Opinion issued December 9, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00288-CR
                           ———————————
                    BRADLEY ALAN DEPOY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee



               On Appeal from the County Court at Law No. 4
                      Montgomery County, Texas 1
                     Trial Court Case No. 12-277402




1
     The Supreme Court of Texas, pursuant to its docket equalization authority,
     transferred the appeal to this court. See Misc. Docket No. 13–9042 (Tex. Mar. 26,
     2013); TEX. GOV’T CODE ANN. §.73.001 (Vernon 2013) (authorizing transfer).
                          MEMORANDUM OPINION

      A jury found appellant, Bradley Alan Depoy, guilty of the offense of driving

while intoxicated.2 The trial court assessed his punishment at confinement for 180

days, suspended the sentence, placed him on community supervision for one year,

and assessed a fine of $750. In two issues, appellant contends that the trial court

erred in denying his motion to suppress his oral statements and admitting a

demonstrative exhibit.

      We affirm.

                                   Background

      City of Shenandoah Police Department Officer T. Schmaltz testified that

while on patrol on the night of April 19, 2012, he received a report of a driver of a

black automobile weaving on Interstate 45. He located the automobile, which was

being driven by appellant, and saw that appellant was unable to keep his car within

a single marked lane. Schmalz activated the emergency lights of his patrol car, but

appellant did not stop for approximately 45 seconds, which Schmaltz considered to

be an unusual delay under the circumstances.

      When Officer Schmaltz approached appellant, he noted that appellant’s eyes

were bloodshot and watery, there was a strong odor of alcohol coming from

appellant’s automobile, and appellant had a breath mint in his mouth. Schmaltz

2
      See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2014).


                                         2
asked appellant where he had been, and appellant responded that he had just picked

up his two passengers from “Baker’s Street,” a local bar. When Schmaltz asked

appellant if he had been drinking, appellant responded in slurred speech that he had

had “a couple of drinks.” Schmaltz then asked for appellant’s keys and cellular

telephone and any belonging to his passengers. Schmaltz placed the keys and

telephones on top of the automobile, which he testified was for “safety” purposes.

      After running appellant’s license information, Officer Schmaltz returned to

appellant and asked him to step out of the automobile. Based on his observations

of appellant’s driving, the strong odor of alcohol emanating from appellant’s car,

and appellant’s “bloodshot watery eyes” and “slurred speech,” Schmaltz concluded

that an investigation into appellant’s possible impairment was warranted.

      When Officer Schmaltz asked appellant if he could search him, appellant

replied that he had no objection. Schmaltz directed appellant to put his hands

behind his back and place them together as if he were “praying.” Schmaltz patted

him down and, with appellant’s consent, checked his pockets. Schmaltz then asked

appellant to turn around and go with him to the patrol car to answer some

questions. The dash-camera videotape that was admitted into evidence at trial

reveals that Schmaltz interviewed appellant as follows:

      [Schmaltz]:   When did you last eat?
      [Appellant]: I ate probably two-and-a-half hours ago. . . .
      [Schmaltz]:    What did you have?


                                          3
      [Appellant]: I had a— guess turkey and rice actually.
      [Schmaltz]:    Have you been drinking?
      [Appellant]: I had a couple drinks, yes, sir.
      [Schmaltz]:    What kind of drinks?
      [Appellant]: I had a couple beers with my brother. . . .
      [Schmaltz]:    How big were the beers?
      [Appellant]: Just regular beers . . . . Sixteen ounce cans.
      [Schmaltz]:    What kind?
      [Appellant]: Bud Light.
      [Schmaltz]:    And when you say a couple, was it two, three?
      [Appellant]: I mean like three.
      [Schmaltz]:    What time was your first drink?
      [Appellant]: Probably 8:30. . . .
      [Schmaltz]:    And when was your last drink?
      [Appellant]: My last drink was probably an hour ago.
      [Schmaltz]:    Which would have been at what time?
      [Appellant]: Twelve o’clock.
      [Schmaltz]:    If you had to rate the effects of the drinks on a scale of zero to
                     ten, zero being sober [and] ten being hammered drunk, what
                     numerical value would you put [inaudible].
      [Appellant]: I’d say it’d probably be a three. . . .

Schmaltz then asked appellant whether he had any medical issues, was taking any

medications, was using any kind of illegal drugs, and when he had last slept.

