       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00295-CV



                                    In the Matter of J. A. F.


                FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
         NO. JV 36776, THE HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The district court, sitting as a juvenile court, adjudicated appellant J.A.F.

delinquent after finding that he committed the offense of driving while intoxicated with an

alcohol concentration of 0.15 or more. See Tex. Fam. Code §§ 51.03(a)(3), 54.03(f); Tex. Penal

Code § 49.04(a), (d). The court placed appellant on probation in the custody of his mother for

six months.    See Tex. Fam. Code § 54.04(d)(1)(A).       On appeal, appellant challenges the

sufficiency of the evidence supporting his delinquency adjudication and complains about the

admission of statements that he made to the detaining officer. We affirm the juvenile court’s

judgment of adjudication and order of probation.


                                        BACKGROUND

               Appellant was charged by petition with driving while intoxicated with an alcohol

concentration of 0.15 or more. Appellant and his counsel waived a jury trial and proceeded with

a contested adjudication hearing before the court.
               The juvenile court heard evidence that on April 27, 2017, just before six o’clock

in the morning, emergency medical services and police were dispatched in response to a 911 call

concerning a man passed out in a car.

               Conner Johnson, an emergency medical technician, testified that he arrived at the

location to find a four-door sedan “parked in a very awkward position on the grassy median on

the right side of the roadway.” A single male occupant was slumped over in the driver’s seat; the

keys were in the ignition, and the car was running. Johnson opened the driver’s car door, and his

partner leaned into the car, across the occupant, to turn it off. He then removed the keys and

placed them on the hood of the car. The occupant did not wake up as they performed these

actions, so they woke him up. The occupant was initially “very confused” and “very startled”

and moved as if to start or drive the car—he grabbed the steering wheel, reached for where the

keys would have been, and pressed the gas pedal with his foot. Johnson asked the occupant to

step out of the car. The occupant smelled strongly of alcohol, was very unsteady on his feet, and

had vomit on his shirt. The EMT noted vomit on the inside of the car too.

               Johnson placed the occupant in the back of the ambulance to conduct a medical

evaluation. According to Johnson, the occupant seemed “awake and alert and aware” and

“cognizant of his surroundings and the situation” but was uncooperative in that he did not give

straight-forward answers to the EMT’s questions. The occupant was eventually identified by his

driver’s license, which was found in the car by police who arrived on the scene while the

occupant was in the back of the ambulance. The occupant was identified as “J.A.F.” with a date

of birth of February 21, 2001.1 Johnson explained that after being identified, the occupant’s


       1 Because appellant is a minor child, we use his initials rather than his full name in this
opinion. See Tex. R. App. P. 9.10(a)(3).
                                                2
demeanor changed. He began answering questions appropriately but seemed angry that EMS

knew his identity. Johnson testified that after conducting a full interview with the occupant to

assess his mental capacity, the EMTs determined that the occupant was “within mental capacity”

for a sixteen-year-old but appeared “obviously under the influence of some substance, which

smelled strongly of alcohol on him.” The EMT checked the occupant’s blood sugar to rule out

low blood sugar as the cause of impairment. Johnson testified that all of the occupant’s vital

signs were within normal limits.

               Gabriel Vasquez, a patrol officer with the Austin Police Department, arrived on

the scene approximately ten minutes after EMS and observed the car teetering on a small mound

on the side of the road (not all of the wheels were touching the ground) and blocking part of the

sidewalk. He made contact with the car’s occupant in the back of the ambulance where the

EMTs were evaluating him. Officer Vasquez then asked several questions to glean information

about the situation. The occupant told the officer that he was coming from a friend’s party and

was going to his sister’s house. He said that he had driven to the location where the car was

stopped. The officer noted that the juvenile had bloodshot eyes, slurred speech, and “a very

strong odor of an alcoholic beverage coming from his breath.” In addition, the juvenile gave

confusing responses to the questions—for example, he gave his address when asked his date of

birth—and was “disorient[ed]” as to his location—he was in Travis County but thought he was

in Bastrop County. The officer became concerned that the juvenile was under the influence of

alcohol, so he questioned him about alcohol consumption. The juvenile disclosed that he had

consumed four fourteen-ounce beers. He also told the officer that he had parked the car to “catch

a quick nap” and “sober up a little bit.”



