
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-09-00356-CR


The State of Texas, Appellant

v.


Randall Chupik, Appellee






FROM THE COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY

NO. C-1-CR-08-222890

HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING



M E M O R A N D U M    O P I N I O N

The State appeals a pretrial order suppressing evidence in a driving while intoxicated
prosecution.  The State contends that the trial court erred by concluding that appellee Randall Chupik
was subjected to custodial interrogation without being advised of his rights.  Because there is nothing
in the record to show that the court's ruling will result in the exclusion of any evidence at trial, and
because the record is inadequate to review the merits of the trial court's ruling in any event, we
conclude that the State's appeal presents nothing for review.
Chupik filed a pretrial motion to suppress evidence urging that the initial stop of his
vehicle was unlawful and that any statements he made during the stop were obtained in violation of
the Fifth Amendment and article 38.22.  See Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code
Crim. Proc. Ann. art. 38.22 (West 2005).  At a hearing on the motion, the only witness was Austin
police officer Richard Mabe.  Mabe testified that he stopped Chupik's vehicle shortly before
1:00 a.m. after seeing it change lanes without signaling.  Mabe testified that he had been following
Chupik for several minutes and suspected that he might be intoxicated because his vehicle had been
weaving within its lane of traffic.  Defense exhibit one, containing a three-minute excerpt from
Mabe's in-car video recording system, was introduced in evidence at the hearing.  The video shows
appellant's vehicle driving down West Sixth Street followed by Mabe's patrol car, and it contains
Mabe's running commentary on the quality of appellant's driving.  The video exhibit ends when
appellant is stopped by the officer.   
Mabe testified that when he spoke to Chupik through the driver's window
immediately after the stop, he smelled the odor of alcoholic beverage on Chupik's breath and noticed
that Chupik's speech was slurred and his eyes were bloodshot.  Mabe ordered Chupik to get out of
his vehicle, and he began to ask him a series of questions, twenty or twenty-one in all, beginning
with, "Without looking at your watch, can you tell me what time it is?" and ending with, "How much
do you weigh?"  The other questions had to do with such matters as where Chupik had been that
night, whether and how much he had been drinking, and the state of his health.  Mabe testified that
he was trained to ask these questions as part of a DWI investigation before administering the field
sobriety tests.  Mabe acknowledged that Chupik was not free to leave during this questioning, but
he testified that Chupik was not restrained and was not told that he was under arrest.
After completing this questioning, Mabe administered the standardized field sobriety
tests, beginning with the horizontal gaze nystagmus (HGN) test.  Mabe did not specifically describe
Chupik's performance on this test, but he testified that when it was concluded, he believed that he
had probable cause to arrest Chupik for DWI.  Mabe further testified, however, that he did not decide
to arrest Chupik until after the other field tests were completed.
 After hearing the evidence summarized above, the trial court ruled that the initial stop
had been justified by reasonable suspicion.  The court also refused to suppress Chupik's answers to
the questions he had been asked by Mabe prior to the field tests, ruling that this questioning did not
constitute custodial interrogation.  The court announced, however, "I also believe that the defendant
was under arrest after the HGN was performed.  So I'm going to suppress any statements subsequent
to the HGN or any answers to questions after the HGN."  The court memorialized this ruling in a
written order stating that Chupik's "responses to questions and the questions themselves are
suppressed after the administration of the HGN test."
The trial court later prepared written findings of fact and conclusions of law. 
Pertinent to this appeal, the court found:

4.  After observing and questioning Mr. Chupik and administering the [HGN]
test Officer Mabe decided he had probable cause to arrest Chupik for [DWI].

5.  Officer Mabe did not "arrest" Mr. Chupik at that point but continued to
question him and administered further Standardized Field Sobriety Tests.

6.  Officer Mabe continued to question Mr. Chupik after the probable cause
for arrest determination was made and without the benefit of the Miranda warnings.

. . .

8.  Under the circumstances, a reasonable man in Mr. Chupik's position
would have understood that he was under arrest by the time the [HGN] test was
concluded. 


The court concluded, in pertinent part:


2.  Officer Mabe made the determination that he had probable cause to arrest
Mr. Chupik for [DWI] at the conclusion of the administration of the [HGN] test.

3.  Officer Mabe did have probable cause to arrest Mr. Chupik at the
conclusion of the administration of the [HGN] test.

4.  Mr. Chupik was under arrest at the conclusion of the administration of the
[HGN] test.

5.  After the administration of the [HGN test] Mr. Chupik was subjected to
custodial interrogation without having had his Miranda warnings recited to him.

6.  The answers to all questions asked of Chupik after the administration of
the [HGN test] were taken in violation of Mr. Chupik's right to remain silent,
exclusive of his response to the question as to whether he would give a breath or
blood sample.

7.  The evidence suppressed in this case is not of substantial importance
relative to the quantity and quality of other evidence the State has available to present
to prove this charge.