      Officer Schmaltz then administered field sobriety tests to appellant,

including the horizontal gaze nystagmus (“HGN”), walk-and-turn, and one-leg

balance tests. During his testimony, the trial court admitted, over appellant’s

objection, an HGN video for demonstrative purposes. Schmaltz opined that, after


                                          4
conducting all of the field sobriety tests, and in light of his previous observations

of appellant, appellant was intoxicated.

      The trial court denied appellant’s motion to suppress his videotaped

statements made at the scene. After appellant filed this appeal, we abated the case

and remanded it to the trial court for findings of fact and conclusions of law

regarding the voluntariness of appellant’s statements.3 The trial court found, in

pertinent part, as follows:

      ....

      2.     A concerned citizen reported to police that [appellant] . . . was
             driving erratically.
      3.     Officer [Schmaltz] located [appellant’s] vehicle, observed the
             vehicle weaving, and conducted a traffic stop on [appellant’s]
             vehicle.
      4.     During the traffic stop, Schmaltz requested the keys to the
             vehicle and the cellular telephones of the vehicle’s occupants.
             [Appellant] and the other occupants handed those items to
             Schmaltz, who placed the items on top of the vehicle. Schmaltz
             placed the items on top of the vehicle to prevent anyone from
             leaving or summoning other people to the scene of the traffic
             stop.
      5.     Before conducting an investigation into [appellant’s]
             intoxication, Schmaltz requested and received permission to
             search [appellant’s] person. During the search, Schmaltz
             instructed [appellant] to interlace his fingers behind his back.
             The search was brief, and was captured on the patrol car video
             admitted into evidence at trial.



3
      See TEX. CODE CRIM. PROC. ANN. 38.22 § 6 (Vernon Supp. 2014); Urias v. State,
      155 S.W.3d 141, 142 (Tex. Crim. App. 2004).

                                           5
      6.     Schmaltz then asked [appellant] a series of questions related to
             several topics, including the mechanical condition of the
             vehicle, and the [appellant’s] overall health and drinking
             activities.
      7.     Schmaltz then requested that [appellant] perform the
             standardized field sobriety tests. [Appellant] performed the
             tests, and was ultimately arrested for driving while intoxicated.
      8.     Prior to the formal arrest, Schmaltz never informed [appellant]
             that he believed [appellant] had committed the offense of
             driving while intoxicated or any other offense, and did not place
             handcuffs or otherwise physically restrain [appellant’s] freedom
             of movement.

The trial court made the following conclusions of law:

      1.     [Appellant] was not in custody at the time he answered the
             questions posed by Schmaltz.
      2.     [Appellant’s] freedom of movement was not restrained to the
             degree associated with formal arrest at the time he answered the
             questions posed by Schmaltz.
      3.     [Appellant’s] responses were not the result of a custodial
             interrogation, and therefore, suppression of the defendant’s
             statements is not required.

                   Motion to Suppress Videotaped Statements

      In his first issue, appellant argues that the trial court erred in denying his

motion to suppress his videotaped statements at the scene because he was

subjected to custodial interrogation without having been advised of his legal rights.

See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2014). Specifically,

appellant sought to suppress the portion of the video revealing his responses to

Officer Schmaltz’s interview questions.



                                          6
      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). 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 we review de novo the trial court’s application of the law to facts not based on

an evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854

(Tex. Crim. App. 2012); Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.

2008).   We generally consider only the evidence adduced at the suppression

hearing unless the parties consensually re-litigate the issue at trial, in which case

we also consider relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809

(Tex. Crim. App. 1996). At a suppression hearing, the trial court is the sole and

exclusive trier of fact and judge of the witnesses’ credibility, and it may choose to

believe or disbelieve all or any part of a witness’s testimony. Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000).

      When, as here, the trial court files findings of fact, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). We review the trial court’s legal ruling de novo unless its explicit findings

that are supported by the record are also dispositive of the legal ruling. Id. We



                                         7
will sustain the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Ross, 32 S.W.3d 853, 855–

56.

      Appellant moved to suppress his responses to Officer Schmaltz’s questions,

as depicted in the videotape, on the ground that they were the product of a

custodial interrogation. At a pre-trial hearing on appellant’s motion to suppress,

Officer Schmaltz testified that he initiated a traffic stop because appellant was

“weaving” and failed to maintain a single marked lane along Interstate 45. He

noted that, after he activated the emergency equipment on his patrol car, it took

appellant approximately 45 seconds to stop, which Schmaltz perceived to be a

lengthy amount of time under the circumstances.

      When Officer Schmaltz approached appellant, he noted that appellant’s eyes

were bloodshot and watery, he had a mint in his mouth, and there was a “strong

odor of alcoholic beverage coming out of the car.” Schmaltz asked appellant from

where he was coming, and appellant responded “Baker’s Street,” a local bar. And

when Schmaltz asked appellant if he had been drinking, appellant, in slurred

speech, admitted that he had.