                                               3
               After the juvenile was medically cleared by EMS, Officer Vasquez conducted

standardized field sobriety tests; the juvenile exhibited signs of intoxication on all of them.2

Ultimately, based on his observations and the results of the field sobriety tests, Officer Vasquez

“arrested” the car’s occupant, the juvenile identified as “J.A.F.,” for driving while intoxicated.3

After the officer provided the requisite statutory warnings, the juvenile agreed to submit to a

breath test. During transport to the jail for the breath test, the juvenile admitted to the officer that

he was “a bit tipsy.” At the adjudication hearing, Officer Vasquez identified appellant in open

court as the individual that he “arrested” that morning.

               John Ricker, an intoxilyzer operator with the Austin Police Department, testified

at the adjudication hearing about conducting a breath test on the morning of April 27, 2017, on a

subject with the name “J.A.F.” and birthdate of February 21, 2001.               During the officer’s

testimony, copies of the breath-test results, which reflected an alcohol concentration of 0.164 and

0.155, were admitted into evidence without objection.




       2   The officer conducted four field sobriety tests. During the horizontal gaze nystagmus
test, the occupant exhibited all six clues. On the walk-and-turn test, the occupant exhibited seven
out of eight clues. During the one-leg stand, the occupant exhibited all four clues. Finally,
during the Romberg balance test, the officer observed a two- to thee-inch front-to-back sway.
       3   Taking a juvenile into custody is not considered to be an “arrest” “except for the
purposes of determining the validity of taking [the juvenile] into custody or the validity of a
search under the laws and constitution of this state or of the United States.” Tex. Fam. Code
§ 52.01(b); see Vasquez v. State, 739 S.W.2d 37, 42 (Tex. Crim. App. 1987) (noting that “the
Legislature has mandated that [a] child is not ‘arrested’ for purposes of criminal action until a
juvenile transfer order is entered”). However, during the adjudication hearing, the witnesses and
the parties used the term “arrest” when referring to Officer Vasquez taking appellant into
custody, and the parties use that term in their briefing in this Court. See, e.g., Arrest, BLACK’S
LAW DICTIONARY (11th ed. 2019) (defining “arrest” as “The taking or keeping of a person in
custody by legal authority[.]”); see also Lanes v. State, 767 S.W.2d 789, 801 (Tex. Crim. App.
1989) (characterizing Family Code section 52.01, which establishes circumstances under which
child may be taken into custody, as “Texas statutory guidelines for a juvenile arrest”).
                                                   4
               At the conclusion of the adjudication hearing, the juvenile court found that the

State had proved beyond a reasonable doubt that appellant had committed the offense of driving

while intoxicated as alleged in the petition and adjudicated appellant delinquent for that offense.

The court placed appellant on probation for six months under the supervision of his mother. This

appeal followed.


                                         DISCUSSION

               Appellant raises three points of error. In his first two points of error, he claims

that the evidence is insufficient to support the juvenile court’s delinquency finding because the

evidence failed to prove that he operated a motor vehicle in a public place or that he had an

alcohol concentration of 0.15 or more. In his third point of error, appellant argues that the

juvenile court erred in denying his motion to suppress and admitting the statements that he made

to Officer Vasquez.


                                  Sufficiency of the Evidence

               Adjudications of delinquency are based on the criminal standard of proof. See

Tex. Fam. Code § 54.03(f). Consequently, although juvenile proceedings are characterized by

statute as civil proceedings, we review the sufficiency of the evidence underlying a finding that

the juvenile engaged in delinquent conduct by applying the standard applicable to challenges to

the sufficiency of the evidence in criminal cases.4 Matter of D.L., 541 S.W.3d 917, 920 (Tex.

