Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00291-CR
The STATE of Texas,
Appellant
v.
Richard Michael DONOHOO,
Appellee
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. 453259
Honorable Celeste Brown, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 22, 2016
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
The State charged Richard Michael Donohoo with operating a motor vehicle in a public
place while intoxicated with a blood-alcohol concentration of 0.15 or higher. Donohoo filed a
motion to suppress, alleging he was arrested without a warrant in violation of article 14.01 of the
Texas Code of Criminal Procedure and was thereafter subjected to “custodial interrogation without
proper Miranda warnings, field sobriety testing, transport to the Magistrate’s Office for intoxilyzer
testing, and follow-up booking procedures.” After a hearing, the trial court granted Donohoo’s
motion “in all respects.” The trial court’s order incorporated by reference its oral findings of fact
04-15-00291-CR
and conclusions of law from the hearing. We abated the case for the trial court to make additional
findings of fact and conclusions of law. We affirm the trial court’s order in part and reverse and
remand in part.
BACKGROUND
We summarize the trial court’s findings of fact and conclusions of law as follows: Around
8:45 p.m. on March 9, 2014, officers of the San Antonio Police Department received a call that a
vehicle had struck a light pole. The unidentified caller stated she followed the car to an apartment
complex located on Huebner Road. The caller did not give a description of the driver, speak to the
officers conducting the investigation, or maintain a view of the vehicle once it entered the gated
apartment complex. Approximately forty-five minutes elapsed between the time the accident was
reported and the time the police officers made contact with Donohoo.
Officer Madiano knocked on Donohoo’s apartment front door and, upon Donohoo opening
it, Officer Madiano told Donohoo his car was about to be towed. Donohoo, “after being coerced
outside under the guise of the vehicle not having a handicap placard, admit[ted] to driving a couple
of hours prior.” Donohoo stated the damage to his vehicle occurred two weeks prior and that he
was unaware of any new damage. Officer Madiano asked Donohoo to come outside and Donohoo
“request[ed] to put pants on.” Donohoo stated he did not remember hitting anything with his car.
After Donohoo left his home, the officers showed him the damage to his car. Donohoo asked to
go back inside less than three minutes after he was “told” to go outside. Officer Madiano told
Donohoo, “No, I want you to stay out here ‘for a sec,’ and look at the damages a while.” Officer
Madiano then called Officer Travis Gourley to come and conduct field sobriety tests.
Officer Gourley testified that Donohoo’s disorderly clothing was a clue of intoxication, but
Donohoo had asked to put on clothes after being awakened and asked to leave his home. Donohoo
stated he was tired. Officer Gourley conducted the Horizontal Gaze Nystagmus test and asked
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several questions “designed to elicit incriminating responses.” Donohoo admitted he drank three
beverages from 5:00 to 8:30 p.m. He also admitted he drove his vehicle, but stated he was not
aware of any accident occurring that night. Following the field sobriety test, Donohoo was placed
under arrest.
The trial court concluded Donohoo’s home was not a “suspicious place” under Texas Code
of Criminal Procedure article 14.03(a)(1)’s exception to the warrant requirement for an arrest. It
further “conclude[d] that Donohoo was detained when he was asked to leave his home.” When
Donohoo was detained, the officers lacked reasonable suspicion to support a detention for driving
while intoxicated. Donohoo was never informed that he was free to leave and “in fact, he was told
the opposite.” “[Donohoo] was clearly detained at the point he leaves his home. He requested to
return to his home and was denied that request. A reasonable person would not believe they were
free to leave when an officer says ‘No, I want you to stay here . . . .’” The presence of four police
officers at various points throughout the interaction with Donohoo would cause a reasonable
person to believe his freedom of movement had been restricted.
The trial court further concluded Donohoo’s statements were not voluntarily made under
voluntary conditions. In addressing whether Donohoo was in custody, the trial court concluded
that a reasonable person would not have felt free to leave because (1) Donohoo was detained when
he left his home; (2) the officers prohibited Donohoo from going back into his home, and (3) four
officers were present throughout the interaction with Donohoo. The trial court found Donohoo was
not given his Miranda warnings until he was informed he was under arrest at 10:32:50 p.m.
The trial court clarified that its order suppresses “the officers’ testimony, the video, and the
results of the Standardized Field Sobriety Test.” To understand what evidence was suppressed, we
reviewed the record to discern what “video” the trial court referred to in its findings of fact and
conclusions of law. The record contains three electronic files on which there are audio-video
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recordings from the time that the officers first arrived at the apartment complex until after Donohoo
was handcuffed and informed he was under arrest. The three files contained audio-video
recordings of different parts of the officers’ interactions with Donohoo.
