      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00786-CR



                                 The State of Texas, Appellant

                                                 v.

                              Christopher Reid Dewbre, Appellee


            FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
       NO. C-1-CR-14-207714, HONORABLE BRANDY MUELLER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The State of Texas appeals the trial court’s order granting Christopher Reid Dewbre’s

motion to suppress his statements to law-enforcement officers in the underlying prosecution for

driving while intoxicated. See Tex. Code Crim. Proc. art. 44.01(a)(5). The State contends that the

trial court abused its discretion by granting the motion. We will reverse the order suppressing

Dewbre’s statements and remand this cause for further proceedings consistent with this opinion.


                                        BACKGROUND

               Austin Police Department Officer Collin Michael Fallon, the only witness at the

hearing on Dewbre’s motion to suppress, testified that he was dispatched to the 2000 block service

road of south IH-35 on an urgent “check welfare” report of a driver passed out in a vehicle with its

engine running. Officer Fallon stated that he was familiar with the area, located a few blocks south

of the downtown entertainment district, where he had worked numerous collisions and was once
struck by an intoxicated driver. Using the description provided in the report, Officer Fallon said that

he located the vehicle in the parking lot of a service station. The trial court admitted dashboard-

camera video with date-and-time stamps showing events from Officer Fallon’s arrival at the scene

at 2:07 a.m. to Dewbre’s arrest and his subsequent transport to the police station.

                Officer Fallon testified that when he arrived, Austin Fire Department and Emergency

Medical Services personnel were already on the scene and had placed “chock blocks” beneath the

tires of the vehicle to immobilize it. He recalled that the vehicle had its lights on, its engine running,

and was not parked at a gas pump or in any of the available parking spaces. Officer Fallon testified

that he parked his patrol car in front of the vehicle. The video shows Officer Fallon then approached

the vehicle on the passenger side, shined his flashlight inside, confirmed that the vehicle was in

“park,” and then opened the passenger-side door. Officer Fallon testified that he saw keys in the

ignition and a driver, passed out in a reclined position, whom he had trouble waking. The video

shows Officer Fallon announcing, “Austin Police” three times, and saying, “Wake up, man.” Officer

Fallon testified that he took the keys out of the ignition, and the video shows the lights

being deactivated.

                The video then shows Officer Fallon walking to the driver’s side of the vehicle, and

saying to the occupant, “Sit up, man,” and asking if he needs EMS. When the occupant declines,

Officer Fallon says, “Hop out.” The occupant says, “I’m good,” as he reaches over toward the

driver’s-side door. Officer Fallon testified that the man (later identified as Dewbre) was attempting

to shut the door. Officer Fallon told him, “No, you don’t, no, nope, don’t. You need to hop out. So

we can check you out. You passed out with the car running.”



                                                    2
               Officer Fallon testified that once Dewbre got out of the car, he smelled alcohol

coming from Dewbre’s breath, and Dewbre was “showing many signs of intoxication.” Officer

Fallon testified that Dewbre seemed like he was going to fall over. Video shows Officer Fallon

asking Dewbre whether he had any weapons on him, having him walk a few steps from the side of

the vehicle (which took two seconds) for a pat down, and asking if he can take out his identification.

Officer Fallon testified that he tried to get Dewbre “to a safe spot where I can continue to interview

him and ask him questions.”

               The video shows Officer Fallon asking Dewbre to “walk over this way” and to “leave

the [truck] open for now,” but Dewbre proceeds to shut the driver’s-side door before walking for two

or three seconds toward the front of his vehicle. Officer Fallon tosses keys on the hood of the patrol

car and then asks Dewbre where he is coming from and how much he has had to drink. Dewbre says

twice that he “had a couple of drinks.” Then, Dewbre spontaneously expresses confusion about his

situation and states, “I’m not too sure of what’s going on.” Officer Fallon responds, “I’m going to

explain it to you,” and proceeds to recount that he was called to the scene, that he made certain

observations about Dewbre when he arrived, that he wanted to ensure Dewbre was all right, that

operating a motor vehicle while intoxicated is illegal in Texas, and that “now we’re at that point I

need to ask you some more questions; I need to make sure you’re safe to operate that motor vehicle.”

