AFFIRMED and Opinion Filed May 7, 2019




                                          S
                                Court of Appeals
                                                In The


                         Fifth District of Texas at Dallas
                                       No. 05-18-00717-CR

                             BARNEY LEE WEIMER, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 068803

                             MEMORANDUM OPINION
                         Before Justices Schenck, Osborne, and Reichek
                                  Opinion by Justice Reichek
       A jury convicted Barney Lee Weimer of possession of methamphetamine in the amount of

four grams or more but less than 200 grams, and the trial court assessed punishment, enhanced by

two prior felony convictions, at twenty-eight years in prison. In two issues, appellant argues the

trial court erred in admitting a statement he made to a police officer during a traffic stop and in

failing to grant testimonial immunity to a witness. After reviewing the record, we overrule both

issues and affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       At about 3:30 a.m. on August 27, 2017, Cpl. Allen Adams of the Sherman Police

Department was patrolling an area of the city prone to burglaries and drug traffic. He saw appellant
riding a bicycle that was “not illuminated or very illuminated.” Appellant failed to stop at a stop

sign, and Adams decided to make a traffic stop. He called for Officer Austin Ross to assist him.

           Adams stopped appellant, explained why he stopped him, and obtained identification.

Adams asked appellant where he was going, and appellant pointed to a nearby house where police

previously had complaints of drug traffic. Adams asked for appellant’s consent to a “pat down,”

and appellant agreed. Ross performed the search and found a baggie in appellant’s front pocket.

The baggie contained a crystal-like substance. According to Adams, appellant said the substance

was rock salt, not “meth.” Appellant told the officers the baggie was left at his house by someone

who he would not name, and appellant found it earlier that night while looking for money.

           Over objection, Adams testified that because appellant indicated he was able to distinguish

between rock salt and methamphetamine, he asked appellant when the last time he used

methamphetamine and appellant said “yesterday.”1 After a field test showed the substance tested

positive for methamphetamine, appellant was arrested and placed in handcuffs. Body camera and

in-car videos of the stop were admitted as evidence over appellant’s objection and showed the

interaction, including the complained-of exchange, between the officers and appellant. The video

also showed a third officer at the scene while Adams was awaiting the field test results.

           Appellant testified in his defense. He told jurors the baggie found by the police belonged

to Shawn Williams. He said Williams brought the baggie to his house a few weeks earlier.

According to appellant, Williams sold “stuff to people” that “wasn’t real” and told appellant the

baggie contained salt. Appellant said he found the baggie underneath his recliner earlier that night,

put it in his pants pocket with the intent to throw it away, but then forgot about it.




   1
       The trial court determined this evidence was admissible following a hearing outside the presence of the jury.

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                                    ADMISSION OF STATEMENT

        In his first issue, appellant contends the trial court erred by admitting his statement, in

response to the officer’s question, that he used methamphetamine “yesterday.” He argues he was

in custody at the time he made the statement and had not been given his warnings as required under

Texas Code of Criminal Procedure article 38.22, rendering the statement inadmissible.

        Article 38.22 of the code of criminal procedure requires the suppression of statements made

during a custodial interrogation unless certain statutorily prescribed warnings are given. See TEX.

CODE CRIM. PROC. ANN. art. 38.22. Custodial interrogation means questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom in any significant way. Lewis v. State, 72 S.W.3d 704, 706 (Tex. App.—Fort Worth 2002,

pet. ref’d).

        Texas courts construe “custody” under article 38.22 consistent with the meaning of

“custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Herrera v. State, 241 S.W.3d

520, 526 (Tex. Crim. App. 2007). 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).

The “reasonable person” standard presupposes an innocent person. Id. In making the custody

determination, we consider all of the objective circumstances, but an official’s subjective belief is

not a factor unless that official’s subjective belief was somehow conveyed to the person who was

questioned. Herrera, 241 S.W.3d at 526.

        As a general rule, persons temporarily detained pursuant to an ordinary traffic stop are not

“in custody” for purposes of Miranda. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.

2012). However, a routine traffic stop may escalate from a noncustodial detention to a custodial

detention when the detainee’s freedom of movement is restrained to the degree associated with a

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formal arrest. Id. There are four general situations which transform a noncustodial interrogation

into a custodial interrogation: (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

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 through third situations, the restriction upon freedom of

movement must amount to the degree associated with an arrest as opposed to an investigative

detention. Id. As for the fourth situation, the officers’ knowledge of probable cause must be

manifested to the suspect. Id.

       Appellant argues that under Dowthitt prongs (1), (3), and (4), he was in custody when he

made the incriminating statement. He asserts that custody was established by evidence that his

bicycle was pulled over and he was “surrounded by police, who had put his hands behind his back,

albeit for officer safety, to search his pockets.” Further, he asserts police had probable cause to

arrest him for possession of methamphetamine as soon as they removed the baggie from his pocket

and he was not told he was free to leave. We cannot conclude this evidence established custody.

