                                                                                    ACCEPTED
                                                                                01-14-00248-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           6/25/2015 2:47:58 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                          NO. 01-14-00248-CR
               ________________________________________
                                                               FILED IN
                                                        1st COURT OF APPEALS
                                   In the                   HOUSTON, TEXAS
                            Court of Appeals            6/25/2015 2:47:58 PM
                                 For the                CHRISTOPHER A. PRINE
                          First District of Texas               Clerk
                                At Houston
               ________________________________________

        On appeal from the County Criminal Court at Law No. 5 of
                         Harris County, Texas
                              No. 1861254
             ________________________________________

                        BRADY CRAIG KOCH, JR.,
                               Appellant
                                  v.
                         THE STATE OF TEXAS,
                               Appellee


                        BRIEF FOR APPELLANT


Emily Detoto                            Megan E. Smith
State Bar No.: 00797876                 State Bar No.: 24076196
917 Franklin, 4th Floor                 917 Franklin, Suite 310
Houston, Texas 77002                    Houston, Texas 77002
Telephone: (713) 227-2244               Telephone: (713) 899-5438
Facsimile: (713) 222-5840               Facsimile: (713) 527-2749
emilydetoto@mac.com                     megan@megansmithlaw.com



Counsel for Appellant                   Counsel for Appellant


                    ORAL ARGUMENT REQUESTED
                       Identity of Parties and Counsel

Appellate Counsel for Appellant, Mr. Brady Craig Koch, Jr.

Ms. Emily Detoto
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840
emilydetoto@mac.com

Ms. Megan E. Smith
State Bar No. 24076196
917 Franklin, Suite 310
Houston, Texas 77002
Telephone: (713) 899-5438
Facsimile: (713) 527-2749
megan@megansmithlaw.com

Appellate Counsel for Appellee, The State of Texas

Ms. Devon Anderson
District Attorney

Mr. Alan Curry, Assistant—Appeal

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800

Trial Counsel for Appellant, Mr. Brady Craig Koch, Jr.

Ms. Emily Detoto
State Bar No.: 00797876
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 227-2244
Facsimile: (713) 222-5840

                                      ii
Mr. Jay Cohen
State Bar No.: 24069528
917 Franklin, 4th Floor
Houston, Texas 77002
Telephone: (713) 225-1900

Trial Counsel for Appellee, The State of Texas

Ms. Devon Anderson
District Attorney

Ms. Nicole L. Clark
State Bar No.: 24072958

Mr. Seth C. Gagliardi
State Bar No.: 24073207

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800




                                      iii
                           Table of Contents

                                                                   Page(s)

Identity of Parties and Counsel…………………………………………………ii

Index of Authorities……………………………………………………………vi

Statement of the Case……………………………………………………………1

Issue Presented…………………………………………………………………..1

Statement of Facts……………………………………………………………….1

Summary of the Argument……………………..………………………………..5

Argument………………………………………………………………………...5

Issue Number One…………………………………………………………….....5

     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
     DENYING MR. KOCH’S MOTION TO SUPPRESS.

  A. Standard of Review………………………………….................................5

  B. Mr. Koch’s Statements to Officer Corral are Inadmissible as They Were
     Obtained in Violation of Miranda………………………………………..6

        a. Failure to Give Miranda Warnings Renders Oral Statements
           Inadmissible……………………………………………………….6

        b. Mr. Koch was in Custody When Officer Corral Questioned him….8

  C. The Trial Court’s Failure to Suppress Mr. Koch’s Incriminating
     Statements Contributed to his Conviction…………………..…………...14

  D. Conclusion……………………………………………………………….16
Prayer………………………..……………..………………………………..….16



                                   iv
Certificate of Service…………………………………………………..……….17

Certificate of Compliance………………………………………………………17




                        v
                           Index of Authorities

                                                                    Page(s)