The State's brief to this Court raises two contentions.  First, referring to the trial
court's seventh conclusion, the State urges that the determination as to whether suppressed evidence
is of substantial importance to the State's case rests with the prosecuting attorney rather than the trial
court.  Second, the State asserts that the trial court erred by concluding that Chupik was in custody
for Miranda purposes after Mabe administered the HGN test.  In his own brief, Chupik argues that
the State's second contention presents nothing for review because the record does not show what
statements, if any, were suppressed.
The State may appeal a trial court's order granting a motion to suppress evidence if
jeopardy has not attached and if the prosecuting attorney certifies to the trial court that the appeal is
not taken for the purpose of delay and that the evidence is of substantial importance in the case.  Tex.
Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2009).  Under the plain language of article
44.01(a)(5), it is the prosecutor's certification that the suppressed evidence is of substantial
importance, and not the trial court's opinion of the matter, that is critical to the right of appeal.  The
court of criminal appeals has stated that article 44.01(a)(5) "simply requires the certification rather
than any showing of the underlying basis for such."  Johnson v. State, 871 S.W.2d 744, 749 (Tex.
Crim. App. 1994). (1)  The issue in Johnson was whether the appellee was entitled to challenge the
prosecutor's certification; the court held that he was not.  Id.  In this case, the prosecutor provided
the certification required by article 44.01(a)(5).  The trial court's conclusion that the suppressed
evidence is not of substantial importance to the case does not affect the State's right of appeal.
The more serious issue is whether the State's second contention is properly before
us for review.  The trial court's findings state that Mabe continued to question Chupik after
administering the HGN test, but the record does not support this statement.  See Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (holding that appellate courts defer to trial court's
findings of historical facts "that the record supports").  The questioning challenged by Chupik at the
hearing took place immediately after the stop and before the HGN test was administered, and the trial
court overruled Chupik's motion to suppress his answers to those questions.  Mabe was not asked
if he questioned Chupik following the HGN test, and there is nothing in the record indicating that
he did.  As to what happened after the HGN test, the record shows only that Mabe administered the
other field tests and then formally arrested Chupik.  Although we assume that the entire roadside
encounter was recorded, only a brief portion of the recording, ending with the stop itself, was made
a part of the record as defense exhibit one.  Insofar as the record reflects, this exhibit was the only
portion of the video recording viewed at the hearing.
The State concedes that the record does not reflect the questions and answers, if any,
that were suppressed by the court.  The State argues, however, "Courts decide every day the pre-trial
issue of whether the fruits of a stop or an arrest should be suppressed, without knowing what those
fruits are.  Courts have never required the defense to set out the specific fruits of an allegedly illegal
stop or arrest before they will address themselves to whether the trial court properly determined that
the stop or arrest was lawful."
In fact, the court of criminal appeals has held that when a defendant seeks
to challenge an order overruling a motion to suppress evidence, the appellate court must be
able to identify "the fruits" that the trial court held would not be suppressed.  Gonzales v. State,
966 S.W.2d 521, 524 (Tex. Crim. App. 1998).  If it is not clear from the testimony and exhibits what
"the fruits" are, the appellate court need not address the merits of the claim.  Id.; see also McGlynn
v. State, 704 S.W.2d 18, 20 (Tex. Crim. App. 1986) (op. on reh'g).  We understand Gonzales to
mean that a defendant seeking to appeal an order overruling a motion to suppress must raise more
than a hypothetical or academic question regarding the propriety of police conduct.  At a minimum,
the record must reflect that the issue raised is pertinent to the admissibility of actual evidence in the
case.  See Terry v. Ohio, 392 U.S. 1, 12 (1968) ("the issue is not the abstract propriety of the police
conduct, but the admissibility against [the defendant] of the evidence uncovered by the search and
seizure").  In this sense, Gonzales is an application of the broader principle that courts do not decide
abstract questions of law or issue advisory opinions.  See Hays County v. Hays County Water
Planning P'ship, 106 S.W.3d 349, 358 (Tex. App.--Austin 2003, no pet.); Gardner v. State,
782 S.W.2d 541, 545 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd).
The State seeks to challenge the trial court's conclusion that Chupik was in custody
after the HGN test was administered and, therefore, that any subsequent questioning constituted
custodial interrogation.  But absent any indication in the record that such questioning took place, the
issue of whether Chupik was in custody has no relevance to the admissibility of actual evidence in
the case.  We may not advise trial courts on abstract or hypothetical issues of law.
Near the end of the hearing below, the trial court stated, in reference to its conclusion
that Chupik had been subjected to unwarned custodial interrogation after the HGN test was
completed, "I want to see the rest of the video to finalize that."  Even if we assume that the court
later viewed a video recording of the entire roadside encounter between Mabe and Chupik and that
this video shows that Chupik was questioned by Mabe following the HGN test, we have no basis for
reviewing the trial court's conclusion that this questioning constituted custodial interrogation
because the video recording on which the court based its conclusion is not in the record.  
The State relies on the Supreme Court's holding in Berkemer v. McCarty that persons
who are temporarily detained pursuant to a routine traffic stop are not in custody for the purposes
of Miranda.  Berkemer v. McCarty, 468 U.S. 420, 440 (1984).  But in rejecting the argument that
Miranda applies to all traffic stops, the Court also rejected the argument that a suspect need not be
advised of his rights pursuant to Miranda until he is formally placed under arrest.  Id. at 441.  In
other words, what begins as a noncustodial traffic stop may escalate into custody, and thereby
trigger Miranda, before the driver is formally arrested.  See id. at 441-42; State v. Stevenson,
958 S.W.2d 824, 828 (Tex. Crim. App. 1977); State v. Waldrop, 7 S.W.3d 836, 839 (Tex.
App.--Austin 1999, no pet.).  Whether a particular traffic stop has escalated into a custodial
detention can only be determined by considering the objective circumstances.  Stevenson,
958 S.W.2d at 829.
In this case, the trial court concluded, presumably after watching a video recording
of the encounter, that what began as a routine, noncustodial traffic stop had escalated into a custodial
detention by the time Mabe finished administering the HGN test to Chupik.  Because the video
recording is not before us, we have no basis for determining whether the trial court properly applied
the law to the facts in this case.  Although we do know from the record that Chupik had not been
formally arrested, this fact alone is not determinative of the issue.  Berkemer, 468 U.S. at 441.  For
this reason as well, nothing is presented for review.
The trial court's order is affirmed.


				__________________________________________
				Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed:   May 13, 2010
Do Not Publish
1.        Despite the style of the case, Johnson was a State appeal.

