Opinion issued January 12, 2016




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-14-00248-CR
                         ———————————
                  BRADY CRAIG KOCH, JR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 5
                           Harris County, Texas
                       Trial Court Case No. 1861254



                                OPINION

     A jury convicted appellant, Brady Craig Koch, Jr., of the Class B

misdemeanor offense of driving while intoxicated—second offense (“DWI”).1 The



1
     See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2015).
trial court assessed his punishment at confinement for one year, suspended for two

years.     In his sole issue on appeal, appellant contends that the trial court

erroneously denied his motion to suppress statements that he argues were made to

officers while he was in custody but before he had received his Miranda warnings.

         We affirm.

                                    Background

         Around 10:00 p.m. on November 7, 2012, Albert Lakey was driving down

Westpark Drive in Houston when he saw a truck that had crashed into a fence and

a light post. Lakey parked his own vehicle and walked over. He saw appellant

“crouched over on the steering wheel” inside the still-running truck. Lakey tapped

appellant on the shoulder to get his attention, and appellant began mumbling to

Lakey. Lakey asked appellant whether he needed any assistance, and appellant

responded with “[j]ust a bunch of gibberish, words, slurring.” Appellant then got

out of his truck, “staggered around” toward the back of the truck, and looked

around the scene before telling Lakey, “I need to go.” Appellant got back into his

truck. He attempted to drive forward, and, as he did so, his truck brushed against

Lakey. Lakey testified that appellant was “[j]ust a little bit lethargic, just slurring

of word and staggering and really not holding his composure,” and he concluded

that appellant was intoxicated.     Lakey did not notice any visible injuries on

appellant. Other bystanders at the scene called 9-1-1.



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      After appellant tried to drive away from the scene, Lakey removed appellant

from his vehicle “[s]o he won’t [injure] himself or anybody else on the road.”

Lakey “pinned” appellant against his truck with his hands to prevent him from

leaving. Lakey stayed at the scene until police officers arrived “[m]oments later,”

and he informed the responding officers of what he had witnessed. Lakey testified

that he saw officers open the passenger door of appellant’s truck and “two beer

bottles fell out of the passenger’s seat onto the floor.”

      Houston Police Department Officer M. Arroyo testified that she and her

partner, Officer T. Thibodeaux, were dispatched to the accident scene at 10:05 p.m.

When she arrived at 10:10 p.m., appellant was sitting on the sidewalk near his

truck. Officer Arroyo testified that appellant appeared groggy and tired, and she

could smell the odor of alcohol when she spoke with him. Officer Arroyo did not

observe any injuries on appellant, and medical personnel checked appellant at the

scene but did not render any medical assistance.

      Based on the smell of alcohol and appellant’s behavior, which included

“incoherent, slurred speech” and “grogginess,” Officer Arroyo called dispatch and

requested the presence of a specialized DWI officer. While the DWI officer was

on his way to the scene, Officer Arroyo handcuffed appellant and placed him in the

back of her patrol car. Officer Arroyo testified that appellant was not under arrest

at that point in time, but he was instead “placed in the back of the patrol car” and



                                           3
was “detained.” Appellant was not able to leave the scene while he was in the

back of the patrol car. Officer Arroyo testified that she detained appellant “[t]o

keep him safe, [and] keep him from the scene so we could continue to investigate

the scene.” Officer Arroyo continued to investigate the accident while appellant

waited in the patrol car. After the DWI officer arrived, Officers Arroyo and

Thibodeaux gave the information they had obtained regarding the accident to

another officer who continued the investigation, and they left the scene.

      Officer M. Muskiet arrived and took over the investigation of the accident

from Officers Arroyo and Thibodeaux. He determined that appellant “had lost

control, failed to maintain a single lane[,] and struck a fence.” Officer Muskiet

observed “many bottles of alcohol throughout [appellant’s] vehicle.” Appellant

was already in the backseat of Officer Arroyo’s vehicle when Officer Muskiet

arrived at the scene, although Muskiet could not recall whether appellant was

handcuffed. Officer Arroyo informed him that appellant was suspected of DWI,

but Officer Muskiet did not speak with appellant at all during his investigation.

