ACCEPTED
01-14-00248-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/25/2015 2:47:58 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00248-CR
________________________________________
FILED IN
1st COURT OF APPEALS
In the HOUSTON, TEXAS
Court of Appeals 6/25/2015 2:47:58 PM
For the CHRISTOPHER A. PRINE
First District of Texas Clerk
At Houston
________________________________________
On appeal from the County Criminal Court at Law No. 5 of
Harris County, Texas
No. 1861254
________________________________________
BRADY CRAIG KOCH, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
BRIEF FOR APPELLANT
Emily Detoto Megan E. Smith
State Bar No.: 00797876 State Bar No.: 24076196
917 Franklin, 4th Floor 917 Franklin, Suite 310
Houston, Texas 77002 Houston, Texas 77002
Telephone: (713) 227-2244 Telephone: (713) 899-5438
Facsimile: (713) 222-5840 Facsimile: (713) 527-2749
emilydetoto@mac.com megan@megansmithlaw.com
Counsel for Appellant Counsel for Appellant
ORAL ARGUMENT REQUESTED
Identity of Parties and Counsel
Appellate Counsel for Appellant, Mr. Brady Craig Koch, Jr.
Ms. Emily Detoto
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840
emilydetoto@mac.com
Ms. Megan E. Smith
State Bar No. 24076196
917 Franklin, Suite 310
Houston, Texas 77002
Telephone: (713) 899-5438
Facsimile: (713) 527-2749
megan@megansmithlaw.com
Appellate Counsel for Appellee, The State of Texas
Ms. Devon Anderson
District Attorney
Mr. Alan Curry, Assistant—Appeal
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800
Trial Counsel for Appellant, Mr. Brady Craig Koch, Jr.
Ms. Emily Detoto
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840
ii
Mr. Jay Cohen
State Bar No.: 24069528
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 225-1900
Trial Counsel for Appellee, The State of Texas
Ms. Devon Anderson
District Attorney
Ms. Nicole L. Clark
State Bar No.: 24072958
Mr. Seth C. Gagliardi
State Bar No.: 24073207
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800
iii
Table of Contents
Page(s)
Identity of Parties and Counsel…………………………………………………ii
Index of Authorities……………………………………………………………vi
Statement of the Case……………………………………………………………1
Issue Presented…………………………………………………………………..1
Statement of Facts……………………………………………………………….1
Summary of the Argument……………………..………………………………..5
Argument………………………………………………………………………...5
Issue Number One…………………………………………………………….....5
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING MR. KOCH’S MOTION TO SUPPRESS.
A. Standard of Review………………………………….................................5
B. Mr. Koch’s Statements to Officer Corral are Inadmissible as They Were
Obtained in Violation of Miranda………………………………………..6
a. Failure to Give Miranda Warnings Renders Oral Statements
Inadmissible……………………………………………………….6
b. Mr. Koch was in Custody When Officer Corral Questioned him….8
C. The Trial Court’s Failure to Suppress Mr. Koch’s Incriminating
Statements Contributed to his Conviction…………………..…………...14
D. Conclusion……………………………………………………………….16
Prayer………………………..……………..………………………………..….16
iv
Certificate of Service…………………………………………………..……….17
Certificate of Compliance………………………………………………………17
v
Index of Authorities
Page(s)
Statutes
Tex. Code Crim. Proc. art. 38.22………………………………………….….7, 8
Tex. R. App. Proc. § 9.4………………………………………………………..17
Tex. R. App. Proc. § 44.2(a)………………………………………………..….14
Federal Cases
Berkemer v. McCarty, 468 U.S. 420 (1984)…………………………………….8
Miranda v. Arizona, 384 U.S. 436 (1966)…………………….3, 5, 6, 7, 8, 14, 16
Stansbury v. California, 511 U.S. 318 (1994)………………………..……...8, 12
Texas Court of Criminal Appeals
Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)……………………10
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)…………………...6
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)………...9, 10, 11, 13
Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)…………………...…15
Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003)………………………14
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)
(op. on reh'g), cert. denied, 526 U.S. 1070 (1999)…………………………..…15
Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997)……………………..10
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008)…………………....5
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012)……………...…..6, 8, 10
vi
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013)……………....6, 8, 9, 12
State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008)…………….…….10
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 944 (2001)…………………………………….………..15
Texas Intermediate Appellate Courts
Campbell v. State, 325 S.W.3d 223 (Tex. App.—Fort Worth 2010,
no pet.)…………………......................................................……………….11, 15
McRae v. State, 152 S.W.3d 739 (Tex. App.—Houston [1st Dist.]
