                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00151-CR

ROBERT KENNETH PETERS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2014-630-C2


                           MEMORANDUM OPINION


       In one issue, appellant, Robert Kenneth Peters, challenges his conviction for

intoxication manslaughter. See TEX. PENAL CODE ANN. § 49.08 (West 2011). Specifically,

Peters contends that his trial counsel was ineffective because she did not object or attempt

to suppress his statements, blood-alcohol results, or admissions contained within medical

records. Because we conclude that an objection or motion to suppress the items above

likely would not have been successful, we affirm.
                                     I.     BACKGROUND

        After consuming numerous beers on the day in question, Peters drove his

neighbor, James Eddins, to the gas station at the Brookshire Brothers on the I-35 frontage

road in Lorena, Texas. While there, Peters filled up his truck with gas, and Eddins filled

a gas can. After purchasing the gas, Peters did a “doughnut” around a light pole and

then sped out of the parking lot at a high rate of speed without coming to a complete

stop. Peters then merged onto I-35. While driving on I-35, Peters sped past a vehicle in

the right lane. When Peters came up behind another vehicle and attempted to change

lanes to the left lane, his truck started to fishtail. Peters was unable to regain control of

his truck, which fishtailed to the grass median, left of the traffic lanes. In the median,

Peters’s truck started “rolling over and over,” eventually landing upright with a caved-

in roof. Even though he was wearing his seatbelt, Eddins’s head came out of the

passenger window and was crushed by the truck. Eddins was discovered slumped in

the passenger seat, not breathing and with no pulse. Eddins was pronounced dead at the

scene of the crash. Peters was able to exit the vehicle, but he was “scratched up” and

appeared to be in shock. Peters was taken to the hospital for treatment.

        Thereafter, Peters was charged by indictment with intoxication manslaughter. See

id. The indictment also included an allegation that Peters used a deadly weapon, his

truck, in the commission of the offense. At the conclusion of the evidence, the jury found

Peters guilty of the charged offense and made an affirmative finding as to the deadly-


Peters v. State                                                                        Page 2
weapon allegation. After rendering judgment in accordance with the jury’s verdict, the

trial court sentenced Peters to twenty years’ confinement in the Institutional Division of

the Texas Department of Criminal Justice. The trial court also certified Peters’s right of

appeal. This appeal followed.

                                 II.    STANDARD OF REVIEW

        To prevail on a claim of ineffective assistance of counsel, Peters must meet the two-

pronged test established by the United States Supreme court in Strickland that (1)

counsel’s representation fell below an objective standard of reasonableness, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must

not find counsel’s representation to be ineffective. Lopez, 343 S.W.3d at 142. To satisfy

the first prong, Peters must prove by a preponderance of the evidence that trial counsel’s

performance fell below an objective standard of reasonableness under the prevailing

professional norms. Id. To prove prejudice, Peters must show that there is a reasonable

probability, or a probability sufficient to undermine confidence in the outcome, that the

result of the proceeding would have been different. Id.

        An appellate court must make a “‘strong presumption that counsel’s performance

fell within the wide range of reasonably professional assistance.’” Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of


Peters v. State                                                                        Page 3
counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and “‘cannot adequately reflect the failings of trial counsel’” for

an appellate court “‘to fairly evaluate the merits of such a serious allegation.’” Id.

(quoting Bone, 77 S.W.3d at 833).

                                       III.   ANALYSIS

        In his sole issue on appeal, Peters complains that his trial counsel was ineffective

because she did not object to or attempt to suppress his statements, blood-alcohol results,

or admissions contained within medical records. More specifically, Peters contends that

his trial counsel should have objected to or suppressed: (1) his conversation with Texas

Department of Public Safety Trooper Josh Cashion at the hospital; (2) the results of his

blood-alcohol test because he did not voluntarily consent to the test; and (3) his medical

records, which detail statements Peters made to a treating physician that he was drinking

on the day in question.

