                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00187-CR


Melinda R. Howard                         §   From County Criminal Court No. 2

                                          §   of Denton County (CR-2011-07177-B)

v.                                        §   March 14, 2013

                                          §   Opinion by Justice McCoy

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Bob McCoy
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00187-CR


MELINDA R. HOWARD                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                     ------------

                       MEMORANDUM OPINION1
                                     ------------

                                  I. Introduction

      In one issue, Appellant Melinda R. Howard appeals the denial of her

motion to suppress and subsequent conviction of driving while intoxicated (DWI).

We affirm.




      1
      See Tex. R. App. P. 47.4.
                           II. Procedural Background

      After her arrest for DWI, Howard filed a motion to suppress, which the trial

court denied after a hearing, entering the following fact findings:

     1. Lewisville Police Officer Christopher Clements was on patrol in
        the City of Lewisville, Denton County, Texas, sometime before
        1:00 a.m. on July 2, 2011. Officer Clements is a certified peace
        officer.   Officer Clements is certified to administer the
        Standardized Field Sobriety Tests, including the Horizontal Gaze
        Nystagmus test.

     2. Officer Clements was dispatched to 1071 W[.] Round Grove
        Road, a public place, located in Lewisville, Denton County, Texas
        around 12:54 a.m. in reference to a possible intoxicated driver.

     3. Civilian 911 caller Jeff Cott reported that he had observed a
        vehicle driving through the parking lot and strik[ing] a curb.
        Officer Clements observed a silver or tan pickup truck in the
        parking lot . . . matching the description of the vehicle that the
        911 caller described. The vehicle had a flat tire. The pickup
        truck is a motor vehicle.

     4. Officer Clements approached the truck, without the use of any
        lights or sirens from his patrol vehicle. Officer Clements made no
        show of authority as he approached the subjects.

     5. When Officer Clements arrived, he observed two people, a male
        and a female. The male, later identified as passenger William
        Taylor, was attempting to change the vehicle’s tire. Officer
        Clements approached the male and asked him what happened.
        Mr. Taylor told Officer Clements that “she hit a curb.” Officer
        Clements had the female, later identified as Melinda Howard,
        step away from the vehicle.

     6. While speaking with Ms. Howard, the defendant, Officer
        Clements noticed an odor of alcoholic beverage coming from the
        defendant’s breath and that her speech was slurred and thick-
        tongued.

     7. Ms. Howard admitted to Officer Clements that she had been
        driving through the parking lot and that she had been drinking

                                          3
         alcohol that evening. She also told Officer Clements that she had
         taken two (2) Tylenol PM pills 45 minutes prior.

     8. Officer Clements believed at that time that, under the totality of
        the circumstances observed, that the defendant may have been
        driving while intoxicated and preceded to further investigate Ms.
        Howard for the offense of Driving While Intoxicated.

     9. Officer Clements asked the Defendant to perform the
        Standardized Field Sobriety Tests as well as two non-
        standardized field sobriety tests.

     10. Officer Clements then placed the Defendant under arrest for
         Driving While Intoxicated.

     11. Officer Clements’s testimony before this Court is credible in all
         respects.

The trial court made the following conclusions of law:

     1. The initial exchange between Lewisville Police Officer
        Christopher Clements and the Defendant constituted a voluntary
        encounter and not a detention.

     2. Upon noticing signs of intoxication and identifying the Defendant
        as the driver, Officer Clements had reasonable suspicion under
        the totality of the circumstances to detain the Defendant was [sic]
        driving while intoxicated.

     3. Officer Clements then began a lawful investigative detention for
        driving while intoxicated.

     4. The investigation was reasonably related in scope to a driving
        while intoxicated investigation and was necessary to effectuate
        law enforcement purposes.

     5. The evidence gathered by Officer Clements was a result of non-
        custodial questioning during the course of an investigative
        detention.

     6. The investigative detention was reasonable and was not a
        custodial interrogation.


                                        4
      7. The detention of the Defendant was lawful.

After the trial court denied her motion to suppress, Howard pleaded nolo

contendere in exchange for a $500 fine, twenty months of community

supervision, and a 170-day sentence (suspended). This appeal followed.