Statutes

Tex. Code Crim. Proc. art. 38.22………………………………………….….7, 8

Tex. R. App. Proc. § 9.4………………………………………………………..17

Tex. R. App. Proc. § 44.2(a)………………………………………………..….14

Federal Cases

Berkemer v. McCarty, 468 U.S. 420 (1984)…………………………………….8

Miranda v. Arizona, 384 U.S. 436 (1966)…………………….3, 5, 6, 7, 8, 14, 16

Stansbury v. California, 511 U.S. 318 (1994)………………………..……...8, 12

Texas Court of Criminal Appeals

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)……………………10

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)…………………...6

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)………...9, 10, 11, 13

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)…………………...…15

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003)………………………14

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)
(op. on reh'g), cert. denied, 526 U.S. 1070 (1999)…………………………..…15

Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997)……………………..10

Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008)…………………....5

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012)……………...…..6, 8, 10

                                    vi
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013)……………....6, 8, 9, 12

State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008)…………….…….10

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 944 (2001)…………………………………….………..15

Texas Intermediate Appellate Courts

Campbell v. State, 325 S.W.3d 223 (Tex. App.—Fort Worth 2010,
no pet.)…………………......................................................……………….11, 15
McRae v. State, 152 S.W.3d 739 (Tex. App.—Houston [1st Dist.]
2004, pet. ref'd)…………………………………………………………………12

Serrano v. State, 01-13-00975-CR, 2015 WL 456511 (Tex.
App.—Houston [1st Dist.] Feb. 3, 2015), pet. filed (May 15, 2015)………...….6

State v. Saenz, 13-11-00328-CR, 2014 WL 3542092 (Tex. App.—Corpus Christi
July 17, 2014), pet. ref’d. (Oct. 8, 2014)…………………………………...12, 13
State v. Tercero, 01-14-00120-CR, 2015 WL 1544519 (Tex.
App.—Houston [1st Dist.] Apr. 2, 2015, no. pet. h.)…………………….……...5

Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.]
2012, no pet.)…………………………………………………………...………10




                                       vii
                                  Statement of the Case

       Appellant, Brady Craig Koch, Jr., was charged by information with the

misdemeanor offense of driving while intoxicated (second offense) on

November 7, 2012. (CR1 at 8). Mr. Koch was found guilty by a jury. (CR at

91, 96). Punishment was assessed by the trial court at one year confinement in

the county jail, to be suspended for a period of two years, placing Mr. Koch on

community supervision. (CR at 96-97). As a condition of probation, he was

ordered to serve five days in the Harris County Jail. (CR at 97). Mr. Koch

timely filed a Notice of Appeal. (CR at 100-01). Mr. Koch’s brief was due

Monday, June 22, 2105. Appellant’s brief is currently late.

                                      Issue Presented

    1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
       DENYING MR. KOCH’S MOTION TO SUPPRESS.

                                    Statement of Facts

       On November 7, 2012, Mr. Brady was involved in a single car automobile

accident against a light post and fence with no passengers in his vehicle. (RR

Vol. 2 at 15-16, 34, 67, 121, 154, 205). There was one civilian witness who

came upon the scene right after2 the accident occurred, Albert Lakey. (RR Vol.

2 at 15-16). Mr. Lakey testified that Mr. Koch was crouched over his steering
1
  CR refers to Clerk’s Record; RR refers to Reporter’s Record; SE refers to State’s Exhibit.
2
  The State provided Brady notice pre-trial that although Officer Corral’s offense report said
that Mr. Lakey witnessed the accident, Mr. Lakey later informed the prosecutors that he did
not witness the accident. (CR at 78).


                                               1
wheel and the vehicle was smoking, and Mr. Koch was speaking gibberish and

he staggered out of his vehicle. (RR Vol. 2 at 16-19). He testified that Mr.

Koch then tried to leave the scene and grazed or swiped him3 with his vehicle,

so he restrained him by pinning him against the vehicle until the police arrived

and “grabbed him.” (RR Vol. 2 at 19, 35, 50-53, 64).

       The accident occurred around 10:00 PM, and Officers Arroyo and

Thibodeaux were dispatched to the scene at 10:05 PM and they arrived at 10:10

PM. (RR Vol. 2 at 138, 204). The DWI Task Force Officer, Salvador Corral,

arrived after Officers Arroyo and Thibodeaux, however, the time is not clear4

and he testified that he signed on at 10:00 PM and it would have taken him 10 to

15 minutes to get to the accident location. (RR Vol. 2 at 165). Officer Muskiet

testified that he arrived at 11:03 PM and Mr. Koch was in the backseat of the

patrol car when he arrived. (RR Vol. 2 at 115, 137, 139). There was no breath

or blood specimen obtained. (RR Vol. 3 at 14).

