TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00786-CR
The State of Texas, Appellant
v.
Christopher Reid Dewbre, Appellee
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. C-1-CR-14-207714, HONORABLE BRANDY MUELLER, JUDGE PRESIDING
MEMORANDUM OPINION
The State of Texas appeals the trial court’s order granting Christopher Reid Dewbre’s
motion to suppress his statements to law-enforcement officers in the underlying prosecution for
driving while intoxicated. See Tex. Code Crim. Proc. art. 44.01(a)(5). The State contends that the
trial court abused its discretion by granting the motion. We will reverse the order suppressing
Dewbre’s statements and remand this cause for further proceedings consistent with this opinion.
BACKGROUND
Austin Police Department Officer Collin Michael Fallon, the only witness at the
hearing on Dewbre’s motion to suppress, testified that he was dispatched to the 2000 block service
road of south IH-35 on an urgent “check welfare” report of a driver passed out in a vehicle with its
engine running. Officer Fallon stated that he was familiar with the area, located a few blocks south
of the downtown entertainment district, where he had worked numerous collisions and was once
struck by an intoxicated driver. Using the description provided in the report, Officer Fallon said that
he located the vehicle in the parking lot of a service station. The trial court admitted dashboard-
camera video with date-and-time stamps showing events from Officer Fallon’s arrival at the scene
at 2:07 a.m. to Dewbre’s arrest and his subsequent transport to the police station.
Officer Fallon testified that when he arrived, Austin Fire Department and Emergency
Medical Services personnel were already on the scene and had placed “chock blocks” beneath the
tires of the vehicle to immobilize it. He recalled that the vehicle had its lights on, its engine running,
and was not parked at a gas pump or in any of the available parking spaces. Officer Fallon testified
that he parked his patrol car in front of the vehicle. The video shows Officer Fallon then approached
the vehicle on the passenger side, shined his flashlight inside, confirmed that the vehicle was in
“park,” and then opened the passenger-side door. Officer Fallon testified that he saw keys in the
ignition and a driver, passed out in a reclined position, whom he had trouble waking. The video
shows Officer Fallon announcing, “Austin Police” three times, and saying, “Wake up, man.” Officer
Fallon testified that he took the keys out of the ignition, and the video shows the lights
being deactivated.
The video then shows Officer Fallon walking to the driver’s side of the vehicle, and
saying to the occupant, “Sit up, man,” and asking if he needs EMS. When the occupant declines,
Officer Fallon says, “Hop out.” The occupant says, “I’m good,” as he reaches over toward the
driver’s-side door. Officer Fallon testified that the man (later identified as Dewbre) was attempting
to shut the door. Officer Fallon told him, “No, you don’t, no, nope, don’t. You need to hop out. So
we can check you out. You passed out with the car running.”
2
Officer Fallon testified that once Dewbre got out of the car, he smelled alcohol
coming from Dewbre’s breath, and Dewbre was “showing many signs of intoxication.” Officer
Fallon testified that Dewbre seemed like he was going to fall over. Video shows Officer Fallon
asking Dewbre whether he had any weapons on him, having him walk a few steps from the side of
the vehicle (which took two seconds) for a pat down, and asking if he can take out his identification.
Officer Fallon testified that he tried to get Dewbre “to a safe spot where I can continue to interview
him and ask him questions.”
The video shows Officer Fallon asking Dewbre to “walk over this way” and to “leave
the [truck] open for now,” but Dewbre proceeds to shut the driver’s-side door before walking for two
or three seconds toward the front of his vehicle. Officer Fallon tosses keys on the hood of the patrol
car and then asks Dewbre where he is coming from and how much he has had to drink. Dewbre says
twice that he “had a couple of drinks.” Then, Dewbre spontaneously expresses confusion about his
situation and states, “I’m not too sure of what’s going on.” Officer Fallon responds, “I’m going to
explain it to you,” and proceeds to recount that he was called to the scene, that he made certain
observations about Dewbre when he arrived, that he wanted to ensure Dewbre was all right, that
operating a motor vehicle while intoxicated is illegal in Texas, and that “now we’re at that point I
need to ask you some more questions; I need to make sure you’re safe to operate that motor vehicle.”