A.      Peters’s Conversation With Trooper Cashion at the Hospital

        Peters’s first complaint pertains to Trooper Cashion’s testimony about his initial

conversation with Peters at the hospital. The record reflects that, on the day in question,

Trooper Cashion received the following information: “He advised that there was a crash,

uh, there was a driver and a passenger. The driver, uh, may have possibly been


Peters v. State                                                                        Page 4
intoxicated. The, uh, emergency personnel on the scene, first responder stated he had

odor of alcohol beverage on his breath. And he stated the passenger was deceased.” In

response to this information, Trooper Cashion traveled to Hillcrest Hospital in Waco,

Texas, where Peters was being treated.

        Upon arriving at Hillcrest Hospital, Trooper Cashion was informed that Peters

was “being worked on right now.” Rather than barging in, Trooper Cashion waited for

the nurses to tell him it was okay to visit with Peters. While waiting, Trooper Cashion

noticed that Peters was wheeled down the hall for a CT scan and that Peters smelled of

alcohol. Trooper Cashion recalled that he was six or seven feet away when Peters was

wheeled down the hall and that he could still smell the alcohol on Peters’s person from

that distance.

        After doctors completed the CT scan and returned Peters to his room, Trooper

Cashion was informed that he could now visit with Peters. Trooper Cashion confirmed

Peters’s identity and asked him what happened.           Peters told Trooper Cashion the

following:

        Uh, he told me that he went to a Brookshire’s in Lorena to get gas and that,
        uh, they were getting gas for his truck and they had a gas can, too, for the
        deceased vehicle, and said they were heading home. He said he blew a tire,
        and, uh, lost control of the vehicle, wasn’t able to gain control and rolled it
        over.

        While talking with Peters, Trooper Cashion observed that Peters smelled of

alcohol on his person and on his breath and that his eyes were glassy and bloodshot.


Peters v. State                                                                           Page 5
Because Peters exhibited signs of intoxication, Trooper Cashion asked Peters if he had

been drinking that day. Peters stated that:

        [H]e had four or five beers. Um, you know, typically ask—after that, you
        know once they tell us they’ve had beers, we ask what size. He said they
        were 12 ounce. And after that I ask him what type. You know, it matters
        between whether you’re drinking a really light beer or you’re drinking—I
        mean, there’s beers out there with, you know, 15 percent alcohol in them.
        So it matters what type of beer you had. I asked him and he said it was a
        light beer. But he doesn’t know which one it was. He wasn’t sure which
        light beer he was drinking.

Trooper Cashion testified that he could not do standardized field-sobriety tests because,

        there was way too much going on in the room. He had the little finger
        monitor. Uh, he had, uh—they had a blood pressure cuff on him that
        wasn’t hooked up. They had other sensors. He had an IV, um—you know,
        they had—at one point while I was in the room they put the catheter in. He
        had all this stuff on him. At one point the nurses told me they were worried
        about possible paralysis. So at that point, um, there’s no—I can’t do
        standardized field sobriety tests. I really can’t do anything. I mean, his
        hands are—his whole body’s busy. Uh, even if I would have tried to do the
        horizontal gaze nystagmus and look at his eyes, it would be too hard to do
        with the hospital bed because it was pretty high up at that time because
        they were working on him.

        At the time of the interview, Trooper Cashion did not read Peters statutory

warnings, did not place Peters in handcuffs, did not tell Peters he was under arrest, and

later left Peters in the hospital without restraints or any law enforcement watching him.

Nevertheless, it is this exchange that forms the basis of Peters’s initial complaint about

trial counsel’s performance. Specifically, Peters argues that trial counsel should have

objected or filed a motion to suppress these statements because they were not recorded

and, thus, were inadmissible under article 38.22 of the Code of Criminal Procedure. See
Peters v. State                                                                        Page 6
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2014). Essentially, this complaint

centers on whether Peters was under arrest and subject to custodial interrogation at the

time of the interview with Trooper Cashion.