Officer Fallon’s statement that operating a motor vehicle while intoxicated is illegal in Texas occurs

on the video at time stamp 2:11:57 a.m., less than five minutes after he arrived at the scene, and less

than three minutes after Dewbre exited his vehicle.




                                                  3
                Next, the video shows Officer Fallon telling Dewbre that another officer (backup had

recently arrived at the scene) would stand by with him, if Dewbre did not mind, while Officer Fallon

moved his patrol car, and he tells Dewbre, “Go over there with him.” Dewbre walks there (which

takes approximately five seconds) near his vehicle. Officer Fallon takes less than a minute to turn

his patrol car to face a well-lit area in front of a food truck—previously, the patrol car was parked

like Dewbre’s, parallel with the food truck—and then takes just over another minute adjusting his

dashboard camera to better record the area in front of his vehicle. Officer Fallon testified, as the

video confirms, that when he repositioned his patrol car, he stayed in the same parking lot and did

not move Dewbre from his location.

                The video also shows that shortly after Officer Fallon joins Dewbre, the backup

officer steps away to a patrol car, and Officer Fallon and Dewbre walk fifteen seconds to get in

proper position before the patrol-car camera. Officer Fallon then reviews with Dewbre why he was

called to the scene: “You understand you drove to this point, the vehicle was still running, you’re

still behind the wheel. That’s why I gotta make sure you’re safe to drive.” Officer Fallon tells

Dewbre that he is going to “roll through some questions and then we’re going to run through some

tests.” Officer Fallon states that because of all that has taken place, he needs to make sure that

Dewbre is safe to drive, and “if you are, you are.” Officer Fallon testified that he had previously

responded to calls similar to this one and after determining that the individuals were fine, sent them

on their way.

                The video shows that Officer Fallon proceeded with typical DWI questions about

what Dewbre had to drink, how much he had to drink, and whether he had driven. Officer Fallon



                                                  4
reiterates that if Dewbre is safe to drive, he can go home. Dewbre made several admissions,

including that he was driving earlier, that he had at least seven to eight drinks at Fringe Bar, that he

was disoriented, and that he was unsure whether he was able to drive a motor vehicle. Officer Fallon

administered three field-sobriety tests: horizontal gaze nystagmus, walking heel-to-toe, and one-leg

stand. After the tests, Dewbre refused to provide a sample of his breath.1 Video time stamped at

2:37:39 a.m. shows Officer Fallon putting Dewbre in handcuffs and stating that he was being placed

under arrest for driving while intoxicated.

                  When Dewbre was subsequently charged with DWI, he filed a motion to suppress

evidence of his statements to police, contending that his statements were made as a result of

custodial interrogation, that he was not properly warned of his rights under Miranda v. Arizona,

384 U.S. 436 (1966), and that he had “asserted his right to remain silent or to have a lawyer present.”

The trial court granted Dewbre’s motion to suppress, and the State filed this appeal.2

                  The trial court made these findings and conclusions:


        FACTUAL FINDINGS:

        1.      The Defendant, Christopher Dewbre, was arrested for Driving While
                Intoxicated in Travis County, on May 11, 2014 in Travis County, Texas.

        2.      The case first unfolds when Officer Fallon of the Austin Police Department
                responds to a 911 call, wherein it is reported that the Defendant is passed out

       1
             Dewbre changed his mind later and provided a sample before going to jail.
       2
           While the appeal was pending, we determined that the trial court had not entered its
findings of fact and conclusions of law that had been requested, and we remanded the cause for entry
of the findings and conclusions. State v. Dewbre, No. 03-15-00786-CR, 2016 Tex. App. LEXIS 951
(Tex. App.—Austin Jan. 29, 2016, no pet.) (mem. op., not designated for publication) (per curiam).


                                                    5
     behind the wheel of a parked car at a gas station parking lot, with the car engine
     on.

