                                    NO. 12-17-00360-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KENNETH WAYNE BOYD, JR.,                       §       APPEAL FROM THE 145TH
APPELLANT

V.                                             §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §       NACOGDOCHES COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Kenneth Wayne Boyd, Jr. appeals his convictions for possession of a controlled
substance, enhanced. In two issues, Appellant contends the trial court abused its discretion when
it denied his motion to suppress. We affirm.


                                          BACKGROUND
       Appellant was arrested and charged by indictment with two counts of possession of a
controlled substance. Count One alleged Appellant possessed phencyclidine in an amount of
four grams or more but less than two hundred grams. Count Two alleged Appellant possessed
cocaine in an amount of one gram or more but less than four grams. Both charges were
enhanced by two prior felony convictions. Appellant pleaded “not guilty” to both counts and the
matter proceeded to a jury trial.
       During the trial, Appellant made an oral motion to suppress arguing that his initial
detention by law enforcement was not based on reasonable suspicion. Appellant further argued
that his statements to law enforcement were made without the required warnings. Following a
hearing, the trial court denied Appellant’s motion.
       At the conclusion of trial, the jury found Appellant “guilty” of both counts. Following a
separate punishment hearing, the trial court sentenced Appellant to ninety-nine years
imprisonment for Count One and twenty years imprisonment for Count Two, to run
concurrently. This appeal followed.


                                      MOTION TO SUPPRESS
       In two issues, Appellant argues the trial court improperly denied his motion to suppress.
In his first issue, he contends that his arrest was the result of an investigative detention made
without reasonable suspicion. In his second issue, Appellant urges that his statement to Officer
Guiseppe Celafu with the Nacogdoches Police Department was the result of a custodial
interrogation conducted without the warnings required by Article 38.22 of the code of criminal
procedure and Miranda v. Arizona.
Standard of Review and Applicable Law
       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       When a trial court does not make express findings of fact, we view the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
fact that support its ruling as long as those findings are supported by the record. Lujan v. State,
331 S.W.3d 768, 771 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to “the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
that evidence.” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). When all
evidence is viewed in the light most favorable to the trial court’s ruling, an appellate court is
obligated to uphold the ruling on a motion to suppress if that ruling was supported by the record



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and correct under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;
Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
Because the trial court in this case did not make express findings, we view the evidence in the
light most favorable to the trial court’s ruling and assume it made implicit findings that support
its ruling as long as the record supports those findings. See Lujan, 331 S.W.3d at 771.
       To suppress evidence because of an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State,
283 S.W.3d 854, 872 (Tex. Crim. App. 2009).            A defendant can satisfy this burden by
establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672.
       The burden then shifts to the State to establish that the seizure was reasonable. Id. at
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005). An objective standard is used when determining if the
officer had a reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
App. 2011). This standard is whether the officer has “specific, articulable facts that, combined
with rational inferences from those facts, would lead him to conclude that the person detained is,
has been, or soon will be engaged in criminal activity.” Id. This test also includes the totality of
the circumstances. Id.
The Traffic Stop
       In his first issue, Appellant contends he was stopped without reasonable suspicion. He
urges that exiting a church parking lot, without evidence of activity that would have been clearly
distinguishable from that of innocent people, is insufficient to support reasonable suspicion.
Under the facts of this case, we disagree.
       An officer may conduct a temporary detention if the officer has reasonable suspicion to
believe that a person is violating the law. See Ford, 158 S.W.3d at 492. Reasonable suspicion is
dependent upon both the content of the information possessed by the police and its degree of
reliability. See Ala. v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416–17, 110 L. Ed. 2d 301
(1990); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). Information passed on by
another can provide an officer with a reasonable suspicion. See Mitchell v. State, 187 S.W.3d
113, 117–18 (Tex. App.—Waco 2006, pet. ref’d). Circumstances that raise the suspicion of
illegal conduct need not be criminal in themselves. Crockett v. State, 803 S.W.2d 308, 311 (Tex.



                                                 3
Crim. App. 1991). Rather, they may include facts which in some measure render the likelihood
of criminal conduct greater than it would be otherwise. Id. There may be instances when a
person’s conduct, if viewed in vacuum, appears innocent; however, when viewed within the
totality of the circumstances, those circumstances give rise to reasonable suspicion. Curtis v.
State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007) (citing Woods v. State, 956 S.W.2d 33, 38
(Tex. Crim. App. 1997)).
          Officer Cefalu testified at the suppression hearing that he was dispatched to a gas station
in response to an aggravated robbery. The gas station clerk reported that a subject entered the
store wearing a red mask and dark clothing and held the clerk up at gunpoint. Cefalu testified
that he arrived at the gas station within “a couple minutes.” As he approached the store, he saw a
vehicle appear from behind the church next door to the gas station. No other vehicles were in the
church parking lot and 8:00 in the morning was early for anyone to be at the church. Sergeant
Keith Hawkins with the Nacogdoches Police Department, who was with Cefalu, told him to stop
the car. When Cefalu initiated the traffic stop, the vehicle did not immediately stop. Cefalu
testified that it “slow-rolled a little bit” before pulling into the gas station’s parking lot. Cefalu
stated that he had a reasonable suspicion that the car leaving the church was involved in the
aggravated robbery because it was reported that the suspect fled on foot in the direction of the
church.
          When viewed within the totality of the circumstances, these facts gave rise to specific,
articulable facts that, combined with rational inferences from those facts, would lead Cefalu to
conclude that Appellant had been engaged in criminal activity. See Derichsweiler, 348 S.W.3d
at 914; see also Woods, 956 S.W.2d at 38. Thus, Cefalu was justified in conducting a temporary
detention. See Ford, 158 S.W.3d at 492. Appellant’s first issue is overruled.
Appellant’s Statements
          In his second issue, Appellant argues that his statement that he was hiding “dope” should
have been suppressed because he did not receive the warnings required by Article 38.22 and
Miranda. He contends that he was in custody when Cefalu questioned him and, therefore, he
should have been read his rights.
          Cefalu testified that, once he stopped Appellant’s vehicle, he was armed and detained
Appellant in handcuffs. Because he was responding to an aggravated robbery, Cefalu was
concerned that Appellant had a weapon on his person; therefore, officer safety was his



