Opinion issued January 12, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00248-CR
———————————
BRADY CRAIG KOCH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court Case No. 1861254
OPINION
A jury convicted appellant, Brady Craig Koch, Jr., of the Class B
misdemeanor offense of driving while intoxicated—second offense (“DWI”).1 The
1
See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2015).
trial court assessed his punishment at confinement for one year, suspended for two
years. In his sole issue on appeal, appellant contends that the trial court
erroneously denied his motion to suppress statements that he argues were made to
officers while he was in custody but before he had received his Miranda warnings.
We affirm.
Background
Around 10:00 p.m. on November 7, 2012, Albert Lakey was driving down
Westpark Drive in Houston when he saw a truck that had crashed into a fence and
a light post. Lakey parked his own vehicle and walked over. He saw appellant
“crouched over on the steering wheel” inside the still-running truck. Lakey tapped
appellant on the shoulder to get his attention, and appellant began mumbling to
Lakey. Lakey asked appellant whether he needed any assistance, and appellant
responded with “[j]ust a bunch of gibberish, words, slurring.” Appellant then got
out of his truck, “staggered around” toward the back of the truck, and looked
around the scene before telling Lakey, “I need to go.” Appellant got back into his
truck. He attempted to drive forward, and, as he did so, his truck brushed against
Lakey. Lakey testified that appellant was “[j]ust a little bit lethargic, just slurring
of word and staggering and really not holding his composure,” and he concluded
that appellant was intoxicated. Lakey did not notice any visible injuries on
appellant. Other bystanders at the scene called 9-1-1.
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After appellant tried to drive away from the scene, Lakey removed appellant
from his vehicle “[s]o he won’t [injure] himself or anybody else on the road.”
Lakey “pinned” appellant against his truck with his hands to prevent him from
leaving. Lakey stayed at the scene until police officers arrived “[m]oments later,”
and he informed the responding officers of what he had witnessed. Lakey testified
that he saw officers open the passenger door of appellant’s truck and “two beer
bottles fell out of the passenger’s seat onto the floor.”
Houston Police Department Officer M. Arroyo testified that she and her
partner, Officer T. Thibodeaux, were dispatched to the accident scene at 10:05 p.m.
When she arrived at 10:10 p.m., appellant was sitting on the sidewalk near his
truck. Officer Arroyo testified that appellant appeared groggy and tired, and she
could smell the odor of alcohol when she spoke with him. Officer Arroyo did not
observe any injuries on appellant, and medical personnel checked appellant at the
scene but did not render any medical assistance.
Based on the smell of alcohol and appellant’s behavior, which included
“incoherent, slurred speech” and “grogginess,” Officer Arroyo called dispatch and
requested the presence of a specialized DWI officer. While the DWI officer was
on his way to the scene, Officer Arroyo handcuffed appellant and placed him in the
back of her patrol car. Officer Arroyo testified that appellant was not under arrest
at that point in time, but he was instead “placed in the back of the patrol car” and
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was “detained.” Appellant was not able to leave the scene while he was in the
back of the patrol car. Officer Arroyo testified that she detained appellant “[t]o
keep him safe, [and] keep him from the scene so we could continue to investigate
the scene.” Officer Arroyo continued to investigate the accident while appellant
waited in the patrol car. After the DWI officer arrived, Officers Arroyo and
Thibodeaux gave the information they had obtained regarding the accident to
another officer who continued the investigation, and they left the scene.
Officer M. Muskiet arrived and took over the investigation of the accident
from Officers Arroyo and Thibodeaux. He determined that appellant “had lost
control, failed to maintain a single lane[,] and struck a fence.” Officer Muskiet
observed “many bottles of alcohol throughout [appellant’s] vehicle.” Appellant
was already in the backseat of Officer Arroyo’s vehicle when Officer Muskiet
arrived at the scene, although Muskiet could not recall whether appellant was
handcuffed. Officer Arroyo informed him that appellant was suspected of DWI,
but Officer Muskiet did not speak with appellant at all during his investigation.
Officer S. Corral was a member of HPD’s Traffic Enforcement Division
DWI Task Force and had received specialized training in identifying intoxicated
individuals. Shortly after beginning his shift at 10:00 p.m., Officer Corral received
a call concerning “a crash with a person possibly intoxicated involved.” When
Officer Corral arrived at the scene, appellant was asleep in the back of a patrol car.
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Officer Corral could smell the odor of alcohol on appellant’s breath. He testified
that appellant mumbled and spoke with a “slight slur,” and appellant had
“bloodshot, droopy eyes.”
Officer Corral testified that, although appellant was in the backseat of a
patrol car when he arrived at the scene, appellant was not under arrest at that time.