                                  III. Suppression

      In her single issue, Howard argues that the trial court erred by denying her

motion to suppress.

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002).    But when application-of-law-to-fact questions do not turn on the

                                           5
witnesses’ credibility and demeanor, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, as here,

we determine whether the evidence, when viewed in the light most favorable to

the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818. We review a trial court’s determination of historical facts that is based

on a videotape under the “almost total deference” standard. Montanez v. State,

195 S.W.3d 101,109 (Tex. Crim. App. 2006).

B. Miranda

      In her single issue, Howard argues that the trial court erred by denying her

motion to suppress because Officer Clements violated her right to remain silent

and right to counsel when he engaged in custodial interrogation without apprising

her of her Miranda rights.2 Specifically, Howard complains that the trial court

erred by denying her motion because Officer Clements’s continued detention of


      2
       See Miranda v. Arizona, 348 U.S. 436, 86 S. Ct. 1602 (1966).

                                         6
her after completing his conversation with the 911 caller was unlawful, as the

detention, lasting “a little over 30 minutes,”      “greatly exceeded the length

necessary for the investigation.”     Because she did not receive her Miranda

warnings after Officer Clements concluded his phone conversation with the 911

caller, Howard claims that all evidence obtained after the phone call—when she

argues that the investigative detention turned into a custodial interrogation—

should have been suppressed.

      The State responds that Officer Clements initially contacted Howard and

Taylor as part of a consensual encounter through which he obtained specific,

articulable facts that Howard had been engaged in criminal activity—the DWI—

and detained her as part of a legal investigatory detention, which lasted a

reasonable amount of time to effectuate the purpose of the stop.

      1. Suppression Hearing

      Lewisville Police Officer Christopher Clements was the only witness to

testify at the suppression hearing.

             a. Officer Clements’s Testimony

      Officer Clements testified that when he arrived at a Tom Thumb parking lot

at around 1:00 a.m. in response to a 911 call about a possible drunk driver who

had struck a curb, he did not activate his patrol vehicle’s lights but instead walked

up to Howard and her companion, Taylor, who was attempting to change a flat

tire, and started talking with them. Howard was leaning against the truck, and

Officer Clements noticed that her eyes were glassy and heavy, that she had a

                                         7
strong odor of alcoholic beverage on her breath, and—once he asked her to

move away from the truck—she swayed and was unsteady on her feet.

      When Officer Clements asked Howard about how they came to be in the

parking lot and changing the tire, Howard told him that she and Taylor had gone

to get cigarettes from the gas station, that Taylor had driven them to the parking

lot, and then Howard had driven within the parking lot. Officer Clements stated

that Howard told him more than once that she had been driving the truck in the

parking lot.   After Howard told him this, Officer Clements began asking her

questions about where she had been coming from, what she had been drinking,

and how much she had had to drink before he administered several field sobriety

tests. He determined that Howard was the driver after conversing with Howard

and Taylor, and based on the results of Howard’s performance on the field

sobriety tests,3 Officer Clements concluded that Howard was intoxicated and

placed her under arrest for DWI at around 1:30 a.m.

      Officer Clements testified that his investigation took twenty to twenty-five

minutes, and when asked if he had spoken to the 911 caller, he replied, “I believe

we tried to call him back but we couldn’t get an answer on his phone.” He

restated during cross-examination that he had not spoken with the eyewitness


      3
       Officer Clements testified that Howard’s score of four out of six clues on
the horizontal gaze nystagmus test indicated intoxication and that her
performances on the walk-and-turn and one-legged-stand tests resulted,
respectively, in eight of eight possible clues and four of four possible clues. She
also performed “poorly” on the alphabet and counting tests.

                                        8
and that he did not recall speaking with the eyewitness.          Officer Clements

acknowledged that at no point did he read to Howard her Miranda warnings, and

he said that Howard was not free to leave while he was conducting his DWI

investigation because once he had ascertained that she was the driver, she was

being detained until he finished his investigation.