2004, pet. ref'd)…………………………………………………………………12
Serrano v. State, 01-13-00975-CR, 2015 WL 456511 (Tex.
App.—Houston [1st Dist.] Feb. 3, 2015), pet. filed (May 15, 2015)………...….6
State v. Saenz, 13-11-00328-CR, 2014 WL 3542092 (Tex. App.—Corpus Christi
July 17, 2014), pet. ref’d. (Oct. 8, 2014)…………………………………...12, 13
State v. Tercero, 01-14-00120-CR, 2015 WL 1544519 (Tex.
App.—Houston [1st Dist.] Apr. 2, 2015, no. pet. h.)…………………….……...5
Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.]
2012, no pet.)…………………………………………………………...………10
vii
Statement of the Case
Appellant, Brady Craig Koch, Jr., was charged by information with the
misdemeanor offense of driving while intoxicated (second offense) on
November 7, 2012. (CR1 at 8). Mr. Koch was found guilty by a jury. (CR at
91, 96). Punishment was assessed by the trial court at one year confinement in
the county jail, to be suspended for a period of two years, placing Mr. Koch on
community supervision. (CR at 96-97). As a condition of probation, he was
ordered to serve five days in the Harris County Jail. (CR at 97). Mr. Koch
timely filed a Notice of Appeal. (CR at 100-01). Mr. Koch’s brief was due
Monday, June 22, 2105. Appellant’s brief is currently late.
Issue Presented
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING MR. KOCH’S MOTION TO SUPPRESS.
Statement of Facts
On November 7, 2012, Mr. Brady was involved in a single car automobile
accident against a light post and fence with no passengers in his vehicle. (RR
Vol. 2 at 15-16, 34, 67, 121, 154, 205). There was one civilian witness who
came upon the scene right after2 the accident occurred, Albert Lakey. (RR Vol.
2 at 15-16). Mr. Lakey testified that Mr. Koch was crouched over his steering
1
CR refers to Clerk’s Record; RR refers to Reporter’s Record; SE refers to State’s Exhibit.
2
The State provided Brady notice pre-trial that although Officer Corral’s offense report said
that Mr. Lakey witnessed the accident, Mr. Lakey later informed the prosecutors that he did
not witness the accident. (CR at 78).
1
wheel and the vehicle was smoking, and Mr. Koch was speaking gibberish and
he staggered out of his vehicle. (RR Vol. 2 at 16-19). He testified that Mr.
Koch then tried to leave the scene and grazed or swiped him3 with his vehicle,
so he restrained him by pinning him against the vehicle until the police arrived
and “grabbed him.” (RR Vol. 2 at 19, 35, 50-53, 64).
The accident occurred around 10:00 PM, and Officers Arroyo and
Thibodeaux were dispatched to the scene at 10:05 PM and they arrived at 10:10
PM. (RR Vol. 2 at 138, 204). The DWI Task Force Officer, Salvador Corral,
arrived after Officers Arroyo and Thibodeaux, however, the time is not clear4
and he testified that he signed on at 10:00 PM and it would have taken him 10 to
15 minutes to get to the accident location. (RR Vol. 2 at 165). Officer Muskiet
testified that he arrived at 11:03 PM and Mr. Koch was in the backseat of the
patrol car when he arrived. (RR Vol. 2 at 115, 137, 139). There was no breath
or blood specimen obtained. (RR Vol. 3 at 14).
