after administering warnings in order to re-elicit the incriminating statements,. Seibert, 542 U.S. at 604. A plurality of the court concluded that a deliberate police strategy of reciting a Miranda warning "midstream" did not comply effectively with Miranda's constitutional requirements because, given the proximity of time and similarity of content between the two confessions, the warning could not have afforded a reasonable person in the suspect's position the impression that she retained a choice about whether to continue to speak. Id. at 616-17; see also Carter v. State, 309 S.W.3d 31, 36-37 (Tex. Crim. App. 2010) . Seibert applies only if the officer obtained the first statement in violation of Miranda. See Ervin v. State, No. 01-08-00121-CR, 2010 WL 3212095, at *20 (Tex. App.-Houston [1st Dist.] Aug. 11, 2010, pet. ref'd) ("Because appellant's challenge [under Seibert] to the third statement is premised solely on the failure to give Miranda warnings before the first two statements were taken, a ground we have determined lacks validity because appellant was not in custody, we hold the trial court properly admitted the third statement by appellant."); United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 2006); see also Nunez v. State, No. 05-07-00620-CR, 2008 WL 2377276, at *8 (Tex. App.-Dallas Jun. 12, 2008, no pet.) (not designated for publication) ("Because appellant's first written statement was not the result of custodial interrogation, we conclude the `question-first tactics' denounced in Seibert do not apply to these facts. Seibert only applies if an officer obtained the first statements in violation of Miranda."). Accordingly, Seibert applies in this case only if Bridges was subject to custodial interrogation during the portion of the statement given prior to Sayers advising Bridges of his Miranda rights. See Ervin, 2010 WL 3212095, at *20; Courtney, 463 F.3d at 336; see also Nunez, 2008 WL 2377276, at *8. Custodial interrogation is 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. Miranda, 384 U.S. at 444; Gardner v. State, 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103, 178 L.Ed.2d 64 (2010) (appropriate inquiry for determination of custody is whether individual was formally arrested or had freedom of movement restrained to degree associated with formal arrest). "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) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). The "reasonable person" standard presupposes an innocent person. Id. At least four general situations may constitute custody for purposes of Miranda: (1) the suspect is physically deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he cannot leave, (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 and law enforcement officers do not tell the suspect that he is free to leave. Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255. Although an interrogation may begin as a non-custodial interrogation, police conduct during the questioning can cause the initially consensual encounter to escalate into custodial interrogation. Dowthitt, 931 S.W.2d at 255. The determination of whether a person is in custody is made on an ad hoc basis considering all the objective circumstances. Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert. denied, No. 10-6446 (U.S. Jan. 10, 2011) ; Herrera, 241 S.W.3d at 532. We then consider whether, given those circumstances, a reasonable person would believe he could not terminate the questioning and leave. Herrera, 241 S.W.3d at 532. The record as a whole must "clearly establish" the statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526 (quoting Wilkerson, 173 S.W.3d at 532). The defendant bears the initial burden of proving a statement was the product of custodial interrogation. Gardner, 306 S.W.3d at 294. Palmer testified the police normally interview the family members of the victim. Both Palmer and Sayers testified Bridges agreed to talk to the police at the police station. Bridges indicated he needed a ride to the police station, and Palmer offered to pick him up. Palmer told Bridges and Hodges that Bridges did not need bus fare because someone would take him home. Palmer told Bridges that he was not under arrest, and Bridges was not handcuffed during the trip to the police station. According to both Palmer and Sayers, Bridges was not a suspect when he arrived at the police station, was not in custody, and was free to leave if he requested to do so. Both Palmer and Sayers indicated to Bridges that someone would take him home. Ordinarily, when a person voluntarily accompanies an officer to a certain location, even though the person knows or should know the officer suspects he may have committed or may be implicated in the commission of a crime, the person is not restrained or in custody. Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1999); Garcia v. State, 237 S.W.3d 833, 836 (Tex. App.-Amarillo 2007, no pet.); see also Dowthitt, 931 S.W.2d at 254. Likewise, the mere fact questioning took place in a police station does not make it custodial. California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (concluding person not in custody when he voluntarily accompanied the police to the station, talked for less than thirty minutes, and was permitted to return home); Dowthitt, 931 S.W.2d at 255. Nothing in the circumstances surrounding the initial questioning of Bridges objectively demonstrates that a reasonable, innocent person would have considered his freedom of movement restrained to the degree associated with a formal arrest. See Douthitt, 931 S.W.2d at 255. The trial court determined Bridges's "oral statement was freely and voluntarily made and does stem from a custodial interrogation" by Sayers. However, the trial court did not specify whether the "oral statement" encompassed all or only part of the questioning. Reading the trial court's findings of fact and conclusions of law as a whole, it appears the trial court meant "oral statement" to refer to the incriminating statements made after Bridges was advised of his Miranda rights. However, we conclude that, to