       Officer Arroyo testified that Mr. Koch was slouched over on the sidewalk

when she arrived and that she smelled alcohol on Mr. Koch, so she called for a

DWI unit to come investigate. (RR Vol. 2 at 81, 101). She also testified that

Mr. Koch was only being detained in the back of a patrol car until the DWI
3
  Officer Muskiet was never told that Mr. Koch swiped or hit Mr. Lakey with his vehicle.
(RR Vol. 2 at 131). On cross-examination, Mr. Lakey acknowledged that he never told the
police this story. (RR Vol. 2 at 41).
4
  Initially, Officer Corral testified that he arrived at the scene at 10:00 p.m. (RR Vol. 2 at
158).


                                                2
officer arrived, so they could continue to investigate the scene. Id. Mr. Koch

was placed in handcuffs in the back of a locked patrol car where he was not free

to leave, but Officer Arroyo clarified that he was not under arrest. (RR Vol. 2 at

94, 206-07).      She did not recall Mr. Koch saying anything derogatory or

offensive to her, nor could she remember if Mr. Koch was combative or defiant.

(RR Vol. 2 at 75, 207).

       When Officer Corral arrived, Mr. Koch was in the backseat of a patrol car

so he would not be able to leave the scene, but he was not under arrest,

according to Officer Corral. (RR Vol. 2 at 159). Mr. Koch was handcuffed and

sleeping when Officer Corral removed him from the back of the patrol car for

questioning, and he had to be driven about 50 feet to a different location. (RR

Vol. 2 at 155, 161-62, SE35 at 171, 243). Officer Corral did not give Mr. Koch

his Miranda6 warnings, but he was not free to leave. (RR Vol. 2 at 178).

Officer Corral testified that Mr. Koch admitted to having 2, 5, 7, and 15 drinks

and that he started drinking beer at noon. (RR Vol. 2 at 225-26). Defense

counsel requested a running objection to these admissions in front of the jury,

after a motion to suppress7 was litigated and denied outside the presence of the

jury. (RR Vol. 2 at 221, 225). Officer Corral testified that he formally arrested
5
  There is only audio for the first 20 to 30 seconds, and then the sound disappears. (RR Vol. 2
at 245).
6
  Miranda v. Arizona, 384 U.S. 436 (1966).
7
  The Motion to Suppress hearing can be found in the record at Volume 2 pages 112-121 and
157-221.


                                              3
Mr. Koch at 10:46 PM. (RR Vol. 2 at 164). Officer Corral testified that Mr.

Koch exhibited all six clues on the horizontal gaze nystagmus test and that he

observed the odor of alcohol, bloodshot eyes, and slurred speech. (RR Vol. 2 at

241, 249). Mr. Koch declined the other standard field sobriety tests, and Officer

Corral testified that it was his opinion that Mr. Koch was intoxicated. (RR Vol.

3 at 7, 11).

       At trial, the defense theory during cross-examination was that Mr. Koch

was actually exhibiting signs of a concussion because he was injured in the car

accident. (RR Vol. 2 at 49-50, Vol. 3 at 41, 93). The defense also emphasized

through the witnesses that because no one had seen the accident occur, Mr.

Koch could have swerved to avoid an accident or that there was some cause for

the accident other than alcohol. (RR Vol. 2 at 39, 130-31).

       The trial court announced findings of fact and conclusions of law on the

record, immediately following the Motion to Suppress hearing. (RR Vol. 2 at

220-21). Specifically, the court found the following:

   • Mr. Koch’s freedom was restricted, but officers told him that he was

       being detained.

   • The detention at its earliest occurred at 10:10 PM and ended at 10:24 PM

       “when the defendant appeared without handcuffs outside of the backseat.”




                                       4
   • Moving Mr. Koch a very short distance was reasonable because the

      officers could not conduct an investigation in the middle of the street.