      Officer Schmaltz further testified, and the videotape corroborates, that he

asked appellant for his license and asked him to remove his keys from the ignition.

And Schmaltz placed the keys on top of the automobile. He explained that, “at that



                                           8
point, [he] needed to conduct [his] investigation to see if [appellant] was safe to

operate a motor vehicle.”        Schmaltz also requested and received appellant’s

cellular telephone, along with those of appellant’s two passengers. He explained

that he routinely collects all cellular telephones for his safety, specifically, to

prevent the occupants of a vehicle from contacting others to come to the scene.

Schmaltz placed the cellular telephones on top of the automobile.

         Officer Schmaltz then asked appellant to step out of his car, place his hands

behind his back, and “interlace” his fingers as if he were “praying.” Schmaltz

patted him down and, after receiving his permission, searched appellant’s pockets.

Schmaltz then asked appellant whether and, if so, what he had been drinking, when

he took his first and last drinks, when and what he had eaten, whether he could feel

the effects of alcohol, and about any medical issues. Schmaltz explained that these

questions were not taken from an official law enforcement form. Rather, they were

based on his training and forms that he had seen in other states. And he noted that

he had been trained to ask these questions prior to administering field sobriety

tests.

         Appellant testified at the hearing on his motion to suppress that when

Officer Schmaltz instructed him to turn over his keys and cellular telephone, step

out of the car, and place his hands behind his back, he “actually thought [he] was

under arrest.” He further testified that had he been advised that he had a right to



                                           9
remain silent, he “might have declined the interview.” After hearing appellant’s

testimony, the trial court denied appellant’s motion to suppress his responses to the

videotaped interview.

      The Fifth Amendment to the United States Constitution “commands that no

person ‘shall be compelled in any criminal case to be a witness against himself

[.]’” Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (citing U.S.

CONST. amend. V; see also U.S. CONST. amend. XIV). The United States Supreme

Court has set out warnings to be administered by law enforcement officers to

safeguard the constitutional right against self-incrimination during custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 467–79, 86 S. Ct. 1602, 1624–30

(1966).   Also, Texas Code of Criminal Procedure article 38.22 governs the

admissibility of statements made by defendants during custodial interrogations.

Herrera, 241 S.W.3d at 526. An oral statement is admissible against a defendant

in a criminal proceeding if, among other things: (1) the statement was

electronically recorded; (2) the defendant was given the warnings set out in Section

2(a) before the statement was made and it is included on the recording; and (3) the

defendant “knowingly, intelligently, and voluntarily” waived the rights set out in

the warnings. TEX.CODE CRIM. PROC. art. 38.22 § 3(a)(1)–(2). These warnings are

virtually identical to the Miranda warnings, except that Miranda does not require a

warning that the accused “has the right to terminate the interview at any time.”



                                         10
Herrera, 241 S.W.3d at 526. Warnings under Miranda and article 38.22 are

required only when a person is subjected to a custodial interrogation. Id.

      A “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.” Id. at 525 (quoting Miranda, 384 U.S.

at 444, 86 S. Ct. at 1612). “Unwarned statements obtained as a result of custodial

interrogation may not be used as evidence by the State in a criminal proceeding

during its case-in-chief.” Id.

      A person held for an investigative detention is not in custody. See Dowthitt

v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). 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.

General situations that may constitute custody include: (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 or she cannot leave; (3) when the law

enforcement officer creates a situation that would lead a reasonable person to

believe that his freedom of movement has been significantly restricted; and (4)

there is probable cause to arrest and the officer does not tell the suspect that he or

she is free to leave. Id. at 255. In the first through the third situations, the

restriction upon freedom of movement must amount to the degree associated with



                                         11
an arrest rather than an investigative detention. Id. In the fourth situation, the

existence of probable cause must be manifested to the suspect. Id.

      A trial court’s custody determination “presents a ‘mixed question of law and

fact.’” Herrera, 241 S.W.3d at 526. Therefore, we afford almost total deference

to the trial court’s custody determination when the questions of historical fact turn

on credibility and demeanor. Id. at 526–27. Conversely, when the questions of

historical fact do not turn on credibility and demeanor, we will review the trial

court’s custody determination de novo. Id.