App.—Houston [14th Dist.] 2018, no pet.); In re D.A.K., 536 S.W.3d 845, 847 (Tex. App.—


       4  Both the Texas Supreme Court and the Court of Criminal Appeals have concluded that,
although quasi-criminal in nature, proceedings in juvenile court are civil proceedings that are not
to be treated as criminal matters unless specifically mandated. See In re Hall, 286 S.W.3d 925,
927 (Tex. 2009); Ex parte Valle, 104 S.W.3d 888, 889 (Tex. Crim. App. 2003); see also Tex.
Fam. Code §§ 51.17, 56.01.
                                                5
Houston [1st Dist.] 2017, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex. App.—Austin 2003,

no pet.). Under that standard, we consider all of the evidence adduced at trial in the light most

favorable to the verdict to determine whether, based on the evidence and reasonable

inferences therefrom, any rational factfinder could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson

v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018); see Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010) (concluding that Jackson due-process standard “is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable doubt”); In

re R.R., 373 S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (concluding

that Brooks applies to juvenile adjudication proceedings).

               In our sufficiency review, we consider all the evidence in the record, whether

direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the

defense.   Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.);

see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).         However, although we consider everything

presented at trial, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Arroyo v. State, 559 S.W.3d 484, 487 (Tex.

Crim. App. 2018); Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The trier

of fact is the sole judge of the weight and credibility of the evidence and may draw reasonable

inferences from basic facts to ultimate facts. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim.

App. 2018); see Jackson, 443 U.S. at 319. In our review, we assume that the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

                                                6
manner that supports the verdict, and we defer to that resolution. Jackson, 443 U.S. at 318;

Zuniga, 551 S.W.3d at 733; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016). We

must determine whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the verdict.

Arroyo, 559 S.W.3d at 487; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015);

Clayton, 235 S.W.3d at 778.

               In his first point of error, appellant contends that the evidence is insufficient to

prove that he operated the car in which he was found passed out. This contention is premised on

the fact that the EMT did not make an in-court identification of appellant during the adjudication

hearing. In his second point of error, appellant asserts that the evidence is insufficient to prove

that he had an alcohol concentration of 0.15 or more. This assertion is premised on the fact that

the intoxilyzer operator did not make an in-court identification of appellant during the

adjudication hearing.    Relying on cases that address an equivocal or uncertain in-court

identification of the defendant, appellant maintains that, given the lack of in-court identification

of him by these two witnesses, the evidence failed to identify him as the driver of the car or as

the person whose breath-test results indicated an alcohol concentration of 0.15 or more.

               However, no one method or formalized procedure is required for the State to

prove the identity of the accused.      Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—

Texarkana 2008, no pet.); Clark v. State, 47 S.W.3d 211, 214–15 (Tex. App.—Beaumont 2001,

no pet.); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d). The

absence of a formal in-court identification does not in and of itself render the evidence

insufficient on the issue of identity. Espinoza v. State, 571 S.W.3d 427, 434 (Tex. App.—Fort

Worth 2019, pet. ref’d); Arevalo v. State, No. 05-18-00126-CR, 2019 WL 3886650, at *4 (Tex.

                                                 7
App.—Dallas Aug. 19, 2019, pet. ref’d) (mem. op., not designated for publication). The State

may prove a defendant’s identity and criminal culpability by either direct or circumstantial

evidence, coupled with all reasonable inferences from that evidence.           Balderas v. State,

517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citing Gardner v. State, 306 S.W.3d 274, 285

(Tex. Crim. App. 2009)); Jenkins, 493 S.W.3d at 599.             We review the totality of the

circumstances to determine whether there is sufficient evidence showing that a defendant is the

individual who committed the offense. Lewis v. State, No. 03-13-00275-CR, 2015 WL 1810389,

at *2 (Tex. App.—Austin Apr. 16, 2015, pet. ref’d) (mem. op., not designated for publication);

Wiggins, 255 S.W.3d at 771; see, e.g., Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App.

1981) (concluding “from a totality of the circumstances the jury was adequately apprised that the

witnesses were referring to appellant”). The absence of an in-court identification is merely a

factor for the factfinder to consider in assessing the weight and credibility of the witnesses’

testimony. Lewis, 2015 WL 1810389, at *2; Wiggins, 255 S.W.3d at 771.