   • The duration of the detention was reasonable and never converted to

      custody before Mr. Koch was questioned by Officer Corral.

                          Summary of the Argument

       Mr. Koch was physically restrained by a witness, then handcuffed and

placed in a locked patrol car for a period that may have been up to 24 minutes

total. Thus, Mr. Koch was in custody when Officer Corral arrived and began

questioning him without first providing Miranda warnings. Mr. Koch’s

incriminating admissions in response to Officer Corral’s questions were

inadmissible. The trial court erred in failing to suppress these statements.

                                    Argument

ISSUE I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY DENYING MR. KOCH’S MOTION TO SUPPRESS.

   A. Standard of Review.


      This Court reviews a trial court’s ruling on a motion to suppress under an

abuse of discretion standard.     State v. Tercero, 01-14-00120-CR, 2015 WL

1544519, at 2 (Tex. App.—Houston [1st Dist.] Apr. 2, 2015, no. pet. h.)(citing

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008)). This Court

applies a bifurcated standard of review, giving “almost total deference to a trial



                                         5
court's determination of historical facts that depend on credibility” and a “de

novo review of the trial court’s application of the law to those facts.” Serrano v.

State, 01-13-00975-CR, 2015 WL 456511, at *2 (Tex. App.—Houston [1st

Dist.] Feb. 3, 2015), pet. filed (May 15, 2015)(citing Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000)).

      In the context of suppression review based on Miranda, the Court of

Criminal Appeals has recently held:          “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.”

State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013)(citing State v.

Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012)). This Court reviews de

novo the trial court’s ultimate legal determination as to whether Mr. Koch was in

custody. Saenz, 411 S.W.3d at 494.

   B. Mr. Koch’s Statements to Officer Corral are Inadmissible as They

      Were Obtained in Violation of Miranda.

         a. Failure to Give Miranda Warnings Renders Oral Statements

             Inadmissible.


   Oral statements are inadmissible in Texas unless they comply with Article

38.22 of the Texas Code of Criminal Procedure. A person must “knowingly,


                                         6
intelligently, and voluntarily” waive his Miranda rights. Miranda v. Arizona,

384 U.S. 436, 444 (1966); Tex. Code Crim. Proc. art. 38.22 § 3(a)(2). Texas

codified the Miranda warnings, which provide:


            (a) the accused, prior to making the statement, either
            received from a magistrate the warning provided in
            Article 15.17 of this code or received from the person
            to whom the statement is made a warning that:
            (1) he has the right to remain silent and not make any
            statement at all and that any statement he makes may
            be used against him at his trial;
            (2) any statement he makes may be used as evidence
            against him in court;
            (3) he has the right to have a lawyer present to advise
            him prior to and during any questioning;
            (4) if he is unable to employ a lawyer, he has the right
            to have a lawyer appointed to advise him prior to and
            during any questioning; and
            (5) he has the right to terminate the interview at any
            time; and
            (b) the accused, prior to and during the making of the
            statement, knowingly, intelligently, and voluntarily
            waived the rights set out in the warning prescribed by
            Subsection (a) of this section.
Tex. Code Crim. Proc. art. 38.22 § 2.




                                        7
          b. Mr. Koch was in Custody When Officer Corral Questioned

             him.


      The critical question is whether an accused person is in custody for

purposes of triggering Miranda and article 38.22.        “In making the custody

determination, the primary question is whether a reasonable person would

perceive the detention to be a restraint on his movement ‘comparable to…formal

arrest,’ given all the objective circumstances.” State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012)(quoting Berkemer v. McCarty, 468 U.S. 420, 441

(1984); citing Stansbury v. California, 511 U.S. 318, 323 (1994)); accord

Saenz, 411 S.W.3d at 496. This is determined on a case-by-case basis and “this

Court looks only to the objective factors surrounding the detention.            The

subjective beliefs of the detaining officer are not included in the calculation of

whether a suspect is in custody.” Ortiz, 382 S.W.3d at 372-73. However, if a

police officer “manifests his belief to the detainee that he is a suspect, then that

officer’s subjective belief becomes relevant to the determination of whether a

reasonable person in the detainee’s position would believe he is in custody.” Id.

at 373.