      Officer S. Corral was a member of HPD’s Traffic Enforcement Division

DWI Task Force and had received specialized training in identifying intoxicated

individuals. Shortly after beginning his shift at 10:00 p.m., Officer Corral received

a call concerning “a crash with a person possibly intoxicated involved.” When

Officer Corral arrived at the scene, appellant was asleep in the back of a patrol car.



                                          4
Officer Corral could smell the odor of alcohol on appellant’s breath. He testified

that appellant mumbled and spoke with a “slight slur,” and appellant had

“bloodshot, droopy eyes.”

      Officer Corral testified that, although appellant was in the backseat of a

patrol car when he arrived at the scene, appellant was not under arrest at that time.

He did not know when appellant had been placed in the patrol car or how long

appellant had been in the patrol car before he arrived, but he testified that appellant

was placed in the backseat because he was “being kind of combative and [was]

trying to leave the scene.” Officer Corral and the other officers drove appellant

approximately fifty feet away to a nearby parking lot to continue the investigation

without obstructing the roadway.

      Officer Corral then removed appellant from the backseat of the patrol car

and began his DWI investigation. He did not read appellant his Miranda rights

prior to speaking with him. The trial court admitted a DVD recording of Officer

Corral’s DWI investigation of appellant. The recording reflected that Officer

Corral began his investigation at 10:24 p.m. Appellant did not indicate that he was

injured or disabled, and he did not request any medical assistance.

      Officer Corral testified that he asked appellant how many drinks he had had

that day, and appellant “rambled 2, 5, 7, 15.” Appellant told Officer Corral that he

had been drinking beer and that he had started drinking around noon that day.



                                          5
Officer Corral testified that appellant exhibited six out of six clues of intoxication

on the horizontal gaze nystagmus test and that appellant declined to perform any

additional sobriety tests and declined to provide a breath or blood specimen.

Officer Corral concluded that appellant was intoxicated, and he arrested appellant

for DWI at 10:46 p.m.

      Appellant moved to suppress the statements made to Officer Corral that he

had had “2, 5, 7, 15” drinks earlier that day and that he had started drinking around

noon, arguing that he was in custody at the time he made these statements during

Corral’s DWI investigation, but none of the officers had read him his Miranda

warnings. The trial court heard testimony from Officers Arroyo and Corral outside

the presence of the jury and made the following oral findings and conclusions on

the record:

      The defendant was deprived of freedom, significantly, by being
      handcuffed in the backseat of the patrol car. He obviously couldn’t
      leave. A reasonable prudent person would believe freedom was
      significantly restricted; however, the officer did tell him he was being
      detained rather than telling him he was being arrested or placed in
      custody. As in the bright-line—or formal arrest considered by
      Dowthitt [v. State].
      Further, the duration of the detention at the earliest would have been
      around 10:10, that being the time that Officers Arroyo and
      Thibodeaux arrived on the scene. We don’t know how long it took to
      take the defendant and handcuff him and place him in the back of the
      car, so, I’ll call that the earliest possible and had apparently ended by
      10:24, according to my notes from the video, when the defendant
      appeared without handcuffs outside of the backseat. That being about
      a 14-minute detention in the backseat of the patrol car in handcuffs.


                                          6
      The officers have testified that there were ongoing investigations at all
      times during this detention and even afterward, with regard to the
      accident scene; talking to witnesses; trying to clear the street. And
      further[,] I find that moving the defendant to the parking lot rather
      than trying to conduct this investigation in the middle of the street was
      reasonable. Also, the fact that one officer walked alongside the patrol
      car as the defendant was moved from the street location into the
      parking lot reflected that this was a very short distance in time and a
      matter of feet, as well.
      Based upon this, I will conclude that the duration of the detention was
      reasonable and did not convert the detention to custody, for purposes
      of requiring the Miranda rights being read to the defendant before he
      was questioned at this scene.

