Opinion
No. 05-03-00696-CR
Opinion issued July 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th District Court, Collin County, Texas, Trial Court Cause No. 219-80695-02. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Samuel Silva appeals his aggravated sexual assault conviction. A jury convicted appellant and sentenced him to twenty-four years' confinement. In a single point of error, appellant argues the trial court erred in admitting evidence of his inculpatory statement that did not satisfy the requirements of article 38.22 of the code of criminal procedure. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. The twelve-year-old complainant, A.L., told her mother appellant had been making her have sex with him. Appellant was arrested on charges of aggravated sexual assault, but he denied the charges. While appellant was out on bond, Collin County sheriff's deputy Tony Bradley arranged an interview between appellant and Secret Service Special Agent Richard Hudson. During the interview with Hudson, appellant admitted he woke up in the night with his erect penis inside A.L.'s vagina as she was on top of him. Appellant also admitted A.L. could have placed her breast in his mouth as he lay in bed sleeping. The trial court admitted appellant's statements into evidence. A jury convicted appellant of aggravated sexual assault, and this appeal followed. In a single point of error, appellant argues the trial court erred in admitting his statements relating to the sexual encounter with A.L. Specifically, appellant complains the statements were the result of custodial interrogation and the police did not follow any of the strictures imposed by article 38.22 of the code of criminal procedure, rendering the statements inadmissible. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004). For article 38.22 to apply, a suspect must be subject to "custodial interrogation." See id. §§ 2, 3. 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 formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). The determination of custody must be made on an ad hoc basis after considering all of the objective circumstances. Id. At 255. Stationhouse questioning does not, in and of itself, constitute custody. Id. Also, a person is not in custody simply because he responds to a police invitation and voluntarily attends and leaves. See California v. Beheler, 463 U.S. 1121 (1983). Here, police invited appellant to come to the Collin County Children's Advocacy Center. Appellant was out of jail on bond at the time. Appellant was told he was free to stop the interview and leave at any time. Appellant was not threatened, restrained by handcuffs, or placed under arrest. Appellant voluntarily walked in to the interview and understood he was free to leave. Appellant's attorney agreed to the interview. During the interview, appellant admitted to the sexual encounter with A.L. When appellant requested an attorney, the interview was terminated, and appellant left of his own volition. Under these circumstances, we conclude appellant was not in "custody" at the time he made his statements, and article 38.22, therefore, did not bar the admission of those statements. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004); Cerda v. State, 10 S.W.3d 748, (Tex.App.-Corpus Christi 2000, no pet.) (defendant's testimony before grand jury while out on bond not made while in "custody" and not subject to article 38.22); Cagle v. State, 23 S.W.3d 590, 592 (Tex.App.-Fort Worth 2000, pet. ref'd) (defendant not subjected to "custodial interrogation" where defendant not forced to come to Child Protective Services office, not placed under arrest, told he could leave at any time, and did freely leave office after meeting). We overrule appellant's single point of error. We affirm the trial court's judgment.