Opinion issued May 4, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-15-00935-CR
                            ———————————
                    DARCIE LOUISE SPILLERS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 405th District Court
                          Galveston County, Texas
                       Trial Court Case No. 13CR3471


                          MEMORANDUM OPINION

      Darcie Louise Spillers was charged with intoxication manslaughter with a

vehicle after the passenger in the vehicle she was driving died. A jury found Spillers

guilty and sentenced her to 20 years’ confinement. On appeal, Spillers complains

that (1) the evidence was insufficient to support her conviction; (2) the trial court
erroneously denied her motion to suppress the results of a warrantless blood draw;

and (3) the trial court erred by failing to submit an article 38.23 instruction.

      We affirm.

                                     Background

      In August 2013, Spillers was involved in a one-car accident around 10:00 p.m.

When emergency vehicles arrived at the scene, they found the car in a ditch and

Brion Vaughn lodged under the car, but Spillers was not there. Deputy J. Manuel

had been dispatched to a nearby home, where he encountered Spillers and learned

she had been involved in the car accident. Deputy Manuel took Spillers back to the

accident scene, where she waited in the back seat of his patrol car. After some

preliminary investigation, Deputy Manuel asked Spillers if she would consent to a

blood draw. She orally agreed, and he drove her to the hospital, where she consented

to the blood draw in writing, had blood drawn, and then was arrested for public

intoxication. Vaughn died five days later, and Spillers was charged with intoxication

manslaughter with a vehicle.

      Before trial, Spillers moved to suppress the results of the blood draw, which

showed 0.23 grams of alcohol per 100 milliliters of blood, on the basis that Spillers

did not freely and voluntarily consent. At the hearing on that motion, Deputy

Manuel testified that he first encountered Spillers at the home of the couple who

reported the accident. He smelled alcohol on Spillers and noticed that she was


                                           2
impaired and bloody, with a cut on her forehead. According to Deputy Manuel,

Spillers explained that she had been in an accident nearby, but denied having been

the driver. In fact, she claimed that three other people had been the driver.

      Deputy Manuel testified that he drove Spillers to the accident scene where

firefighters were pulling Vaughn out from under the car. Spillers sat in the backseat

of Manuel’s car while he spoke to the other officers and a special prosecutor who

had arrived on the scene. Deputy Manuel testified that, while she waited in the patrol

car, Spillers asked to use the restroom, but he told her that she could not because

there was no female officer to escort her.

      Deputy Manuel testified he investigated to determine Spillers’s role in the

incident and eventually asked Spillers, who was not handcuffed, if she would

consent to a blood draw. Spillers orally consented, and the State presented a patrol

car video recording of this conversation. Deputy Manuel testified that he did not

coerce, threaten, or try to convince Spillers to give her consent. Rather he confirmed

with Spillers that her agreement to have her blood drawn was consensual “at least

three times.” Deputy Manuel testified that Spillers was not under arrest or in

handcuffs at the time she consented to the blood draw. He also testified that Spillers

was “detained for an investigation” rather than “in custody” and was therefore not

Mirandized.




                                             3
        Deputy Manuel then drove Spillers to Mainland Medical Hospital. On the

way there, Deputy Manuel reminded Spillers where they were going and re-

confirmed her consent to the blood draw. At the hospital, Spillers signed a consent

form acknowledging that she “voluntarily consent[s] to have sample(s) taken.”

Deputy Manuel testified that he arrested Spillers for public intoxication after the

blood draw. The trial court denied Spillers’s motion to suppress.

        At trial, the State presented testimony from numerous witnesses including the

neighbors who called the police—Michaela Blair and Justin Foxley. Blair and

Foxley testified that Spillers asked them not to call the police and admitted to them

that she had been driving, repeatedly stating that she had wrecked her truck. Blair

testified that Spillers smelled “very much” of alcohol, as if it had been “poured on

her.”

        Deputy Manuel reiterated his testimony regarding the night of the accident.