Officer Fallon’s statement that operating a motor vehicle while intoxicated is illegal in Texas occurs
on the video at time stamp 2:11:57 a.m., less than five minutes after he arrived at the scene, and less
than three minutes after Dewbre exited his vehicle.
3
Next, the video shows Officer Fallon telling Dewbre that another officer (backup had
recently arrived at the scene) would stand by with him, if Dewbre did not mind, while Officer Fallon
moved his patrol car, and he tells Dewbre, “Go over there with him.” Dewbre walks there (which
takes approximately five seconds) near his vehicle. Officer Fallon takes less than a minute to turn
his patrol car to face a well-lit area in front of a food truck—previously, the patrol car was parked
like Dewbre’s, parallel with the food truck—and then takes just over another minute adjusting his
dashboard camera to better record the area in front of his vehicle. Officer Fallon testified, as the
video confirms, that when he repositioned his patrol car, he stayed in the same parking lot and did
not move Dewbre from his location.
The video also shows that shortly after Officer Fallon joins Dewbre, the backup
officer steps away to a patrol car, and Officer Fallon and Dewbre walk fifteen seconds to get in
proper position before the patrol-car camera. Officer Fallon then reviews with Dewbre why he was
called to the scene: “You understand you drove to this point, the vehicle was still running, you’re
still behind the wheel. That’s why I gotta make sure you’re safe to drive.” Officer Fallon tells
Dewbre that he is going to “roll through some questions and then we’re going to run through some
tests.” Officer Fallon states that because of all that has taken place, he needs to make sure that
Dewbre is safe to drive, and “if you are, you are.” Officer Fallon testified that he had previously
responded to calls similar to this one and after determining that the individuals were fine, sent them
on their way.
The video shows that Officer Fallon proceeded with typical DWI questions about
what Dewbre had to drink, how much he had to drink, and whether he had driven. Officer Fallon
4
reiterates that if Dewbre is safe to drive, he can go home. Dewbre made several admissions,
including that he was driving earlier, that he had at least seven to eight drinks at Fringe Bar, that he
was disoriented, and that he was unsure whether he was able to drive a motor vehicle. Officer Fallon
administered three field-sobriety tests: horizontal gaze nystagmus, walking heel-to-toe, and one-leg
stand. After the tests, Dewbre refused to provide a sample of his breath.1 Video time stamped at
2:37:39 a.m. shows Officer Fallon putting Dewbre in handcuffs and stating that he was being placed
under arrest for driving while intoxicated.
When Dewbre was subsequently charged with DWI, he filed a motion to suppress
evidence of his statements to police, contending that his statements were made as a result of
custodial interrogation, that he was not properly warned of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and that he had “asserted his right to remain silent or to have a lawyer present.”
The trial court granted Dewbre’s motion to suppress, and the State filed this appeal.2
The trial court made these findings and conclusions:
FACTUAL FINDINGS:
1. The Defendant, Christopher Dewbre, was arrested for Driving While
Intoxicated in Travis County, on May 11, 2014 in Travis County, Texas.
2. The case first unfolds when Officer Fallon of the Austin Police Department
responds to a 911 call, wherein it is reported that the Defendant is passed out
1
Dewbre changed his mind later and provided a sample before going to jail.
2
While the appeal was pending, we determined that the trial court had not entered its
findings of fact and conclusions of law that had been requested, and we remanded the cause for entry
of the findings and conclusions. State v. Dewbre, No. 03-15-00786-CR, 2016 Tex. App. LEXIS 951
(Tex. App.—Austin Jan. 29, 2016, no pet.) (mem. op., not designated for publication) (per curiam).
5
behind the wheel of a parked car at a gas station parking lot, with the car engine
on.
3. Officer Fallon arrives on scene and observes the Defendant in the parked
vehicle, as the call had reported, passed out behind the wheel, with the engine
running.
