Opinion issued November 29, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00821-CR
                          ———————————
                       PEGGY MCINTYRE, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



         On Appeal from the County Criminal Court at Law No. 11
                          Harris County, Texas
                      Trial Court Case No. 1713900



                         MEMORANDUM OPINION

      Appellant, Peggy Mcintyre, was found guilty by a jury of driving while

intoxicated, and the trial court assessed punishment, which it then suspended,

placing appellant under community supervision for one year. On appeal, appellant
contends that trial court erred in denying her motion to suppress because: 1) she

was subject to an illegal arrest when she was handcuffed and put in the back of a

squad car prior to performing field sobriety tests; 2) she was not read her Miranda

rights; and 3) the operator of the alcohol breath test was not in appellant’s

presence for the complete 15 minutes prior to administering the test as is required

by DPS regulations. We affirm.

                                 BACKGROUND

      On the night of October 17, 2010, appellant arrived at the Rileys’ home and

asked to put something that belonged to appellant’s boyfriend, whom the Rileys

knew, in their garage. Brannon Riley refused appellant’s request and repeatedly

asked appellant to leave his home. After appellant did not heed Riley’s request to

leave, she began raising her voice towards them, after which Brannon Riley called

the police to report the incident (the first of a number of calls Riley made to the

police). Id. An altercation ensued between appellant and the Rileys’ friend, Miles

Kirkes, who was present throughout the whole ordeal. Kirkes believed appellant

was “impaired.”    Her speech was slurred and she was “wobbly.”          After the

encounter with the Rileys became physical, appellant got into her car and sped

away. Kirkes saw appellant speed through two stop signs and then heard a loud

crash. Kirkes got in his car and drove a short distance, when he saw that appellant

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had crashed into a brick mailbox and light pole. The owner of the house in front of

which the crash occurred saw appellant get out of the vehicle and walk to a nearby

house.

      Deputy Carsten was dispatched to the scene of the accident where, upon

arriving, he was directed to the house that appellant was seen walking to after the

crash. When Carsten approached appellant and began to speak to her about the

accident, appellant told Carsten that she was the driver of the vehicle involved in

the accident. As they spoke, Carsten smelled alcohol coming from appellant.

      At that point, Carsten suspected appellant of driving while intoxicated

(DWI). He did not perform field sobriety tests immediately because he knew that

another officer who was more proficient at conducting field sobriety tests had

responded to the disturbance call at the Rileys’ home, and would arrive at the scene

of the accident shortly. Until the other officer arrived, Carsten placed appellant in

handcuffs and put her in the back of his squad car as a safety precaution because

she was being verbally combative and had abruptly left the scene of both a

disturbance and an accident.

      Approximately ten minutes later, Deputy Klosterman arrived at the accident

scene. Klosterman removed appellant from the vehicle and noticed the smell of

alcohol when he began speaking to her. Klosterman also saw that appellant’s eyes

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were red and watery, and appellant admitted to Klosterman that she had been

drinking. Id. Klosterman then administered the horizontal gaze nystagmus test,

which appellant performed poorly. Klosterman was unable to perform the other

field sobriety tests because there were distractions in the area and appellant had

become increasingly uncooperative. Instead, Klosterman handcuffed appellant and

transported her to the police station, where he requested Deputy Albers from the

DWI Task Force to meet him.

      When Deputy Albers made contact with appellant at the station, he detected

an odor of alcohol emitting from appellant’s breath and noted appellant’s

bloodshot eyes. Albers conducted the standardized field sobriety tests on appellant,

including the horizontal gaze nystagmus test, walk-and-turn test, and the one-leg-

stand test. Appellant performed poorly on all three tests, which indicated to Albers

that appellant was intoxicated. Appellant then submitted to a breath test using an

intoxilyzer. Before administering the test, Albers stepped into an adjacent room

with the door open and was approximately five feet away from appellant at all

times. Albers testified that appellant did not regurgitate, burp, or put anything in

her mouth when she was in his presence. Appellant blew at a blood alcohol level

of .10.




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      At trial appellant filed a motion to suppress, which the trial court denied.

This appeal followed.