He did not know when appellant had been placed in the patrol car or how long
appellant had been in the patrol car before he arrived, but he testified that appellant
was placed in the backseat because he was “being kind of combative and [was]
trying to leave the scene.” Officer Corral and the other officers drove appellant
approximately fifty feet away to a nearby parking lot to continue the investigation
without obstructing the roadway.
Officer Corral then removed appellant from the backseat of the patrol car
and began his DWI investigation. He did not read appellant his Miranda rights
prior to speaking with him. The trial court admitted a DVD recording of Officer
Corral’s DWI investigation of appellant. The recording reflected that Officer
Corral began his investigation at 10:24 p.m. Appellant did not indicate that he was
injured or disabled, and he did not request any medical assistance.
Officer Corral testified that he asked appellant how many drinks he had had
that day, and appellant “rambled 2, 5, 7, 15.” Appellant told Officer Corral that he
had been drinking beer and that he had started drinking around noon that day.
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Officer Corral testified that appellant exhibited six out of six clues of intoxication
on the horizontal gaze nystagmus test and that appellant declined to perform any
additional sobriety tests and declined to provide a breath or blood specimen.
Officer Corral concluded that appellant was intoxicated, and he arrested appellant
for DWI at 10:46 p.m.
Appellant moved to suppress the statements made to Officer Corral that he
had had “2, 5, 7, 15” drinks earlier that day and that he had started drinking around
noon, arguing that he was in custody at the time he made these statements during
Corral’s DWI investigation, but none of the officers had read him his Miranda
warnings. The trial court heard testimony from Officers Arroyo and Corral outside
the presence of the jury and made the following oral findings and conclusions on
the record:
The defendant was deprived of freedom, significantly, by being
handcuffed in the backseat of the patrol car. He obviously couldn’t
leave. A reasonable prudent person would believe freedom was
significantly restricted; however, the officer did tell him he was being
detained rather than telling him he was being arrested or placed in
custody. As in the bright-line—or formal arrest considered by
Dowthitt [v. State].
Further, the duration of the detention at the earliest would have been
around 10:10, that being the time that Officers Arroyo and
Thibodeaux arrived on the scene. We don’t know how long it took to
take the defendant and handcuff him and place him in the back of the
car, so, I’ll call that the earliest possible and had apparently ended by
10:24, according to my notes from the video, when the defendant
appeared without handcuffs outside of the backseat. That being about
a 14-minute detention in the backseat of the patrol car in handcuffs.
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The officers have testified that there were ongoing investigations at all
times during this detention and even afterward, with regard to the
accident scene; talking to witnesses; trying to clear the street. And
further[,] I find that moving the defendant to the parking lot rather
than trying to conduct this investigation in the middle of the street was
reasonable. Also, the fact that one officer walked alongside the patrol
car as the defendant was moved from the street location into the
parking lot reflected that this was a very short distance in time and a
matter of feet, as well.
Based upon this, I will conclude that the duration of the detention was
reasonable and did not convert the detention to custody, for purposes
of requiring the Miranda rights being read to the defendant before he
was questioned at this scene.
The trial court denied appellant’s motion to suppress.
The jury found appellant guilty of the offense of DWI. The trial court
assessed appellant’s punishment at confinement for one year, suspended for two
years. This appeal followed.
Motion to Suppress
In his sole issue, appellant contends that the trial court erroneously denied
his motion to suppress oral statements made to Officer Corral. Specifically,
appellant argues that he was in custody at the time he made the statements, but
none of the officers had read him his Miranda warnings.
A. Standard of Review
We review the trial court’s denial of a motion to suppress evidence for an
abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.
2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When
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we review a trial court’s denial of a motion to suppress, we give “almost total
deference to a trial court’s express or implied determination of historical facts” and
review de novo the court’s application of the law to the facts. Id.; see also State v.
Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013) (holding that appellate courts
apply deferential standard to trial court’s factual assessment of circumstances
surrounding interrogation of defendant and apply de novo review to court’s
ultimate legal determination of whether defendant was in custody). We view the
evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact and judge of
credibility of the witnesses and the weight to be given to their testimony.” St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may
choose to believe or disbelieve any part or all of a witness’s testimony. Green v.
State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain the trial court’s
ruling if it is reasonably supported by the record and correct on any theory of law
applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.
2003).
B. Whether Appellant Was in Custody at Time of Statements
A defendant’s oral statement may be used against him “if it appears that the
same was freely and voluntarily made without compulsion or persuasion . . . .”
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TEX. CODE CRIM. PROC. ANN. art. 38.21 (Vernon 2005). Code of Criminal
Procedure article 38.22 governs the admissibility of statements made as a result of
“custodial interrogation” and provides that prior to making such a statement, the
accused must receive warnings informing him 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.
Id. art. 38.22, § 2(a) (Vernon Supp. 2015).