4. It is night-time and further, the Court takes notice of the fact that the location
of the Defendant is near to the entertainment district of the City of Austin.
5. The Fire Department and EMS had arrived on scene prior to law enforcement
and had taken safety measures with the Defendant, by putting “chock blocks”
beneath the tires of the vehicle the Defendant was in, in an effort to prevent it
from moving.
6. Officer Fallon further, parked his patrol vehicle in front of Defendant’s vehicle,
positioning the vehicles bumper to bumper, while the Defendant remained
passed out behind the wheel, so as to further prevent the Defendant’s car from
leaving the parking place. Officer Fallon stated, “with my vehicle there, he
definitely could not have moved forward.”
7. Officer Fallon enters the vehicle, turns the ignition off and takes the keys to
Defendant’s vehicle from the car. The keys are removed from the Defendant’s
care, custody, and control.
8. After Officer Fallon is able to get the Defendant out of the vehicle and to come
to, so to speak, he observes the following while interviewing him: the
Defendant’s eyes are “extremely bloodshot, watery and glassy,” there was an
“extremely strong odor of alcoholic beverage coming from his breath when he
spoke,” his speech was “slurred” and “mush-mouthed,” he was “staggering”
and “wobbling as though he was going to fall over,” . . . in sum, showing many
signs of a high degree of intoxication.
9. Officer Fallon led the Defendant away from his car, to another part of the
parking lot.
10. Officer Fallon conducted field sobriety tests. All in which, the Defendant
exhibited numerous clues of intoxication.
11. The Defendant admitted to consuming 7 to 8 drinks . . . shots of whiskey, Jim
Beam.
6
12. The Defendant blew a .207 on Officer Fallon’s portable breath test at the scene.
13. An unusually abundant amount of evidence of intoxication had been
gathered/observed by Officer Fallon.
14. Officer Fallon agreed with defense counsel, that after that, he believed that the
Defendant was a danger to himself or others and further, that there was no way
that the Defendant was free to leave.
15. The Defendant had been led a distance from his car and the keys of his car had
been removed and further, his car was blocked in by chocks and Officer
Fallon’s vehicle.
16. Miranda warnings were not given.
17. Officer Fallon continues to question the Defendant regarding drinking and
driving.
18. The Defendant’s responses were direct responses to questions/interrogation by
Officer Fallon.
CONCLUSIONS OF LAW:
At the point in time after the Defendant blew into Officer Fallon’s breath testing
instrument, the Defendant was more than simply detained, he was in custody.
Responses to Officer Fallon’s interrogation after time stamp 2:11:57 (video evidence,
exhibit #1) were made after an ample amount of probable cause existed against the
Defendant for public intoxication and/or driving while intoxication.
Although the Defendant was not in handcuffs, nor in a patrol vehicle, as is often
required to show custody under the law, the restriction upon the Defendant’s freedom
of movement was to the degree associated with an arrest, and not simply an
investigative detention.
To further evidence that the Defendant could not have felt as though he was free to
leave, the Defendant had been (albeit a short distance) led away from the scene, by
Officer Fallon.
The manifestation of probable cause for public intoxication and or driving while
intoxicated would lead a reasonable person in the Defendant’s shoes to believe he
was restrained to a degree associated with an arrest.
7
The Defendant believed that he was deprived of his freedom of movement.
Miranda warnings were required at the point when it was clear that the Defendant
was subject to custodial interrogation and the warnings were not provided.
Miranda and Article 38.22 prevent the Defendant’s responses to Officer Fallon after
time stamp 2:11:57 from being admissible.
DISCUSSION
The State’s first and third issues on appeal contend that Dewbre failed to show his
statements were the product of a custodial interrogation that violated his rights under the United
States Constitution or the Texas Code of Criminal Procedure.3 Specifically, the State contends that
the evidence in this record does not support the trial court’s ultimate conclusions that Dewbre was
in custody as of 2:11:57 a.m. and that his statements after that time were inadmissible under Miranda
v. Arizona, 384 U.S. 436 (1966) and article 38.22 of the Texas Code of Criminal Procedure.