      After the trial judge heard Officer Clements’s testimony, he watched the

DVD from Officer Clements’s patrol vehicle’s dashboard camera.

             b. DVD

      The DVD recording begins with Officer Clements’s patrol vehicle pulling

into a strip mall parking lot and stopping a few feet from a white or tan truck

where a man wearing jeans and an orange shirt, Taylor, is talking with a woman,

Howard; both are standing outside on the passenger side of the truck. As Officer

Clements approaches the truck, the man turns to open the rear passenger door

and reaches inside. As Officer Clements says, “Hello,” to the couple, his backup

arrives.

      In response to Officer Clements’s greeting, Taylor tells him that their tire is

flat, and Officer Clements says, “Okay, what’s going on?” Taylor tells him that he

is trying to change the tire and is having some trouble. When Officer Clements

asks how the tire went flat, Taylor responds, “She hit the curb . . . just pulling

around the corner a little bit.” Taylor complains that he cannot get his jack to

work properly and that they had tried to call his brother, who lived nearby, to

come help them.

                                          9
      Officer Clements then asks them what they were doing that evening.

Taylor tells him that they were trying to get back to his brother’s house because

they have a softball tournament to attend in the morning. Howard interrupts and

tells Officer Clements that they are from Oklahoma, that this is the first night that

they have been in Texas, and that they went to a Rangers game and now they

are fixing a tire and it is no fun. When Officer Clements asks her about the

Rangers game, Howard complains that they had to leave early. Taylor continues

to rummage inside the vehicle as the two officers look on, having explained that

they cannot help with his truck. The other officer goes around to look at the

damage to the tire and then returns, telling Howard that the tire’s rim is bent.

      Officer Clements steps away to speak to dispatch, asking “Where’s our

caller at?” He then initiates a call with Jeff Cott, the 911 caller, which lasts

around four minutes.     The DVD contains only Officer Clements’s side of the

conversation.    Officer Clements asks Cott, “Did you actually see what

happened?” After listening to Cott for a few minutes, Officer Clements asks, “So

were there three of them or just two of them?” Half a minute later, he asks, “You

didn’t happen to see who was driving or anything like that?” After a few seconds

more, Officer Clements thanks Cott for making his call and, in response to

something Cott says, responds, “Well, one of them may be, I’m not real sure yet.

I’ve talked to her but that’s why we’re trying to figure out if you knew who was

driving so, yeah.” After a moment, he continues, “That’s what it looks like to me;

that’s what she said happened, so.”

                                         10
      Upon concluding his conversation with Cott, Officer Clements asks the

other officer whether Howard had said anything to him. They agree that Howard

appears intoxicated but also agree that they are still not sure whether she was

the driver.

      The officers return to the truck, and Officer Clements asks Howard for her

name and asks her to step away from the truck.           He asks, “Tell me what

happened this evening because we had someone call about this truck driving

crazy through the parking lot here at Tom Thumb” with squealing tires “and

everything.” Howard says, “We don’t even know how to squeal tires.” Howard

then says, “Actually, I’ve had like two drinks and nothing to eat, to be honest with

you.” Gesturing, she states, “But we turned in there, we came around here, and

turned in here and stopped.” Officer Clements asks her where they had been

trying to go, and Howard then explains that Taylor’s brother lives half a mile from

the shopping center. When Officer Clements asks Howard which curb they had

hit, she replies, “I didn’t even think we hit a curb.” Officer Clements reminds

Howard that they had to have hit something because the tire’s rim is bent.

Howard asks, “His rim is bent?”

      Officer Clements asks Howard if it was just her and Taylor in the truck that

evening, and she replies, “Yeah.” He then asks her, “Who was driving?” Howard

responds, “Him and I.” When Officer Clements asks her again who was driving

the truck, she replies, “I drove the first part; he drove the second part.” Officer

Clements then asks who was driving when they got to the parking lot. Howard

                                        11
replies, “I was.” Officer Clements then asks again, “You were driving when you

got to the parking lot?” Howard agrees that she was. Officer Clements then

asks Howard where they were coming from, and Howard tells him that they were

coming from Taylor’s brother’s house and were trying to go to the gas station for

cigarettes.