Officer Arroyo testified that Mr. Koch was slouched over on the sidewalk
when she arrived and that she smelled alcohol on Mr. Koch, so she called for a
DWI unit to come investigate. (RR Vol. 2 at 81, 101). She also testified that
Mr. Koch was only being detained in the back of a patrol car until the DWI
3
Officer Muskiet was never told that Mr. Koch swiped or hit Mr. Lakey with his vehicle.
(RR Vol. 2 at 131). On cross-examination, Mr. Lakey acknowledged that he never told the
police this story. (RR Vol. 2 at 41).
4
Initially, Officer Corral testified that he arrived at the scene at 10:00 p.m. (RR Vol. 2 at
158).
2
officer arrived, so they could continue to investigate the scene. Id. Mr. Koch
was placed in handcuffs in the back of a locked patrol car where he was not free
to leave, but Officer Arroyo clarified that he was not under arrest. (RR Vol. 2 at
94, 206-07). She did not recall Mr. Koch saying anything derogatory or
offensive to her, nor could she remember if Mr. Koch was combative or defiant.
(RR Vol. 2 at 75, 207).
When Officer Corral arrived, Mr. Koch was in the backseat of a patrol car
so he would not be able to leave the scene, but he was not under arrest,
according to Officer Corral. (RR Vol. 2 at 159). Mr. Koch was handcuffed and
sleeping when Officer Corral removed him from the back of the patrol car for
questioning, and he had to be driven about 50 feet to a different location. (RR
Vol. 2 at 155, 161-62, SE35 at 171, 243). Officer Corral did not give Mr. Koch
his Miranda6 warnings, but he was not free to leave. (RR Vol. 2 at 178).
Officer Corral testified that Mr. Koch admitted to having 2, 5, 7, and 15 drinks
and that he started drinking beer at noon. (RR Vol. 2 at 225-26). Defense
counsel requested a running objection to these admissions in front of the jury,
after a motion to suppress7 was litigated and denied outside the presence of the
jury. (RR Vol. 2 at 221, 225). Officer Corral testified that he formally arrested
5
There is only audio for the first 20 to 30 seconds, and then the sound disappears. (RR Vol. 2
at 245).
6
Miranda v. Arizona, 384 U.S. 436 (1966).
7
The Motion to Suppress hearing can be found in the record at Volume 2 pages 112-121 and
157-221.
3
Mr. Koch at 10:46 PM. (RR Vol. 2 at 164). Officer Corral testified that Mr.
Koch exhibited all six clues on the horizontal gaze nystagmus test and that he
observed the odor of alcohol, bloodshot eyes, and slurred speech. (RR Vol. 2 at
241, 249). Mr. Koch declined the other standard field sobriety tests, and Officer
Corral testified that it was his opinion that Mr. Koch was intoxicated. (RR Vol.
3 at 7, 11).
At trial, the defense theory during cross-examination was that Mr. Koch
was actually exhibiting signs of a concussion because he was injured in the car
accident. (RR Vol. 2 at 49-50, Vol. 3 at 41, 93). The defense also emphasized
through the witnesses that because no one had seen the accident occur, Mr.
Koch could have swerved to avoid an accident or that there was some cause for
the accident other than alcohol. (RR Vol. 2 at 39, 130-31).
The trial court announced findings of fact and conclusions of law on the
record, immediately following the Motion to Suppress hearing. (RR Vol. 2 at
220-21). Specifically, the court found the following:
• Mr. Koch’s freedom was restricted, but officers told him that he was
being detained.
• The detention at its earliest occurred at 10:10 PM and ended at 10:24 PM
“when the defendant appeared without handcuffs outside of the backseat.”
4
• Moving Mr. Koch a very short distance was reasonable because the
officers could not conduct an investigation in the middle of the street.
• The duration of the detention was reasonable and never converted to
custody before Mr. Koch was questioned by Officer Corral.