Standard of review
We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the zone of
reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give almost complete deference to the
trial court’s determination of historical facts, but we review the court’s application of the law to
3
The State’s second issue contends that there was no violation of Dewbre’s rights under the
Texas Constitution; however, the trial court’s ruling was based only on Miranda and article 38.22.
See Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. art. 38.22, §§ 2(a), 3(a)(2).
Based on our disposition of the State’s first and third issues, we need not address the State’s second
issue. See Tex. R. App. P. 47.1.
8
those facts de novo. Story, 445 S.W.3d at 732; Dixon, 206 S.W.3d at 590. In deciding whether an
individual was in custody, we take the findings that are supported by the record and determine
whether they constitute a Miranda custody situation as a matter of law. State v. Saenz,
411 S.W.3d 488, 494 (Tex. Crim. App. 2013). We are not bound by the trial court’s findings and
conclusions that are not supported by the record. State v. Whittington, 401 S.W.3d 263, 271 (Tex.
App.—San Antonio 2013, no pet.); see Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2014)
(“[W]hen evidence is conclusive, such as . . . ‘indisputable visual evidence,’ then any trial-court
findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record,
even when that record is viewed in a light most favorable to the trial court’s ruling.” (quoting Tucker
v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring))); Carmouche v. State,
10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (declining to give deference to trial court’s implicit
findings that were contradicted by videotape evidence and noting that such evidence did not involve
credibility assessments to which reviewing courts must defer).
Custodial interrogations and investigative detentions
The State’s appellate issues require us to determine whether Dewbre demonstrated
that his questioning by law enforcement at the scene was a “custodial interrogation.” The defendant
bears the burden of proving that a statement was the product of a custodial interrogation. Herrera
v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Zavala v. State, No. 04-16-00422-CR, 2017
Tex. App. LEXIS 1053, at *4-5 (Tex. App.—San Antonio Feb. 8, 2017, no pet.) (mem. op., not
designated for publication). Custodial interrogation refers to “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom
9
of action in any significant way.” Miranda, 384 U.S. at 444. Miranda provides that a defendant’s
statements “stemming from custodial interrogation” are inadmissible as evidence against him unless
he is advised of certain constitutional rights under the Fifth Amendment. Id. (“Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.”); see U.S. Const. amend. V; Zavala, 2017 Tex. App. LEXIS
1053, at *4.
The state counterpart is article 38.22 of the Texas Code of Criminal Procedure, which
similarly provides that a defendant’s oral statement “made as a result of custodial interrogation” is
inadmissible in a criminal proceeding unless a recording is made of the statement, the defendant is
warned during the recording but before making the statement that “any statement he makes may be
used as evidence against him in court,” and he knowingly, intelligently, and voluntarily waives those
rights. Tex. Code Crim. Proc. art. 38.22, § 3(a)(1)-(2); see Herrera, 241 S.W.3d at 526 (stating that
construction of “custody” for purposes of article 38.22 of Texas Code of Criminal Procedure is
consistent with meaning of “custody” for purposes of Miranda and Fifth Amendment); Zavala, 2017
Tex. App. LEXIS 1053, at *4. Statements that do not “stem from custodial interrogation” are not
precluded by article 38.22. Tex. Code Crim. Proc. art. 38.22, § 5.
The Texas Court of Criminal Appeals’ Dowthitt case has identified four situations
that may constitute custody: (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
10
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. Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). As to the first through third situations, the
restriction on the suspect’s freedom of movement must be to the degree associated with an arrest as
opposed to an investigative detention. Id. Generally, individuals who are temporarily detained
during an ordinary traffic stop are not “in custody” for purposes of Miranda. Berkemer v. McCarty,
468 U.S. 420, 440 (1984); Zavala, 2017 Tex. App. LEXIS 1053, at *5. A traffic stop that includes
questioning and field-sobriety tests does not, without more, rise to the level of a custodial
interrogation. Berkemer, 468 U.S. at 440-42; State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex.