                            STANDARD OF REVIEW

      We review a ruling on a motion to suppress evidence for abuse of discretion.

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

206 S.W.3d 587, 590 (Tex. Crim. App. 2006). When reviewing a trial court’s

decision to deny a motion to suppress, an appellate court “should afford almost

total deference to a trial court’s determination of the historical facts that the record

supports especially when the trial court’s fact findings are based on an evaluation

of credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). An appellate court “should afford the same amount of deference to

trial court’s rulings on ‘application of law to fact questions,’ also known as ‘mixed

questions of law and fact,’ if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor.” Id. (internal citation omitted). Finally, an

appellate court may conduct a de novo review where the resolution of mixed

questions of law and fact do not turn on an evaluation of credibility and demeanor.

Id. Moreover, when a trial court does not enter any fact findings when denying a

defendant’s motion to suppress, an appellate court must view the evidence “in the

light most favorable to the trial court’s ruling” and “assume that the trial court

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made implicit findings of fact that support its ruling as long as those findings are

supported by the record.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000).

                                ILLEGAL ARREST?

       In the first issue on appeal, appellant contends she was subject to an illegal

arrest, and, subsequently, the evidence brought against her should not be

admissible as fruits of the illegal arrest.

Arrest or Dentention?

       Appellant contends that she was illegally arrested when she was handcuffed

and placed into the back of the police car before any field sobriety tests were

conducted. The State argues that nothing more than an investigative detention

occurred. Whether a detention is an investigative detention or an arrest depends

upon the facts and circumstances surrounding the detention. Amores v. State, 816

S.W.2d 407, 412 (Tex. Crim. App. 1991); Hoag v. State, 728 S.W.2d 375, 378–79

(Tex. Crim. App. 1987); Hilla v. State, 832 S.W.2d 773, 778 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref’d). The reasonable use of handcuffs or the ordering of a

suspect to lie down alone does not convert an investigative detention into an arrest.

Handcuffing alone will not necessarily convert a temporary detention into an

arrest. See Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App. 1997);

                                              6
Burkes v. State, 830 S.W.2d 922, 924 (Tex. Crim. App. 1991); Hilla, 832 S.W.2d

at 778. Whether an officer believes a suspect is detained or arrested, is not

determinative of the issue. Amores, 816 S.W.2d at 412; Hoag, 728 S.W.2d at 378;

Hilla, 832 S.W.2d at 778. Rather, we look to the reasonableness of the officer’s

actions, which is to be judged from the perspective of a reasonable officer at the

scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118.

“Furthermore, allowances must be made for the fact that officers must often make

quick decisions under tense, uncertain and rapidly changing circumstances.” Id.

Police may use such force as is reasonably necessary to effect the goal of the

detention: investigation, maintenance of the status quo, or officer safety. Id. at 117.

An investigative detention implies that the obtrusive act is for the purpose of

actually investigating. Burkes, 830 S.W.2d at 925. Thus, where no investigation is

undertaken, the detention cannot be considered investigatory and rises to the level

of an arrest. Id.

       Contrary to appellant’s contention that Carsten did not express a concern for

his safety, Carsten testified that he smelled alcohol and that appellant was being

“verbally combative” during their encounter. He stated that he placed appellant in

handcuffs for his and appellant’s safety because she had just left the scene of a

disturbance at the Rileys’ home and a car accident. Appellant was detained for no

                                          7
more than 10 minutes before another officer arrived to conduct field sobriety tests.

Under these circumstances, the trial court could have reasonably concluded that the

seizure of appellant and placing her in handcuffs was not an arrest, but rather was a

temporary detention for purposes of conducting an investigation as soon as back up

deputies arrived to perform the field sobriety tests. See Goldberg v. State, 95

S.W.3d 345, 360 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that

placing defendant in handcuffs, putting him in back of patrol car, and awaiting

homicide officers to conduct murder investigation was not arrest).

Reasonable Suspicion for Investigatory Detention?