      Appellant argues that he was in custody at the time he made his statements

because “a second police unit had arrived on scene,” his keys and cellular

telephone had been taken from him, and he was asked to place his hands behind his

back with his hands together like he was being arrested. Appellant asserts that,

based on these circumstances, a reasonable person would believe that his freedom

of movement was restrained to the degree associated with a formal arrest. And he

notes that Officer Schmaltz testified that he was not free to leave.

       “An ordinary traffic stop usually involves a single police car and one or two

officers.” State v. Ortiz, 382 S.W.3d 367, 374 (Tex. Crim. App. 2012). Here, the

fact that two police cars and two officers were on the scene by the time that

appellant made the statements at issue might “add[] at least marginally to . . . [a]

conclusion” that he was in custody. See id. (concluding presence on scene of two



                                          12
police cars and three officers added to conclusion defendant in custody for

Miranda purposes).

       Courts have held, however, that taking a driver’s keys during a traffic stop

does not constitute custody. See Campbell v. State, 325 S.W.3d 223, 235 (Tex.

App.—Fort Worth 2010, no pet.) (holding defendant not in custody when officer

took his keys; rather, such was “part of a continuing investigation”); State v.

Whittington, 401 S.W.3d 263, 275 (Tex. App.—San Antonio 2013, no pet.)

(concluding taking of defendant’s keys constituted “an additional restraint on [his]

freedom of movement,” but “not enough to escalate [his] detention into an arrest”);

see, e.g., White v. State, No. 08-06-00050-CR, 2007 WL 853134, at *4 (Tex.

App.—El Paso Mar. 22, 2007, no pet.) (not designated for publication) (concluding

defendant detained and not in custody when officer took keys because officer’s

suspicion defendant intoxicated had not been dispelled or confirmed).

      Here, the record shows that Officer Schmaltz took appellant’s keys and

cellular telephone and placed them on top of appellant’s automobile. The videotape

shows that Schmaltz told appellant that he was placing them there until they

finished their “business.” And Schmaltz testified that he did so for safety reasons,

namely, to prevent a possibly intoxicated person from driving away before his

status could be ascertained and to curtail the summoning of others to the scene.

Appellant does not direct us to any authority to support his argument that the



                                        13
taking of his keys and cellular telephone during the traffic stop for suspicion of

intoxication escalated his detention into an arrest.

      Further, even if Officer Schmaltz had handcuffed appellant during

questioning, the mere act of handcuffing, by itself, will not establish custody.

Ortiz, 382 S.W.3d at 374. It may be a relevant factor, however, that lends support

to a conclusion that a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest.        Id.;

Dowthitt, 931 S.W.2d at 255.

      The videotape shows that appellant was not handcuffed and Officer

Schmaltz only asked appellant to momentarily place his hands behind his back

while he patted him down for weapons and conducted a search to which appellant

had consented. Once completed, Schmaltz instructed appellant to turn around and

follow him to his patrol car to answer a few questions. The videotape shows that

appellant, with his hands at his sides, followed Schmaltz and, although appellant

again placed his hands behind his back during questioning, Schmaltz did not

instruct him to do so.

      Finally, although Officer Schmaltz testified that appellant was not free to

leave during the period of time at issue, not being free to leave is an inherent

feature of a temporary detention. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.

App. 2010); State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008)



                                          14
(“That is precisely what Terry permits—a temporary detention, in which the

person is not free to leave, while the police officer investigates whether a crime has

been committed.”).

      Having examined the totality of the circumstances, we conclude that the

record supports the trial court’s conclusion that appellant’s freedom of movement

was not restrained to the degree associated with a formal arrest. See Sheppard, 271

S.W.3d at 291, 293.      And because appellant was not in custody, article 38.22

warnings were not required. See Herrera, 241 S.W.3d at 525. Accordingly, we

hold that the trial court did not err in denying appellant’s motion to suppress his

videotaped statements.

      We overrule appellant’s first issue.

                       Admission of Demonstrative Exhibit

      In his second issue, appellant argues that the trial court erred in admitting an

HGN videotape for demonstrative purposes because it was not relevant, any

relevance was outweighed by its prejudicial effect, and it lacked the proper

predicate.

       We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see

Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981) (reviewing trial

court’s admission of demonstrative evidence for abuse of discretion); Onwukwe v.



                                         15
State, 186 S.W.3d 81, 84 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial

court abuses its discretion only if its decision is “so clearly wrong as to lie outside

the zone within which reasonable people might disagree.” Taylor v. State, 268

S.W.3d 571, 579 (Tex. Crim. App. 2008). We will uphold an evidentiary ruling if

it is correct on any theory of law applicable to the case. De La Paz v. State, 279

S.W.3d 336, 344 (Tex. Crim. App. 2009).