Crim. App. 1997); Zavala, 2017 Tex. App. LEXIS 1053, at *5. Nevertheless, an ordinary traffic stop
may escalate from a noncustodial detention to a custodial detention if the individual’s freedom of
movement is restrained to the degree associated with a formal arrest. State v. Ortiz, 382 S.W.3d 367,
372 (Tex. Crim. App. 2012); Zavala, 2017 Tex. App. LEXIS 1053, at *5.
Noncustodial investigative detentions and arrests both involve restraint on an
individual’s freedom of movement, but an arrest involves a comparatively greater restraint. State
v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008); Zavala, 2017 Tex. App. LEXIS 1053,
at *5. No bright-line test distinguishes investigative detentions from arrests; rather, courts consider
several factors to determine whether an individual is in custody, including the amount of force
displayed; the duration of the detention; the efficiency of the investigative process and whether it is
conducted at the original location or the individual is transported to another location; the officer’s
expressed intent, i.e., whether he told the individual that he was under arrest or was being detained
11
only for a temporary investigation; and any other relevant factors. Sheppard, 271 S.W.3d at 291;
Zavala, 2017 Tex. App. LEXIS 1053, at *5-6. A detention is not an arrest if the degree of
incapacitation is no more than necessary to safeguard the officers and assure the suspect’s presence
during a period of investigation. See Sheppard, 271 S.W.3d at 291; Zavala, 2017 Tex. App. LEXIS
1053, at *6. Ultimately, courts must determine whether, given the circumstances surrounding the
interrogation, a reasonable person would have perceived detention by law-enforcement officers to
be a restraint on his movement comparable to the restraint of formal arrest. Berkemer, 468 U.S. at
441; Herrera, 241 S.W.3d at 525. Assessment of whether an individual is in custody is made on an
ad hoc, case-by-case basis. Dowthitt, 931 S.W.2d at 255.
None of Dowthitt custody situations shown on this record
Dewbre did not specify which of the Dowthitt custody situations he contended were
shown on this record, but his brief seems to address only two, “when the suspect is physically
deprived of his freedom of action in any significant way” and when law-enforcement officers create
a situation that “would lead a reasonable person to believe that he is under restraint to the degree
associated with an arrest.” See id. None of the Dowthitt situations were shown on this record.
Rather, the video shows that Dewbre was not deprived of his freedom of action by police beyond the
extent necessary to conduct a brief investigation based on signs of intoxication, Dewbre was not
transported from the scene, Dewbre was not told at 2:11:57 a.m. that he was being charged with
DWI, and Officer Fallon informed Dewbre that he would be free to leave once he determined that
he was safe to drive.
12
The trial court made a finding that “[Dewbre] believed that he was deprived of his
freedom of movement.” But Dewbre did not testify at the hearing on the motion to suppress, and
this finding has no support in the record. Rather, the dash-cam video shows that when Dewbre was
told that everything he had done that night was “on his consent,” Dewbre stated, “I understand that.”4
In any event, what Dewbre believed is irrelevant to the custody determination, which is based on the
objective circumstances of a defendant’s questioning by police. See Berkemer, 468 U.S. at 442
(noting that only relevant inquiry is how reasonable man in suspect’s position would have
understood his situation); Dowthitt, 931 S.W.2d at 254; State v. Chupik, No. 03-09-00356-CR,
2011 Tex. App. LEXIS 7597, at *4 (Tex. App.—Austin Sept. 15, 2011, no pet.) (mem. op., not
designated for publication).
Dewbre asserts that he was “restrained” and “hemmed in” by Officer Fallon’s police
car. The trial court made a finding that Dewbre’s car was blocked in by “chocks”5 and Officer
Fallon’s vehicle. But the custody inquiry turns on whether a suspect’s freedom is restricted by law
enforcement to the degree associated with an arrest—not merely whether there was a
restraint—because even a noncustodial investigative detention involves restraint on an individual’s
freedom of movement such that the individual is not free to leave. See Sheppard, 271 S.W.3d at
290; Zavala, 2017 Tex. App. LEXIS 1053, at *5.