        Oral statements made by an accused as a result of custodial interrogation are not

admissible unless made in compliance with the provisions of article 38.22 of the Code of

Criminal Procedure.       See id.   But, statutory warnings are required only when the

statement stems from custodial interrogation. Id.; see Herrera v. State, 241 S.W.3d 520, 526

(Tex. Crim. App. 2007).

        At trial, the defendant bears the initial burden of proving that a statement was the

product of custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App.

2009). A person is in “custody” only if, under the circumstances, a reasonable person

would believe that his freedom of movement was restrained by law enforcement 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, 324-25, 114 S. Ct. 1526, 128 L. Ed.

2d 293 (1994)). The determination of “custody” must be made on an ad hoc basis, after

considering all of the objective circumstances. Dowthitt, 931 S.W.2d at 255.

        The Court of Criminal Appeals has described four general situations that may

constitute “custody” for the purposes of article 38.22: (1) the suspect is physically

deprived of his freedom of action in any significant way; (2) a law enforcement officer

tells the suspect that he cannot leave; (3) law enforcement officers create a situation that


Peters v. State                                                                        Page 7
would lead a reasonable person to believe that his freedom of movement has been

significantly restricted; and (4) there is probable cause to arrest and law enforcement

officers do not tell the suspect that he is free to leave. Gardner, 306 S.W.3d at 294. In all

four circumstances, the initial determination of “custody” depends on the objective

circumstances of the interrogation, not on the subjective views of the interrogating officer

or the person being questioned.        Dowthitt, 931 S.W.2d at 255.      In the first three

circumstances, the restriction upon freedom of movement must amount to the degree

associated with an arrest as opposed to an investigative detention. Id. With regard to the

fourth circumstance, the officers’ knowledge of probable cause must be communicated

to the suspect to constitute “custody.” Id.

        First, we note that it is not clear on this record whether or not the complained-of

conversation was recorded. Therefore, Peters cannot carry his burden in demonstrating

that the trial court would have erred in admitting the evidence over a proper objection

under article 38.22, section 3 of the Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3. However, even assuming that the conversation was not

recorded, we cannot say that the trial court would have sustained an objection made by

Peters’s trial counsel. None of the four circumstances outlined in Gardner are applicable

in this matter.   Law enforcement did nothing to deprive Peters of his freedom of

movement. Rather, Peter’s freedom of movement was restricted due to the medical

treatment he was receiving because of the accident he caused. Furthermore, Trooper


Peters v. State                                                                        Page 8
Cashion did not tell Peters that he was under arrest or not free to leave prior to Peters

confessing that he had been drinking on the day in question. Additionally, at the

commencement of the interview, Trooper Cashion only knew that Peters was the driver

in a single-vehicle crash and that a first responder had stated that Peters had an odor of

alcohol on his breath. As such, it cannot be said that Trooper Cashion had probable cause

to arrest Peters when the interview began. And even if he did, Trooper Cashion had not

expressed it to Peters in any way. All of Trooper Cashion’s actions to this point indicated

that he was merely conducting an investigation and had not made an arrest decision.

Therefore, considering all of the objective circumstances, we cannot say that Peters was

under arrest and subject to a custodial interrogation when he first spoke with Trooper

Cashion. See Gardner, 306 S.W.3d at 294; see also Dowthitt, 931 S.W.2d at 255. And because

Peters was not under arrest at this point, the recording provision stated in article 38.22,

section 3 of the Code of Criminal Procedure was not applicable. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3.

        To the extent that Peters contends that he believed he was under arrest when he

spoke with Trooper Cashion, we once again note that the initial determination of

“custody” depends on the objective circumstances of the interrogation, not on the

subjective views of the interrogating officer or the person being questioned. See Dowthitt,




Peters v. State                                                                      Page 9
931 S.W.2d at 255. Therefore, any objection by trial counsel on this issue likely would not

have been successful.1

B.      The Blood-Alcohol Test

        Next, Peters complains about the blood-alcohol tests that revealed that he had a

blood-alcohol level of 0.2—more than twice the legal limit for driving. In particular,

Peters contends that his consent to the blood draw was not voluntary because he

mistakenly believed that he was under arrest at the time the DIC-24 warnings were

provided, Trooper Cashion made a baseless threat that he would get a warrant if Peters

refused the blood test, and because Peters was impaired physically.

