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                                 MEMORANDUM OPINION

                                         No. 04-09-00228-CR

                                    Juan Rodriguez BARCENES,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 379th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2008CR0901
                           Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: April 14, 2010

AFFIRMED

           Juan Rodriguez Barcenes was convicted by a jury of felony driving while intoxicated. On

appeal, Barcenes contends the trial court erred in denying his motion to suppress and in failing to

include an instruction in the jury charge. We affirm the trial court’s judgment.

                                        MOTION TO SUPPRESS

           We review a trial court’s ruling on a motion to suppress under an abuse of discretion

standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We will sustain the trial
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court’s ruling if it is reasonably supported by the record and is correct on any theory of law

applicable to the case. Id. When, as here, the trial court makes no findings of fact, we review the

evidence in the light most favorable to the trial court’s ruling and “assume that the trial court made

implicit findings of fact supported in the record that buttresses its conclusion.” Carmouche v. State,

10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). 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 those facts. State v. Dixon, 206 S.W.3d at 590.

       In his first point of error, Barcenes contends the trial court abused its discretion in failing to

suppress statements he made regarding his alcohol consumption because the statements were the

product of a custodial interrogation and elicited without Barcenes being advised of his Miranda1

rights. The State responds that the encounter between Barcenes and the arresting officer had not

risen to the level of a custodial interrogation; therefore, the motion to suppress was properly denied.

       A person who is being temporarily detained is not free to leave, but is being detained while

an officer investigates whether a crime has been committed. State v. Sheppard, 271 S.W.3d 281, 289

(Tex. Crim. App. 2008). A temporary detention is not, however, a custodial arrest. Id. at 289. The

Texas Court of Criminal Appeals has outlined four general situations which 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. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.


       1
           … Miranda v. Arizona, 384 U.S. 436 (1966).

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Crim. App. 1996). In the fourth situation, the officer’s knowledge of probable cause must be

manifested to the suspect. Id. In the first three situations, the restriction on movement must amount

to the degree associated with an arrest as opposed to an investigative detention. Id. Several factors

may be considered in determining whether an encounter is an arrest or a detention, including: (1) the

amount of force displayed; (2) the duration of the detention; (3) the efficiency of the investigative

process and whether it is conducted at the original location or the person is transported to another

location; (4) the officer’s expressed intent – that is, whether he told the detained person that he was

under arrest or was being detained only for a temporary investigation; and (5) any other relevant

factors. State v. Sheppard, 271 S.W.3d at 291.

       Deputy Paul Rodriguez, a seventeen-year veteran with the Bexar County Sheriff’s Office,

testified that he observed a vehicle failing to drive in a single-marked lane around 10:00 p.m. He

observed the vehicle going over the center, double-yellow, dividing line and then going back onto

the grassy shoulder of the road. As the vehicle started pulling away, Deputy Rodriguez activated his

radar and determined that the vehicle was traveling at 54 m.p.h., which was over the 40 m.p.h. speed

limit. Deputy Rodriguez accelerated to catch up to the vehicle and activated his overhead lights.

When the vehicle did not stop, Deputy Rodriguez activated his siren after which the vehicle stopped.

Deputy Rodriguez stated that he believed the driver was either intoxicated or having a medical issue

requiring Deputy Rodriguez to investigate further.

       As Deputy Rodriguez exited his vehicle, he observed the driver moving around in the vehicle

and reaching to his right. Deputy Rodriguez stated that he pulled his service weapon as he

approached the driver’s side of the vehicle because he was unsure if the driver was grabbing

something or if the vehicle was stolen. When Deputy Rodriguez arrived at the window, he pointed


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his weapon at the driver and told him to let him see his hands. Deputy Rodriguez had to repeat his

request for the driver to show his hands. After Deputy Rodriguez told the driver, who was

subsequently identified as Barcenes, to exit the vehicle, Barcenes almost fell back into the vehicle

while trying to get to his feet and had to hold the vehicle to steady himself. Deputy Rodriguez

holstered his weapon and observed that Barcenes had urinated on himself and had a strong odor of

alcoholic beverages. When Deputy Rodriguez asked Barcenes why he failed to stop, Barcenes,

whose speech was slurred, responded that he did not know that Deputy Rodriguez was behind him.

In response to Deputy Rodriguez’s question as to whether Barcenes had been drinking, Barcenes

stated that he had. Deputy Rodriguez then stated that Barcenes might not have seen his lights

because he had too much to drink. In response to Deputy Rodriguez’s question regarding how much

Barcenes had to drink, Barcenes stated that he had consumed a six-pack of 16-ounce cans of beer.

       At that time, Barcenes asked permission to urinate. Deputy Rodriguez allowed Barcenes to

go to the side of Deputy Rodriguez’s vehicle and urinate. After Barcenes urinated, Deputy

Rodriguez performed a horizontal gaze nystagmus test and observed all six clues. Deputy Rodriguez

asked Barcenes to perform the walk-and-turn test. Barcenes initially attempted to perform the test

before Deputy Rodriguez had finished explaining it, but then stated he was unable to perform the test

because of his back which he had broken thirty years earlier. Barcenes also was unable to recite his

alphabet or estimate the passage of 30 seconds. At that point, Deputy Rodriguez advised Barcenes

that he was under arrest.