Dewbre points out that Officer Fallon took his keys. The trial court made a finding
that Officer Fallon took Dewbre’s keys from the vehicle. However, this Court has previously
4
The video shows that Dewbre spoke at some length with police and never “asserted his
right to remain silent or to have a lawyer present” as alleged in his motion to suppress.
5
It is undisputed that the chock blocks were not placed by police.
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determined that when police discover an unidentified man in a parked car who appears to be
unconscious, the act of taking keys —and ordering him out of the vehicle and preventing him from
reentering it—is part of an investigative detention, not a restraint on freedom of movement to the
degree associated with an arrest. See Horton v. State, 16 S.W.3d 848, 851-52 (Tex. App.—Austin
2000, no pet.).
Next, Dewbre complains that police physically directed his movement away from his
vehicle. The trial court made a finding that Officer Fallon led Dewbre away from his truck “to
another part of the parking lot,” and the court made a legal conclusion that Dewbre could not have
felt free to leave because he had been “led away from the scene.” By contrast, the video shows that
Dewbre never left the scene. The video is consistent with Officer Fallon’s testimony that he asked
Dewbre to move “to get him to a safe spot where I can continue to interview him and ask him
questions,” that the officer stayed in the parking lot, and that he did not move Dewbre from his
location. The court did not make any finding calling Officer Fallon’s credibility into question.
Further, this Court has previously noted that moving a suspect a short distance to further an
investigation—e.g., having Dewbre walk the length of a few feet in the same parking lot before
performing field-sobriety tests—is consistent with the purpose of an investigative detention, not an
arrest. See Moreno v. State, No. 03-14-00596-CR, 2016 Tex. App. LEXIS 6868, at *14 (Tex.
App.—Austin June 30, 2016, no pet.) (mem. op.) (citing Castro v. State, 373 S.W.3d 159, 166 (Tex.
App.—San Antonio 2012, no pet.)).
Finally, Dewbre claims that a reasonable person would have believed that he was
under arrest at 2:11:57 a.m.,when Officer Fallon “informed him that ‘we are at that point of’ being
14
charged with Driving While Intoxicated.” The trial court concluded that Dewbre was in custody and
that his responses after time stamp 2:11:57 were inadmissible. But the dash-cam video shows that
Officer Fallon did not inform Dewbre that he was under arrest for, i.e., “charged with,” a DWI
offense until 2:37:39 a.m., when he began handcuffing him. The video also shows that minutes after
Officer Fallon arrived, Dewbre spontaneously expressed confusion about his situation and stated,
“I’m not too sure of what’s going on.” Officer Fallon responded, “I’m going to explain it to you,”
and proceeded to recount that he was called to the scene, that he made certain observations about
Dewbre when he arrived, that he wanted to ensure Dewbre was all right, that operating a motor
vehicle while intoxicated is illegal in Texas, and that he needed to ask Dewbre questions to make
sure he was safe to operate a motor vehicle. Significantly, Officer Fallon tells Dewbre on the video
that if he is safe to drive, he can go home; but first, Officer Fallon needed to make sure that Dewbre
was safe to drive, and “if you are, you are.” Cf. Miranda, 384 U.S. at 482 (noting that custodial
interrogations do not necessarily afford innocent individuals with opportunity to clear themselves);
Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.) (noting that officer did
not tell defendant that he was free to leave).
Further, the remaining two Dowthitt situations—“when a law enforcement officer
tells the suspect that he cannot leave” and “when there is probable cause to arrest and law
enforcement officers do not tell the suspect that he is free to leave”— were not shown on this record.
Law-enforcement officers did not tell Dewbre that he could not leave; rather, Officer Fallon advised
Dewbre that he would be free to go once Officer Fallon determined that Dewbre was safe to drive.