3.   Officer Fallon arrives on scene and observes the Defendant in the parked
     vehicle, as the call had reported, passed out behind the wheel, with the engine
     running.

4.   It is night-time and further, the Court takes notice of the fact that the location
     of the Defendant is near to the entertainment district of the City of Austin.

5.   The Fire Department and EMS had arrived on scene prior to law enforcement
     and had taken safety measures with the Defendant, by putting “chock blocks”
     beneath the tires of the vehicle the Defendant was in, in an effort to prevent it
     from moving.

6.   Officer Fallon further, parked his patrol vehicle in front of Defendant’s vehicle,
     positioning the vehicles bumper to bumper, while the Defendant remained
     passed out behind the wheel, so as to further prevent the Defendant’s car from
     leaving the parking place. Officer Fallon stated, “with my vehicle there, he
     definitely could not have moved forward.”

7.   Officer Fallon enters the vehicle, turns the ignition off and takes the keys to
     Defendant’s vehicle from the car. The keys are removed from the Defendant’s
     care, custody, and control.

8.   After Officer Fallon is able to get the Defendant out of the vehicle and to come
     to, so to speak, he observes the following while interviewing him: the
     Defendant’s eyes are “extremely bloodshot, watery and glassy,” there was an
     “extremely strong odor of alcoholic beverage coming from his breath when he
     spoke,” his speech was “slurred” and “mush-mouthed,” he was “staggering”
     and “wobbling as though he was going to fall over,” . . . in sum, showing many
     signs of a high degree of intoxication.

9.   Officer Fallon led the Defendant away from his car, to another part of the
     parking lot.

10. Officer Fallon conducted field sobriety tests. All in which, the Defendant
    exhibited numerous clues of intoxication.

11. The Defendant admitted to consuming 7 to 8 drinks . . . shots of whiskey, Jim
    Beam.



                                          6
12. The Defendant blew a .207 on Officer Fallon’s portable breath test at the scene.

13. An unusually abundant amount of evidence of intoxication had been
    gathered/observed by Officer Fallon.

14. Officer Fallon agreed with defense counsel, that after that, he believed that the
    Defendant was a danger to himself or others and further, that there was no way
    that the Defendant was free to leave.

15. The Defendant had been led a distance from his car and the keys of his car had
    been removed and further, his car was blocked in by chocks and Officer
    Fallon’s vehicle.

16. Miranda warnings were not given.

17. Officer Fallon continues to question the Defendant regarding drinking and
    driving.

18. The Defendant’s responses were direct responses to questions/interrogation by
    Officer Fallon.


CONCLUSIONS OF LAW:

At the point in time after the Defendant blew into Officer Fallon’s breath testing
instrument, the Defendant was more than simply detained, he was in custody.
Responses to Officer Fallon’s interrogation after time stamp 2:11:57 (video evidence,
exhibit #1) were made after an ample amount of probable cause existed against the
Defendant for public intoxication and/or driving while intoxication.

Although the Defendant was not in handcuffs, nor in a patrol vehicle, as is often
required to show custody under the law, the restriction upon the Defendant’s freedom
of movement was to the degree associated with an arrest, and not simply an
investigative detention.

To further evidence that the Defendant could not have felt as though he was free to
leave, the Defendant had been (albeit a short distance) led away from the scene, by
Officer Fallon.

The manifestation of probable cause for public intoxication and or driving while
intoxicated would lead a reasonable person in the Defendant’s shoes to believe he
was restrained to a degree associated with an arrest.

                                         7
       The Defendant believed that he was deprived of his freedom of movement.

       Miranda warnings were required at the point when it was clear that the Defendant
       was subject to custodial interrogation and the warnings were not provided.

       Miranda and Article 38.22 prevent the Defendant’s responses to Officer Fallon after
       time stamp 2:11:57 from being admissible.


                                          DISCUSSION

               The State’s first and third issues on appeal contend that Dewbre failed to show his

statements were the product of a custodial interrogation that violated his rights under the United

States Constitution or the Texas Code of Criminal Procedure.3 Specifically, the State contends that

the evidence in this record does not support the trial court’s ultimate conclusions that Dewbre was

in custody as of 2:11:57 a.m. and that his statements after that time were inadmissible under Miranda

v. Arizona, 384 U.S. 436 (1966) and article 38.22 of the Texas Code of Criminal Procedure.