The first audio-video file contains an audio recording of a discussion when the two officers
went to Donohoo’s home, but the officers and Donohoo cannot be seen in the video. Before
Donohoo stated he would come outside, the two officers talked to Donohoo about whether he was
drinking and driving earlier that evening. Donohoo then left his home and the officers showed
Donohoo the damage to the side of his vehicle. Donohoo and one of the officers had another
conversation about whether Donohoo was drinking and driving earlier that evening. When an
officer asked for his identification, Donohoo asked to go back inside. The officer then stated, “No,
I want you to stay out here ‘for a sec,’ and look at the damages a while.” An officer and Donohoo
continued to discuss whether Donohoo was drinking and driving. The audio on the first file was
then muted.
On the second audio-video file, an officer and Donohoo can be seen standing in the parking
lot. Donohoo stated he was cold. When an officer asked Donohoo if he wanted to get a jacket,
Donohoo invited the officers into his home where they continued their conversation. Two more
officers, including Officer Gourley, arrived and Donohoo and the other two officers came out to
the parking lot. The audio on the second file was then muted. The third file shows Donohoo coming
out of his home with an officer. Officer Gourley and Donohoo discussed what happened earlier
that evening and whether Donohoo was drinking and driving. Officer Gourley then conducted a
horizontal-gaze-nystagmus (HGN) test. Officer Gourley told Donohoo that he believed Donohoo
was drinking and driving, informed Donohoo that he was placing him under arrest, and then placed
handcuffs on Donohoo. Donohoo was thereafter given his Miranda warnings. The third audio-
video file continues for approximately forty more minutes.
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The State appeals, arguing the trial court erred by granting Donohoo’s motion to suppress.
The State supplemented its briefing to address the trial court’s additional findings and conclusions
regarding whether and when Donohoo was in custody under Miranda v. Arizona, 384 U.S. 436
(1966).
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress under a bifurcated standard.
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review a trial court’s
conclusions of law de novo. Id. at 328. If a trial court’s fact findings are supported by the record
or are based on evaluation of witness credibility and demeanor, we should afford them almost total
deference. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). “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.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court “is
entitled to believe or disbelieve all or part of the witness’s testimony—even if that testimony is
uncontroverted—because he has the opportunity to observe the witness’s demeanor and
appearance.” Id. “If the trial judge makes express findings of fact, we view the evidence in the
light most favorable to his ruling and determine whether the evidence supports these factual
findings.” Id. “We will sustain the trial court’s ruling if that ruling is ‘reasonably supported by the
record and is correct on any theory of law applicable to the case.’” Id. at 447-48 (quoting State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). However, we cannot blind ourselves to
indisputable facts shown by video recordings that contradict the trial court’s findings. See
Carmouche, 10 S.W.3d at 332.
ANALYSIS
The trial court concluded Donohoo was detained without reasonable suspicion “when he
was asked to leave his home.” The trial court also concluded that the interaction became a custodial
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interrogation without proper Miranda warnings when his request to go back inside his home was
denied and when four officers were present. The trial court also concluded that Donohoo was
unlawfully arrested without a warrant after the HGN test because the officers lacked probable
cause and Donohoo was not found in a “suspicious place.”
The State contends the officers’ encounter with Donohoo was consensual and,
alternatively, the officers had reasonable suspicion to detain Donohoo. The State also argues the
officers had probable cause to arrest Donohoo and that article 14.01’s “suspicious place” exception
to the prohibition against warrantless arrests applies in this case. In its supplemental briefing, the
State contends Donohoo was not in custody for purposes of Miranda.
A. Police–Citizen Interactions under the Fourth Amendment
“There are three distinct types of police-citizen interactions: (1) consensual encounters that
do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment
seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal
activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only
if supported by probable cause.” Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013).
“Which type of encounter exists under a given set of historical facts is a question of law that is
reviewed de novo.” Melendez v. State, 467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no
pet.) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).
“Police officers are as free as any other citizen to knock on someone’s door and ask to talk
with them.” Garcia-Cantu, 253 S.W.3d at 243. “Such consensual encounters may be
uncomfortable for a citizen, but they are not Fourth Amendment seizures.” Wade, 422 S.W.3d at
667 (footnote omitted). A consensual encounter becomes a detention when an officer “by means
of physical force or show of authority, has in some way restrained the liberty of a citizen.” Garcia-
Cantu, 253 S.W.3d at 242. “It is the display of official authority and the implication that this
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authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure.