      At that point, the other officer interrupts to speak with Officer Clements,

and Officer Clements asks Howard to stay where she is while they move away to

converse.     The other officer tells Officer Clements that he has learned from

Taylor that while Taylor does not know what Howard hit, the couple had been in

an argument and that when they exited the vehicle to argue, Howard then

jumped into the driver’s side and took off.

      Officer Clements returns to speak with Howard and asks her for her

driver’s license. Howard returns to the truck to retrieve her license. After Officer

Clements checks her license, he asks Howard to move back over to where they

had been talking—between the police vehicle and the truck. He asks her where

they had been drinking that night, and Howard explains that she did not know

because she was from out of town. When Officer Clements asks about when

she went to the Rangers game, Howard informs him that she and Taylor had not

gone to the Rangers game and that it was Taylor’s twin brother and the brother’s

wife that had gone to the game.

      Officer Clements then asks Howard how much she has had to drink.

Howard replies that she had two rum and diet cokes forty-five minutes to an hour

                                         12
and a half ago. He asks her what else she has had, and Howard tells him that

she also took two Tylenol PM pills. He asks her a few more questions about

whether she has any medical conditions or injuries.

      Officer Clements then repeats what Howard said back to her, adding the

part he had learned from the other officer about the argument and her jumping

into the vehicle and taking off. Howard replies, “I was driving. I was okay to

drive at the time.” After additional conversation, which takes their interaction

after the phone conversation with Cott to around six minutes, Officer Clements

begins administering several sobriety tests to Howard, the directions of which

Howard has a noticeably difficult time understanding and complying with,

culminating in her arrest for DWI.

      2. Applicable Law

      The need for Miranda warnings arises when questioning is 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. Campbell v. State, 325

S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no pet.) (citing Miranda, 384 U.S.

at 444, 86 S. Ct. at 1612). Therefore, we must determine whether the trial court’s

explicit fact findings are supported by the record and whether it erred by

concluding that Howard was not in custody or otherwise restrained to the degree

associated with an arrest as opposed to an investigative detention after Officer

Clements concluded his phone call with the 911 caller. See id. at 233, 236.



                                       13
      The facts of this case are not those of a traditional traffic stop. Cf. id. at

235 (noting that appellant’s vehicle was parked when the officer arrived to

investigate a potential DWI). In Campbell, another nontraditional traffic stop, we

observed that custody may include (1) when the suspect is physically deprived of

her freedom of action in any significant way; (2) when the officer tells the suspect

she cannot leave; (3) when the officer creates a situation that would lead a

reasonable person to believe that her freedom of movement has been

significantly restricted; and (4) when there is probable cause to arrest, the officer

does not tell the suspect she is free to leave, and the officer manifests his

knowledge of probable cause to the suspect. Id. at 233 (citing Dowthitt v. State,

931 S.W.2d 244, 252–55 (Tex. Crim. App. 1996)). The nature of the offense

under investigation, the degree of suspicion, the stop’s location, the time of day,

and the suspect’s reaction also bear on whether a particular seizure is an arrest

or an investigative detention.     Id. at 234.   The officer’s opinion, though not

determinative, is another factor, as well as whether the officer actually conducts

an investigation after seizing the suspect, such as asking questions about

identity, the reason for being in the area, or “similar reasonable inquiries of a truly

investigatory nature.” Id. Whether a seizure is an arrest or an investigative

detention depends on the intrusion’s reasonableness under all of the facts. Id.

      The trial court concluded, and its findings and the record reflect, that

nothing—other than Officer Clements’s subjective opinion that Howard was not

free to leave once he began conducting his DWI investigation—indicated that

                                          14
Officer Clements had deprived Howard of her liberty to the extent of an arrest

until he handcuffed her upon concluding the field sobriety tests. Cf. id. at 235–36

(holding that the acts of taking away appellant’s keys and of asking questions

prior to handcuffing were part of continuing investigatory detention).     Prior to

handcuffing her after the field sobriety tests, Officer Clements did not tell Howard

that she could not leave or create a situation in which a reasonable person would

believe that her freedom of movement had been significantly restricted. Further,

the nature of the offense and degree of suspicion, despite Taylor’s admission

during the initial encounter that Howard had hit a curb, supported that Officer

Clements’s questions to Howard after speaking with Cott remained part of his

investigation rather than a custodial interrogation. And the flat tire would have

detained Howard in the parking lot after 1:00 a.m. regardless of Officer

Clements’s investigation.