He again testified that Spillers consented to the blood draw at least three times. He

also testified as an accident reconstruction specialist that, based on the circumstances

of the accident, he concluded that Spillers did not stop at the stop sign at the

intersection and was driving between 30 to 35 miles per hour when she drove into

the ditch. He mentioned that while Spillers initially named three different drivers,

she eventually settled on a version of her account in which she claimed that Thomas

Brian Thompson was driving at the time of the accident. Manuel noted that Spillers


                                           4
was unsteady on her feet, and had glassy eyes and slurred speech. According to

Deputy Manuel, he believed that Spillers was driving while intoxicated, did not

perceive the stop sign in time, failed to stop, and drove into the ditch. He also

testified that he believed Spillers’s driving while intoxicated caused Vaughn’s death.

       Detective G. Hayes, also a certified accident reconstructionist, testified that

he investigated the accident and concluded that Spillers was driving and failed to

stop at the stop sign before driving into the ditch. Hayes also opined that Spillers’s

driving while intoxicated caused Vaughn’s death.

       Peneica Driver, a friend of Vaughn and Spillers, also testified. According to

Driver, Spillers called her after the accident and asked her to pick Spillers and

Vaughn up from the hospital. Driver testified that, in that conversation, Spillers told

Driver that Thomas Brian had been driving the car. Spillers later admitted to Driver

that she had been driving the car at the time of the accident. Spillers also told Driver

that she had tried to pull Vaughn out of the car and he fell out of the car and onto

her.

       Cory Myers, a volunteer firefighter who was dispatched to the accident scene,

also testified at trial. According to Myers, he and Scott Lyons, the assistant fire

chief, pulled Vaughn out from under the car and secured him to a backboard. Myers

testified that Vaughn did not initially have a pulse, but a faint pulse returned once

someone administered CPR.


                                           5
      Forensic pathologist Nobby Mambo of the Galveston County Medical

Examiner’s Office also testified. He conducted an autopsy and opined that Vaughn’s

death was caused by spinal cord and brain injury which resulted from extreme force

from an impact. He testified that either of these injuries could have killed Vaughn

and added that it was highly unlikely that a short fall from the car into the ditch

caused Vaughn’s injuries.

      The jury found Spillers guilty of intoxication manslaughter and sentenced her

to 20 years’ confinement. Spillers appealed.

                            Sufficiency of the Evidence

      In her first and second issues, Spillers argues that the evidence is insufficient

to support the jury’s guilty verdict because the evidence showed that five factors

other than her intoxicated driving could have caused Vaughn’s death.

A.    Standard of Review

      We review the sufficiency of the evidence in the light most favorable to the

verdict and then determine whether a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Acosta v. State, 429

S.W.3d 621, 624–25 (Tex. Crim. App. 2014) (first citing Jackson v. Virginia, 443

U.S. 307, 318–19, 99 S. Ct. 2781, 2789 (1979); then citing Adames v. State, 353

S.W.3d 854, 860 (Tex. Crim. App. 2011); then citing Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010)). This standard of review allows a jury to resolve


                                          6
fact issues and to draw reasonable inferences from the evidence. Thomas v. State,

444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789). With respect to testimony of witnesses, the jury is the sole judge of the

credibility and weight to be attached thereto, and when the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the

verdict, and we defer to that determination. Id. (citing Jackson, 443 U.S. at 319, 99

S. Ct. at 2789).

      In a sufficiency inquiry, direct evidence and circumstantial evidence are

equally probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013)). Not every fact

presented must directly indicate the defendant is guilty, so long as the cumulative

force of the evidence is sufficient to support a finding of guilt. Nowlin v. State, 473

S.W.3d 312, 317 (Tex. Crim. App. 2015) (citing Beardsley v. State, 738 S.W.2d 681,

685 (Tex. Crim. App. 1987) (en banc)).

B.    Applicable Law

      A person commits the second degree felony of “intoxication manslaughter” if

the person: (1) operates a motor vehicle in a public place . . . and (2) is intoxicated

and by reason of that intoxication causes the death of another by accident or mistake.

TEX. PENAL CODE. § 49.08. Section 6.04 of the Texas Penal Code provides, “A

person is criminally responsible if the result would not have occurred but for his


                                          7
conduct, operating either alone or concurrently with another cause, unless the

concurrent cause was clearly sufficient to produce the result and the conduct of the

actor clearly insufficient.” TEX. PENAL CODE § 6.04(a).