At bottom, the issue is whether the surroundings and the words or actions of the officer and his
associates communicate the message of ‘We Who Must Be Obeyed.’” Id. at 243. “Courts must
take into account the totality of the circumstances of the interaction to decide whether a reasonable
person would have felt free to ignore the police officer’s request or terminate the consensual
encounter.” Wade, 422 S.W.3d at 667.
The trial court “found” Donohoo was “coerced outside” when he was told that his car was
about to be towed for not having a handicap placard. Although the trial court and the dissent
characterize this determination as a “finding” of fact, whether an encounter is “coerced” (i.e. not
consensual) and amounts to an investigative detention involves an application of law to facts, and
is not a question of fact. Garcia-Cantu, 253 S.W.3d at 241. It is a legal conclusion as to the type
of encounter that existed under the historical facts found by the trial court. See Melendez, 467
S.W.3d at 592. We therefore review the trial court’s legal conclusion that Donohoo was “coerced
outside” de novo and afford it no deference. See Garcia-Cantu, 253 S.W.3d at 241; Meadoux v.
State, 307 S.W.3d 401, 407 (Tex. App.—San Antonio 2009), aff’d, 325 S.W.3d 189 (Tex. Crim.
App. 2010).
Although the trial court found that two officers went to Donohoo’s door and Donohoo was
“asked to come outside,” the audio-video recordings show that an officer knocked on Donohoo’s
door or window and told him his car was about to be towed. 1 Before Donohoo said he would come
outside, Donohoo told the officers he had been drinking, he owned the Lincoln car that was parked
in a handicap spot without a handicap placard and had driven that evening, and his car had
sustained damage to its right side two weeks prior to that evening. One of the officers told Donohoo
1
Although the dissent characterizes the officer’s statements as a “threat” that the officers would tow Donohoo’s car
if he did not come outside, the trial court did not make this finding.
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he could smell alcohol on his breath. After Donohoo was informed there was “fresh damage” along
the left side of this vehicle, Donohoo informed the officers he would put on some pants and come
outside. The trial court’s findings that around 9:30 p.m., Officer Madiano came to Donohoo’s
home with another officer, repeatedly knocked on Donohoo’s door, and told Donohoo that his car
was about to be towed, are supported by the record.
But before Donohoo left his apartment, the officers had not commanded Donohoo under
their official authority to leave his home or otherwise restrained his liberty. See Garcia-Cantu, 253
S.W.3d at 242. There was no display of official authority implying that Donohoo could not have
ignored the officer’s statement that his car was about to be towed and terminated his encounter
with the officers. See id. at 243; see also Lopez v. State, No. 04-13-00300-CR, 2014 WL 5353627,
at *5 (Tex. App.—San Antonio Oct. 22, 2014, pet. ref’d) (mem. op., not designated for publication)
(holding five minutes of continuous knocking in the middle of the night might be annoying, but is
not a “display of official authority”). Applying the law to the historical facts found by the trial
court, we hold Donohoo was not detained when he left his home. 2
B. Custodial Interrogation under the Fifth Amendment
Under the Fifth Amendment, statements made by a suspect during a custodial interrogation
are inadmissible unless certain warnings were given to the suspect before he makes those
statements. Miranda, 384 U.S. at 444-45. Article 38.22 of the Texas Code of Criminal Procedure
also requires the suppression of statements made during a custodial interrogation unless certain
statutorily prescribed warnings are given. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp.
2015); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). “Thus, the concerns raised
by failing to comply with Miranda only arise when the individual is subject to both (1) custody by
2
We need not address the State’s alternative argument that if Donohoo was detained when he left his home, the
officers had reasonable suspicion. See TEX. R. APP. P. 47.1.
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a law enforcement officer and (2) an interrogation.” Martinez-Hernandez v. State, 468 S.W.3d
748, 757 (Tex. App.—San Antonio 2015, no pet.).
With regard to the trial court’s conclusion regarding Miranda and article 38.22, the State
argues that Donohoo was not in custody. A person may be in custody in at least four general
situations:
(1) when the suspect is physically deprived of his freedom in any significant way,
(2) when a law enforcement officer tells the suspect he cannot leave, (3) when law
enforcement officers create a situation that would lead a reasonable person to
believe 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
he is free to leave.
Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). “The determination of custody
must be made on an ad hoc basis, after considering all of the (objective) circumstances.” Id. “When
making custody determinations, Texas courts have also considered whether: (1) the officer was
conducting an investigation; (2) the suspect was handcuffed; (3) the officers used weapons to
detain the suspect; (4) police outnumbered the individuals detained; (5) threatening language was
used; (6) the suspect was transported to another location; (7) the suspect’s [movement] was
blocked; and (8) physical force was used.” Estrada v. State, No. 04-12-00136-CR, 2012 WL
6720655, at *3 (Tex. App.—San Antonio Dec. 28, 2012) (mem. op., not designated for
publication), aff’d, PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014) (not
designated for publication). If a person voluntarily agrees to accompany law enforcement officers
to a different location to answer questions about an incident, the person is not in custody. Martinez-
Hernandez, 468 S.W.3d at 758.
The trial court concluded Donohoo was in custody before he was formally arrested on the
basis of its findings that an officer denied Donohoo’s request to go back inside his home; Donohoo
was being asked questions designed to illicit incriminating responses; and four officers were
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present. These findings are supported by the record. However, the audio-video recordings show
that Donohoo did not have his identification on his person and asked to go back inside in response
to an officer’s request to see it; an officer permitted Donohoo to go back into his home to get a
jacket because Donohoo stated he was cold; and Donohoo then invited the officers to come inside
his home. The audio-video recordings also establish that before Donohoo was placed under arrest,
Donohoo had not been handcuffed, the officers had not exhibited weapons or used threatening
language, Donohoo had not been involuntarily transported to another location, Donohoo’s
movement had not been blocked, and the officers had not used physical force. See Estrada, 2012
WL 6720655, at *3. We hold, under these circumstances, Donohoo was not in custody before
Officer Gourley placed Donohoo under arrest for driving while intoxicated.
“SUSPICIOUS PLACES”
The State contends the trial court erred by concluding Donohoo’s home was not a
“suspicious place” under article 14.03 of the Texas Code of Criminal Procedure. Article
14.03(a)(1) permits peace officers to make warrantless arrests of “persons found in suspicious
places and under circumstances which reasonably show that such persons have been guilty of some
. . . breach of the peace.” TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015). 3 The
Court of Criminal Appeals has construed this exception to the warrant requirement as coterminous
with the “exigent circumstances” doctrine under the Fourth Amendment. See Swain v. State, 181
S.W.3d 359, 366 (Tex. Crim. App. 2005). Thus, article 14.03(a)(1) authorizes a warrantless arrest
only if the arresting officer has probable cause “and exigent circumstances call for immediate
action or detention by police.” Id.
3
We note that “driving while intoxicated is a breach of the peace.” Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim.
App. 2004).
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The State’s only argument that exigent circumstances called for Donohoo’s immediate
arrest was “the need to obtain [Donohoo’s] blood-alcohol level created an exigency that called for
immediate detention by the police.” 4 The Supreme Court of the United States has held that the
natural dissipation of alcohol in a suspect’s body does not present “a per se exigency that justifies
an exception to the Fourth Amendment’s warrant requirement.” Missouri v. McNeely, 133 S. Ct.
1552, 1556 (2013). If the “warrant process will not significantly increase the delay before the blood
test is conducted because an officer can take steps to secure a warrant while the suspect is being
transported to a medical facility by another officer,” then “there would be no plausible justification
for an exception to the warrant requirement.” Id. at 1561. During cross-examination, Officer
Gourley testified he arrested Donohoo because he had probable cause and did not need further
justification. Officer Gourley further admitted he did not know how to obtain an arrest warrant
because he had only filled out requests for search warrants to draw blood. Therefore, McNeely
forecloses the State’s position. See id. at 1556-61. We hold article 14.03(a)(1) did not authorize
Officer Gourley to arrest Donohoo without a warrant. See Swain, 181 S.W.3d at 366.
CONCLUSION
We affirm the trial court’s order suppressing all evidence obtained after Officer Gourley
placed Donohoo under arrest. We reverse the trial court’s order suppressing evidence obtained
before Officer Gourley formally placed Donohoo under arrest. We remand the case to the trial
court for further proceedings consistent with this opinion.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
4
The State does not argue that any other exigency justified bypassing the Fourth Amendment’s warrant requirement.
See TEX. R. APP. P. 38.1(i), 47.1.
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State v. Richard Michael Donohoo
Combined Opinion