Opinion issued August 28, 2018




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-17-00367-CR
                           ———————————
                    JEFFREY N. KILLEBREW, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1437426


                         MEMORANDUM OPINION

      A jury found appellant, Jeffrey N. Killebrew, guilty of criminally negligent

homicide1 and assessed his punishment at confinement for two years and a $3,000

fine. In two issues, appellant argues that the trial court erred in admitting into

1
      See TEX. PENAL CODE ANN. § 19.05 (Vernon 2011).
evidence his statement, taken without the statutorily-required warnings,2 and

denying his request for an instruction on the defense of necessity in the jury

charge.

      We affirm.

                                   Background

      Deputy Mike Nguyen, an accident investigator with the Harris County

Sheriff’s Office (“HCSO”), testified that in the afternoon of February 23, 2014, he

was dispatched to an automobile/motorcycle collision on Franz Road in Katy,

Texas.    When he arrived, he saw a motorcycle and Frank Rodriguez, the

“complainant,” who was deceased, lying on the pavement in the eastbound lane.

Appellant was the only witness to the collision. He initially told Nguyen that he

had turned his car left from a westbound lane of Franz Road in order to enter into a

private driveway across the road, and the collision “occurred” as he was bringing

his car to a stop. However, Nguyen’s investigation revealed that the damage to

appellant’s car was on the driver’s side of the car, indicating that he, inconsistent

with his statement, had been traveling the wrong way on Franz Road at the time of

the collision.

      Dr. Jennifer Ross, a medical examiner with the Harris County Institute of

Forensic Sciences, testified that she performed an autopsy on the complainant’s

2
      See TEX. CODE. CRIM. PROC. Art. 38.22 (Vernon 2018); see also Miranda v.
      Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
                                         2
body. After reviewing all of the information in the case, she opined that his death

was caused by “[m]ultiple blunt force injuries.” Although he had several fractures

and severe injuries all over his body, the “extensive skull fractures” and bleeding

in his brain would likely have caused the complainant’s death, even with medical

intervention. Ross further noted that his injuries, as a whole, were consistent with

being in a car collision.

      Deputy Richard Sanders, an accident investigator with the HCSO, testified

that on February 23, 2014, he was dispatched to investigate a confirmed-fatality

collision on Franz Road in Katy, Texas. After he arrived at the scene around

4:00 p.m., Deputy Nguyen asked Sanders to speak with appellant. Appellant told

Sanders that he was trying to turn his car into the “first driveway, the driveway

accessible for westbound traffic,” from the median and into a gas station. And

appellant had almost come to a complete stop when he was struck by the

complainant’s motorcycle.

      After this first “interview” with appellant, Sanders assisted other law

enforcement officers in collecting evidence, taking statements, and conducting

field sobriety tests, during which he determined that appellant was not impaired.

The officers investigating the scene determined that the roadway evidence they had

collected was inconsistent with appellant’s first statement because it indicated that

appellant had been driving his car the wrong way on Franz Road and into


                                         3
oncoming traffic at the time of the collision. Sanders then interviewed appellant a

second time.

      At this point in Deputy Sanders’s testimony, appellant’s attorney objected

and asked the trial court to suppress appellant’s second statement on the ground

that it had been taken during a custodial interrogation, without appellant having

been given the statutorily-required warnings.        During a hearing, outside the

presence of the jury, Sanders testified that, at the scene, he had not placed appellant

in handcuffs, arrested him, or charged him with criminally negligent homicide.

And at no point did appellant indicate that he did not want to talk with Sanders.

However, appellant did refuse to consent to a blood draw at the scene, and he “had

been sitting in the backseat” of a law enforcement car for approximately two hours

by the time he had given his second statement. After the completion of the second

interview, appellant was free to, and did, leave the scene.

      Deputy Sanders explained that even though there were inconsistencies

between appellant’s statements and the evidence collected at the scene, he did not,

at that time, know whether appellant would be charged with an offense because,

absent intoxication, “[w]ith a crash like this,” law enforcement “always wait[s] for

a reconstruction to be done” before determining whether to file charges. At the

scene, there was probable cause to believe that a “[C]lassic C violation,” such as

failure to “yield” or traveling on the “wrong side of the road,” had occurred. But


                                          4
he did not necessarily suspect that appellant would be charged with criminally

negligent homicide, and he did not know enough to charge appellant with any

crime at the scene. Further, Sanders noted that appellant would not have been

arrested had he refused to speak with him.

      After considering Deputy Sanders’s testimony and the arguments of counsel,

the trial court denied appellant’s motion to suppress his second statement. The

trial court concluded that appellant was not in custody at the time he gave his

second statement.    Rather, the officer had temporarily detained him for an

investigation and then released him after the investigation was complete.