               The evidence in this case established that a sixteen-year-old male named “J.A.F.”

with a birthdate of February 21, 2001, was found passed out in a car. The juvenile was the only

occupant in the car, which was still running, and he was slumped over in the driver’s seat. While

EMT Johnson did not identify appellant in court as the individual that he found passed out in the

driver’s seat of the car, the evidence reflected that he removed the car’s sole occupant and placed

him in the back of the ambulance to evaluate him. The evidence also reflected that Officer

Vasquez arrived on the scene and made contact with the car’s occupant while the occupant was

in the back of the ambulance being evaluated by the EMTs. During the ensuing encounter, the

car’s occupant told the officer that he had driven the car to that location. This admission can be

heard on the recording from Officer Vasquez’s dash-cam, a copy of which was admitted into

                                                8
evidence. After concluding that the car’s occupant was intoxicated, the officer took the occupant

into custody for driving while intoxicated. Officer Vasquez identified appellant in court as the

person that he encountered that morning and “arrested” for driving while intoxicated. Moreover,

the recording from Officer Vasquez’s dash-cam showed the person who was taken into custody.

Thus, the juvenile court had the opportunity to view appellant in court and ascertain if he was the

same individual depicted on the video, whom Officer Vasquez first encountered in the back of

the ambulance and subsequently took into custody for DWI.

               Viewing the evidence in the light most favorable to the juvenile court’s

delinquency finding, we hold that a rational factfinder could have identified appellant, beyond a

reasonable doubt, as the person who was the sole occupant of the car in which he was found

passed out and who admitted driving the car to the officer.

               The evidence further established that Officer Vasquez asked the car’s occupant—

identified by the officer in court as appellant—to consent to giving a breath specimen, and

appellant agreed. The dash-cam recording shows appellant consenting to the breath test and the

officer informing appellant, in response to appellant’s questions, that he was being taken

downtown to the jail for the breath test. Officer Vasquez can be heard on the video making

arrangements for conducting appellant’s breath test in compliance with the laws requiring

juveniles to remain separate from adult detainees. See Tex. Fam. Code § 51.12(f). The dash-

cam recording depicts Officer Vasquez removing appellant from his patrol car at the downtown

jail facility at approximately 8:19 that morning. Approximately thirty minutes later, at 8:49 a.m.,

a male voice can be heard on the dash-cam recording telling appellant that “.16 was your first

result and .15 was your second.” Appellant asks if “that is a lot,” and a male voice explains that

0.08 is the legal limit so appellant’s results were double the legal limit “almost two and a-half

                                                9
hours from when [the police] first started talking to [him].” The video then depicts Officer

Vasquez placing appellant back in the patrol car and transporting him to the juvenile-detention

facility. While Officer Ricker, the intoxilyzer operator, did not identity appellant in court as the

juvenile to whom he administered the breath test that morning, his testimony reflects that, after

the requisite fifteen-minute observation period, he conducted a breath test on a juvenile named

“J.A.F.” The breath-test results for that breath test, which were admitted into evidence, indicated

that the officer conducted the test on April 27, 2017, on breath samples provided at 8:43 a.m. and

8:46 a.m. by a subject with appellant’s name and date of birth, and that the subject had a

breath-alcohol concentration of 0.164 and 0.155.

               Viewing the evidence in the light most favorable to the juvenile court’s

delinquency finding, we hold that a rational factfinder could have identified appellant, beyond a

reasonable doubt, as the person who provided the breath samples demonstrating an alcohol

concentration of 0.15 or more.

               In sum, based on the combined and cumulative force of the circumstantial

evidence, and the reasonable inferences drawn from it, we conclude that a rational trier of fact

could have found beyond a reasonable doubt that appellant operated the car in which he was

found passed out and that appellant had an alcohol concentration of 0.15 or more. See Acosta

v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014) (“[I]t is not necessary that every fact and

circumstance “point directly and independently to the defendant’s guilt; it is enough if the

conclusion is warranted by the combined and cumulative force of all the incriminating

circumstances.” (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)); see

e.g., Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) (concluding that appellate

court failed to consider “combined and cumulative force” of all evidence in light most favorable

                                                10
to trial court’s finding in reviewing sufficiency of identity evidence). Accordingly, we hold that

the evidence was sufficient to support appellant’s delinquency adjudication for driving while

intoxicated with an alcohol concentration of 0.15 or more. We overrule appellant’s first two

points of error.