       Applying the factors used to distinguish between an arrest and a temporary detention, we note

that Deputy Rodriguez conducted his investigation at the location where Barcenes was originally

stopped. Deputy Rodriguez never told Barcenes he was under arrest prior to the actual arrest and


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allowed Barcenes the freedom to urinate on the side of the road. Finally, the detention lasted only

as long as necessary for Deputy Rodriguez to conduct field sobriety tests.

       Barcenes specifically complains that Deputy Rodriguez had developed probable cause to

arrest Barcenes before questioning him about his alcohol consumption and did not inform Barcenes

he was free to leave. A person who is being detained, however, is not free to leave. State v.

Sheppard, 271 S.W.3d at 289. “That is precisely what Terry2 permits – a temporary detention, in

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

committed.” Id. Moreover, although Deputy Rodriguez admitted that he did not inform Barcenes

that he was free to leave, Deputy Rodriguez also testified that Barcenes never asked to leave. More

importantly, even if Deputy Rodriguez believed he had probable cause prior to the time he actually

arrested Barcenes, the record does not support that this was ever manifested to Barcenes. See

Dowthitt, 931 S.W.2d at 255; see also Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San

Antonio 1998, pet. ref’d) (police officer’s subjective view does not bear upon question of whether

a suspect is in custody for purposes of Miranda if the subjective view is not disclosed by the officer

to the suspect).

       Barcenes also specifically relies on Deputy Rodriguez’s having pulled his service weapon

as evidence that the encounter was more than a detention, citing Alford v. State, 22 S.W.3d 669 (Tex.

App.—Fort Worth 2000, pet. ref’d). In Alford, however, the officer physically removed the

defendant from his truck, put him on the ground, and handcuffed him. Id. at 671. The defendant

then remained handcuffed for six or seven minutes until another officer arrived on the scene who

questioned the defendant about his alcohol consumption. Id. at 671-72. Unlike the facts in Alford,


       2
           … Terry v. Ohio, 392 U.S. 1 (1968).

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the facts in this case are more akin to the facts presented in State v. Sheppard, 271 S.W.3d at 289-90.

In Sheppard, the defendant was placed in handcuffs until the officer checked a residence for officer

safety, and the handcuffs were removed as soon as the officer completed the brief sweep of the

residence. Id. Similarly, Deputy Rodriguez drew his service weapon for officer safety, but

immediately holstered the weapon when Barcenes exited the vehicle.

        Viewing the evidence in the light most favorable to the trial court’s ruling, Deputy

Rodriguez’s investigation had not proceeded beyond a temporary detention when he asked Barcenes

about his alcohol consumption.       Instead, the questions “were in pursuance of a temporary

investigation to determine whether or not [Barcenes] was driving a motor vehicle while intoxicated.”

Abernathy, 963 S.W.2d at 825. Accordingly, the trial court did not abuse its discretion in denying

the motion to suppress.

                                           JURY CHARGE

        In his second point of error, Barcenes contends that he was entitled to a jury instruction under

Article 38.23. Article 38.23 provides:

        No evidence obtained by an officer or other person in violation of any provisions of
        the Constitution or laws of the State of Texas, or of the Constitution or laws of the
        United States of America, shall be admitted in evidence against the accused on the
        trial of any criminal case. In any case where the legal evidence raises an issue
        hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt,
        that the evidence was obtained in violation of the provisions of this Article, then and
        in such event, the jury shall disregard any such evidence so obtained.

TEX . CODE CRIM . PROC. ANN . art. 38.23(a) (Vernon 2005). The State responds that the jury

instruction was not required because the record did not contain any conflicting testimony regarding

the relevant facts.




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         In order to be entitled to an instruction under Article 38.23, Barcenes had to establish the

following:

         (1) the evidence heard by the jury raised an issue of fact;

         (2) the evidence on that fact was affirmatively contested; and

         (3) that contested factual issue was material to the lawfulness of the challenged
         conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 409 (Tex. Crim. App. 2007). Thus, in order to be entitled to an

instruction under Article 38.23, a genuine dispute about a material fact must exist. Id. If there is no

disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question

of law. Id.

         In the instant case, Deputy Rodriguez was the only witness who testified regarding the

circumstances of his investigation; therefore, his testimony regarding the relevant facts was

uncontroverted. Although Barcenes contends that Deputy Rodriguez’s testimony was conflicting

regarding the relevant facts, we have reviewed the testimony and the videotape of the investigation

and conclude the evidence contains no self-evident conflict that would require a jury instruction.3

See Estrada v. State, 30 S.W.3d 599, 605 (Tex. App.—Austin 2000, pet. ref’d). Accordingly, the

trial court did not err in denying Barcenes’s request for an Article 38.23 jury instruction.




         3
          … The only conflict Barcenes refers to in his brief relates to an alleged conflict regarding when Deputy
Rodriguez developed probable cause to arrest Barcenes. The development of probable cause to arrest would elevate a
temporary detention to a custodial arrest only if the officer’s knowledge of probable cause was manifested to the suspect.
Dowthitt, 931 S.W .2d at 255. Because Deputy Rodriguez never disclosed his opinion regarding the existence of probable
cause to Barcenes, any conflict in Deputy Rodriguez’s testimony regarding when he developed probable cause was not
material in determining whether the encounter between Deputy Rodriguez and Barcenes was a temporary detention or
a custodial arrest.

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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                     Catherine Stone, Chief Justice

DO NOT PUBLISH




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