Standard of review

               We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the zone of

reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give almost complete deference to the

trial court’s determination of historical facts, but we review the court’s application of the law to




       3
         The State’s second issue contends that there was no violation of Dewbre’s rights under the
Texas Constitution; however, the trial court’s ruling was based only on Miranda and article 38.22.
See Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. art. 38.22, §§ 2(a), 3(a)(2).
Based on our disposition of the State’s first and third issues, we need not address the State’s second
issue. See Tex. R. App. P. 47.1.

                                                  8
those facts de novo. Story, 445 S.W.3d at 732; Dixon, 206 S.W.3d at 590. In deciding whether an

individual was in custody, we take the findings that are supported by the record and determine

whether they constitute a Miranda custody situation as a matter of law.               State v. Saenz,

411 S.W.3d 488, 494 (Tex. Crim. App. 2013). We are not bound by the trial court’s findings and

conclusions that are not supported by the record. State v. Whittington, 401 S.W.3d 263, 271 (Tex.

App.—San Antonio 2013, no pet.); see Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2014)

(“[W]hen evidence is conclusive, such as . . . ‘indisputable visual evidence,’ then any trial-court

findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record,

even when that record is viewed in a light most favorable to the trial court’s ruling.” (quoting Tucker

v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring))); Carmouche v. State,

10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (declining to give deference to trial court’s implicit

findings that were contradicted by videotape evidence and noting that such evidence did not involve

credibility assessments to which reviewing courts must defer).

Custodial interrogations and investigative detentions

               The State’s appellate issues require us to determine whether Dewbre demonstrated

that his questioning by law enforcement at the scene was a “custodial interrogation.” The defendant

bears the burden of proving that a statement was the product of a custodial interrogation. Herrera

v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Zavala v. State, No. 04-16-00422-CR, 2017

Tex. App. LEXIS 1053, at *4-5 (Tex. App.—San Antonio Feb. 8, 2017, no pet.) (mem. op., not

designated for publication).     Custodial interrogation refers to “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his freedom



                                                  9
of action in any significant way.” Miranda, 384 U.S. at 444. Miranda provides that a defendant’s

statements “stemming from custodial interrogation” are inadmissible as evidence against him unless

he is advised of certain constitutional rights under the Fifth Amendment. Id. (“Prior to any

questioning, the person must be warned that he has a right to remain silent, that any statement he

does make may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.”); see U.S. Const. amend. V; Zavala, 2017 Tex. App. LEXIS

1053, at *4.

               The state counterpart is article 38.22 of the Texas Code of Criminal Procedure, which

similarly provides that a defendant’s oral statement “made as a result of custodial interrogation” is

inadmissible in a criminal proceeding unless a recording is made of the statement, the defendant is

warned during the recording but before making the statement that “any statement he makes may be

used as evidence against him in court,” and he knowingly, intelligently, and voluntarily waives those

rights. Tex. Code Crim. Proc. art. 38.22, § 3(a)(1)-(2); see Herrera, 241 S.W.3d at 526 (stating that

construction of “custody” for purposes of article 38.22 of Texas Code of Criminal Procedure is

consistent with meaning of “custody” for purposes of Miranda and Fifth Amendment); Zavala, 2017

Tex. App. LEXIS 1053, at *4. Statements that do not “stem from custodial interrogation” are not

precluded by article 38.22. Tex. Code Crim. Proc. art. 38.22, § 5.

               The Texas Court of Criminal Appeals’ Dowthitt case has identified four 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



                                                 10
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. Crim. App. 1996). As to the first through third situations, the

restriction on the suspect’s freedom of movement must be to the degree associated with an arrest as

opposed to an investigative detention. Id. Generally, individuals who are temporarily detained

during an ordinary traffic stop are not “in custody” for purposes of Miranda. Berkemer v. McCarty,

468 U.S. 420, 440 (1984); Zavala, 2017 Tex. App. LEXIS 1053, at *5. A traffic stop that includes

questioning and field-sobriety tests does not, without more, rise to the level of a custodial

interrogation. Berkemer, 468 U.S. at 440-42; State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex.