      Having decided that appellant was the subject of an investigatory detention,

not an arrest, we must next decide whether the detention was based upon

reasonable suspicion. A police officer may stop and briefly detain a person for

investigative purposes if the officer, in light of his experience, has a reasonable

suspicion supported by articulable facts that criminal activity may be afoot. Terry

v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968). The reasonableness of a

temporary detention must be examined in terms of the totality of the

circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A

temporary detention is justified when the detaining officer has specific, articulable

facts at the time of the detention which, taken together with rational inferences

                                         8
from those facts, lead him to conclude that the person detained is, has been, or

soon will be engaged in criminal activity. Id. A reasonable suspicion means more

than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim.

App. 1997). A detention is not permissible unless the circumstances objectively

support a reasonable suspicion of criminal activity. Id.

      Citing Domingo v. State, 82 S.W.3d 617 (Tex. App.—Amarillo 2002, no

pet.), appellant argues that the odor of alcohol alone is not sufficient to establish

reasonable suspicion. However, Carsten did not rely solely on the odor of alcohol

to establish reasonable suspicion in this case. Carsten also had information that a

homeowner had called to report an accident and had indicated that the driver was

possibly intoxicated. Cartsten verified that appellant was the driver who had been

involved in the one-car accident.        Appellant was unpleasant and agitated.

Appellant had also been seen leaving the scene of the accident. These factors gave

Carsten sufficient reasonable suspicion to detain appellant in order to determine

whether she had been driving while intoxicated. See Tex. Dep’t of Public Safety v.

Latimer, 939 S.W.2d 240, 244 (Tex. App.—Austin 1997, no writ) (holding that

defendant’s involvement in car accident along with odor of alcohol provided

sufficient reasonable suspicion to detain for DWI investigation).

      We overrule point of error one.

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          MIRANDA RIGHTS AND CUSTODIAL STATEMENTS

      In her next point of error, appellant contends any custodial statements made

after Carsten handcuffed her and placed her in the car to wait for another officer

should not be admitted in accordance with Miranda and Texas Code of Criminal

Procedure. See Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612

(1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005).

Protections against self-incrimination afforded by Miranda and article 38.22 apply

only to custodial interrogations. Dowthitt v. State, 931 S.W. 2d 244, 263 (Tex.

Crim. App. 1996); TEX. CODE CRIM. PROC. ANN. art. 38.22, §5 (Vernon 2005).

      In point of error one, we determined that appellant was detained, not

arrested, when Carsten placed her in the back of the patrol car to wait for another

officer to arrive and conduct the DWI investigation.        While an investigative

detention is considered a “seizure,” it is characterized by lesser restraint than an

arrest. See Berkemer v. McCarty, 468 U.S. 420, 438–40, 104 S. Ct. 3138, 3149–

3151 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996)

(stating that an investigative detention is a seizure). Persons temporarily detained

for the purposes of an investigation are not “in custody” for the purposes of

Miranda, and the right to Miranda warnings is not triggered during an

investigative detention. See Berkemer, 468 U.S. at 438–40; Arthur v. State, 216

                                        10
S.W.3d 50, 56, 58 (Tex. App.—Fort Worth 2007, no pet.) (citing Dowthitt v. State,

931 S.W.2d 244, 254 (Tex. Crim. App. 1996)); see also Hernandez v. State, 107

S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d) (concluding that

appellant’s statement that he had consumed nine beers was made during

investigatory detention—prior to full custodial arrest—and therefore Miranda

warnings were not required).

      Because appellant’s statements at the scene of the accident were made

during an investigatory detention, she was not entitled to Miranda or article 38.22

warnings.

      We overrule point of error two.

                           ALCOHOL BREATH TEST

      Finally, in point of error three, appellant asserts that the trial court abused its

discretion in allowing the results of the breath alcohol test to be admitted into

evidence. Specifically, appellant contends that 1) the State failed to establish that

appellant was in Deputy Albers’ presence for the required 15-minute period prior

to the breath test, and 2) the trial court improperly limited her voir dire of the

technical supervisor prior to denying the motion to suppress, which impermissibly

reduced the State’s burden of proving the reliability of the breath test conducted on

appellant.

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Officer in Appellant’s Presence for 15 Minutes before Test?