The trial court denied appellant’s motion to suppress.

      The jury found appellant guilty of the offense of DWI. The trial court

assessed appellant’s punishment at confinement for one year, suspended for two

years. This appeal followed.

                               Motion to Suppress

      In his sole issue, appellant contends that the trial court erroneously denied

his motion to suppress oral statements made to Officer Corral.          Specifically,

appellant argues that he was in custody at the time he made the statements, but

none of the officers had read him his Miranda warnings.

      A. Standard of Review

      We review the trial court’s denial of a motion to suppress evidence for an

abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.

2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When


                                         7
we review a trial court’s denial of a motion to suppress, we give “almost total

deference to a trial court’s express or implied determination of historical facts” and

review de novo the court’s application of the law to the facts. Id.; see also State v.

Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013) (holding that appellate courts

apply deferential standard to trial court’s factual assessment of circumstances

surrounding interrogation of defendant and apply de novo review to court’s

ultimate legal determination of whether defendant was in custody). We view the

evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808,

818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact and judge of

credibility of the witnesses and the weight to be given to their testimony.” St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may

choose to believe or disbelieve any part or all of a witness’s testimony. Green v.

State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain the trial court’s

ruling if it is reasonably supported by the record and correct on any theory of law

applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.

2003).

      B. Whether Appellant Was in Custody at Time of Statements

      A defendant’s oral statement may be used against him “if it appears that the

same was freely and voluntarily made without compulsion or persuasion . . . .”



                                          8
TEX. CODE CRIM. PROC. ANN. art. 38.21 (Vernon 2005).              Code of Criminal

Procedure article 38.22 governs the admissibility of statements made as a result of

“custodial interrogation” and provides that prior to making such a statement, the

accused must receive warnings informing him 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.

Id. art. 38.22, § 2(a) (Vernon Supp. 2015).

      “Custodial interrogation” is “questioning initiated by law enforcement

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

freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444,

86 S. Ct. 1602, 1612 (1966). In determining whether a defendant was “in custody”

for the purpose of applying Miranda, an appellate court “conducts a factual review

in examining the circumstances surrounding the interrogation” and “makes an

ultimate legal determination whether a reasonable person would not have felt at

liberty to leave.” Saenz, 411 S.W.3d at 493 (citing Thompson v. Keohane, 516


                                          9
U.S. 99, 112–13, 116 S. Ct. 457, 465 (1995)). “A person is in custody only if,

under the circumstances, a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest.” Id. at 496

(citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1529 (1994)

(per curiam)).

      Although the United States Supreme Court has held that a traffic stop does

not generally constitute custody for Miranda purposes, “subsequent events may

cause a noncustodial encounter to escalate into custodial interrogation.” State v.

Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997) (citing Berkemer v.

McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984), and Dowthitt v. State,

931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996)). The Court of Criminal Appeals

has set out “at least four general situations that may constitute custody”:

      (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.

Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255). 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.”

Id. (quoting Dowthitt, 931 S.W.2d at 255). Although the fourth situation “requires



                                          10
an officer’s knowledge of probable cause to be manifested to the suspect,” custody

is not established unless that 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.” Id. (quoting Dowthitt,

931 S.W.2d at 255–57).

      In making the custody determination, the primary question for the court 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). We

do not consider the subjective beliefs of the detaining officer when determining

whether a suspect is in custody. Id. at 372–73. However, the officer’s subjective

belief becomes relevant if the officer manifests his belief to the detainee that he is a

suspect. Id. at 373. We do not consider any subjective belief of the suspect that he

is guilty of an offense because “the reasonable person standard presupposes an

‘innocent person.’” Id. (quoting Dowthitt, 931 S.W.2d at 254).