the extent the trial court determined Bridges was in custody from the beginning of the interview, that ruling is incorrect under the law. The question, therefore, is whether the trial court correctly determined the initial consensual encounter escalated into custodial interrogation. After some initial questioning about his relationship with Stella, Bridges consented to a GSR test and a buccal swab. Sayers intended to "cut Bridges loose" following the tests. However, Sayers became suspicious Bridges was involved in the murder when he became emotional during these tests. Sayers then decided to question Bridges further. After Bridges admitted he talked to Stella on Friday, Sayers advised Bridges of his Miranda rights. Bridges then admitted that he shot Stella. Because the admission established probable cause to arrest Bridges and a reasonable person in Bridges's position would have realized the incriminating nature of the admission, we conclude the record, viewed in the light most favorable to the trial court's ruling, supports a finding that "custodial interrogation" began immediately after Bridges admitted that he shot Stella. See Dowthitt, 931 S.W.2d at 257 (concluding custody began immediately after defendant's pivotal admission because it established probable cause to arrest defendant and a reasonable person in defendant's position would have realized the incriminating nature of the admission); Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. 1979) (suspect was in custody from moment he admitted shooting victim and subsequent statements were governed by Miranda). Bridges was not in custody at the beginning of the interview, and, therefore, Sayers was not required to initially advise Bridges of his Miranda rights. Before the consensual encounter escalated into a custodial interrogation, Sayers advised Bridges of his Miranda rights. Accordingly, there was no "midstream" warning to which Seibert might apply. We overrule Bridges's third issue. Coercive Tactics
Bridges also asserts his statement was not voluntary because Sayers used coercive interrogation techniques. Bridges specifically argues that Sayers "relentlessly pushed [Bridges] about being with the complainant on the alleged date of her death until [Bridges] ultimately confessed after more than an hour of questioning in the interrogation room." For purposes of due process, a statement is involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995), reversed on other grounds by Warner v. State, 245 S.W.3d 458, 463-64 (Tex. Crim. App. 2008); see also Davis v. State, 313 S.W.3d 317, 337 (Tex. Crim. App. 2010) ("Coercive government misconduct renders a confession involuntary if the defendant's `will has been overborne and his capacity for self-determination critically impaired.'" (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)). The fact finder must examine all of the circumstances, including the characteristics of the accused, the details of the interrogation, and the course of police conduct, in evaluating the voluntariness of a statement. Davis, 313 S.W.3d at 337; Carter, 309 S.W.3d at 41. Appellate courts "must give great deference `to the trial judge's decision to admit or exclude such evidence, which will be overturned on appeal only where a flagrant abuse of discretion is shown.'" Carter, 309 S.W.3d at 42 (quoting Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007)). Relevant circumstances for determining whether a defendant's will has been overborne include "length of detention, incommunicado or prolonged interrogation, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality." Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 n. 18 (Tex. Crim. App. 1988) (citations omitted). Statements that courts have found involuntary involve the crucial element of police overreaching and involve fact scenarios in which the suspect was subjected to threats, physical abuse, or extended periods of interrogation without rest or nourishment. Oursbourn v. State, 259 S.W.3d 159, 170-71 (Tex. Crim. App. 2008) (collecting cases). The Oursbourn court concluded that "due-process and Miranda claims of involuntariness generally do not require `sweeping inquiries into the state of mind of a criminal defendant who has confessed'"; rather, "[t]hey involve an objective assessment of police behavior." Id. at 171. In looking at the totality of the circumstances, we observe that Bridges (1) voluntarily came to the police station, (2) was provided water by Sayers, (3) was read his Miranda warnings prior to being subjected to custodial interrogation, (4) acknowledged his rights on the record, (5) agreed to continue speaking with Sayers, (6) was not handcuffed during the course of the interview, (7) was not threatened by Sayers or any other police officer, (8) was not prohibited from stopping the interview at any time, and (9) was questioned for less than ninety minutes before he confessed to shooting Stella. Further, the interrogation techniques employed by Sayers were not the type of "brutal `third-degree' techniques" that would render Bridges's statement to be involuntary. See Estrada, 313 S.W.3d at 297; Oursbourn, 259 S.W.3d at 170-71. Viewing the record in the light most favorable to the trial court's ruling, we conclude the trial court did not err by determining Bridges's statement was voluntary. We overrule Bridges's fourth issue. Exculpatory Evidence