      After the jury returned, Deputy Sanders testified that appellant’s second

statement differed from his first because he, in his second statement, explained

that, at the time of the collision, he was “attempting to get into a separate

driveway” that would have required him to temporarily drive on the wrong side of

Franz Road into oncoming traffic. Sanders also noted that a person turning a car

left across a street has a duty to make sure that no one is coming from the opposite

direction before commencing the turn.

      Deputy David Pearson, an accident investigator and reconstructionist with

HCSO, testified that on February 23, 2014, he was dispatched “to go out and take a

look” at the scene of the collision that had occurred between a Pontiac Sunfire and

Harley Davidson motorcycle on Franz Road in Katy, Texas. The damage to the


                                         5
Pontiac Sunfire was primarily to the front left headlight and front left quarter

panel. A little further rearward, Pearson noted some additional markings just

below the hood of the car that “matched . . . some of the clothing that was worn by

the complainant.” On the right, front-side tire, there were fresh abrasions to the

tire “on the edges of the rim . . . consistent with that tire and wheel rubbing up

against concrete.”   Pearson later discovered, on the “edge of the curb of the

median,” a fresh black scuff mark that matched up with the Pontiac Sunfire’s

right-side tire and wheel damage. And Pearson explained that he used the “airbag

control module” on appellant’s car to determine that it was traveling at

approximately thirty-one miles per hour at the time of the collision.

      Given the evidence collected, Deputy Pearson opined that appellant had

caused the collision by “driving in the wrong direction on the wrong side of the

roadway and had failed to yield to this motorcycle that was traveling properly in

the eastbound inside lane.” He also opined that appellant’s speed of thirty-one

miles per hour at the time of the collision was “unsafe for traveling through a

median, whether he’s going across the roadway or the wrong way.” Pearson

further noted that there is no evidence in this case that the complainant

“wobble[d]” or otherwise lacked control over his motorcycle before the collision.

      Appellant testified that after buying a pizza on February 23, 2014, he, while

driving his 2002 Pontiac Sunfire westbound on Franz Road, decided to stop at a


                                          6
gas station to buy a “Dr. Pepper and a can of snuff.” Intending to turn into the

“first driveway” immediately across from the median, he “mov[ed] over to make a

left-hand turn into the [gas station] parking lot.” However, two cars “pulled out”

into the driveway, blocking his way. Appellant then saw the complainant, who had

his right hand on the handlebars and “his left hand . . . up towards his neck area,”

“wobble.”

       Upon seeing the complainant, appellant immediately “steered right” into

oncoming traffic because he felt it was his only chance to “keep [the complainant]

from hitting his car.” According to appellant, if he had not steered right, the

complainant would have collided with the right side of his car. After he steered

right, the complainant “came in contact with [his] left fender.” Appellant noted

that, as he took his left turn, there was a sign blocking his view of the complainant

coming in the opposite direction, although he did not notice the sign at the time.

However, appellant also admitted that he did not stop his car before taking the left

turn, despite having seen the two cars blocking the driveway that he was planning

to enter.

       During the charge conference, appellant requested that the trial court submit

to the jury an instruction on the defense of necessity in its charge, which the trial

court denied.




                                         7
                            Suppression of Statement

      In his first issue, appellant argues that the trial court erred in denying his

motion to suppress the second statement that he made to Deputy Sanders because it

was the result of a custodial interrogation and Sanders did not give him the

required statutory warnings. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon

Supp. 2018); see also Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612

(1966).

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We review the trial court’s factual findings for an abuse of

discretion and the trial court’s application of the law to the facts de novo. Id. The

trial court is the sole and exclusive trier of fact and judge of the witnesses’

credibility and may choose to believe or disbelieve all or any part of the witnesses’

testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We give almost total deference

to the trial court’s determination of historical facts, particularly when the trial

court’s fact findings are based on an evaluation of credibility and demeanor.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). If the trial court

does not file findings of fact, as here, we view the evidence in the light most

favorable to the trial court’s determination and assume that the trial court made


                                         8
implicit findings of fact in support of its determination if those findings are

supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App.

2005) (quoting Ross, 32 S.W.3d at 855–56). We will uphold the trial court’s

determination if it is correct on any theory of law applicable to the case. Valtierra,

310 S.W.3d at 447–48.

      The United States Constitution prohibits the use of statements made by a

criminal defendant against himself if they are obtained through custodial

interrogation without the necessary procedural safeguards to secure the Fifth

Amendment right against self-incrimination. Miranda, 384 U.S. at 444; Jones v.

State, 119 S.W.3d 766, 772 (Tex. Crim. App. 2003). Similarly, the Texas Code of

Criminal Procedure precludes the State’s use of the statements of a criminal

defendant against himself obtained through a custodial interrogation without

compliance with procedural safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22.