                                         Motion to Suppress

                   During Officer Vasquez’s testimony at the adjudication hearing, appellant orally

moved to suppress the statements that he made to the officer during their encounter, asserting

that the statements were inadmissible because they were the result of a custodial interrogation

and he had not been given the requisite statutory warnings. The juvenile court reserved ruling on

the motion and, at the conclusion of evidence, recessed the proceeding and asked the parties to

submit briefs of the issue. The court subsequently denied the motion to suppress and, when the

adjudication hearing resumed, adjudicated appellant delinquent.

                   In his third point of error, appellant contends that the juvenile court erred in

denying his motion to suppress and admitting—through Officer Vasquez’s testimony and the

dash-cam recording from his patrol car—the statements that appellant made to the officer.

Appellant argues that the statements were inadmissible because he was in custody at the time

that he made them, but he had not been admonished as required under Texas Family Code

section 51.095.

                   We review a juvenile court’s decision on a motion to suppress evidence for an

abuse of discretion. In re R.J.H., 79 S.W.3d 1, 7 (Tex. 2002); In re D.G., 96 S.W.3d 465, 467

(Tex. App.—Austin 2002, no pet.). We use a bifurcated standard of review, giving almost total

deference to the juvenile court’s findings of fact, but conducting a de novo review of the court’s


                                                  11
application of law to those facts. In re R.J.H., 79 S.W.3d at 7; In re D.G., 96 S.W.3d at 467; see

Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997) (explaining bifurcated standard

of review). When, as here, the trial court makes explicit factual findings, we determine whether

the evidence, when viewed in the light most favorable to the court’s ruling, supports those

findings.   State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); In re D.J.C.,

312 S.W.3d 704, 711 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In our review, “[t]he

prevailing party is afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from it.” Matthews v. State, 431 S.W.3d 596, 601 n.5 (Tex. Crim.

App. 2014); accord State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011). We overturn

the trial court’s ruling only if it is arbitrary, unreasonable, or “outside the zone of reasonable

disagreement.” State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

               Section 51.095 of the Juvenile Justice Code governs the admissibility of

statements made by juveniles. See Tex. Fam. Code § 51.095. The statute incorporates the

warnings required by Miranda, with additional safeguards in place to protect juveniles. See id.

§ 51.095(a)(1); see also Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (requiring

demonstration of use of procedural safeguards effective to secure privilege against self-

incrimination before evidence obtained as result of custodial interrogation may be used against

defendant). Generally, statements made by juveniles are admissible in evidence only if the

statement shows that the child has, at some time before making the statement, received the

Miranda-based statutory warnings.5 See Tex. Fam. Code § 51.095(a)(1)(A), (5)(A). However,


       5Specifically, a magistrate must warn the child that: (i) the child may remain silent and
not make any statement at all and that any statement that the child makes may be used in
                                               12
section 51.095 does not preclude the admission of a juvenile’s statement if the statement does

not stem from custodial interrogation. See id. § 51.095(b), (d); see also Martinez v. State,

131 S.W.3d 22, 32 (Tex. App.—San Antonio 2003, no pet.) (“[A] statement which is not the

product of custodial interrogation is not required to be suppressed, even when the juvenile does

not receive the statutory admonishments.”). In this case, the record demonstrates that appellant

did not receive the required statutory admonishments until he was formally taken into custody

for DWI. Thus, the dispositive issue is whether appellant was in custody during his interaction

with Officer Vasquez prior to that point—that is, during the time he was questioned by the

officer in the ambulance or during the administration of the field sobriety tests.

               Appellant argues that he was in custody “from the moment law enforcement

arrived on the scene and began questioning him” because Officer Vasquez was conducting a

DWI investigation and appellant was not free to leave. He essentially argues that he was seized

and that status, without more, equals custody. However, what appellant describes—and what the

evidence reflects—is an investigative detention, not a custodial detention.