C.    Analysis

      Spillers argues that the evidence was insufficient to permit the jury to

conclude that her driving while intoxicated caused Vaughn’s death. She asserts that

five other factors could have caused Vaughn’s death: (1) the “dangerous character

of the intersection,” (2) Vaughn’s failure to wear a seat belt, (3) the air bags’ failure

to deploy, (4) Vaughn’s fall from the car into the ditch, and (5) the manner in which

the EMTs handled Vaughn. The State responds that the evidence is sufficient

because it shows that none of these factors—alone—could have caused Vaughn’s

death. On the contrary, the State argues that the evidence establishes that Vaughn

would not have died but for Spillers’s driving while intoxicated.

      At trial, the State presented evidence regarding the circumstances surrounding

the collision and the nature of Vaughn’s injuries. Deputy Manuel and Detective

Hayes, both accident reconstructionists, and Nobby Mambo, the forensic pathologist

who conducted Vaughn’s autopsy, all testified that Spillers’s driving while

intoxicated caused Vaughn’s death. And Mambo testified that extreme force was

necessary to cause Vaughn’s injuries, adding that it was highly unlikely that

Vaughn’s short fall from the car to the ditch after the accident caused his death.


                                           8
While the jury also heard evidence that other factors may have contributed to

Vaughn’s injuries, a rational jury could conclude that none of these concurrent

causes was sufficient to produce Vaughn’s death. See TEX. PENAL CODE § 6.04(a)

(person is criminally responsible if death would not have occurred but for her

conduct, operating either alone or concurrently with another cause, unless the

concurrent cause was sufficient to produce the result and the conduct of the actor

clearly insufficient).

      Based on the evidence presented, we conclude that a rational jury could have

found beyond a reasonable doubt that Vaughn’s death would not have occurred but

for Spillers’s driving while intoxicated, operating either alone or concurrently with

another cause, and that none of the concurrent causes was sufficient to produce

Vaughn’s death. Thus, we conclude that the evidence was sufficient to support the

jury’s finding that Spillers’s driving a motor vehicle in a public place while

intoxicated caused Vaughn’s death. See Wooten v. State, 267 S.W.3d 289, 296 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref’d) (holding where intoxicated driver

alleged other road conditions caused the accident, “even if other factors contributed

in some way to the accident, these factors were not clearly sufficient to cause the

fatalities in the case”); Martinez v. State, 66 S.W.3d 467, 469–70 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref’d) (holding sufficient evidence supported




                                         9
conclusion that truck driver’s intoxication caused death of victims despite alleged

improper loading and safety violations of truck).

      We overrule Spillers’s first and second issues.

                                 Motion to Suppress

      In her third issue, Spillers contends that the trial court erred in denying her

motion to suppress the results of her blood test. She argues that (1) her consent was

invalid because she was intoxicated, had hit her head, was subjected to coercive

pressures, and was not given Miranda warnings before she consented; and (2) the

police lacked probable cause to arrest her for public intoxication and the results of

the blood draw should be excluded as fruit of the unlawful arrest.

A.    Standard of Review

      We review a trial court’s decision to deny a motion to suppress under a

bifurcated standard of review, giving almost total deference to the trial court’s

determination of historical facts that depend on credibility, and reviewing de novo

the trial court’s application of the law to those facts. Tucker v. State, 369 S.W.3d

179, 184 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997)). We view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial

court is the sole trier of fact and judge of the weight and credibility of the witnesses

and the weight to be given their testimony. Id. at 24–25. We will sustain the trial


                                          10
court’s ruling if it is “reasonably supported by the record and correct on any theory

of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim.

App. 2003) (en banc) (citing Wilover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.

2002)).

B.    Does the record support the trial court’s implicit finding that Spillers
      was not in custody, and Miranda had not been triggered, when she
      consented to the blood draw?

      1.     Applicable Law

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

(citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528–30

(1994)). Persons temporarily detained for the purposes of an investigation are not

“in custody” for Miranda purposes, and the right to Miranda warnings is not

triggered during an investigative detention. See Berkemer v. McCarty, 468 U.S. 420,

438–40, 104 S. Ct. 3138, 3149–51 (1984). A temporary detention, in which the

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

been committed is constitutionally permissible. Koch v. State, 484 S.W.3d 482, 489

(Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing State v. Sheppard, 271

S.W.3d 281, 289 (Tex. Crim. App. 2008)). And officers may use such force as is




                                         11
reasonably necessary to effect the goal of the detention: investigation, maintenance

of the status quo, or officer safety. Id.

