                               Fourth Court of Appeals
                                      San Antonio, Texas
                                   CONCURRING OPINION
                                         No. 04-18-00519-CR

                                          Earl James OTTER,
                                                Appellant

                                                   v.

                                         The STATE of Texas,
                                              Appellee

                      From the 187th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2017CR3776
                             Honorable Laura Lee Parker, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring Opinion by: Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: July 10, 2019

           Because the majority does not conclude the trial court erred in failing to suppress Otter’s

statements to Sergeant Alonzo, I concur in the judgment only.

                                     DETENTION VERSUS ARREST

           “Detentions and arrests both involve restraint on an individual’s freedom of movement, but

an arrest involves a comparatively greater restraint.” Crofton v. State, 541 S.W.3d 376, 376 (Tex.

App.—Houston [14th Dist.] 2017, no pet.) (citing State v. Sheppard, 271 S.W.3d 281, 290 (Tex.

Crim. App. 2008)). Although the law provides no “bright line” rule to distinguish the two, Texas

courts generally characterize the seizure of a person as an “arrest” or “detention” depending upon
Concurring Opinion                                                                     04-18-00519-CR


several factors: (1) amount of force displayed; (2) duration of the detention; (3) efficiency of the

investigative process and whether it was conducted at the original location or the person was

transported to another location; (4) officer’s expressed intent—whether the officer told the

detainee that the detainee was under arrest or being detained; and (5) any other relevant factors.

See Sheppard, 271 S.W.3d at 290–91. “If the degree of incapacitation appears more than necessary

to simply safeguard the officers and assure the suspect’s presence during a period of investigation,

this suggests the detention is an arrest.” Id. at 291; accord Kuether v. State, 523 S.W.3d 798, 808

(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

        Determining whether Otter’s detention evolved into an arrest requires an analysis of the

factors set forth in Sheppard. 271 S.W.3d at 290–91.

A.      Amount of Force and Officer’s Expressed Intent

        Otter’s frustration at his inability to obtain a cigarette prompted the officer’s expressions

of placing further restraints on Otter. Shortly after the twelve-minute point in the videotape, when

Otter first requested an attorney, Otter attempted to obtain a cigarette. At 13:30 on the videotape,

Otter asked an officer to retrieve cigarettes from the house. About thirty seconds later, he asked a

neighbor to bring him a cigarette. Sergeant Alonzo informed Otter that no one was allowed near

him and that an officer would retrieve cigarettes from the house. Otter responded, “If I am under

arrest, put me in handcuffs. If I am not, then I will do what I want.” Sergeant Alonzo informed

Otter that he was being detained and that if he did not cooperate and sit in the chair that he would

“put [him] in handcuffs” and in the back of the officer’s patrol vehicle. For the next thirty minutes,

before Otter was finally provided a cigarette by one of the officers, the video depicts Otter asking

anyone in earshot—different neighbors, officers, and individuals walking by the house—for a




                                                 -2-
Concurring Opinion                                                                     04-18-00519-CR


cigarette; each time, Sergeant Alonzo sternly directed Otter back into the chair and restricted his

movements and contacts.

        Although not handcuffed, Otter remained respectful and cooperative under Sergeant

Alonzo’s direction. Those directions, however, did not allow Otter to leave the two-foot vicinity

of the chair in which he was “confined.”

B.      Duration of the Detention

        The majority’s analysis only addresses the first fifteen minutes of Otter’s detention. Otter’s

detention at the residence continued for over an hour. At approximately fourteen minutes into the

videotape, Sergeant Alonzo directly told Otter that he was being detained and Otter’s freedom to

move was restricted the entire time.       Although Otter’s oral version of the events did not

significantly change after the first twelve minutes, his rambling behavior, the words he chose, and

his erratic back and forth nature were all evidence the jury could use to make a conclusion about

his guilt.

C.      Efficiency of the Investigative Process and Transport of Defendant

        In an investigative detention, police officers may not ask questions that “are reasonably

likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 298–99 (1980).

Although safety concerns were obviously elevated based on the officer’s inability to locate the

missing 9-millimeter firearm, Sergeant Alonzo’s questions were not limited to those of officer

safety. During the hour-long time period in question, Sergeant Alonzo continued to ask Otter

questions regarding his relationship with Winters, where Otter was when he heard the shot, about

the different weapons he owned, and information pertinent to the investigation.

        Furthermore, the fact officers waited over an hour to transport Otter from his residence to

the Live Oak Police Department, to be interviewed by Texas Ranger Keith Pauska, is also legally




                                                 -3-
Concurring Opinion                                                                      04-18-00519-CR


significant. Otter was cooperative with the officers and Otter was detained outside and away from

the actual crime scene. Officers attempting to locate items in the residence walked outside and

asked Otter questions without incident while he was detained by Sergeant Alonzo. By transporting

Otter away from an already safe location to speak to Texas Ranger Pauska, officers restrained

Otter’s freedom of movement to a degree that appeared more than necessary to safeguard

themselves and to assure Otter’s presence during the period of investigation. See Sheppard, 271

S.W.3d at 291 (observing degree of incapacitation only necessary to assure officer safety and

assure suspect presence during investigation); Rodriguez v. State, 191 S.W.3d 428, 444 (Tex.

App.—Corpus Christi 2006, pet. ref’d) (concluding “[t]he ‘least intrusive means’ available to

determine if appellant was intoxicated was to conduct a field sobriety test at the scene of the

accident”).

                                            CONCLUSION

        The majority relies heavily on the original report of a suicide to argue that Otter’s detention

was akin to the short detentions in Castro v. State, 373 S.W.3d 159, 165–66 (Tex. App.—San

Antonio 2012, no pet.) (concluding officer detained defendant “merely long enough to engage in

an investigatory procedure”) and Belcher v. State, 244 S.W.3d 531, 542 (Tex. App.—Fort Worth

2007, no pet.) (explaining no investigation while waiting for second officer was not unreasonable).

Here, Officer Wall and Sergeant Alonzo both expressed their immediate suspicion that something

looked awry at the scene, the scene gave them a “bad feeling,” and Otter was the focal point of

their investigation. Otter was detained at the scene for over an hour before being transported to

the police station for an interview with Ranger Pauska. He was unable to talk to neighbors or his

autistic daughter; he was confined to a chair on the patio; and he was unable to obtain a cigarette

or a bottle of water from his residence.




                                                 -4-
Concurring Opinion                                                                   04-18-00519-CR


        I would conclude Otter’s detention was significantly greater than “simply necessary to

safeguard” Sergeant Alonzo, an armed police officer, and the multitude of other armed officers at

the scene. Sheppard, 271 S.W.3d at 291. The amount of force shown, and the officer’s

unwillingness to allow Otter to move from the stationary patio chair, or talk to any other

individuals, was also unnecessary to “assure [Otter’s] presence during [the] investigation.” See id.

Accordingly, I would conclude the trial court erred in failing to suppress Otter’s statements to

Sergeant Alonzo after the first twelve minutes recorded on Sergeant Alonzo’s body camera.

However, because I agree the trial court’s error did not reasonably affect the jury’s deliberation,

see TEX. R. APP. P. 42.2(a), I concur in the judgment only.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




                                                -5-