       There is no bright-line test for distinguishing between an investigative detention and arrest;

instead, courts consider a number of factors, including: (1) the amount of force displayed; (2) the

duration of the detention; (3) the efficiency of the investigative process and whether it is conducted

at the original location or the person is transported to another location; (4) the officer’s expressed

intent—that is, whether he told the person that he was under arrest or was being detained only for

a temporary investigation; and (5) any other relevant factors. State v. Sheppard, 271 S.W.3d 281,

291 (Tex. Crim. App. 2008).




                                                 –4–
       Cpl. Adams stopped appellant and was ultimately joined by two other officers. None of

the officers drew a weapon or otherwise acted in any threatening manner toward appellant. Only

seven minutes elapsed between the time of the stop and appellant’s arrest. During this time,

appellant agreed to a search, and one of the officers had appellant put his hands behind his back

while he performed the search; appellant was not handcuffed. The baggie was found during the

search, and appellant immediately told the officers it was rock salt. Although Adams testified he

had probable cause to arrest appellant once the substance was found, he did not communicate that

fact to appellant. Having found the suspicious substance, the police could continue to detain

appellant briefly to investigate that circumstance. While another officer performed a field test of

the substance, appellant again told Adams the substance was rock salt, not “meth.” Because

appellant indicated he could distinguish between the two, Adams asked when he last used “meth,”

eliciting appellant’s response of “yesterday.” Shortly after, the field test results showed the

substance was positive for methamphetamine and appellant was arrested.

       Having reviewed the evidence and presupposing an innocent person, the record does not

demonstrate that appellant was physically deprived of his freedom in any significant way, any

officer created a situation that would lead a reasonable person to believe his freedom of movement

had been significantly restricted, or any officer had probable cause to arrest and manifested that

probable cause to appellant but did not tell appellant he was free to leave. Accordingly, his

statement was not the product of custodial interrogation. At most, it was merely the result of an

investigative detention and was admissible even in the absence of the warnings set out in article

38.22. See Arthur v. State, 216 S.W.3d 50, 57 (Tex. App.—Fort Worth 2007, no pet.) (concluding

defendant not in custody when officer asked defendant where she had been and whether she had

been drinking; statements were not product of custodial interrogation but merely result of

investigative detention); Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San Antonio 1998,

                                               –5–
pet. ref’d) (concluding defendant’s statement that he had four drinks in response to officer’s

question was not result of custodial interrogation but was part of temporary investigation to

determine whether defendant was driving while intoxicated). We overrule the first issue.

                                       TESTIMONIAL IMMUNITY

       In his second issue, appellant contends the trial court erred in failing to grant testimonial

immunity to a witness after the State made the offer, denying him his right to present a defense

and his right to compulsory process.

       After the State rested, defense counsel told the judge he wanted to call a witness who he

believed would invoke the Fifth Amendment. The witness, Shawn Williams, was the person who

appellant claimed left the bag of methamphetamine at his house. Williams was under indictment

in an unrelated case and had been advised by his attorney not to testify.

       In a hearing outside the presence of the jury, Williams told the judge he would invoke his

Fifth Amendment right not to testify as advised by his counsel. At that point, there was some

discussion among the prosecutor, defense counsel, and Williams’s counsel during which the State

offered “immunity for [Williams] for his testimony.” But after further discussion on the terms or

scope of any potential testimonial or use immunity, the State withdrew the offer. When defense

counsel argued the prosecutor had already given Williams testimonial immunity, the trial judge

explained that the State withdrew the offer before it was accepted or finalized.

       “Immunity . . . is the coin the government must pay to obtain the waiver of a person’s right

against self-incrimination and the information that he has about some crime.” Smith v. State, 70

S.W.3d 848, 861 (Tex. Crim. App. 2002) (Johnson, J., concurring). Thus, only the government

can decide how much information it wants to “buy” and how much it is willing to pay for it in

terms of either “use” or “transactional” immunity. Id.




                                                –6–
       Here, the prosecutor did not bind herself to any agreement; rather, she withdrew her offer

of immunity before any agreement was reached. Moreover, appellant has cited no case for the

proposition that the State is precluded from withdrawing its offer of immunity before any offer is

finalized. Because the record does not show that the defense witness was granted immunity in this

case, appellant has not shown error. We overrule the second issue.

       We affirm the trial court’s judgment.




                                                 /Amanda L. Reichek/
                                                 AMANDA L. REICHEK
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180717F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 BARNEY LEE WEIMER, Appellant                     On Appeal from the 397th Judicial District
                                                  Court, Grayson County, Texas
 No. 05-18-00717-CR       V.                      Trial Court Cause No. 068803.
                                                  Opinion delivered by Justice Reichek;
 THE STATE OF TEXAS, Appellee                     Justices Schenck and Osborne participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 7, 2019




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