In his fifth issue, Bridges argues the State's failure to disclose exculpatory evidence violated his right to due process and a fair trial under Brady v. Maryland, 373 U.S. 83 (1963). Bridges specifically asserts the State did not inform him until the close of its case-in-chief that Hudson had told the prosecutor that Bridges was at home for most of the day on Friday, January 18. Under Brady, the State has an affirmative duty to disclose evidence favorable and material to a defendant's guilt or punishment under the due process clause of the Fourteenth Amendment. Id. at 87. To establish a Brady violation, the defendant must show the State (1) failed to disclose evidence, regardless of the prosecution's good or bad faith, (2) the withheld evidence is favorable to him, and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Strickler v. Greene, 527 U.S. 263, 280-82 (1999); Webb v. State, 232 S.W.3d 109, 114 (Tex. Crim. App. 2007) (quoting Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)). However, Brady does not apply when the defendant is already aware of the exculpatory information. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989). "[T]here is no due process violation under circumstances in which the defendant himself already knew about the exculpatory facts." Ex parte Chavez, 213 S.W.3d 320, 325 (Tex. Crim. App. 2006). During the interview with Sayers, Bridges said he was "home" all day on Friday except when he went to fill out a job application. He also said his "girl" did not go to work all day because the baby was sick. He said, "She stayed home with [the baby]. We [were] there all day. . . . I didn't go out no more." Bridges identified Hudson as his "main girl" and stated he was living with Hudson in January 2008. To the extent these facts may reasonably be considered exculpatory, Bridges was aware of the facts. Consequently, there was no Brady violation. See id. We overrule Bridges's fifth issue. Lesser Included Offense Instructions
In his sixth issue, Bridges complains the trial court erred by failing to submit instructions in the jury charge on the lesser included offenses of manslaughter and criminally negligent homicide. Bridges asserts he was entitled to an instruction on manslaughter and criminally negligent homicide because he told Sayers that he did not shoot Stella "on purpose" and the gun "just went off." Bridges further argues the forensic evidence established the gun was in close proximity to Stella when she was shot and, therefore, corroborates the claim that Stella was shot accidently during a struggle. A defendant is entitled to a lesser included offense instruction if the lesser included offense is included within the proof necessary to establish the charged offense and there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser included offense. Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015, 175 L.Ed.2d 622 (2009); see also Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (West 2006); Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). The State does not contest that, as charged in this case, manslaughter and criminally negligent homicide are lesser included offenses of murder. See Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000) (noting that manslaughter and criminally negligent homicide are lesser included offenses of capital murder). Therefore, we must determine whether there is some evidence in the record that would permit the jury to find that if Bridges is guilty, he is guilty only of manslaughter or criminally negligent homicide. In other words, there must be some evidence from which a jury could rationally acquit Bridges of the greater offense while convicting him of the lesser included offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). The evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Hall, 225 S.W.3d at 536. The essential difference between murder and either manslaughter or criminally negligent homicide is the culpable mental state required for each offense. Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (murder and involuntary manslaughter); Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (murder and criminally negligent homicide). A person is guilty of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1). In contrast, manslaughter is defined as recklessly causing the death of an individual, Id. § 19.04(a), while criminally negligent homicide requires a person to cause the death of an individual by criminal negligence. Id. § 19.05(a). Accordingly, Bridges was entitled to an instruction on manslaughter if there is some evidence from which a rational jury could find that he only consciously disregarded the substantial and unjustifiable risk that his conduct would cause Stella's death. He was entitled to an instruction on criminally negligent homicide if there was some evidence from which a rational jury could find that he only should have been aware of a substantial and unjustifiable risk that Stella's death would occur. Bridges asserts his statements that he did not shoot Stella on purpose and the gun "just went off" is evidence that he is guilty only of a lesser included offense, and not of murder. Bridges's denial that he intended to kill Stella does not, in light of the other evidence of Bridges's intent to kill, raise the issue of either manslaughter or criminally negligent homicide. See Cardenas, 30 S.W.3d at 393. To the contrary, Bridges stated he bought the gun because Stella and her family were threatening him and Hodges. Although Bridges had been involved in physical altercations with Stella, he went to her apartment with the loaded gun. Bridges shot Stella twice within close range. See Jones, 944 S.W.2d at 647 (jury may infer intent to kill from use of deadly weapon unless it would not be reasonable to infer that death or serious bodily injury would result from use of weapon); Wilkerson, 881 S.W.2d at 324 (rational jury could infer intent to kill from, among other evidence, the distance from which defendant fired and the nature of injury inflicted); Adanandus, 866 S.W.2d at 215 (if deadly weapon used in deadly manner, inference is "almost conclusive" that defendant intended to kill). He then took Stella's car in an attempt to avoid apprehension. See Bigby, 892 S.W.2d at 883; Gonzalez, 296 S.W.3d at 626-27. Given the state of the entire record, Bridges's statements that he did not intend to kill Stella do not constitute evidence upon which a jury could rationally find that his actions were merely reckless or criminally negligent. See Mathis, 67 S.W.3d at 926; Cardenas, 30 S.W.3d at 393. Accordingly, the trial court did not err by failing to instruct the jury on the lesser included offenses of manslaughter and criminally negligent homicide. We overrule Bridges's sixth issue. We affirm the trial court's judgment.