      The Court of Criminal Appeals has outlined four situations or categories

that may constitute custody:



                                         8
             (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 that he is
             free to leave.
State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013)(quoting Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)). The Court of Criminal

Appeals elaborated on these situations in Saenz:


             The first three situations require that the restriction on
             a suspect's freedom of movement must reach ‘the
             degree associated with an arrest’ instead of an
             investigative detention. The fourth situation requires
             an officer's knowledge of probable cause to be
             manifested to the suspect. Custody, however, is not
             established by the fourth situation unless the
             manifestation of probable cause ‘combined with other
             circumstances’ of the interview, such as duration or
             factors of ‘the exercise of police control over [a
             suspect],’ would lead a reasonable person to believe
             that he is under restraint to the degree associated with
             an arrest.
Saenz, 411 S.W.3d at 496(citing Dowthitt, 931 S.W.2d at 255-57).


      Moreover, the Court of Criminal Appeals has clarified the purpose of the

Dowthitt categories in recent years:


                                         9
             The Dowthitt categories were intended to be merely
             descriptive, not exhaustive. We held that the four
             categories ‘at least…may constitute custody. We
             never said that, in order for a set of circumstances to
             constitute custody, an appellate court must be able to
             fit it into one of these descriptive categories.
Ortiz, 382 S.W.3d at 376(quoting Dowthitt, 931 S.W.2d at 255).


      Texas courts have made clear that there is not a bright-line rule that

handcuffing always constitutes custody or an arrest. State v. Sheppard, 271

S.W.3d 281, 290-91 (Tex. Crim. App. 2008); Balentine v. State, 71 S.W.3d 763,

771 (Tex. Crim. App. 2002). “The officer may use such force as is reasonably

necessary to effect the goal of the stop: investigation, maintenance of the status

quo, or officer safety.” Balentine, 71 S.W.3d at 771 (citing Rhodes v. State, 945

S.W.2d 115, 117 (Tex. Crim. App. 1997)(handcuffing is not ordinarily proper

during a detention)). In Balentine, the officer handcuffed Mr. Balentine and

placed him in the back of a patrol car “because he feared for his own safety.”

Balentine, 71 S.W.3d at 771. Gunfire had just been reported in the area and the

stop was in the early morning hours; Mr. Balentine had been evasive with and

lied to the officer. Id; see Wert v. State, 383 S.W.3d 747, 754 (Tex. App.—

Houston [14th Dist.] 2012, no pet.)(handcuffed in back of patrol car was not

custody because defendant was “aggressive, belligerent, uncooperative, and

potentially violent”).



                                       10
            The degree of force employed by a police officer is
            just one of several factors that must be considered to
            determine whether a particular seizure of a person is
            an arrest or merely an investigative detention. State v.
            Moore, 25 S.W.3d 383, 386 (Tex. App.-Austin 2000,
            no pet.). The nature of the crime under investigation,
            the degree of suspicion, the location of the stop, the
            time of day, and the reaction of the suspect are all facts
            which bear on the issue. See id. (citing 4 Wayne R.
            LaFave, Search and Seizure § 9.2(d) (3d ed. 1996)).
Campbell v. State, 325 S.W.3d 223, 234 (Tex. App.—Fort Worth 2010, no pet.).


      In Saenz, after remand from the Court of Criminal Appeals, the Corpus

Christi Court of Appeals held that Mr. Saenz was in custody during a DWI stop

and agreed that his incriminating statements should have been suppressed:


             First, Saenz was ‘physically deprived of his freedom
            of action’ in a ‘significant way’ when he was locked in
            the back of the patrol car for ‘12–18 minutes or
            longer.’ See Dowthitt, 931 S.W.2d at 255. Second,
            Officer Bintliff instructed Saenz not to leave. See
            Saenz, 411 S.W.3d at 496 (‘If the trial court's future
            findings determine that Officer Bintliff told appellee
            that he was not free to leave, then this case could be
            similar to the second situation in Dowthitt based on
            evidence that appellee was in the back seat of the
            patrol car, was not free to leave, and was told that he
            could not leave.’). Third, by locking Saenz in the
            patrol car and telling him he was not free to leave, the
            officers ‘create[d] a situation that would lead a
            reasonable person to believe that his freedom of
            movement has been significantly restricted.’ Dowthitt,
            931 S.W.2d at 255. Fourth, there was probable cause
            to arrest Saenz for public intoxication or driving while
            intoxicated, see Tex. Penal Code Ann. § 49.02,
            49.04(a) (West, Westlaw through 2013 3d C.S.), and,