               An investigative detention involves a police officer briefly detaining a person

reasonably suspected of criminal activity in order to determine his identity or to maintain

the status quo in order to garner more information to confirm or dispel the officer’s

suspicions. Balentine v. State, 71 S.W.3d 763, 768–71 (Tex. Crim. App. 2002); Bartlett v. State,

249 S.W.3d 658, 667–68 (Tex. App.—Austin 2008, pet. ref’d); see Berkemer v. McCarty,



evidence against the child; (ii) the child has the right to have an attorney present to advise the
child either prior to any questioning or during the questioning; (iii) if the child is unable to
employ an attorney, the child has the right to have an attorney appointed to counsel with the
child before or during any interviews with peace officers or attorneys representing the state; and
(iv) the child has the right to terminate the interview at any time. See Tex. Fam. Code
§ 51.095(a)(1)(A), (5)(A).
                                                 13
468 U.S. 420, 439 (1984) (holding that police officer whose observations lead him reasonably to

suspect that particular person has committed, is committing, or is about to commit crime may

detain that person briefly in order to investigate circumstances that provoke suspicion). A person

held for an investigative detention is not in “custody.” Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996); Ramirez v. State, 105 S.W.3d 730, 738–39 (Tex. App.—Austin 2003,

no pet.); see State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008) (explaining that

temporary detention, in which person is not free to leave while police officer investigates

whether crime has been committed, is not custodial arrest); Bartlett, 249 S.W.3d at 668

(recognizing that “a valid investigative detention, which is characterized by lesser restraint than

an arrest, does not constitute custody”).

               Admittedly, an investigative detention may escalate from a noncustodial detention

to a custodial detention. See State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012).

However, 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. Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt, 931 S.W.2d at 254–55;

Houston v. State, 185 S.W.3d 917, 920 (Tex. App.—Austin 2006, pet. ref’d). The Court of

Criminal Appeals has recognized four general situations which may constitute custodial

detention absent a formal arrest: (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 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 he is free to leave.

Dowthitt, 931 S.W.2d at 255. With respect to the first three situations, the restriction upon

                                                14
freedom of movement must amount to the degree associated with a formal arrest as opposed to

an investigative detention. Id.; Ramirez, 105 S.W.3d at 739. As for the fourth situation, the

officer’s knowledge of probable cause must be manifested to the suspect. Dowthitt, 931 S.W.2d

at 255; Ramirez, 105 S.W.3d at 739.

               A determination of custody must be made on an ad hoc or case-by-case basis, in

consideration of all of the objective circumstances of the detention. Ortiz, 382 S.W.3d at 372;

Dowthitt, 931 S.W.2d at 255. When the detained person involved is a juvenile, courts consider

age and all the circumstances surrounding the encounter to decide whether there was a restraint

of movement to the degree associated with formal arrest. In re D.J.C., 312 S.W.3d at 712; In re

V.P., 55 S.W.3d 25, 31 (Tex. App.—Austin 2001, pet. denied); see J.D.B. v. North Carolina,

564 U.S. 261, 275–77 (2011) (holding that juvenile’s age must be taken into consideration in

“reasonable-person” analysis, so long as child’s age is known to officer at time of questioning).

               No bright line rule exists to distinguish investigative detentions and custodial

arrests (or “custody”). Sheppard, 271 S.W.3d at 291. Instead, when called upon to make that

determination, Texas courts consider several factors when categorizing the seizure of a person,

including the amount of force displayed, the duration of detainment, the efficiency of the

investigative process, whether the investigation is conducted at the original location or the person

is transported to another location, the officer’s expressed intent—that is, whether the officer told

the person that he was under arrest or was being detained, and any other relevant factors. Id. at

290; Morales Chavez v. State, No. 03-17-00637-CR, 2019 WL 2293566, at *7 (Tex. App.—

Austin May 30, 2019, no pet.) (mem. op., not designated for publication). In general, “[i]f the

degree of incapacitation appears more than necessary to simply safeguard the officers and assure

the suspect’s presence during a period of investigation, this suggests the detention is an arrest.”

                                                15
Sheppard, 271 S.W.3d at 291; accord Morales Chavez, 2019 WL 2293566, at *7. Conversely, a

seizure is an investigative detention rather than an arrest, if, given the totality of the

circumstances, “a reasonable person would believe the seizure was to be sufficiently

nonintrusive as to be only an ‘investigative detention.’”6 Sheppard, 271 S.W.3d at 291 (citing

40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure

§ 7.34 (2d ed. 2001)); accord Morales Chavez, 2019 WL 2293566, at *7.