“Custodial interrogation” is “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444,
86 S. Ct. 1602, 1612 (1966). In determining whether a defendant was “in custody”
for the purpose of applying Miranda, an appellate court “conducts a factual review
in examining the circumstances surrounding the interrogation” and “makes an
ultimate legal determination whether a reasonable person would not have felt at
liberty to leave.” Saenz, 411 S.W.3d at 493 (citing Thompson v. Keohane, 516
9
U.S. 99, 112–13, 116 S. Ct. 457, 465 (1995)). “A person is in custody only if,
under the circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest.” Id. at 496
(citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1529 (1994)
(per curiam)).
Although the United States Supreme Court has held that a traffic stop does
not generally constitute custody for Miranda purposes, “subsequent events may
cause a noncustodial encounter to escalate into custodial interrogation.” State v.
Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997) (citing Berkemer v.
McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984), and Dowthitt v. State,
931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996)). The Court of Criminal Appeals
has set out “at least four general 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 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.
Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255). 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.”
Id. (quoting Dowthitt, 931 S.W.2d at 255). Although the fourth situation “requires
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an officer’s knowledge of probable cause to be manifested to the suspect,” custody
is not established unless that 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.” Id. (quoting Dowthitt,
931 S.W.2d at 255–57).
In making the custody determination, the primary question for the court 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). We
do not consider the subjective beliefs of the detaining officer when determining
whether a suspect is in custody. Id. at 372–73. However, the officer’s subjective
belief becomes relevant if the officer manifests his belief to the detainee that he is a
suspect. Id. at 373. We do not consider any subjective belief of the suspect that he
is guilty of an offense because “the reasonable person standard presupposes an
‘innocent person.’” Id. (quoting Dowthitt, 931 S.W.2d at 254).
When considering the circumstances surrounding a seizure, “allowances
must be made for the fact that officers must often make quick decisions under
tense, uncertain, and rapidly changing circumstances.” Hauer v. State, 466 S.W.3d
886, 891 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Rhodes v. State,
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945 S.W.2d 115, 118 (Tex. Crim. App. 1997)). We thus look to the reasonableness
of the officer’s actions “from the perspective of a reasonable officer at the scene,
rather than with the advantage of hindsight.” Id. Officers may use such force as is
reasonably necessary to effect the goal of the detention: investigation, maintenance
of the status quo, or officer safety. Id. As a result, “handcuffing alone does not
necessarily convert an investigative detention into an arrest.” Id.; see State v.
Sheppard, 271 S.W.3d 281, 283 (Tex. Crim. App. 2008) (“[A] person who has
been handcuffed has been ‘seized’ and detained under the Fourth Amendment, but
he has not necessarily been ‘arrested.’”). “[A] temporary detention, in which the
person is not free to leave, while the police officer investigates whether a crime has
been committed” is constitutionally permissible. See Sheppard, 271 S.W.3d at 289
(citing Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1885 (1968)). Although
handcuffing a person who has been temporarily detained is “not ordinarily proper,”
it “may be resorted to in special circumstances, such as when to thwart the
suspect’s attempt to ‘frustrate further inquiry.’” Id.
Appellant argues that the facts of this case go beyond the typical DWI
investigative detention and instead constituted an arrest, thus triggering the
requirement that the officers read him his Miranda warnings before questioning or
obtaining a statement from him. He argues that he was initially detained by Lakey,
who used physical force to “pin” him to his truck for approximately ten minutes
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before Officer Arroyo arrived. Officer Arroyo then handcuffed him and placed
him in the back of her patrol car for another fourteen minutes before Officer Corral
arrived to conduct the DWI investigation. He argues that a reasonable person in
that situation would believe that he was under arrest. He further argues that by
handcuffing him and placing him in the patrol car, Officer Arroyo manifested her
knowledge that there was probable cause to arrest him.
As the State points out, however, the trial court explicitly found that
appellant’s detention began at approximately 10:10 p.m. when Officers Arroyo and
Thibodeaux arrived at the scene. The trial court did not consider Lakey’s actions
when determining if appellant was in custody, nor should it have, as there in no
evidence Lakey was acting as a government agent when he held appellant at the
scene before police could arrive. See, e.g., Dawson v. State, 106 S.W.3d 388, 391–
92 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating that “the Fourth
Amendment proscribes only government action, not action by a private individual
who is not acting as an agent of the government or with the knowledge and
participation of a government official” and that person acts as government agent
when “the government knew of, and acquiesced in, the intrusive conduct” and “the
party performing the search intended to assist law enforcement efforts” as opposed
to furthering his own ends); see also Wilkerson v. State, 173 S.W.3d 521, 527
13
(Tex. Crim. App. 2005) (holding that Miranda “generally applies only to
questioning by law enforcement officers or their agents”).