        With regard to consent, the Court of Criminal Appeals has stated the following:

        A driver’s consent to a blood or breath test must be free and voluntary, and
        it must not be the result of physical or psychological pressures brought to
        bear by law enforcement. 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. We
        review the totality of the circumstances of a particular police-citizen
        interaction from the point of view of the objectively reasonable person. The
        validity of an alleged consent is a question of fact, and the State must prove
        voluntary consent by clear and convincing evidence.




        1  Though we are usually loath to speculate about trial counsel’s strategy, it is worth noting that trial
counsel may not have objected to the statements made by Peters to Trooper Cashion because it allowed
Peters to offer his version of the facts with regard to the accident without having to testify himself. See
Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (noting that when the record
is silent regarding the reasons for counsel’s conduct, a finding that counsel was ineffective would require
impermissible speculation by the appellate court). Indeed, Trooper Cashion recounted that Peters told him
that the cause of the accident was a tire blowout—a fact that trial counsel relied upon in her closing
argument. Had this testimony been objected to and excluded from the record, it would have eliminated
Peters’s primary causation argument made during guilt-innocence.

Peters v. State                                                                                         Page 10
                Critical to the consent analysis is that the fact finder must consider
        the totality of the circumstances in order to determine whether consent was
        given voluntarily. The trial judge must conduct a careful sifting and
        balancing of the unique facts and circumstances of each case in deciding
        whether a particular consent to search was voluntary or coerced.
        Accordingly, it follows that, because the fact finder must consider all of the
        evidence presented, no one statement or action should automatically
        amount to coercion such that consent is involuntary—it must be considered
        in the totality.

Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) (internal citations & quotations

omitted).

        With regard to the blood sample, Trooper Cashion stated: “Since there was a

strong odor of alcoholic beverage, had other signs of intoxication, he admitted that he

had consumed alcohol, uh, I decided it was time to ask him—to talk about taking a blood

sample. So, uh, I had the paperwork and everything with me. . . .” At this point, Trooper

Cashion read the DIC-24 warnings to Peters and requested a blood sample. Peters

consented to and ultimately provided a blood sample. There is no indication in the record

that Peters hesitated, contemplated, or wavered in giving consent to the blood test.

Additionally, the record does not reflect that Peters’s physical or mental condition was

so impaired that he could not voluntarily consent. In fact, Peters provided Trooper

Cashion with a coherent explanation of his version of the facts involved in this case just

prior to Trooper Cashion’s request for the blood sample.

        Trooper Cashion’s actions were not coercive, and if anything, the DIC-24 warnings

provided Peters with greater information on which to base his decision. In particular, the


Peters v. State                                                                          Page 11
DIC-24 warnings informed Peters that he had the right to refuse to submit to the taking

of a specimen, though the warnings also explained the possible consequences of a refusal.

Moreover, we do not believe that the warnings were inherently coercive so as to render

Peters’s consent involuntary. See id. at 335-36 (holding that extra-statutory warnings are

not inherently coercive but that any coercive effect of the warnings should be determined

by considering the totality of the circumstances in a particular case); see also Bucaro v. State,

No. 02-14-00339-CR, 2015 Tex. App. LEXIS 9075, at **7-9 (Tex. App.—Fort Worth Aug.

27, 2015, no pet.) (mem. op., not designated for publication) (“Comparing the case at bar

to Fienen, if the giving of the DIC-24 warnings plus the extra-statutory warnings present

in Fienen were not inherently coercive, then the statutory warnings standing alone could

not be inherently coercive. Applying Fienen, we hold that the giving of the DIC-24

warnings is not inherently coercive and does not violate the Fourth Amendment.”