       In determining whether a defendant was “in custody” for the purpose of

applying Miranda, an appellate court “conducts a factual review in examining the

circumstances surrounding the interrogation” and “makes an ultimate legal

determination whether a reasonable person would not have felt at liberty to leave.”

State v. Saenz, 411 S.W.3d 488, 493 (Tex. Crim. App. 2013); Koch, 484 S.W.3d at

488.   Whether a detention is an investigative detention or an arrest depends

upon factors such as the amount of force displayed, the duration of a detention, the

efficiency of the investigative process and whether it was conducted at the original

location or she was transported to another location, and the police’s expressed intent.

Sheppard, 271 S.W.3d at 291.

       2.    Analysis

       Spillers argues that the trial court erred in denying her motion to suppress

because she was in custody but not given Miranda warnings before she consented

to the blood draw. The State responds that Spillers was not “in custody” but rather

subject to an investigative detention. Thus, Miranda warnings were not required.

       Deputy Manuel testified that he was dispatched to a home because there was

an intoxicated person on the front lawn. After he arrived and learned that Spillers

had been involved in an accident nearby, he drove her in the back seat of his patrol


                                            12
car, un-handcuffed, to find the accident scene. Deputy Manuel testified that Spillers

was not under arrest and that he did not tell her that she was.

      Once they arrived at the scene of the accident, Spillers waited in the patrol

car, still un-handcuffed, while Deputy Manuel investigated. The video recording

reflects that Spillers waited in the patrol car for slightly more than an hour while

Deputy Manuel assessed the scene and spoke to other responders and the special

prosecutor who had arrived. There is no evidence or claim that the duration of the

detention was longer than necessary for an investigation involving a serious accident

with resulting serious injuries. See, e.g., Alvarado v. State, 468 S.W.3d 211, 217–

19 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding approximately one-and-

a-half hour investigative detention was reasonable where alleged delay was for

legitimate law enforcement purpose while officers investigated accident); Josey v.

State, 981 S.W.2d 831, 844–45 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d)

(concluding 90-minute detention was reasonable in light of officers’ efforts to dispel

or confirm their suspicions and investigate incident). Nor is there evidence that

Manuel used force or threats against Spillers.

      Spillers asserts that she was in custody because Deputy Manuel refused to let

her leave to use a restroom or relieve herself on the side of the road. But “one is not

free to leave both when arrested and when temporarily detained for an

investigation.” Francis v. State, 896 S.W.2d 406, 410 (Tex. App.—Houston [1st


                                          13
Dist.] 1995), pet. dism’d, 922 S.W.2d 176 (Tex. Crim. App. 1996). Thus, the fact

that Manuel did not permit Spillers to leave the scene during the ongoing

investigation of a serious accident, alone, does not elevate the temporary detention

to an arrest. Koch, 484 S.W.3d at 489 (officers may use such force as is reasonably

necessary to effect goal of detention: investigation, maintenance of status quo, or

officer safety).

      Spillers also argues that Miranda was triggered because Deputy Manuel and

the special prosecutor decided to arrest her for public intoxication before Manuel

asked for consent. But the subjective intent of the officer is relevant only to the

extent that it is manifested to the defendant through words and actions of law

enforcement officials. See Dowthitt, 931 S.W.2d at 254–55; see also Koch, 484

S.W.3d at 489 (“We do not consider the subjective beliefs of the detaining officer

when determining whether a suspect is in custody” unless “the officer manifests his

belief to the detainee that he is a suspect.”). Here, it is undisputed that Manuel did

not inform Spillers that she was a suspect or under arrest until after she consented to

the blood draw.

      In sum, considering all of the circumstances in the light most favorable to the

trial court’s ruling, we conclude that the trial court did not err in concluding that

Miranda was not triggered because, at the time she consented to the blood draw,

Spillers had not been in custody but, rather, was merely subject to a reasonable


                                          14
investigative detention. See State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim.

