      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00441-CR




                                    Kristen C. Pealer, Appellant

                                                    v.

                                    The State of Texas, Appellee



           FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
  NO. C-1-CR-09-214324, HONORABLE ELISABETH ASHLEA EARLE, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury found appellant Kristen C. Pealer guilty of driving while intoxicated, and the

trial court assessed her punishment at 120 days in jail and a $2000 fine, probated. See Tex. Penal

Code Ann. § 49.04 (West 2003). Appellant contends that the trial court erred by overruling her

motion to suppress evidence. We overrule this contention and affirm the conviction.

                A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). This means that the ruling will be

upheld if it is reasonably supported by the record and is correct under any applicable legal theory.

Id. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight

to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court almost complete
deference in determining historical facts, but we review de novo the trial court’s application of the

law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

                Appellant, who was alone in her car, was stopped for speeding at 12:45 a.m. on

August 13, 2009 by Austin Police Officer Richard Mabe. The propriety of this stop is not in

question. Mabe, the only witness at the suppression hearing and at the trial, testified that he noticed

a strong odor of alcoholic beverage as he approached appellant’s car. Appellant told Mabe that she

had consumed two beers since 9:00 that night.

                Mabe ordered appellant out of her car and administered the three standard field

sobriety tests. Mabe testified that he observed all six indicators of intoxication during the horizontal

gaze nystagmus (HGN) test and all eight indicators during the walk-and-turn test. On the other hand,

he saw only one of the four possible indicators during the one-leg-stand test. In a fourth test, Mabe

asked appellant to stand with her head tilted back and her eyes closed and estimate the passage of

thirty seconds. Appellant stood this way for almost one minute, during which she noticeably swayed.

Mabe testified that while administering these tests, he noticed that appellant’s eyes were bloodshot

and that she had a strong alcoholic beverage odor on her breath.

                After administering the four tests, Mabe instructed appellant to walk over to his patrol

vehicle and stand in such a way as to permit him to get a close-up of her eyes on his video unit. He

then administered the HGN test a second time, admittedly for the purpose of making a record of

appellant’s performance. Then, at 1:10 a.m., Mabe told appellant that she was under arrest,

handcuffed her, and placed her in his patrol vehicle. He advised appellant of her statutory rights and

requested a breath or blood sample. See Tex. Transp. Code Ann. § 724.015 (West Supp. 2010). She



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refused to give a sample. Mabe then drove appellant to a mobile DWI unit about one mile from

where she had been stopped.

               The entire encounter between appellant and Mabe, from the time she was stopped

until she was taken out of the patrol car at the mobile unit, was video recorded. The video was

introduced in evidence and is part of the appellate record. Our recitation of the facts is based on

Mabe’s testimony and our review of the video.

               Appellant makes two arguments. First, she asserts that the trial court should have

suppressed “any and all evidence” obtained after she was placed in custody because she was not

advised of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). Second, appellant urges that

the court should have suppressed “any and all post-arrest evidence,” again because she was not

advised of her Miranda rights. These arguments fail because appellant was not in custody prior to

her arrest, and because she was not interrogated after her arrest.

               Statements made by a defendant during custodial interrogation are inadmissible

unless the defendant was first advised of her Fifth Amendment rights, including the right to

remain silent and the right to counsel. Id. at 467-75. The term custodial interrogation means

questioning initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of her freedom of action in any significant way. Id. at 444. A person is in

custody if, under the circumstances, a reasonable person would believe that her freedom of

movement was restrained to the degree associated with a formal arrest. Douthitt v. State,

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




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                  Generally speaking, a driver detained following a traffic stop is not in custody for the

purposes of the Fifth Amendment and Miranda. Berkemer v. McCarty, 468 U.S. 420, 439-40

(1984); State v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997). In Berkemer, the

defendant driver was stopped after he was seen weaving in and out of his lane, and he subsequently

failed a field sobriety test. 468 U.S. at 423. The defendant thereafter told the detaining officer, in

response to questioning, that he had consumed two beers and smoked marihuana. Id. The

Supreme Court held that these incriminating statements were not the product of custodial

interrogation. Id. at 441-42. The Court concluded that the defendant had not been placed in custody

until he was formally arrested after making the incriminating statements. Id.

                  In the present case, appellant was the focus of a DWI investigation almost from the

moment she was stopped by Mabe. That factor alone, however, means only that she was subjected

to an investigatory detention; it does not raise that detention to the level of a custodial arrest. See

Stevenson, 958 S.W.2d at 829. Appellant was neither frisked nor handcuffed before the field

sobriety tests were administered. The tests were administered on the public sidewalk beside

appellant’s stopped car, and they took approximately twenty-five minutes to complete. These

circumstances are analogous to those in Berkemer. We hold that under the circumstances in which

appellant found herself, a reasonable person would not believe that her freedom of movement

had been restrained to the degree associated with a formal arrest while she performed the field

sobriety tests.

                  Moreover, appellant’s assertion that a Miranda violation requires the suppression of

“any and all evidence” is incorrect. Miranda warnings must precede custodial interrogation.



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384 U.S. at 467-75. Even if appellant’s detention had escalated into a custodial arrest by the

time the field tests were administered, as she contends, a video recording of a DWI suspect

performing sobriety tests is not testimonial evidence under the Fifth Amendment. Miffleton v. State,

777 S.W.2d 76, 80 (Tex. Crim. App. 1989). Further, an officer’s request that the suspect perform

the tests and his instructions regarding how the suspect is to perform the tests do not constitute

interrogation. Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990). Viewing the evidence

in the light most favorable to the ruling, the trial court did not err by refusing to suppress that portion

of the video preceding appellant’s formal arrest.

                 Appellant was not advised of her Miranda rights following her arrest. This does not

mean, however, that the trial court should have suppressed that portion of the video. Appellant’s

appearance as she sat in Mabe’s patrol car was not testimonial evidence. Moreover, the record

reflects that Mabe did not question appellant after arresting her. Mabe told appellant that she was

under arrest, placed her in the patrol car, read the transportation code warnings, and requested a

specimen. From that point on, Mabe asked no questions of appellant, and what few statements

appellant made were volunteered.1 It is clear from the record that these statements were not the

product of custodial interrogation. Viewing the evidence in the light most favorable to the ruling,

the trial court did not err by refusing to suppress that portion of the video following appellant’s

formal arrest.




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       Appellant asked to retake the field tests, said she was “not too drunk,” and expressed the
opinion that Mabe was “wasting [his] time” because “[t]here are so many more hard core criminals
in this world than me.”

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              The judgment of conviction is affirmed.




                                           __________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: April 19, 2011

Do Not Publish




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