Notably, however, an individual’s Fifth Amendment rights do not come into play if

the person is not in custody and any investigation is not yet custodial, and neither

Miranda nor article 38.22 warnings are required before such questioning. Herrera

v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Melton v. State, 790

S.W.2d 322, 326 (Tex. Crim. App. 1990); White v. State, 395 S.W.3d 828, 834

(Tex. App.—Fort Worth 2013, no pet.).




                                          9
      “Custody” for purposes of article 38.22 is consistent with the meaning of

“custody” for purposes of Miranda. Gardner v. State, 433 S.W.3d 93, 98 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Herrera, 241 S.W.3d at 526).

The appropriate inquiry as to whether a person is in “custody,” for purposes of his

right to receive legal warnings, is “whether there is a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” California v.

Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting Oregon v.

Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)); see also Gardner v.

State, 306 S.W.3d 274, 293–94 (Tex. Crim. App. 2009).                  A “custodial

interrogation” is “‘questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom . . . in any

significant way.’” See Herrera, 241 S.W.3d at 525 (quoting Miranda, 384 U.S. at

444, 86 S. Ct. at 1612). The determination of custody is made on a case-by-case

basis considering all the surrounding circumstances. Dowthitt v. State, 931 S.W.2d

244, 255 (Tex. Crim. App. 1996). A person is in custody only if, under the

circumstances, an objectively reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest. Id. at 254.

      Generally, a suspect’s detention may constitute custody for purposes of

Miranda and article 38.22: (1) when an individual is physically deprived of his

freedom of action in any significant way, (2) when a law enforcement officer tells


                                         10
the person that he is not free to leave, (3) when a law enforcement officer creates a

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

movement has been significantly restricted, or (4) when there is probable cause to

arrest the person and law enforcement officers do not tell the person that he is free

to leave. Id. at 255. In the first three situations, the restriction upon freedom of

movement must amount to the degree associated with an arrest rather than an

investigative detention. Id. Under the fourth situation, the existence of probable

cause must be manifested to the suspect. Id. Simply because an interrogation

begins as “noncustodial” does not preclude custody from arising later if the

conduct of law enforcement officers causes “a consensual inquiry to escalate into

[a] custodial interrogation.” Id. A defendant bears the burden at trial of proving

that his statements were the product of a custodial interrogation. Herrera, 241

S.W.3d at 526.

      Appellant argues that he made his second statement while he was in custody,

implicating the first, third, and fourth situations discussed in Dowthitt, because

“[a]ny reasonable person would believe being placed and held in a [patrol] car for

two hours was a form of custody,” he was not free to leave, and Deputy Sanders

admitted that he had probable cause to arrest him.

      Under the first and third situations discussed in Dowthitt, an investigative

detention can evolve into custody if law enforcement officers physically deprive a


                                         11
person of significant freedom of movement, or create a situation in which a

reasonable person would believe that he is deprived of significant freedom of

movement.    Dowthitt, 931 S.W.2d at 255.        To constitute custody in such a

situation, the restriction upon the individual’s freedom of movement must be to the

degree associated with an arrest as opposed to an investigative detention. See

Melton, 790 S.W.2d at 326; Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Although both an investigative detention and

an arrest involve a “restraint” of liberty, a noncustodial investigative detention

does not implicate a person’s Fifth Amendment rights against self-incrimination.

See Melton, 790 S.W.2d at 326.

      Whether a person is under arrest or merely subject to a temporary

investigative detention is a matter of degree and depends upon the length of the

detention; the amount of force employed by officers; whether the officers actually

conduct an investigation and whether it is conducted at the original location or

whether the individual is transported to another location; the officer’s expressed

intent and whether he told the person that he was under arrest or being detained for

a temporary investigation; and other relevant factors.     State v. Sheppard, 271

S.W.3d 281, 291 (Tex. Crim. App. 2008).

      Here, although appellant’s freedom was restrained by being placed in the

back of a patrol car for two hours, the “restriction” on his “freedom of movement”


                                        12
did not reach “the degree associated with an arrest” as opposed to an “investigative

detention.” State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013); see also,

e.g., Ervin v. State, 333 S.W.3d 187, 209 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d) (four-hour interrogation non-custodial considering surrounding

circumstances).    Appellant was temporarily detained while law enforcement

officers conducted an investigation of a fatal car collision. He was not placed in

handcuffs, the patrol car stayed at the scene of the collision, and appellant was free

to, and did, leave after the completion of the second interview. See Sheppard, 271

S.W.3d at 289 (“That is precisely what Terry permits—a temporary detention, in

which the person is not free to leave, while the police officer investigates whether a

crime has been committed.”).

