                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00347-CR


                      JUAN LUIS VALENZUELA JIMENEZ, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 31st District Court
                                      Hemphill County, Texas
                   Trial Court No. 2902, Honorable Steven Ray Emmert, Presiding

                                            July 17, 2014

                                 MEMORANDUM OPINION
                       Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant was indicted and convicted of fraudulent use or possession of

identifying information and sentenced to confinement for one year in a State Jail Facility

(SJF) and a fine of $5,000.1 Appellant appeals his conviction, contending that the trial

court committed reversible error when it admitted appellant’s statement in evidence.

We will affirm.




       1
           See TEX. PENAL CODE ANN. § 32.51(b)(1), (c) (West Supp. 2013).
                           Factual and Procedural Background


       Appellant obtained employment at King Well Service in Canadian, Texas, under

the name of Victor Maitland. Later, the Texas Workforce Commission contacted the

true Victor Maitland to advise him that their records indicated that, while he was drawing

unemployment compensation, he was actually employed by King Well Service. After

Maitland contacted King Well Service and verified that it had an employee by the name

of Victor Maitland, Maitland called the Hemphill County Sheriff’s Department to advise

that he thought he was a victim of identification theft.


       After receiving Maitland’s phone call, Deputy Jerri-Lynn Ortega contacted King

Well Service and was provided copies of a social security card and permanent resident

card that appellant had given King Well Service when he was hired. The name on the

card was Victor Maitland.      Jerri-Lynn Ortega was informed that appellant was not

entirely fluent in English. Based upon this information, prior to going to appellant’s

home to question him, Jerri-Lynn Ortega sought the assistance of Deputy Oscar Ortega,

who is a Spanish speaker.


       Upon arriving at appellant’s residence, Jerri-Lynn Ortega ask to see appellant’s

identification and was shown a driver’s license issued by the State of Chihuahua,

Mexico, that identified appellant as Juan Luis Valenzuela Jimenez. Appellant told the

deputies that he was not employed.           Jerri-Lynn Ortega then attempted to show

appellant the social security card and permanent resident card obtained from King Well

Service and ask him about his employment at King Well Service; however, appellant

appeared not to understand the question. When asked about employment in Spanish



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by Oscar Ortega, appellant admitted that he was employed by King Well Service and

showed them the original of the social security card and permanent resident card under

the name of Victor Maitland. Further, appellant admitted to purchasing the identification

documents at issue for $1,000 in Amarillo.


       Per the deputies’ request, appellant then accompanied the two deputies back to

the sheriff’s office to provide a statement. It was while at the sheriff’s office that the

statement, which is the subject of appellant’s issue, was obtained.           Appellant was

indicted for the subject offense and, prior to trial, appellant filed a motion in limine as to

“Evidence of Defendant’s Statement.” Even though the pending motion was styled as a

motion in limine, the record is clear that the attorneys for each of the parties and the trial

judge treated the motion as a motion to suppress the statement.              The trial court

conducted a hearing on the motion and denied the motion. Thereafter, the case went to

trial and resulted in the conviction and sentence that appellant now appeals.


                                    Standard of Review


       We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

We review the trial court’s factual findings for an abuse of discretion but review the trial

court’s application of the law to the facts de novo. Id. In reviewing the trial court’s

decision, we do not engage in our own factual review; rather, the trial judge is the sole

trier of fact and judge of the credibility of the witnesses and the weight to be given their

testimony.    St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

Therefore, we give almost total deference to the trial court’s rulings on (1) questions of



                                              3
historical fact, especially when based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate

courts review de novo “mixed questions of law and fact” that do not depend upon

credibility and demeanor. Id. If the trial court’s decision is correct under any theory of

law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the

totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v.

State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.).


                                          Analysis


       In a single issue, appellant contends that the trial court erred in admitting

appellant’s written statement into evidence. However, before we may take up the direct

question of that statement’s admissibility, we must address the State’s question of

whether this issue has been properly preserved for appeal.