                                                   4
immediate concern. As a result, he proceeded to “pat down” Appellant for weapons. Every time
Cefalu reached around to the front of Appellant’s stomach, Appellant bent forward, which
Cefalu found unusual. Cefalu, worried about the possibility of a weapon, asked Appellant if he
was hiding something. Appellant responded that he had “dope.” Because Appellant said that he
had “dope” in his pants, Cefalu proceeded to search him for narcotics, which he found in
Appellant’s pants. Cefalu then arrested Appellant.
       The prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. Miranda v. Ariz., 384
U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). Custodial interrogation means
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. Id. Where, as in this case,
the facts are undisputed and there are no questions of credibility or demeanor, we review de novo
the question of whether a statement was the product of custodial interrogation. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       In determining whether an individual was in custody, the ultimate inquiry is whether
there was a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest. Stansbury v. Cal., 511 U.S. 318, 322, 114 S. Ct. 1526, 1528–29, 128 L. Ed. 2d
293 (1994) (per curiam). The determination depends on the objective circumstances, not on the
subjective views of either the interrogating officers or the person being questioned. Id. 511 U.S.
at 323, 114 S. Ct. at 1529. Moreover, the determination is made on an ad hoc basis. Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). Custody is established if the manifestation
of probable cause, combined with other circumstances, would lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest. Id.
       Here, it is undisputed that Officer Cefalu did not read Appellant the warnings required
under Miranda and Article 38.22 prior to asking Appellant questions. 384 U.S. at 444, 86 S. Ct.
at 1612; see TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2(a)(1)-(5) (West 2018). Appellant
argues that his answer to Officer Cefalu’s question regarding whether he was hiding anything
was the product of a custodial interrogation. However, the evidence shows that this statement
was made in response to a question that Officer Cefalu asked Appellant shortly after pulling him
over and identifying him.



                                                  5
       A traffic stop does not constitute “custody” for Miranda purposes. Henderson v. State,
05-14-00025-CR, 2014 WL 6780647 at *4 (Tex. App.—Dallas Dec. 2, 2014, pet. ref’d) (mem.
op., not designated for publication); see also State v. Stevenson, 958 S.W.2d 824, 828 (Tex.
Crim. App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420, 441, 104 S. Ct. 3138, 3151, 82 L.
Ed. 2d 317 (1984)). An officer may detain a person in order to gather information in the course
of a roadside investigation before placing the person in custody under Miranda. Henderson,
2014 WL 6780647 at *4; see also Lewis v. State, 72 S.W.3d 704, 707–13 (Tex. App.—Fort
Worth 2002, pet. ref’d). Thus, Appellant was not in custody at the time he made the challenged
statement and, as a result, warnings were not required. See Kutch v. State, No. 12-17-00103-CR,
2018 WL 2715367, at *5 (Tex. App.—Tyler June 6, 2018, no pet. h.) (mem. op., not designated
for publication).
       However, Appellant argues that he was in custody for Miranda purposes because he was
placed in handcuffs prior to being questioned. There is no bright-line rule establishing that a
person who is handcuffed is per se in custody. Matter of S.C., 523 S.W.3d 279, 283 (Tex. App.–
San Antonio 2017, pet. denied). Handcuffing for purposes of an investigative detention—
including investigation, maintenance of the status quo, and officer safety—does not necessarily
give rise to a custodial interrogation. Id. The record in this case indicates Appellant was not in
custody during the time he was handcuffed and being questioned by Officer Cefalu. Rather, he
was merely detained for officer safety and investigatory purposes. Although Officer Cefalu
physically deprived Appellant of his freedom of movement and acknowledged that Appellant
was not free to leave while handcuffed, an officer may handcuff a suspect to detain him for
officer safety and to preserve the status quo. Champagne v. State, No. 04-17-00029-CR, 2018
WL 442763, at *3 (Tex. App.—San Antonio Jan. 17, 2018, no pet.) (mem. op., not designated
for publication). Therefore, Appellant was not in custody, even though he was handcuffed, and
Miranda warnings were not required. See id. For this reason, the trial court did not err in
admitting the statements. We overrule Appellant’s second issue.


                                          DISPOSITION
       Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.




                                                6
                                                                GREG NEELEY
                                                                   Justice



Opinion delivered June 29, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 29, 2018


                                         NO. 12-17-00360-CR


                                 KENNETH WAYNE BOYD, JR.,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1420870)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