      Appellant argues that the breath test should have been suppressed because

“Officer Albers testified that he walked out of the testing room, breaking his line of

sight with the Appellant for a few minutes.” The State contends that although

Albers left the room, he was in appellant’s “presence” because he was in an

adjacent room, the door was open, and he was approximately 5 feet away from

appellant at the time.

      The Texas Administrative Code provides that “[A breath test] operator shall

remain in the presence of the subject at least 15 minutes before the test and should

exercise reasonable care to ensure that the subject does not place any substances in

the mouth. Direct observation is not necessary to ensure the validity or accuracy of

the test result[.]” 37 TEX. ADMIN. CODE § 19.4(c)(1) (2012). The term “presence”

as used in section 19.4 has not been administratively or legislatively defined;

therefore, it must be given its ordinary and plain meaning. State v. Reed, 888

S.W.2d 117, 122 (Tex. App.—San Antonio 1994, no pet.). The Reed court defined

“presence” as an

      [a]ct, fact, or state of being in a certain place and not elsewhere, or
      within sight or call, at hand, or in some place that is being thought of.
      The existence of a person in a particular place at a given time
      particularly with reference to some act done there and then. Besides
      actual presence, the law recognizes constructive presence, which latter
      may be predicated of a person who, though not on the very spot, was
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      near enough to be accounted present by the law, or who was actively
      cooperating with another who was actually present.

Id. (citing BLACK’S LAW DICTIONARY 1183 (6th ed. 1990) and WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY (1986)).

      Where there is a fact issue raised with respect to the 15-minute waiting

period requirement, a defendant is entitled to an instruction that the jury disregard

the test if it believes or has a reasonable doubt as to whether the fifteen-minute

observation requirement was complied with. See Adams v. State, 67 S.W.3d 450,

453 (Tex. App.—Fort Worth 2002, pet. ref’d); Atkinson v. State, 871 S.W.2d 252,

256 (Tex. App.—Fort Worth 1994), rev’d on other grounds, 923 S.W.2d 21 (Tex.

Crim. App. 1996). Article 38.23 authorizes the trial court to submit the question of

exclusion to the jury when a fact issue arises concerning the legality of obtaining

the evidence. TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005); Atkinson,

923 S.W.2d at 23.

      In reliance on Atkinson, 923 S.W.2d at 25, and as authorized by article 38.23

of the Code of Criminal Procedure, the trial court in this case resolved appellant’s

motion to suppress the intoxilyzer-test results by concluding the evidence at the

hearing presented a fact issue. Thus, the jury was given the final decision, by the

trial court’s including in its charge an instruction that the jury was to disregard the

test results on determining they were obtained without complying with the
                                          13
requirement of 15 minutes of continuous presence under section 19.3(c)(1) of title

37 of the Administrative Code.

      The jury resolved the fact issue against appellant and in favor of the State,

and its determination of the issue is supported by the evidence. Although Albers

stepped into an adjacent room during the 15-minute period, he was not more than

five feet away from appellant, and the door between the two rooms was left open.

Albers also testified that appellant never belched, vomited, or put anything in her

mouth. The law does not require continual observation, 37 TEX. ADMIN. CODE

19.4(c)(1) (2012), and the jury could have rationally concluded that Albers was in

appellant’s presence, as that term is defined in Reed, for 15 minutes prior to the

test. Reed, 888 S.W.2d at 122.

Refusal to Allow Adequate Voir Dire of State’s Expert

      Appellant also claims that the trial court erred by refusing to allow her to

question the technical supervisor, Dr. Wong, regarding whether Albers had

complied with DPS rules by remaining in appellant’s “presence” during the 15-

minute waiting period, and that such a ruling impermissibly reduced the State’s

burden of proof. The State contends that appellant did not preserve error on this

issue. We agree with the State.




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       To prevail on a matter on appeal, an appellant must generally preserve error

in the trial court. See TEX. R. APP. P. 33.1(a). The party must present to the trial

court a timely request, objection, or motion that states the grounds for the desired

ruling if they are not apparent from the context of the request objection or motion.

Id.; Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004). Additionally,

the trial court must rule on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal

to rule. TEX. R. APP. P. 33.1(a)(2).

      Because appellant did not make a timely objection, we overrule appellant’s

third point of error.

                                   CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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