Summary of the Argument
Mr. Koch was physically restrained by a witness, then handcuffed and
placed in a locked patrol car for a period that may have been up to 24 minutes
total. Thus, Mr. Koch was in custody when Officer Corral arrived and began
questioning him without first providing Miranda warnings. Mr. Koch’s
incriminating admissions in response to Officer Corral’s questions were
inadmissible. The trial court erred in failing to suppress these statements.
Argument
ISSUE I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY DENYING MR. KOCH’S MOTION TO SUPPRESS.
A. Standard of Review.
This Court reviews a trial court’s ruling on a motion to suppress under an
abuse of discretion standard. State v. Tercero, 01-14-00120-CR, 2015 WL
1544519, at 2 (Tex. App.—Houston [1st Dist.] Apr. 2, 2015, no. pet. h.)(citing
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008)). This Court
applies a bifurcated standard of review, giving “almost total deference to a trial
5
court's determination of historical facts that depend on credibility” and a “de
novo review of the trial court’s application of the law to those facts.” Serrano v.
State, 01-13-00975-CR, 2015 WL 456511, at *2 (Tex. App.—Houston [1st
Dist.] Feb. 3, 2015), pet. filed (May 15, 2015)(citing Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000)).
In the context of suppression review based on Miranda, the Court of
Criminal Appeals has recently held: “The ultimate legal determination of
whether an individual was in custody requires an appellate court to take the
facts, as assessed for weight and credibility by the trial court, and then to make a
legal determination as to whether those facts amount to custody under the law.”
State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013)(citing State v.
Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012)). This Court reviews de
novo the trial court’s ultimate legal determination as to whether Mr. Koch was in
custody. Saenz, 411 S.W.3d at 494.
B. Mr. Koch’s Statements to Officer Corral are Inadmissible as They
Were Obtained in Violation of Miranda.
a. Failure to Give Miranda Warnings Renders Oral Statements
Inadmissible.
Oral statements are inadmissible in Texas unless they comply with Article
38.22 of the Texas Code of Criminal Procedure. A person must “knowingly,
6
intelligently, and voluntarily” waive his Miranda rights. Miranda v. Arizona,
384 U.S. 436, 444 (1966); Tex. Code Crim. Proc. art. 38.22 § 3(a)(2). Texas
codified the Miranda warnings, which provide:
(a) the accused, prior to making the statement, either
received from a magistrate the warning provided in
Article 15.17 of this code or received from the person
to whom the statement is made a warning that:
(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may
be used against him at his trial;
(2) any statement he makes may be used as evidence
against him in court;
(3) he has the right to have a lawyer present to advise
him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right
to have a lawyer appointed to advise him prior to and
during any questioning; and
(5) he has the right to terminate the interview at any
time; and
(b) the accused, prior to and during the making of the
statement, knowingly, intelligently, and voluntarily
waived the rights set out in the warning prescribed by
Subsection (a) of this section.
Tex. Code Crim. Proc. art. 38.22 § 2.
7
b. Mr. Koch was in Custody When Officer Corral Questioned
him.
The critical question is whether an accused person is in custody for
purposes of triggering Miranda and article 38.22. “In making the custody
determination, the primary question is whether a reasonable person would
perceive the detention to be a restraint on his movement ‘comparable to…formal
arrest,’ given all the objective circumstances.” State v. Ortiz, 382 S.W.3d 367,
372 (Tex. Crim. App. 2012)(quoting Berkemer v. McCarty, 468 U.S. 420, 441
(1984); citing Stansbury v. California, 511 U.S. 318, 323 (1994)); accord
Saenz, 411 S.W.3d at 496. This is determined on a case-by-case basis and “this
Court looks only to the objective factors surrounding the detention. The
subjective beliefs of the detaining officer are not included in the calculation of
whether a suspect is in custody.” Ortiz, 382 S.W.3d at 372-73. However, if a
police officer “manifests his belief to the detainee that he is a suspect, then that
officer’s subjective belief becomes relevant to the determination of whether a
reasonable person in the detainee’s position would believe he is in custody.” Id.
at 373.