App. 1997) (en banc) (holding detention and questioning by police officer during an

accident and DWI investigation, without more, was not custody); Koch, 484 S.W.3d

at 489–90 (temporary detention in handcuffs in back of patrol car during DWI

investigation did not amount to arrest so as to trigger Miranda rights); Hauer v. State,

466 S.W.3d 886, 891–92 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding

handcuffing visibly intoxicated defendant and placing him in back of patrol car after

accident was consistent with investigative detention and did not rise to level of

arrest).

C.     Does the record support the trial court’s determination that Spillers
       freely and voluntarily consented to the blood draw?

       1.    Applicable Law

       The Fourth Amendment protects against unreasonable searches and seizures.

U.S. CONST. amend. IV; State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App.

2015). The taking of a blood specimen is a search and seizure under the Fourth

Amendment.      Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826,

1834 (1966); Villarreal, S.W.3d at 796–97. In general, to comply with the Fourth

Amendment, a search of a person pursuant to a criminal investigation (1) requires a

search warrant or a recognized exception to the warrant requirement, and (2) must

be reasonable under the totality of the circumstances. Villarreal, S.W.3d at 795.



                                          15
      Voluntary consent to search is among the recognized exceptions to the warrant

requirement. Id. at 799–808 (discussing consent, automobile, search incident to

arrest, and special-needs exceptions); see McGee v. State, 105 S.W.3d 609, 615

(Tex. Crim. App. 2003). A driver’s consent to a blood test must be free and

voluntary, and it must not be the result of physical or psychological pressures

brought to bear by law enforcement. Fienen v State, 390 S.W.3d 328, 333 (Tex.

Crim. App. 2012) (citing Meekins v. State, 340 S.W.3d 454, 458–59 (Tex. Crim.

App. 2011)); Hutchins v. State, 475 S.W.3d 496, 498 (Tex. App.—Houston [1st

Dist.] 2015, pet. ref’d).

      The ultimate question is whether the person’s ‘will has been overborne and

his capacity for self-determination critically impaired’ such that his consent to search

must have been involuntary. Fienen, 390 S.W.3d at 333 (first citing Schneckloth v.

Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973); then citing Meekins,

340 S.W.3d at 460). In conducting this inquiry, courts consider the following

factors: (1) the defendant’s age, education and intelligence; (2) the length of the

detention; (3) any constitutional advice given to the defendant; (4) the repetitiveness

of the questioning; (5) the use of physical punishment; (6) whether the defendant

was arrested, handcuffed, or in custody; (7) whether Miranda warnings were given;

and (8) whether the defendant had the option to refuse to consent. Cisneros v. State,




                                          16
290 S.W.3d 457, 464 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d) (citing

Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000)).

      We review the totality of the circumstances of a particular police-citizen

interaction from the point of view of the objectively reasonable person. Fienen, 390

S.W.3d at 333 (quoting Meekins, 340 S.W.3d at 459). The validity of an alleged

consent is a question of fact, and the State must prove voluntary consent by “clear

and convincing” evidence. Id.; Hutchins, 475 S.W.3d at 498. “Because issues of

consent are necessarily fact intensive, a trial court’s finding of voluntariness must

be accepted on appeal unless it is clearly erroneous.” Meekins 340 S.W.3d at 460.

      2.     Analysis

      Spillers contends that the trial court should have suppressed the results of her

warrantless blood draw because she did not freely and voluntarily consent. The State

responds that the trial court’s finding that Spillers freely and voluntarily consented

is supported by the record and not clearly erroneous.

      Deputy Manuel testified that he first encountered Spillers at a home at night,

and learned that there had been an accident nearby. He drove his patrol car, with

Spillers un-handcuffed and in the back seat, to the scene of the accident. Manuel

had Spillers wait in the patrol car while he investigated, and she cooperated. Manuel

testified that he returned to the car and asked Spillers whether she would consent to




                                         17
a blood draw and that she orally consented. He also testified that he did not threaten

Spillers or otherwise coerce her consent.

      Deputy Manuel’s in-car video recording corroborates his testimony. It shows

that the exchange between Spillers and Deputy Manuel was pleasant throughout.