                                       11
              considering the totality of the circumstances, we find
              that the officers' knowledge of probable cause was
              manifested to Saenz by their words and deeds. See
              Stansbury, 511 U.S. at 325 (noting that an officer's
              knowledge of probable cause may be manifested to the
              suspect ‘by word or deed’); Saenz, 411 S.W.3d at 496
              (‘Rather than focusing on one discrete circumstance,
              such as an officer's silence when he places a suspect in
              his patrol car, the court of appeals should have
              examined the totality of the circumstances to
              determine whether a reasonable person would have
              believed that he was under restraint to the degree
              associated with a formal arrest.’). In particular, Officer
              Bintliff manifested his knowledge of probable cause to
              arrest Saenz when he thrice instructed Saenz—who
              was illegally parked across two handicapped parking
              spaces and who exhibited a ‘confused, dazed-type
              look’—to turn off his truck.
State v. Saenz, 13-11-00328-CR, 2014 WL 3542092, at *5 (Tex. App.—Corpus

Christi July 17, 2014), pet. ref’d. (Oct. 8, 2014).


       The circumstances in the case at bar went beyond a case of roadside

questioning and sobriety tests that are typically8 found in a DWI investigative

detention. Mr. Koch was initially detained at the scene by Mr. Lakey, who used

physical force to pin him against a car until the police arrived, handcuffed him,

and placed him in the back of a locked patrol car. If Mr. Lakey arrived on the

scene around 10:00 PM and Mr. Koch emerged from the police car at 10:24 PM,


8
 “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, 749
(Tex. App.—Houston [1st Dist.] 2004, pet. ref'd)(citations omitted).



                                           12
then Mr. Koch’s freedom was restricted for 24 minutes before being subjected to

questioning by the DWI Task Force Officer. A reasonable person would believe

he was under arrest. Under the first Dowthitt factor, Mr. Koch was physically

deprived of his freedom of action in a significant way, for approximately 10

minutes by Mr. Lakey and another 14 minutes in the back of the patrol car. In

Saenz, 12 to 18 minutes was an appropriate duration to meet the first Dowthitt

factor. State v. Saenz, 13-11-00328-CR, 2014 WL 3542092, at *5 (Tex. App.—

Corpus Christi July 17, 2014), pet. ref’d. (Oct. 8, 2014). Officer Corral even

acknowledged on cross-examination that a reasonable person in Mr. Koch’s

situation would not have believed that he was free to leave. (RR Vol. 2 at 179).

This also fits the third Dowthitt category.


      Officer Arroyo had probable cause to arrest Mr. Koch for driving while

intoxicated when she arrived on the scene of a single car accident and saw Mr.

Koch slouched over and smelling of alcohol. She knew that he had been driving

the wrecked car. She did not tell Mr. Koch that he was free to leave and she

manifested her knowledge that there was probable cause to Mr. Koch by

handcuffing him and placing him in a locked patrol car. This fits the fourth

Dowthitt category.


      Officer safety was also not a concern, as this was not a case involving

weapons or violence and there were at least four police officers at the scene.

                                         13
Moreover, the only officer at trial with personal knowledge of Mr. Koch’s

actions prior to placing him in handcuffs in a locked patrol car was Officer

Arroyo.   She testified that she did not recall Mr. Koch saying anything

derogatory or offensive to her, nor could she remember if Mr. Koch was

combative or defiant. Officer Corral arrived after Mr. Koch was placed in

custody and he had no first-hand knowledge of Mr. Koch’s prior actions. Officer

Muskiet also arrived after Mr. Koch was in custody.


   C. The Trial Court’s Failure to Suppress Mr. Koch’s Incriminating

      Statements Contributed to his Conviction.