      As for the “fourth situation” discussed in Dowthitt, appellant merely argues

that it applies because Deputy Sanders admitted that he had probable cause to

arrest appellant. However, appellant does not assert, and there is no evidence in

the record to suggest, that Sanders or any other law enforcement officer

communicated this information to appellant.        And while the manifestation of

probable cause may trigger a finding of custody in “certain unusual situations,”

these conditions are not present in this case. See State v. Stevenson, 958 S.W.2d

824, 829 n.7 (Tex. Crim. App. 1997); see also Dowthitt, 931 S.W.2d at 255–57

(probable cause triggered finding of custody after very long interrogation where


                                         13
suspect never unaccompanied and officers ignored his requests to see his wife).

Moreover, probable cause concerns only one of the situations discussed in

Dowthitt, and its existence alone does not establish custody. Dowthitt, 931 S.W.2d

at 255–57 (fourth situation established where suspect made damaging admission

supporting probable cause in addition to length of interrogation and existence of

factors involving exercise of law enforcement control).

      Given the totality of the circumstances and our deference to the trial court’s

determination of historical facts, the trial court could have concluded that there was

not a manifestation of probable cause and appellant was not “in custody.”

Therefore, the trial court could have rationally concluded that a reasonable person

in appellant’s position would not have thought that he was under arrest and the

statements made by appellant in his second interview were not the product of a

custodial interrogation, triggering his rights under Miranda and article 38.22.

      Accordingly, we hold that the trial court did not err in denying appellant’s

motion to suppress his second statement to law enforcement officers.

      We overrule appellant’s first issue.

                                 Jury Instruction

      In his second issue, appellant argues that the trial court erred in denying his

request for an instruction on the defense of necessity in the jury charge because “he




                                         14
did in fact admit to actions that can be viewed as causing” the death of the

complainant, “although he did not believe himself to be at fault.”

      We review complaints of jury-charge error under a two-step process,

considering first whether error exists. Wooten v. State, 400 S.W.3d 601, 606 (Tex.

Crim. App. 2013); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If

error does exist, we then review the record to determine whether the error caused

sufficient harm to require reversal. Wooten, 400 S.W.3d at 606. If the defendant

preserved error by timely objecting to the charge, an appellate court will reverse if

the defendant demonstrates that he suffered some harm as a result of the error.

Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). If the defendant did

not object at trial, we will reverse only if the error was so egregious and created

such harm that the defendant did not receive a fair and impartial trial. Id. at 26.

      Section 9.22 of the Texas Penal Code defines necessity as follows:

      Conduct is justified if:
         (1) the actor reasonably believes the conduct is immediately
             necessary to avoid imminent harm;

         (2) the desirability and urgency of avoiding the harm clearly
             outweigh, according to ordinary standards of reasonableness,
             the harm sought to be prevented by the law proscribing the
             conduct; and
         (3) a legislative purpose to exclude the justification claimed for the
             conduct does not otherwise plainly appear.




                                          15
TEX. PENAL CODE ANN. § 9.22 (Vernon 2011). A person commits criminally

negligent homicide if he “causes the death of an individual by criminal

negligence.” Id. § 19.05 (Vernon 2011). Criminal negligence is defined within the

penal code as follows:

      A person acts with criminal negligence, or is criminally negligent,
      with respect to circumstances surrounding his conduct or the result of
      his conduct when he ought to be aware of a substantial and
      unjustifiable risk that the circumstances exist or the result will occur.
      The risk must be of such a nature and degree that the failure to
      perceive it constitutes a gross deviation from the standard of care that
      an ordinary person would exercise under all the circumstances as
      viewed from the actor’s standpoint.
Id. § 6.03(d) (Vernon 2011).

      Here, the State asserts that appellant was criminally negligent when he,

without first stopping, took a high-speed left turn into oncoming traffic towards the

entrance of a parking lot and collided with the complainant, causing his death.

Appellant, however, asserts that he drove his car into oncoming traffic in order to

avoid a collision. Thus, the basis for appellant’s necessity defense is that he was

justified in driving his car into oncoming traffic. This constitutes an alternative

theory of what occurred, raising an issue as to whether appellant was criminally

negligent, i.e., he consciously disregarded a substantial and unjustifiable risk by his

actions. However, when “unjustifiable” is an element of an offense, a defendant

cannot raise the defense of necessity. Chavers v. State, 991 S.W.2d 457, 459–60

(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); see also Goodrich v. State, 156

                                          16
S.W.3d 141, 147 (Tex. App.—Dallas 2005, pet. ref’d) (no error in not submitting

requested necessity defense instruction to jury because “unjustifiable” element of

submitted offense of criminally negligent homicide).         And the “denial of a

defendant’s requested instruction is not error when the requested instruction is only

an affirmative submission of a defensive issue which merely denies the existence

of an essential element of the State’s case.” Chavers, 991 S.W.2d at 460

      Accordingly, we hold that the trial court did not err in refusing to submit an

instruction to the jury on the defensive theory of necessity. See Chavers, 991

S.W.2d at 460; Goodrich, 156 S.W.3d at 147.

      We overrule appellant’s second issue.


                                    Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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