The trial court also found that appellant was detained in the back of the
patrol car, in handcuffs, for approximately fourteen minutes, that Officer Arroyo
told him that he was being detained rather than being arrested, that the officers on
the scene were conducting an ongoing investigation including talking to witnesses
and trying to clear the street, and that it was reasonable for the officers to move
appellant to a nearby parking lot to continue the DWI investigation instead of
conducting the investigation in the middle of the street. The record also contained
evidence that appellant had tried to leave the scene on multiple occasions.
This case is factually analogous to the Fourteenth Court of Appeals’ recent
decision in Hauer, in which the sole officer at the scene of the accident,
“[p]ursuant to department policy and for her safety and the safety of” the
defendant, handcuffed the defendant and placed him in the back of her patrol car to
wait for the DWI investigator. 466 S.W.3d at 891. In holding that the detention of
the defendant did not rise to the level of an arrest, our sister court pointed out the
officer “was alone with citizens, the fire department, vehicles blocking the road,
and a person she believed to be intoxicated.” Id. The defendant waited,
handcuffed, in the back of the patrol car for approximately thirty minutes before
the DWI task force officer arrived, and that officer promptly began the DWI
14
investigation upon arriving at the scene. Id. The Fourteenth Court of Appeals
held, “The trial court properly concluded from these facts that [Officer] Owens’s
seizure of [the defendant] was not an arrest, but rather was a temporary detention
for the purpose of conducting an investigation as soon as back-up arrived to
perform [the] DWI investigation.” Id. at 891–92.
Appellant cites the Corpus Christi Court of Appeals’ decision on remand in
Saenz for the proposition that the officers’ actions in this case escalated the
temporary detention to an arrest. See No. 13-11-00328-CR, 2014 WL 3542092
(Tex. App.—Corpus Christi July 17, 2014, pet. ref’d) (mem. op., not designated
for publication). In Saenz, officers were dispatched to a restaurant after receiving a
call that two intoxicated men were trying to start a fight with patrons. Id. at *1. At
the scene, officers discovered Saenz sitting in his truck, which was parked across
two handicapped parking spaces and was still running and had its reverse lights on.
Id. Officers told Saenz on several occasions to turn off his vehicle, and, after
Saenz finally complied and officers removed him from his truck, Saenz waited in
the backseat of a patrol car for twelve to eighteen minutes before a DWI officer
arrived, and an officer specifically told Saenz that he was not free to leave. Id. at
*1–2. In upholding the trial court’s determination that Saenz was in custody at the
time the investigating officer handcuffed and placed him in the back of his patrol
car, the Corpus Christi court noted that Saenz “was never told that he was not
15
under arrest” and that the trial court “did not explicitly find that Saenz was told that
the reason he had to wait was so that officers could continue investigating.” Id. at
*5.
Here, in contrast, the trial court expressly found that Officer Arroyo told
appellant when she placed him in the backseat of her patrol car that he was not
under arrest, and evidence in the record supports this finding and also demonstrates
that Arroyo took these actions to keep appellant safe and secure while she and
Officer Thibodeaux continued to investigate the accident scene. Although Officer
Arroyo suspected that appellant might be intoxicated, which led to her calling for a
specialized DWI officer to be dispatched to the scene, she also testified that she
had no reason to place appellant under arrest at the time she put him in her patrol
car.
Although the trial court found that appellant’s freedom was significantly
restricted by the officers’ actions, for the defendant to be considered “in custody,”
as opposed to merely subject to an investigative detention, “the restriction on a
suspect’s freedom of movement must reach ‘the degree associated with an arrest’
instead of an investigative detention.” Saenz, 411 S.W.3d at 496. Here, appellant
was explicitly told that he was not under arrest but was instead being detained
pending further investigation. See Hauer, 466 S.W.3d at 891 (noting that
handcuffing alone does not necessarily convert investigative detention into arrest);
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see also Sheppard, 271 S.W.3d at 289 (noting that investigatory detentions, or
Terry stops, in which suspect is not free to leave, are constitutionally permissible
and that handcuffing suspect who has been temporarily detained “may be resorted
to in special circumstances”).
We conclude that, under the facts of this case, the trial court did not abuse its
discretion when it concluded that appellant’s encounter with the officers remained
an investigatory detention and was not converted to an arrest upon his being placed
in handcuffs in the back of a patrol car. We therefore conclude that, because
appellant was not under arrest or in custody at the time Officer Corral asked him
questions as part of the DWI investigation, Corral was not required to read
appellant his Miranda warnings before continuing the investigation. See Saenz,
411 S.W.3d at 493 (noting that Miranda applies when a defendant is “in custody”).
We hold that the trial court did not err in denying appellant’s motion to suppress.
We overrule appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Publish. TEX. R. APP. P. 47.2(b).
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