The Court of Criminal Appeals has outlined four situations or categories
that may constitute custody:
8
(1) when the suspect is physically deprived of his
freedom of action in any significant way,
(2) when a law enforcement officer tells the suspect
that he cannot leave,
(3) when 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) when there is probable cause to arrest and law
enforcement officers do not tell the suspect that he is
free to leave.
State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013)(quoting Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)). The Court of Criminal
Appeals elaborated on these situations in Saenz:
The first three situations require that the restriction on
a suspect's freedom of movement must reach ‘the
degree associated with an arrest’ instead of an
investigative detention. The fourth situation requires
an officer's knowledge of probable cause to be
manifested to the suspect. Custody, however, is not
established by the fourth situation unless the
manifestation of probable cause ‘combined with other
circumstances’ of the interview, such as duration or
factors of ‘the exercise of police control over [a
suspect],’ would lead a reasonable person to believe
that he is under restraint to the degree associated with
an arrest.
Saenz, 411 S.W.3d at 496(citing Dowthitt, 931 S.W.2d at 255-57).
Moreover, the Court of Criminal Appeals has clarified the purpose of the
Dowthitt categories in recent years:
9
The Dowthitt categories were intended to be merely
descriptive, not exhaustive. We held that the four
categories ‘at least…may constitute custody. We
never said that, in order for a set of circumstances to
constitute custody, an appellate court must be able to
fit it into one of these descriptive categories.
Ortiz, 382 S.W.3d at 376(quoting Dowthitt, 931 S.W.2d at 255).
Texas courts have made clear that there is not a bright-line rule that
handcuffing always constitutes custody or an arrest. State v. Sheppard, 271
S.W.3d 281, 290-91 (Tex. Crim. App. 2008); Balentine v. State, 71 S.W.3d 763,
771 (Tex. Crim. App. 2002). “The officer may use such force as is reasonably
necessary to effect the goal of the stop: investigation, maintenance of the status
quo, or officer safety.” Balentine, 71 S.W.3d at 771 (citing Rhodes v. State, 945
S.W.2d 115, 117 (Tex. Crim. App. 1997)(handcuffing is not ordinarily proper
during a detention)). In Balentine, the officer handcuffed Mr. Balentine and
placed him in the back of a patrol car “because he feared for his own safety.”
Balentine, 71 S.W.3d at 771. Gunfire had just been reported in the area and the
stop was in the early morning hours; Mr. Balentine had been evasive with and
lied to the officer. Id; see Wert v. State, 383 S.W.3d 747, 754 (Tex. App.—
Houston [14th Dist.] 2012, no pet.)(handcuffed in back of patrol car was not
custody because defendant was “aggressive, belligerent, uncooperative, and
potentially violent”).
10
The degree of force employed by a police officer is
just one of several factors that must be considered to
determine whether a particular seizure of a person is
an arrest or merely an investigative detention. State v.
Moore, 25 S.W.3d 383, 386 (Tex. App.-Austin 2000,
no pet.). The nature of the crime under investigation,
the degree of suspicion, the location of the stop, the
time of day, and the reaction of the suspect are all facts
which bear on the issue. See id. (citing 4 Wayne R.
LaFave, Search and Seizure § 9.2(d) (3d ed. 1996)).
Campbell v. State, 325 S.W.3d 223, 234 (Tex. App.—Fort Worth 2010, no pet.).