Crim. App. 1997); Zavala, 2017 Tex. App. LEXIS 1053, at *5. Nevertheless, an ordinary traffic stop

may escalate from a noncustodial detention to a custodial detention if the individual’s freedom of

movement is restrained to the degree associated with a formal arrest. State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012); Zavala, 2017 Tex. App. LEXIS 1053, at *5.

               Noncustodial investigative detentions and arrests both involve restraint on an

individual’s freedom of movement, but an arrest involves a comparatively greater restraint. State

v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008); Zavala, 2017 Tex. App. LEXIS 1053,

at *5. No bright-line test distinguishes investigative detentions from arrests; rather, courts consider

several factors to determine whether an individual is in custody, including the amount of force

displayed; the duration of the detention; the efficiency of the investigative process and whether it is

conducted at the original location or the individual is transported to another location; the officer’s

expressed intent, i.e., whether he told the individual that he was under arrest or was being detained



                                                  11
only for a temporary investigation; and any other relevant factors. Sheppard, 271 S.W.3d at 291;

Zavala, 2017 Tex. App. LEXIS 1053, at *5-6. A detention is not an arrest if the degree of

incapacitation is no more than necessary to safeguard the officers and assure the suspect’s presence

during a period of investigation. See Sheppard, 271 S.W.3d at 291; Zavala, 2017 Tex. App. LEXIS

1053, at *6. Ultimately, courts must determine whether, given the circumstances surrounding the

interrogation, a reasonable person would have perceived detention by law-enforcement officers to

be a restraint on his movement comparable to the restraint of formal arrest. Berkemer, 468 U.S. at

441; Herrera, 241 S.W.3d at 525. Assessment of whether an individual is in custody is made on an

ad hoc, case-by-case basis. Dowthitt, 931 S.W.2d at 255.

None of Dowthitt custody situations shown on this record

               Dewbre did not specify which of the Dowthitt custody situations he contended were

shown on this record, but his brief seems to address only two, “when the suspect is physically

deprived of his freedom of action in any significant way” and when law-enforcement officers create

a situation that “would lead a reasonable person to believe that he is under restraint to the degree

associated with an arrest.” See id. None of the Dowthitt situations were shown on this record.

Rather, the video shows that Dewbre was not deprived of his freedom of action by police beyond the

extent necessary to conduct a brief investigation based on signs of intoxication, Dewbre was not

transported from the scene, Dewbre was not told at 2:11:57 a.m. that he was being charged with

DWI, and Officer Fallon informed Dewbre that he would be free to leave once he determined that

he was safe to drive.




                                                12
                The trial court made a finding that “[Dewbre] believed that he was deprived of his

freedom of movement.” But Dewbre did not testify at the hearing on the motion to suppress, and

this finding has no support in the record. Rather, the dash-cam video shows that when Dewbre was

told that everything he had done that night was “on his consent,” Dewbre stated, “I understand that.”4

In any event, what Dewbre believed is irrelevant to the custody determination, which is based on the

objective circumstances of a defendant’s questioning by police. See Berkemer, 468 U.S. at 442

(noting that only relevant inquiry is how reasonable man in suspect’s position would have

understood his situation); Dowthitt, 931 S.W.2d at 254; State v. Chupik, No. 03-09-00356-CR,

2011 Tex. App. LEXIS 7597, at *4 (Tex. App.—Austin Sept. 15, 2011, no pet.) (mem. op., not

designated for publication).

                Dewbre asserts that he was “restrained” and “hemmed in” by Officer Fallon’s police

car. The trial court made a finding that Dewbre’s car was blocked in by “chocks”5 and Officer

Fallon’s vehicle. But the custody inquiry turns on whether a suspect’s freedom is restricted by law

enforcement to the degree associated with an arrest—not merely whether there was a

restraint—because even a noncustodial investigative detention involves restraint on an individual’s

freedom of movement such that the individual is not free to leave. See Sheppard, 271 S.W.3d at

290; Zavala, 2017 Tex. App. LEXIS 1053, at *5.