When Manuel first asked Spillers whether she would consent to a blood draw, she

unequivocally responded: “Sure.” He repeated the question, for the stated purpose

of clarity, and Spillers responded “Of course.” Nothing in the video or the record

suggests that any physical or psychological pressures were brought to bear to secure

Spillers’s consent. In particular, there is no evidence of an officer’s display of a

weapon, threats, promises, deception, physical touching, or a demanding tone of

voice or language. See Meekins, 340 S.W.3d at 464. Nor does Deputy Manuel’s

decision to reiterate his request for consent suggest coercion. Id. In short, none of

the evidence about their exchange suggests coercive pressure, i.e., that Spillers’s will

was overborne or her capacity for self-determination critically impaired such that

her consent must have been involuntary. Fienen, 390 S.W.3d at 333.

      The record does contain some evidence weighing in Spillers’s favor. For

example, when Spillers, seated in the back seat of the patrol car, asked Manuel, “Can

I pee?,” Manuel responded that she could not, because no female escort was present

and he could not let her relieve herself on the side of the road. Likewise, Spillers

was not Mirandized before consenting. But we have already determined that it was


                                            18
reasonable for Manuel to require Spillers to remain on the scene during the ongoing

investigation, and Miranda warnings, while a factor, are not required or essential.

Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985) (en banc) (warning is

of evidentiary value in determining whether consent valid, but not required); see

Hutchins, 475 S.W.3d at 500–01. On the other hand, evidence relevant to other

factors favors the State: Spillers was in her forties at the time (neither inexperienced

nor frail from old age), she was not handcuffed in the patrol car, and she was able to

communicate intelligently.

      Based on the totality of the circumstances, we conclude that the trial court’s

determination that Spillers voluntarily consented to the blood draw is supported by

the record and is not clearly erroneous. See Meekins, 340 S.W.3d at 461–65

(concluding defendant’s response of “Yes” or “I guess” to officer’s request to search

car constituted valid consent); Harrison v. State, 205 S.W.3d 549, 552–53 (Tex.

Crim. App. 2006) (holding defendant’s consent to urine sample was voluntary

despite police not telling her that she could refuse).

D.    Did the trial court err in concluding Deputy Manuel had probable cause
      to arrest Spillers for public intoxication?

      1.     Applicable Law

      A person commits the offense of public intoxication if the person appears in

a public place while intoxicated to the degree that the person may endanger the

person or another. TEX. PENAL CODE § 49.02. “The danger need not be immediate.”

                                          19
Reynolds v. State, 902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet.

ref’d) (quoting Gallagher v. State, 778 S.W.2d 153, 154 (Tex. App.—Houston [1st

Dist.] 1989, no pet.)). It is sufficient if the accused renders himself or others “subject

to potential danger.” Id. (quoting Gallagher, 778 S.W.2d at 154).

      In determining whether the officers had probable cause to arrest a person for

public intoxication, the reviewing court must determine whether the officers’

knowledge at the time and under the circumstances would warrant a prudent person’s

belief that appellant had committed or was committing the offense. Bell v. State,

866 S.W.2d 284, 287 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Whenever an

intoxicated person is in an officer’s presence and there is probable cause to arrest

him for public intoxication, the officer may do so without a warrant, even though a

warrantless arrest of that person for the offense of driving while intoxicated would

be unlawful. Mathieu v. State, 992 S.W.2d 725, 728 (Tex. App.—Houston [1st

Dist.] 1999, no pet.).

      2.     Analysis

      Spillers argues that her arrest for public intoxication was not supported by

probable cause and that the results of her blood draw are inadmissible because they

are the fruit of the unlawful arrest. The State argues that the police had probable

cause to arrest Spillers for public intoxication because Deputy Manuel perceived

Spillers to be intoxicated, slurring, and unsteady on her feet.


                                           20
      Deputy Manuel testified that when he arrived at the home of Blair and Foxley,

they reported that Spillers smelled of alcohol, had asked them not to call the police,

and had admitted driving. Spillers told Manuel that she was involved in a one-car

accident and denied driving but told conflicting stories about what happened,

claiming at different times that three different people had been driving. Deputy

Manuel testified that Spillers was bloody, with a laceration on her forehead, and that

he perceived Spillers to be intoxicated because she was slurring, unsteady on her

feet, and had glassy eyes.