(emphasis in original)).      Therefore, based on our review of the totality of the

circumstances, we conclude that there is clear and convincing evidence that Peters made

a conscious and voluntary decision to consent to the blood draw. See Fienen, 390 S.W.3d

at 333-36.

        However, despite the fact that the totality of the circumstances weighs in favor of

a finding that his consent to the blood draw was voluntary, Peters emphasizes the

language in the DIC-24 warnings that state the consequences for refusing to provide a

sample—namely, that Trooper Cashion could apply for a warrant authorizing a blood


Peters v. State                                                                          Page 12
draw in the event of a refusal. The Court of Criminal Appeals has repeatedly stated that

a threat to seek or obtain a search warrant does not somehow render a consent to search

involuntary. See id. at 335-36; see also Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App.

1990) (stating that “a consent to search given in response to a threat to seek or obtain a

search warrant has been upheld as voluntary”); Beaupre v. State, 526 S.W.2d 811, 815 (Tex.

Crim. App. 1975) (“The sheriff’s statement that he was going to obtain a warrant to search

the automobile did not render Mrs. Beaupre’s subsequent consent for the search

involuntary.”). Thus, we cannot say that the language of the DIC-24 warnings that

outlines the consequences for refusing to provide a sample renders Peters’s consent to

the blood draw involuntary. See Fienen, 390 S.W.3d at 335-36; Johnson, 803 S.W.2d at 287;

Beaupre, 526 S.W.2d at 815.        And because we have concluded that, under the

circumstances of this case, Peters’s consent to the blood draw was voluntary, any

objection or motion to suppress filed by trial counsel likely would not have been

successful.

C.      Peters’s Medical Records

        Peters’s third complaint centers on the admission of his medical records, which

contained statements he made to a treating physician about his social history and his

conduct on the day in question. The record reflects that Peters’s medical records were

agreed to by both parties and that Peters told a treating physician that he drinks “up to a

6-pack per day, usually once or 2 times a week.” Additionally, Peters told the treating


Peters v. State                                                                         Page 13
physician that he had consumed “at least 4 beers” prior to the crash. On appeal, Peters

asserts that these portions of the medical records were not legally admissible because the

statements were hearsay and do not come within the purview of Texas Rules of Evidence

803(4). See TEX. R. EVID. 803(4).

        Even if we were to conclude that the complained-of statements were inadmissible

hearsay, they are cumulative of the statements Peters made to Trooper Cashion while at

the hospital—namely, that Peters had consumed four or five beers on the day of the

incident. Therefore, any harm from admitting the statements contained in Peters’s

medical records was harmless because the same information was already admitted into

evidence through Trooper Cashion’s testimony. See Lane v. State, 151 S.W.3d 188, 193

(Tex. Crim. App. 2004) (“An error [if any] in the admission of evidence is cured where

the same evidence comes in elsewhere without objection.”); Brooks v. State, 990 S.W.2d

278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay

testimony was harmless in light of other properly admitted evidence proving the same

fact); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that

overruling an objection to evidence will not result in reversal when other such evidence

was received without objection, either before or after the complained-of ruling.”). Based

on the foregoing, we cannot say that an objection or motion to suppress this evidence

likely would have been successful.




Peters v. State                                                                    Page 14
                                       IV.    CONCLUSION

        Because we have concluded that an objection or motion to suppress likely would

not have been successful in any of the three aforementioned circumstances, we cannot

say that Peters has satisfied his burden of proving by a preponderance of the evidence

that trial counsel’s representation fell below an objective standard of reasonableness—

i.e., the first prong of Strickland. See 466 U.S. at 687, 104 S. Ct. at 2064; see also Lopez, 343

S.W.3d at 142. As such, we overrule Peters’s sole issue on appeal and affirm the judgment

of the trial court.




                                                    AL SCOGGINS
                                                    Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 12, 2015
Do not publish
[CR25]




Peters v. State                                                                          Page 15