               In this case, the evidence demonstrated that the initial welfare check on a passed-

out driver evolved into a DWI investigation of appellant. Officer Vasquez first encountered

appellant in the back of the ambulance as he was being evaluated by EMS. The officer told

appellant that he was “not in trouble” and expressed that they were “just talking” in order to

“figure things out.”

               During their initial interaction, Officer Vasquez became concerned that appellant

was under the influence of alcohol. The officer then acted diligently to pursue a means of

investigation that would quickly dispel or confirm his suspicions—through questioning and the

administration of field sobriety tests. Officer Vasquez’s conduct here was no more intrusive than

an officer conducting a DWI investigation during a typical traffic stop. A DWI investigation that

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

custodial interrogation. McRae v. State, 152 S.W.3d 739, 748–49 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d); see Berkemer, 468 U.S. at 439; State v. Stevenson, 958 S.W.2d 824, 828–

29 (Tex. Crim. App. 1997). Being the focus of a criminal investigation does not equate to

custody. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990) (citing Beckwith v. United

       6  In the custody analysis, the “reasonable-person” standard presupposes an innocent
person. Florida v. Bostick, 501 U.S. 429, 438 (1991); Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996).
                                               16
States, 425 U.S. 341, 347 (1976)); Martinez, 131 S.W.3d at 32 (same); see Stevenson,

958 S.W.2d at 829 (concluding that accident investigation escalated from consensual encounter

to investigative detention but mere fact that suspect became focus of criminal DWI investigation

did not convert investigation into arrest).

                  Further, the evidence here reflected that minimal force was displayed during the

encounter. Although Officer Vasquez was in uniform and another uniformed officer arrived on

the scene to assist, appellant was not, at any point, surrounded by multiple officers. Officers did

not use an undue amount of force to hold appellant. Appellant was not handcuffed or physically

touched by police until he was formally taken into custody. No weapons were drawn or openly

displayed at any time. Appellant was not transported to a separate location but simply moved

from the ambulance (after the medical evaluation was completed) to the nearby sidewalk so

Office Vasquez could conduct the field sobriety tests. He was placed in the patrol car only after

he was formally taken into custody.           In addition, as the juvenile court noted, the officer

was “conversational, friendly, cooperative, and non-threatening” during his interaction

with appellant.

                  The record before this Court and the juvenile court reflects a valid investigative

detention. The fact that appellant was a juvenile did not convert the investigative detention into

a custodial situation. See Dang v. State, 99 S.W.3d 172, 181 (Tex. App.—Houston [14th Dist.]

2002) (recognizing that “the police may detain a juvenile temporarily during an investigation in

the field in the same manner as they detain an adult”), rev’d on other grounds, 154 S.W.3d 616

(Tex. Crim. App. 2005).

                  Based on the totality of the circumstances, we conclude that a reasonable sixteen-

year-old would not have believed he was under restraint to the degree associated with a formal

                                                   17
arrest at the time that Officer Vasquez questioned him and conducted the field sobriety tests. See

Dowthitt, 931 S.W.2d at 255 (explaining that “the restriction upon freedom of movement must

amount to the degree associated with an arrest as opposed to an investigative detention”).

Accordingly, we find that appellant was not in custody when he made his statements to Officer

Vasquez. See State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013) (“The ultimate legal

determination of whether an individual was in custody requires an appellate court to take the

facts, as assessed for weight and credibility by the trial court, and then to make a legal

determination as to whether those facts amount to custody under the law.”). Consequently, the

juvenile court did not abuse its discretion in denying appellant’s motion to suppress and

admitting appellant’s statements to the officer through either the officer’s testimony or the dash-

cam recording. We overrule appellant’s third point of error.


                                        CONCLUSION

               Having concluded that the evidence is sufficient to support appellant’s

delinquency adjudication for driving while intoxicated with an alcohol concentration of 0.15 or

more and that the juvenile court did not abuse its discretion in denying appellant’s motion to

suppress and admitting the statements that appellant made to Officer Vasquez, we affirm the

juvenile court’s judgment of adjudication and order of probation.



                                             __________________________________________
                                             Edward Smith, Justice

Before Chief Justice Rose, Justices Goodwin and Smith

Affirmed

Filed: February 12, 2020

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