      Based on the totality of the circumstances, we conclude that the trial court did

not err in finding that there was probable cause to make an arrest for public

intoxication, because a reasonable officer would have been warranted in believing

that Spillers was intoxicated to the degree that she could endanger herself or another.

See Reynolds, 902 S.W.2d at 560 (holding probable cause supported public

intoxication arrest where defendant was visibly intoxicated and involved in a two-

car accident though police did not see him driving); Bell, 866 S.W.2d at 287

(concluding there was probable cause to support public intoxication arrest where

appellant slurred his speech and appeared abusive and combative).

      We overrule Spillers’s third issue.




                                            21
                                 Jury Instruction

      Spillers argues that the trial court erred by refusing to include in its charge a

1.5-page article 38.23 jury instruction setting forth the law on when a person is

deemed to be in custody, and when consent is deemed free and voluntary. She argues

that the charge given failed to provide the jury with a reliable basis on which to

decide whether Spillers’s blood was illegally obtained. In response, the State argues

the trial judge correctly refused the proposed instruction because there was no

disputed issue of material fact that would give rise to a need for the proposed

instruction.

A.    Standard of Review and Applicable Law

      In analyzing a jury-charge issue, we first determine whether error exists. See

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet

ref’d). Only if we find error do we consider harm. See Tottenham, 285 S.W.3d at

30.

      Under article 38.23, the trial court must exclude any evidence that it finds, as

a matter of law, was obtained in violation of the Constitution or the laws of the

United States or of the State of Texas.            TEX. CODE. CRIM. PROC. art.

38.23(a); Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).

However, a defendant’s right to the submission of jury instructions under article


                                         22
38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation. Madden v. State, 242 S.W.3d 504, 509–10

(Tex. Crim. App. 2007). To obtain the instruction, a defendant must show: (1) the

evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is

affirmatively contested; and (3) that contested factual issue is material to the

lawfulness of the challenged conduct in obtaining the evidence. 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. And if other facts, not in dispute,

are sufficient to support the lawfulness of the challenged conduct, then the disputed

fact issue is not submitted to the jury because it is not material to the ultimate

admissibility of the evidence. Id. The disputed fact must be an essential one in

deciding the lawfulness of the challenged conduct. Id. at 511.

B.    Analysis

      In her fourth issue, Spillers contends that the trial court erred in refusing to

include an instruction in the jury charge regarding when a person is considered to be

“in custody” and an instruction that if the jury finds that Spillers was “in custody”

and “was questioned by Deputy Manuel in a manner likely to result in an

incriminating answer,” “was not given warnings, or did not waive her rights, or

both,” then they must disregard any evidence obtained by such custodial

interrogation. Spillers further contends that the trial court erred in denying her


                                          23
request for an instruction regarding when consent to a blood draw is valid and that

if Spillers did not voluntarily consent to the extraction of a sample of her blood, then

the jury must disregard any evidence obtained by that extraction.

      We conclude that the trial court did not err in refusing the requested

instruction because Spillers failed to raise a factual issue material to the lawfulness

of the challenged police conduct in obtaining the blood draw. The evidence relevant

to custody and consent is undisputed. In particular, Spillers presented no evidence

to controvert the in-car video recording or Deputy Manuel’s testimony regarding the

circumstances under which she consented to the blood draw and was detained in the

back of Deputy Manuel’s patrol car. Rather, she argues that the undisputed facts

support a conclusion that she did not validly consent to the blood draw and was “in

custody” and entitled to Miranda warnings.

      Because Spillers does not identify, and the record does not reveal, conflicting

evidence raising a fact issue that would entitle her to an article 38.23 instruction, we

hold that the trial court did not err when it refused to submit her proposed jury

instruction. See Hauer, 466 S.W.3d at 894 (holding appellant was not entitled to

jury instruction on issue of custody where no conflicting facts were presented

regarding the circumstances under which appellant was detained); McRae v. State,

152 S.W.3d 739, 748 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding no

jury instruction was required because there were no facts in dispute).


                                          24
      We overrule Spillers’s fourth issue.


                                   Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Bland, and Huddle.

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




                                           25