      When considering the circumstances surrounding a seizure, “allowances

must be made for the fact that officers must often make quick decisions under

tense, uncertain, and rapidly changing circumstances.” Hauer v. State, 466 S.W.3d

886, 891 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Rhodes v. State,



                                           11
945 S.W.2d 115, 118 (Tex. Crim. App. 1997)). We thus look to the reasonableness

of the officer’s actions “from the perspective of a reasonable officer at the scene,

rather than with the advantage of hindsight.” Id. Officers 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. As a result, “handcuffing alone does not

necessarily convert an investigative detention into an arrest.” Id.; see State v.

Sheppard, 271 S.W.3d 281, 283 (Tex. Crim. App. 2008) (“[A] person who has

been handcuffed has been ‘seized’ and detained under the Fourth Amendment, but

he has not necessarily been ‘arrested.’”). “[A] temporary detention, in which the

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

been committed” is constitutionally permissible. See Sheppard, 271 S.W.3d at 289

(citing Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1885 (1968)). Although

handcuffing a person who has been temporarily detained is “not ordinarily proper,”

it “may be resorted to in special circumstances, such as when to thwart the

suspect’s attempt to ‘frustrate further inquiry.’” Id.

      Appellant argues that the facts of this case go beyond the typical DWI

investigative detention and instead constituted an arrest, thus triggering the

requirement that the officers read him his Miranda warnings before questioning or

obtaining a statement from him. He argues that he was initially detained by Lakey,

who used physical force to “pin” him to his truck for approximately ten minutes



                                          12
before Officer Arroyo arrived. Officer Arroyo then handcuffed him and placed

him in the back of her patrol car for another fourteen minutes before Officer Corral

arrived to conduct the DWI investigation. He argues that a reasonable person in

that situation would believe that he was under arrest. He further argues that by

handcuffing him and placing him in the patrol car, Officer Arroyo manifested her

knowledge that there was probable cause to arrest him.

      As the State points out, however, the trial court explicitly found that

appellant’s detention began at approximately 10:10 p.m. when Officers Arroyo and

Thibodeaux arrived at the scene. The trial court did not consider Lakey’s actions

when determining if appellant was in custody, nor should it have, as there in no

evidence Lakey was acting as a government agent when he held appellant at the

scene before police could arrive. See, e.g., Dawson v. State, 106 S.W.3d 388, 391–

92 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating that “the Fourth

Amendment proscribes only government action, not action by a private individual

who is not acting as an agent of the government or with the knowledge and

participation of a government official” and that person acts as government agent

when “the government knew of, and acquiesced in, the intrusive conduct” and “the

party performing the search intended to assist law enforcement efforts” as opposed

to furthering his own ends); see also Wilkerson v. State, 173 S.W.3d 521, 527




                                        13
(Tex. Crim. App. 2005) (holding that Miranda “generally applies only to

questioning by law enforcement officers or their agents”).

      The trial court also found that appellant was detained in the back of the

patrol car, in handcuffs, for approximately fourteen minutes, that Officer Arroyo

told him that he was being detained rather than being arrested, that the officers on

the scene were conducting an ongoing investigation including talking to witnesses

and trying to clear the street, and that it was reasonable for the officers to move

appellant to a nearby parking lot to continue the DWI investigation instead of

conducting the investigation in the middle of the street. The record also contained

evidence that appellant had tried to leave the scene on multiple occasions.