15
See Dowthitt, 931 S.W.2d at 255. We conclude that none of the Dowthitt custody situations were
shown on this record.
No showing that Dewbre was in custody rather than detained
Next, we consider the factors set forth in Sheppard for determining whether an
individual is in custody. See Sheppard, 271 S.W.3d at 291. As to the first factor, the amount of
force displayed, only two officers had any interaction with Dewbre at the scene, and the second one
took no part in the investigation but explained and later administered the portable breath test to
Dewbre. Neither officer drew his weapon, neither handcuffed Dewbre until his arrest, and Dewbre
stated that he understood his participation in the investigation was done with his consent. The
second factor, the duration of the detention, was brief. The entirety of the events, from Officer
Fallon’s arrival at the scene at 2:07 a.m. to Dewbre’s arrest at 2:37 a.m., spanned just thirty minutes.
See Balentine v. State, 71 S.W.3d 763, 770 n.7 (Tex. Crim. App. 2002) (concluding that less than
one hour is reasonable period of detention). The third factor we consider is the efficiency of the
investigative process and whether it is conducted at the original location or the individual is
transported to another location. Here, the thirty-minute investigation was efficient, and during the
investigation Dewbre was not transported from the parking lot where he was found. The fourth
factor we consider is the officer’s expressed intent—i.e., whether he told the individual that he was
under arrest or was being detained only for a temporary investigation. Dewbre was not expressly
told that he was under arrest until he was handcuffed. Dewbre was not expressly told that he was
being detained for a temporary investigation either, but he was informed that if he was safe to drive,
he could go home. Thus, Dewbre was effectively informed that his detention was only temporary,
16
until completion of an investigation about whether he could drive safely from the scene. Under the
fifth factor, which allows for consideration of any other relevant factors, we note that the video
shows the investigation occurred in a well-lit public parking lot, shared by a gas station,
check-cashing business, and food truck, located adjacent to IH-35, not at a police station or some
more-restrictive setting.
The circumstances of Dewbre’s interaction with law enforcement, considered in their
totality and from an objective standpoint, lead us to conclude that a reasonable person in Dewbre’s
situation would not “have perceived the detention by law enforcement officers to be a restraint on
his movement comparable to the restraint of formal arrest.” See Berkemer, 468 U.S. at 441; Herrera,
241 S.W.3d at 525. Thus, we conclude that the record does not support the trial court’s conclusion
that Dewbre was in custody when he made his statements to police, but at most shows that he was
subjected to a brief investigative detention.
After considering the totality of the circumstances surrounding Dewbre’s interaction
with law enforcement, we conclude that the trial court abused its discretion by concluding that
Dewbre met his burden of showing that his statements were the product of a custodial interrogation.
See Herrera, 241 S.W.3d at 526; Zavala, 2017 Tex. App. LEXIS 1053, at *4-5. In the absence of
a custodial interrogation, Dewbre was not entitled to warnings under Miranda and article 38.22 of
the Code of Criminal Procedure. Cf. Miranda, 384 U.S. at 444; see Tex. Code Crim. Proc. art.
38.22, § 5. The lack of such warnings was not a violation of Dewbre’s constitutional or statutory
rights, and on this record, was not a proper legal basis for suppression of his statements.
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Accordingly, the order granting suppression of Dewbre’s statements, even when
considered with due deference to the trial court’s factual findings, was outside the zone of reasonable
disagreement and constituted an abuse of discretion. See Arguellez, 409 S.W.3d at 662; Dixon,
206 S.W.3d at 590; see Chupik, 2011 Tex. App. LEXIS 7597, at *8 (concluding that court’s order
granting motion to suppress that was not supported by evidence was abuse of discretion). We sustain
the State’s first and third appellate issues.
CONCLUSION
We reverse the trial court’s order granting Dewbre’s motion to suppress his
statements and remand this cause for further proceedings consistent with this opinion.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Bourland
Reversed and Remanded
Filed: July 31, 2017
Do Not Publish
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