      Although Howard argues that the duration of the stop—thirty minutes—

converted the investigatory detention into custody, the general rule in

determining whether the scope of an investigative detention is “reasonable” is

that it “can last no longer than necessary to effect the purpose of the stop.”

Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (stating that if a driver

is stopped on suspicion of DWI, once the officer determines that the driver is not

impaired, he should be promptly released). Although a detention’s length may

render a stop unreasonable, there is no rigid, bright-line time limit. Belcher v.

State, 244 S.W.3d 531, 539 (Tex. App.—Fort Worth 2007, no pet.) (citing United

                                        15
States v. Sharpe, 470 U.S. 675, 679, 105 S. Ct. 1568, 1571 (1985)). Rather, the

issue is “‘whether the police diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly, during which time it was

necessary to detain the defendant.’”     Kothe, 152 S.W.3d at 64–65 (quoting

Sharpe, 470 U.S. at 685–86, 105 S. Ct. at 1575).

      Here, Officer Clements called Cott, the 911 caller, before returning to

speak with Howard.      Therefore, we must evaluate whether this four-minute

phone call, followed by his six-minute interaction with Howard prior to

administering field sobriety tests, was reasonable under the circumstances. Cf.

Belcher, 244 S.W.3d at 541–42 (holding that the twenty-seven minute delay

while original investigating officer waited on another officer to finish the DWI

investigation was reasonable under the circumstances presented by the record).

      Officer Clements made only a few comments during the four-minute call—

the DVD recording reflects that most of the conversation with Cott involved

Officer Clements listening to what Cott had to say.       During his subsequent

interaction with Howard, Officer Clements asked questions pertaining to what

Cott had apparently described and about where Howard and Taylor had been

going. He also asked for her driver’s license and asked if she had any medical

conditions or injuries.4 All of this questioning took around twelve minutes before


      4
        During a traffic stop, an officer may ask about the destination and purpose
of the trip and request identification. Caraway v. State, 255 S.W.3d 302, 307–08
(Tex. App.—Eastland 2008, no pet.). Questions about medical conditions or
injuries are incident to administering field sobriety tests and do not constitute
                                        16
Officer Clements began administering the field sobriety tests. Viewing all of the

evidence in the light most favorable to the trial court’s ruling, and giving almost

total deference to its historical fact findings supported by the record, we conclude

as a matter of law that, under the totality of the circumstances—particularly the

relatively short time periods at issue and the flat tire that would have detained

Howard in the parking lot regardless of the investigation—the continued

investigatory detention was reasonable. See, e.g., Balentine v. State, 71 S.W.3d

763, 771 (Tex. Crim. App. 2002) (stating that investigative detention of thirty to

sixty minutes was reasonable for questioning and noting that the amount of time

needed “increased substantially because of appellant’s evasive answers”);

Bullock v. State, No. 01-11-00347-CR, 2012 WL 5877425, at *5 (Tex. App.—

Houston [1st Dist.] Nov. 21, 2012, no pet.) (concluding that thirty-five minutes

was not an unreasonable amount of time to spend on questioning appellant and

administering six field sobriety tests). Therefore, we overrule Howard’s sole

issue.




interrogation. See Warren v. State, 377 S.W.3d 9, 17–18 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (“In order to assess a field sobriety test’s efficacy in
determining intoxication, it is beneficial for the officer to know if there are factors
other than intoxication that would inhibit the suspect’s ability to perform the
required tasks.”).

                                          17
                                IV. Conclusion

      Having overruled Howard’s sole issue, we affirm the trial court’s judgment.



                                                  BOB MCCOY
                                                  JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 14, 2013




                                        18