      This case is factually analogous to the Fourteenth Court of Appeals’ recent

decision in Hauer, in which the sole officer at the scene of the accident,

“[p]ursuant to department policy and for her safety and the safety of” the

defendant, handcuffed the defendant and placed him in the back of her patrol car to

wait for the DWI investigator. 466 S.W.3d at 891. In holding that the detention of

the defendant did not rise to the level of an arrest, our sister court pointed out the

officer “was alone with citizens, the fire department, vehicles blocking the road,

and a person she believed to be intoxicated.”          Id.   The defendant waited,

handcuffed, in the back of the patrol car for approximately thirty minutes before

the DWI task force officer arrived, and that officer promptly began the DWI



                                         14
investigation upon arriving at the scene. Id. The Fourteenth Court of Appeals

held, “The trial court properly concluded from these facts that [Officer] Owens’s

seizure of [the defendant] was not an arrest, but rather was a temporary detention

for the purpose of conducting an investigation as soon as back-up arrived to

perform [the] DWI investigation.” Id. at 891–92.

      Appellant cites the Corpus Christi Court of Appeals’ decision on remand in

Saenz for the proposition that the officers’ actions in this case escalated the

temporary detention to an arrest. See No. 13-11-00328-CR, 2014 WL 3542092

(Tex. App.—Corpus Christi July 17, 2014, pet. ref’d) (mem. op., not designated

for publication). In Saenz, officers were dispatched to a restaurant after receiving a

call that two intoxicated men were trying to start a fight with patrons. Id. at *1. At

the scene, officers discovered Saenz sitting in his truck, which was parked across

two handicapped parking spaces and was still running and had its reverse lights on.

Id. Officers told Saenz on several occasions to turn off his vehicle, and, after

Saenz finally complied and officers removed him from his truck, Saenz waited in

the backseat of a patrol car for twelve to eighteen minutes before a DWI officer

arrived, and an officer specifically told Saenz that he was not free to leave. Id. at

*1–2. In upholding the trial court’s determination that Saenz was in custody at the

time the investigating officer handcuffed and placed him in the back of his patrol

car, the Corpus Christi court noted that Saenz “was never told that he was not



                                         15
under arrest” and that the trial court “did not explicitly find that Saenz was told that

the reason he had to wait was so that officers could continue investigating.” Id. at

*5.

       Here, in contrast, the trial court expressly found that Officer Arroyo told

appellant when she placed him in the backseat of her patrol car that he was not

under arrest, and evidence in the record supports this finding and also demonstrates

that Arroyo took these actions to keep appellant safe and secure while she and

Officer Thibodeaux continued to investigate the accident scene. Although Officer

Arroyo suspected that appellant might be intoxicated, which led to her calling for a

specialized DWI officer to be dispatched to the scene, she also testified that she

had no reason to place appellant under arrest at the time she put him in her patrol

car.

       Although the trial court found that appellant’s freedom was significantly

restricted by the officers’ actions, for the defendant to be considered “in custody,”

as opposed to merely subject to an investigative detention, “the restriction on a

suspect’s freedom of movement must reach ‘the degree associated with an arrest’

instead of an investigative detention.” Saenz, 411 S.W.3d at 496. Here, appellant

was explicitly told that he was not under arrest but was instead being detained

pending further investigation.      See Hauer, 466 S.W.3d at 891 (noting that

handcuffing alone does not necessarily convert investigative detention into arrest);



                                          16
see also Sheppard, 271 S.W.3d at 289 (noting that investigatory detentions, or

Terry stops, in which suspect is not free to leave, are constitutionally permissible

and that handcuffing suspect who has been temporarily detained “may be resorted

to in special circumstances”).

      We conclude that, under the facts of this case, the trial court did not abuse its

discretion when it concluded that appellant’s encounter with the officers remained

an investigatory detention and was not converted to an arrest upon his being placed

in handcuffs in the back of a patrol car. We therefore conclude that, because

appellant was not under arrest or in custody at the time Officer Corral asked him

questions as part of the DWI investigation, Corral was not required to read

appellant his Miranda warnings before continuing the investigation. See Saenz,

411 S.W.3d at 493 (noting that Miranda applies when a defendant is “in custody”).

We hold that the trial court did not err in denying appellant’s motion to suppress.

      We overrule appellant’s sole issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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