In Saenz, after remand from the Court of Criminal Appeals, the Corpus
Christi Court of Appeals held that Mr. Saenz was in custody during a DWI stop
and agreed that his incriminating statements should have been suppressed:
First, Saenz was ‘physically deprived of his freedom
of action’ in a ‘significant way’ when he was locked in
the back of the patrol car for ‘12–18 minutes or
longer.’ See Dowthitt, 931 S.W.2d at 255. Second,
Officer Bintliff instructed Saenz not to leave. See
Saenz, 411 S.W.3d at 496 (‘If the trial court's future
findings determine that Officer Bintliff told appellee
that he was not free to leave, then this case could be
similar to the second situation in Dowthitt based on
evidence that appellee was in the back seat of the
patrol car, was not free to leave, and was told that he
could not leave.’). Third, by locking Saenz in the
patrol car and telling him he was not free to leave, the
officers ‘create[d] a situation that would lead a
reasonable person to believe that his freedom of
movement has been significantly restricted.’ Dowthitt,
931 S.W.2d at 255. Fourth, there was probable cause
to arrest Saenz for public intoxication or driving while
intoxicated, see Tex. Penal Code Ann. § 49.02,
49.04(a) (West, Westlaw through 2013 3d C.S.), and,
11
considering the totality of the circumstances, we find
that the officers' knowledge of probable cause was
manifested to Saenz by their words and deeds. See
Stansbury, 511 U.S. at 325 (noting that an officer's
knowledge of probable cause may be manifested to the
suspect ‘by word or deed’); Saenz, 411 S.W.3d at 496
(‘Rather than focusing on one discrete circumstance,
such as an officer's silence when he places a suspect in
his patrol car, the court of appeals should have
examined the totality of the circumstances to
determine whether a reasonable person would have
believed that he was under restraint to the degree
associated with a formal arrest.’). In particular, Officer
Bintliff manifested his knowledge of probable cause to
arrest Saenz when he thrice instructed Saenz—who
was illegally parked across two handicapped parking
spaces and who exhibited a ‘confused, dazed-type
look’—to turn off his truck.
State v. Saenz, 13-11-00328-CR, 2014 WL 3542092, at *5 (Tex. App.—Corpus
Christi July 17, 2014), pet. ref’d. (Oct. 8, 2014).
The circumstances in the case at bar went beyond a case of roadside
questioning and sobriety tests that are typically8 found in a DWI investigative
detention. Mr. Koch was initially detained at the scene by Mr. Lakey, who used
physical force to pin him against a car until the police arrived, handcuffed him,
and placed him in the back of a locked patrol car. If Mr. Lakey arrived on the
scene around 10:00 PM and Mr. Koch emerged from the police car at 10:24 PM,
8
“A DWI investigation that includes questioning and field-sobriety tests does not, without
more, rise to the level of a custodial interrogation.” McRae v. State, 152 S.W.3d 739, 749
(Tex. App.—Houston [1st Dist.] 2004, pet. ref'd)(citations omitted).
12
then Mr. Koch’s freedom was restricted for 24 minutes before being subjected to
questioning by the DWI Task Force Officer. A reasonable person would believe
he was under arrest. Under the first Dowthitt factor, Mr. Koch was physically
deprived of his freedom of action in a significant way, for approximately 10
minutes by Mr. Lakey and another 14 minutes in the back of the patrol car. In
Saenz, 12 to 18 minutes was an appropriate duration to meet the first Dowthitt
factor. State v. Saenz, 13-11-00328-CR, 2014 WL 3542092, at *5 (Tex. App.—
Corpus Christi July 17, 2014), pet. ref’d. (Oct. 8, 2014). Officer Corral even
acknowledged on cross-examination that a reasonable person in Mr. Koch’s
situation would not have believed that he was free to leave. (RR Vol. 2 at 179).
This also fits the third Dowthitt category.
Officer Arroyo had probable cause to arrest Mr. Koch for driving while
intoxicated when she arrived on the scene of a single car accident and saw Mr.
Koch slouched over and smelling of alcohol. She knew that he had been driving
the wrecked car. She did not tell Mr. Koch that he was free to leave and she
manifested her knowledge that there was probable cause to Mr. Koch by
handcuffing him and placing him in a locked patrol car. This fits the fourth
Dowthitt category.
Officer safety was also not a concern, as this was not a case involving
weapons or violence and there were at least four police officers at the scene.