   “If the appellate record in a criminal case reveals constitutional error that is

subject to harmless error review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt

that the error did not contribute to the conviction or punishment.” Tex. R. App.

Proc. § 44.2(a). “In conducting this analysis in the context of a Miranda error,

[this Court] must judge the magnitude of the error in light of the evidence as a

whole to determine the degree of prejudice to the defendant resulting from that

error.” Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003)(internal

quotations omitted).

            In applying the ‘harmless error’ test, our primary
            question is whether there is a ‘reasonable possibility’
            that the error might have contributed to the conviction.

                                       14
             Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.
             App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070
             (1999). Our harmless error analysis should not focus
             on the propriety of the outcome of the trial; instead, we
             should calculate as much as possible the probable
             impact on the jury in light of the existence of other
             evidence. Wesbrook v. State, 29 S.W.3d 103, 119
             (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
             (2001). We consider the source and nature of the error,
             the extent that it was emphasized by the State, its
             probable collateral implications, the weight a juror
             would probably place on the error, and whether
             declaring it harmless would be likely to encourage the
             State to repeat it with impunity. Harris v. State, 790
             S.W.2d 568, 587 (Tex. Crim. App. 1989). This
             requires us to evaluate the entire record in a neutral,
             impartial, and even-handed manner, not ‘in the light
             most favorable to the prosecution.’ Id. at 586.

   Campbell, 325 S.W.3d at 238.

   The most damaging evidence at Mr. Koch’s trial was the statement by Mr.

Koch that he had 2, 5, 7, and 15 drinks and that he started drinking beer at noon.

Mr. Lakey’s testimony was discredited as it changed several times and the

police officers did not corroborate what he told the jury. The scene video was

missing audio but for the first 20 to 30 seconds, and only the horizontal gaze

nystagmus was performed.       There was also no blood alcohol concentration

testing.   Without Mr. Koch’s detrimental admissions, the jury could have

credited the defense theory that Mr. Koch was not intoxicated, instead he was

injured in the car accident. Mr. Koch was prejudiced by this error and this Court




                                        15
cannot be assured beyond a reasonable doubt that this error did not contribute to

the conviction.

    D. Conclusion.


         Mr. Koch’s Fifth Amendment rights were violated when he was not

properly advised of the Miranda warnings before being subjected to Officer

Corral’s questioning while he was in custody. The trial court erred in failing to

suppress Mr. Koch’s inadmissible statements. This Honorable Court should

reverse the judgment of conviction, vacate the sentence, and remand for a new

trial.


                                      Prayer


         For the reasons above, Appellant respectfully prays this Court of Appeals

reverse the judgment of conviction and sentence, and remand this case back to

the trial court for a new trial.

                                        Respectfully submitted,


                                        __/s/ Emily Detoto_________
                                        EMILY DETOTO
                                        State Bar No.: 00797876
                                        917 Franklin, 4th Floor
                                        Houston, Texas 77002
                                        Telephone: (713) 227-2244
                                        Facsimile: (713) 222-5840
                                        emilydetoto@mac.com



                                         16
                                         /s/ Megan Smith_________
                                       MEGAN E. SMITH
                                       State Bar No. 24076196
                                       917 Franklin, Suite 310
                                       Houston, Texas 77002
                                       (713) 899-5438
                                       (713) 527-2749 (fax)
                                       megan@megansmithlaw.com



                                       Counsel for Appellant


                              Certificate of Service

       I hereby certify that a true and correct copy of the Brief for Appellant was
electronically delivered to Mr. Alan Curry, Appellate Division Chief, Harris
County District Attorney’s Office, on this 25th day of June 2015.

                                       _____/s/ Megan Smith_________
                                       MEGAN SMITH


                           Certificate of Compliance

      I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, that the instant brief is computer generated using Microsoft Word for
Mac and said computer program has identified that there are 3,898 words within
the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the
Texas Rules of Appellate Procedure.           The document was prepared in
proportionately spaced typeface using Times New Roman 14 for text and Times
New Roman 12 for footnotes.



                                       _____/s/ Megan Smith_______
                                       MEGAN SMITH

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