                Dewbre points out that Officer Fallon took his keys. The trial court made a finding

that Officer Fallon took Dewbre’s keys from the vehicle. However, this Court has previously

       4
           The video shows that Dewbre spoke at some length with police and never “asserted his
right to remain silent or to have a lawyer present” as alleged in his motion to suppress.
       5
           It is undisputed that the chock blocks were not placed by police.

                                                 13
determined that when police discover an unidentified man in a parked car who appears to be

unconscious, the act of taking keys —and ordering him out of the vehicle and preventing him from

reentering it—is part of an investigative detention, not a restraint on freedom of movement to the

degree associated with an arrest. See Horton v. State, 16 S.W.3d 848, 851-52 (Tex. App.—Austin

2000, no pet.).

                  Next, Dewbre complains that police physically directed his movement away from his

vehicle. The trial court made a finding that Officer Fallon led Dewbre away from his truck “to

another part of the parking lot,” and the court made a legal conclusion that Dewbre could not have

felt free to leave because he had been “led away from the scene.” By contrast, the video shows that

Dewbre never left the scene. The video is consistent with Officer Fallon’s testimony that he asked

Dewbre to move “to get him to a safe spot where I can continue to interview him and ask him

questions,” that the officer stayed in the parking lot, and that he did not move Dewbre from his

location. The court did not make any finding calling Officer Fallon’s credibility into question.

Further, this Court has previously noted that moving a suspect a short distance to further an

investigation—e.g., having Dewbre walk the length of a few feet in the same parking lot before

performing field-sobriety tests—is consistent with the purpose of an investigative detention, not an

arrest. See Moreno v. State, No. 03-14-00596-CR, 2016 Tex. App. LEXIS 6868, at *14 (Tex.

App.—Austin June 30, 2016, no pet.) (mem. op.) (citing Castro v. State, 373 S.W.3d 159, 166 (Tex.

App.—San Antonio 2012, no pet.)).

                  Finally, Dewbre claims that a reasonable person would have believed that he was

under arrest at 2:11:57 a.m.,when Officer Fallon “informed him that ‘we are at that point of’ being



                                                 14
charged with Driving While Intoxicated.” The trial court concluded that Dewbre was in custody and

that his responses after time stamp 2:11:57 were inadmissible. But the dash-cam video shows that

Officer Fallon did not inform Dewbre that he was under arrest for, i.e., “charged with,” a DWI

offense until 2:37:39 a.m., when he began handcuffing him. The video also shows that minutes after

Officer Fallon arrived, Dewbre spontaneously expressed confusion about his situation and stated,

“I’m not too sure of what’s going on.” Officer Fallon responded, “I’m going to explain it to you,”

and proceeded to recount that he was called to the scene, that he made certain observations about

Dewbre when he arrived, that he wanted to ensure Dewbre was all right, that operating a motor

vehicle while intoxicated is illegal in Texas, and that he needed to ask Dewbre questions to make

sure he was safe to operate a motor vehicle. Significantly, Officer Fallon tells Dewbre on the video

that if he is safe to drive, he can go home; but first, Officer Fallon needed to make sure that Dewbre

was safe to drive, and “if you are, you are.” Cf. Miranda, 384 U.S. at 482 (noting that custodial

interrogations do not necessarily afford innocent individuals with opportunity to clear themselves);

Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.) (noting that officer did

not tell defendant that he was free to leave).

               Further, the remaining two Dowthitt situations—“when a law enforcement officer

tells the suspect that he cannot leave” and “when there is probable cause to arrest and law

enforcement officers do not tell the suspect that he is free to leave”— were not shown on this record.

Law-enforcement officers did not tell Dewbre that he could not leave; rather, Officer Fallon advised

Dewbre that he would be free to go once Officer Fallon determined that Dewbre was safe to drive.