13
Moreover, the only officer at trial with personal knowledge of Mr. Koch’s
actions prior to placing him in handcuffs in a locked patrol car was Officer
Arroyo. She testified that she did not recall Mr. Koch saying anything
derogatory or offensive to her, nor could she remember if Mr. Koch was
combative or defiant. Officer Corral arrived after Mr. Koch was placed in
custody and he had no first-hand knowledge of Mr. Koch’s prior actions. Officer
Muskiet also arrived after Mr. Koch was in custody.
C. The Trial Court’s Failure to Suppress Mr. Koch’s Incriminating
Statements Contributed to his Conviction.
“If 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.” Tex. R. App.
Proc. § 44.2(a). “In conducting this analysis in the context of a Miranda error,
[this Court] must judge the magnitude of the error in light of the evidence as a
whole to determine the degree of prejudice to the defendant resulting from that
error.” Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003)(internal
quotations omitted).
In applying the ‘harmless error’ test, our primary
question is whether there is a ‘reasonable possibility’
that the error might have contributed to the conviction.
14
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.
App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070
(1999). Our harmless error analysis should not focus
on the propriety of the outcome of the trial; instead, we
should calculate as much as possible the probable
impact on the jury in light of the existence of other
evidence. Wesbrook v. State, 29 S.W.3d 103, 119
(Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001). We consider the source and nature of the error,
the extent that it was emphasized by the State, its
probable collateral implications, the weight a juror
would probably place on the error, and whether
declaring it harmless would be likely to encourage the
State to repeat it with impunity. Harris v. State, 790
S.W.2d 568, 587 (Tex. Crim. App. 1989). This
requires us to evaluate the entire record in a neutral,
impartial, and even-handed manner, not ‘in the light
most favorable to the prosecution.’ Id. at 586.
Campbell, 325 S.W.3d at 238.
The most damaging evidence at Mr. Koch’s trial was the statement by Mr.
Koch that he had 2, 5, 7, and 15 drinks and that he started drinking beer at noon.
Mr. Lakey’s testimony was discredited as it changed several times and the
police officers did not corroborate what he told the jury. The scene video was
missing audio but for the first 20 to 30 seconds, and only the horizontal gaze
nystagmus was performed. There was also no blood alcohol concentration
testing. Without Mr. Koch’s detrimental admissions, the jury could have
credited the defense theory that Mr. Koch was not intoxicated, instead he was
injured in the car accident. Mr. Koch was prejudiced by this error and this Court
15
cannot be assured beyond a reasonable doubt that this error did not contribute to
the conviction.
D. Conclusion.
Mr. Koch’s Fifth Amendment rights were violated when he was not
properly advised of the Miranda warnings before being subjected to Officer
Corral’s questioning while he was in custody. The trial court erred in failing to
suppress Mr. Koch’s inadmissible statements. This Honorable Court should
reverse the judgment of conviction, vacate the sentence, and remand for a new
trial.
Prayer
For the reasons above, Appellant respectfully prays this Court of Appeals
reverse the judgment of conviction and sentence, and remand this case back to
the trial court for a new trial.
Respectfully submitted,
__/s/ Emily Detoto_________
EMILY DETOTO
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840
emilydetoto@mac.com
16
/s/ Megan Smith_________
MEGAN E. SMITH
State Bar No. 24076196
917 Franklin, Suite 310
Houston, Texas 77002
(713) 899-5438
(713) 527-2749 (fax)
megan@megansmithlaw.com
Counsel for Appellant
Certificate of Service
I hereby certify that a true and correct copy of the Brief for Appellant was
electronically delivered to Mr. Alan Curry, Appellate Division Chief, Harris
County District Attorney’s Office, on this 25th day of June 2015.
_____/s/ Megan Smith_________
MEGAN SMITH
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, that the instant brief is computer generated using Microsoft Word for
Mac and said computer program has identified that there are 3,898 words within
the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the
Texas Rules of Appellate Procedure. The document was prepared in
proportionately spaced typeface using Times New Roman 14 for text and Times
New Roman 12 for footnotes.
_____/s/ Megan Smith_______
MEGAN SMITH
17