      Demonstrative evidence is evidence admitted to serve as a visual aid or

illustration that is offered merely to help explain or summarize a witness’

testimony or to put events into better perspective. Baker v. State, 177 S.W.3d 113,

123 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Torres v. State, 116 S.W.3d

208, 213 (Tex. App.—El Paso 2003, no pet.). “[A]n article sought to be exhibited

to the jury must be shown to be properly identified, as against any idea of

speculation, conjecture, or presumption of what the exhibit represents.” Onwukwe,

186 S.W.3d at 84.

      Here, during Officer Schmaltz’s trial testimony, the State moved to admit a

training videotape depicting a close-up view of two sets of eyes, one purporting to

be the eyes of a “sober” person reacting to an HGN test and the other the eyes of

an “intoxicated” person reacting to an HGN test. Appellant objected, asserting that

the videotape was not relevant, its probative value was substantially outweighed by

the danger of unfair prejudice, and it was without a proper predicate.



                                          16
      At a hearing outside the presence of the jury, Officer Schmaltz identified the

videotape as one he had viewed in his classes to help officers identify intoxicated

individuals with HGN testing. He noted that he did not know the individuals in the

video or the cause of the nystagmus in the eyes of the “intoxicated” person. The

trial court overruled appellant’s objection and stated that it would admit the

videotape for demonstrative purposes if the State laid the proper predicate to

establish that the videotape showed what Schmaltz would typically observe in

sober and intoxicated persons during HGN testing.

      Officer Schmaltz then explained to the jury that the eyes of the intoxicated

person in the videotape were not those of appellant but of an unknown individual;

the videotape shows “what nystagmus is”; and it shows what he would observe

during HGN testing of a sober versus an intoxicated person. In addition, the trial

court instructed the jury that the videotape did not depict appellant’s eyes and was

admitted only to aid the jury with a visual demonstration of HGN.

      Appellant acknowledges that appellate courts have previously held that trial

courts did not abuse their discretion in admitting HGN videotapes for

demonstrative purposes and, even if not admissible, any error in their admission

would have been harmless. See Hartsock v. State, 322 S.W.3d 775, 779–80 (Tex.

App.—Fort Worth 2010, no pet.) (allowing videotape depicting “an individual’s

eyes with and without nystagmus”); see, e.g., Guerrero v. State, No. 01-11-01013-



                                        17
CR, 2013 WL 3354653, at *8, *10 (Tex. App.—Houston [1st Dist.] July 2, 2013,

pet. ref’d) (mem. op., not designated for publication) (trial court did not abuse

discretion in admitting videotape showing eyes of individuals with and without

nystagmus for demonstrative purposes). He argues that this case is distinguishable,

however, because here the eyes of the individual without nystagmus are labeled

“sober” and the eyes of the individual with nystagmus are labeled “intoxicated.”

Appellant asserts that these labels “gave the jury substantive evidence that if there

was HGN found,” then appellant “must be guilty.”

      Relevant evidence is that which tends to make the existence of a fact of

consequence to the determination of the case more or less probable than it would

be without the evidence. TEX. R. EVID. 401. Relevant evidence is generally

admissible. TEX. R. EVID. 402. Relevant evidence may be excluded, however, if its

probative value is substantially outweighed by the danger of unfair prejudice. See

TEX. R. EVID. 403. We consider: “(1) the probative value of the evidence; (2) the

potential to impress the jury in some irrational yet indelible way; (3) the time

needed to develop the evidence; and (4) the proponent’s need for the evidence.”

State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

      Here, the trial court admitted the videotape for demonstrative purposes only,

and the videotape took a minimal amount of time to develop. The State did not

have great need for the evidence, as Officer Schmaltz had testified to the details of



                                         18
an HGN test, its administration, and the “clues” that might reveal whether a subject

was sober or intoxicated. The videotape visually demonstrated the clues and

differences about which Schmaltz had testified. The potential to impress the jury

in an irrational way was low, given that Schmaltz explained the point of the video

and because the trial court instructed the jury that the video did not depict appellant

and was admitted only for demonstrative purposes. We presume that the jury

followed the cautionary instructions of the trial court. Archie v. State, 340 S.W.3d

734, 741 (Tex. Crim. App. 2011).

      We conclude that the trial court’s decision to admit the HGN videotape for

demonstrative purposes lies within the zone of reasonable disagreement.

Accordingly, we hold that the trial court did not err in admitting the videotape for

demonstrative purposes.

      We overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).

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