                                                 15
See Dowthitt, 931 S.W.2d at 255. We conclude that none of the Dowthitt custody situations were

shown on this record.

No showing that Dewbre was in custody rather than detained

                Next, we consider the factors set forth in Sheppard for determining whether an

individual is in custody. See Sheppard, 271 S.W.3d at 291. As to the first factor, the amount of

force displayed, only two officers had any interaction with Dewbre at the scene, and the second one

took no part in the investigation but explained and later administered the portable breath test to

Dewbre. Neither officer drew his weapon, neither handcuffed Dewbre until his arrest, and Dewbre

stated that he understood his participation in the investigation was done with his consent. The

second factor, the duration of the detention, was brief. The entirety of the events, from Officer

Fallon’s arrival at the scene at 2:07 a.m. to Dewbre’s arrest at 2:37 a.m., spanned just thirty minutes.

See Balentine v. State, 71 S.W.3d 763, 770 n.7 (Tex. Crim. App. 2002) (concluding that less than

one hour is reasonable period of detention). The third factor we consider is the efficiency of the

investigative process and whether it is conducted at the original location or the individual is

transported to another location. Here, the thirty-minute investigation was efficient, and during the

investigation Dewbre was not transported from the parking lot where he was found. The fourth

factor we consider is the officer’s expressed intent—i.e., whether he told the individual that he was

under arrest or was being detained only for a temporary investigation. Dewbre was not expressly

told that he was under arrest until he was handcuffed. Dewbre was not expressly told that he was

being detained for a temporary investigation either, but he was informed that if he was safe to drive,

he could go home. Thus, Dewbre was effectively informed that his detention was only temporary,



                                                  16
until completion of an investigation about whether he could drive safely from the scene. Under the

fifth factor, which allows for consideration of any other relevant factors, we note that the video

shows the investigation occurred in a well-lit public parking lot, shared by a gas station,

check-cashing business, and food truck, located adjacent to IH-35, not at a police station or some

more-restrictive setting.

               The circumstances of Dewbre’s interaction with law enforcement, considered in their

totality and from an objective standpoint, lead us to conclude that a reasonable person in Dewbre’s

situation would not “have perceived the detention by law enforcement officers to be a restraint on

his movement comparable to the restraint of formal arrest.” See Berkemer, 468 U.S. at 441; Herrera,

241 S.W.3d at 525. Thus, we conclude that the record does not support the trial court’s conclusion

that Dewbre was in custody when he made his statements to police, but at most shows that he was

subjected to a brief investigative detention.

               After considering the totality of the circumstances surrounding Dewbre’s interaction

with law enforcement, we conclude that the trial court abused its discretion by concluding that

Dewbre met his burden of showing that his statements were the product of a custodial interrogation.

See Herrera, 241 S.W.3d at 526; Zavala, 2017 Tex. App. LEXIS 1053, at *4-5. In the absence of

a custodial interrogation, Dewbre was not entitled to warnings under Miranda and article 38.22 of

the Code of Criminal Procedure. Cf. Miranda, 384 U.S. at 444; see Tex. Code Crim. Proc. art.

38.22, § 5. The lack of such warnings was not a violation of Dewbre’s constitutional or statutory

rights, and on this record, was not a proper legal basis for suppression of his statements.




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                Accordingly, the order granting suppression of Dewbre’s statements, even when

considered with due deference to the trial court’s factual findings, was outside the zone of reasonable

disagreement and constituted an abuse of discretion. See Arguellez, 409 S.W.3d at 662; Dixon,

206 S.W.3d at 590; see Chupik, 2011 Tex. App. LEXIS 7597, at *8 (concluding that court’s order

granting motion to suppress that was not supported by evidence was abuse of discretion). We sustain

the State’s first and third appellate issues.


                                           CONCLUSION

                We reverse the trial court’s order granting Dewbre’s motion to suppress his

statements and remand this cause for further proceedings consistent with this opinion.




                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Reversed and Remanded

Filed: July 31, 2017

Do Not Publish




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