       It is a settled principle of Texas jurisprudence that, to be allowed to complain on

appeal about the action of a trial court in admitting evidence, there must be a timely

request, complaint, or motion that advises the trial court what action you wish it to take.

See TEX. R. APP. P. 33.1(a)(1). Additionally, it is also well settled that a motion in limine

does not preserve for appeal the erroneous admission of evidence. See Roberts v.

State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Martinez v. State, 98 S.W.3d 189,

193 (Tex. Crim. App. 2003).




                                             4
       The motion filed by appellant is styled a motion in limine. However, a review of

the record reveals that all parties and the trial court conducted the pre-trial hearing as a

hearing on a motion to suppress appellant’s statement. Specifically, at the beginning of

the hearing, we see an exchange between the trial court and the State’s attorney

wherein the State’s attorney agreed that the court would treat appellant’s motion as a

motion to suppress. Accordingly, the State proceeded to produce evidence to show that

the statement should not be suppressed. From this record, it is clear that the document

styled as a motion in limine was treated as a motion to suppress. We will analyze the

case accordingly. See Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App.

2013) (holding that the nature of a “no objection” statement is contextually dependent).

The State’s contention is overruled.


                                         Analysis


       Appellant’s complaint is centered on the proposition that, during the taking of his

written statement, he was in custody. This then leads to appellant’s conclusion that his

Fifth Amendment privilege against self-incrimination was violated. See U.S. CONST.

amend. V.     However, the issue regarding whether the procedure followed by law

enforcement was proper in this case cannot be determined by simply alleging that

appellant did not understand the statement he gave because of language difficulties.

Rather, we must first address the issue of whether appellant was in custody. See

Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007).


       Custodial interrogation has been defined as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived



                                             5
of his freedom of action in any significant way.” See id. at 525 (quoting Miranda v.

Arizona, 384 U.S. 384, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). We apply a

reasonable person standard to a determination of whether a person is in custody; that is

to say, would a reasonable person believe that his freedom of movement was restrained

to the degree associated with a formal arrest? See id. (citing Dowthitt v. State, 931

S.W.2d 244, 254 (Tex. Crim. App. 1996)). This custody inquiry includes an examination

of all objective circumstances surrounding the questioning. See id. (citing Stansbury v.

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)).


      When reviewing a trial court’s custody determination, we are reviewing a mixed

question of law and fact. Id. at 526. We afford almost total deference to a court’s

custody determination that is dependent upon the historical facts that turn on the issues

of credibility and demeanor. Id. at 526-27.


      The facts, as demonstrated in the record, are as follows:


   1) Appellant was initially questioned at his home after he was read his
      statutory warnings.

   2) Appellant was never handcuffed nor otherwise told he was under arrest at
      his home.

   3) The deputies testified that they asked appellant if he would voluntarily go
      with them to the Sheriff’s office and give a formal statement.

   4) Appellant was not handcuffed or otherwise restrained on the drive to the
      Sheriff’s office. Appellant was seated in the front seat of the Sheriff’s car
      next to one of the deputies.

   5) At the Sheriff’s office, appellant again had his statutory warnings given to
      him.

   6) Appellant was never handcuffed or otherwise restrained during the taking
      of his written statement.

                                              6
   7) At the conclusion of giving his written statement, appellant was not
      arrested or further detained; instead, he was taken home.

         The trial court was not requested to file findings of fact and conclusions of law,

and, accordingly, there are none in the record. We are directed to assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are

supported by the record. Id. at 527 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000) (en banc)).


         Based upon our review of the record, we find that when the reasonable person

standard is applied to the facts of appellant’s case, appellant was not in custody at the

time he gave his written statement. See id. at 525 (citing Dowthitt, 931 S.W.2d at 254.)

Inasmuch as appellant was not in custody at the time his statement was taken, the trial

court did not err in denying appellant’s motion and admitting the statement into evidence

before the jury. Appellant’s issue to the contrary is overruled.


                                        Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.




                                                  Mackey K. Hancock
                                                      Justice


Do not publish.




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