                          NUMBER 13-11-00784-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ANGELICA MARIE ZAPATA,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


              On appeal from the County Court at Law No. 2
                       of Victoria County, Texas.


                       MEMORANDUM OPINION
                Before Justices Rodriguez, Garza and Vela
                 Memorandum Opinion by Justice Garza

      A jury convicted appellant, Angelica Marie Zapata, of driving while intoxicated

(DWI), a class B misdemeanor offense. See TEX. PENAL CODE ANN. § 49.04(a), (b)

(West Supp. 2011). The trial court sentenced appellant to 180 days’ confinement in

county jail, suspended the sentence, and placed her on community supervision for two
years. The trial court also assessed a $500 fine and court costs, ordered community

service and $800 in restitution to the accident victim, and ordered appellant to serve ten

days in county jail. By a single issue, appellant contends the trial court erred in denying

her motion to suppress. We affirm, as modified.

                                       I. BACKGROUND

        Matt Luther, a City of Victoria police officer, testified that around 3:30 a.m. on

March 21, 2011, he was dispatched to the scene of an auto accident. Officer Luther

observed a maroon vehicle that had apparently struck a parked red Mustang. Officer

Luther spoke with the passenger of the maroon vehicle and several witnesses gathered

at the scene. Another police officer, Dennis Payne, arrived and was asked to locate the

maroon vehicle’s driver—later identified as appellant—who reportedly left the scene on

foot.   Officer Payne located appellant, who said she had been a passenger in the

vehicle, but was not the driver. Officer Payne noticed that appellant smelled of alcohol,

had bloodshot eyes and slurred speech, and was very unsteady on her feet. Officer

Payne walked appellant back to the accident scene to be interviewed by the other

officers investigating the accident.

        Officer Luther testified that when appellant was returned to the scene, he

approached her to obtain identification and insurance information.        He noticed that

appellant smelled of alcohol, had slurred speech, and was unsteady. Appellant pulled

out some papers that were stuffed into her shirt and produced a health insurance card,

but was unable to provide any identification documents.

        Police Officer Branden Allen testified that a few minutes after he arrived at the

accident site, appellant was escorted back to the scene, and he spoke with her. Officer



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Allen stated that appellant smelled of alcohol, had bloodshot eyes, and had various

papers stuffed into her bra and pockets. Appellant denied that she had been driving the

maroon vehicle and identified the driver as “Mary,” the front-seat passenger. Officer

Allen’s vehicle’s dashboard video camera recorded his exchange with appellant. Officer

Allen asked appellant to perform field sobriety tests, but she refused to cooperate.

Appellant eventually produced a driver’s license. Officer Allen testified that he was

talking to appellant to determine whether she was intoxicated. Officer Allen testified that

appellant was not under arrest, but neither was she free to leave; rather, she was

detained while he conducted an investigation of the accident.

        Officer Allen testified that when he attempted to administer a field sobriety test,

appellant said she wanted to speak to a lawyer. According to Officer Allen, appellant

was not under arrest at that time, and he continued to question her. Appellant’s counsel

objected “to any testimony about [appellant’s] behavior, statements or anything past the

point she asked for an attorney.”           Outside the presence of the jury, the trial court

reviewed the DVD recording of Officer Allen questioning appellant.                    The trial court

overruled appellant’s motion to suppress. Defense counsel then objected “under [rule

of evidence] 403,” arguing that “the video is more prejudicial than probative.” The trial

court also overruled this objection.           Defense counsel then requested a “running

objection under 38.22 and 403” to “[a]nything after the request for an attorney—any

statement or evidence that [appellant] made past the request she made for an

attorney.”1 The trial court noted the objection, and the trial continued. The DVD was


        1
          We have reviewed the DVD. We note that prior to her formal arrest, appellant does not make
any incriminating statements to Officer Allen. We agree with defense counsel’s characterization that the
DVD “shows [appellant] being basically belligerent with an officer, cursing.” We also agree with the
prosecutor’s characterization that the DVD shows appellant making “inconsistent statements” and “that

                                                   3
admitted into evidence as State’s Exhibit 1 and was shown to the jury. 2

        When Officer Allen resumed his testimony, he stated that he arrested appellant

for driving while intoxicated. At 8:15 the following morning, appellant was transported to

a facility for the purpose of providing a mandatory blood sample.

        Pursuant to a request by appellant, the trial court issued the following relevant

findings of fact and conclusions of law:

                                          FINDINGS OF FACT

                 ....

        5. Officer Allen made contact with the Defendant, Angelica Zapata,
        who[m] he detained to determine her involvement in the auto accident.

                 ....

        8. After the initial conversation with Defendant, Officer Allen also began to
        investigate whether or not the Defendant was intoxicated and began to
        administer the horizontal gaze nystagmus test (field sobriety test.)

        9. At approximately 3:44 A.M. (time per video) shortly after making
        contact with Defendant, while Officer Allen was administering the field
        sobriety test, the Defendant made the following statement: “I want to call
        my lawyer because I wasn’t even driving.” A few seconds later, the
        Defendant makes a second statement in which she states, “I want to call
        the lawyer.”

        10. The Defendant was not under arrest at the time that she made her
        request for a lawyer, and the Defendant was not handcuffed nor being
        physically restrained at the time.


her story makes absolutely no sense.” After appellant was arrested and given Miranda warnings, Officer
Allen asked appellant if she had been drinking and appellant responded, “Yes.” After her arrest, appellant
can be heard shouting repeatedly and aggressively off-camera, “I don’t f*****g care ’cause I wasn’t f*****g
driving.”
        2
           We note that appellant filed a written motion to suppress all evidence regarding an analysis
conducted on a blood specimen obtained from appellant. Appellant did not file a written motion to
suppress “any statement or evidence” made after she requested to speak to an attorney. After the jury
was selected but before the presentation of any evidence, appellant’s counsel orally urged the
suppression of appellant’s videorecorded statements. The trial court held a hearing outside the presence
of the jury. At the conclusion of the hearing, the trial court ruled that appellant’s statements did not result
from a custodial interrogation; the trial court denied the oral motion to suppress.

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11. The Defendant was not in a patrol car at the time she made her
request for a lawyer.

12. Officer Allen did not tell the Defendant she was under arrest nor did
he tell her that she was not free to leave at the time of her request for a
lawyer.

      ....

14. Officer Allen and the Defendant continued to converse regarding a set
of keys and different documents located on her person which she dropped
to the ground and as to who was driving the vehicle in the accident.
Defendant’s statements were confusing and contradictory indicating signs
of intoxication. The Defendant stated on several occasions that she was
not the driver of the vehicle in the accident. The Defendant continually
made statements that were not responsive to any questions by the officer
and volunteered information.

15. The Defendant’s counsel did not object to the statements made by
Defendant in requesting a lawyer, but made a global objection as to the
admissibility of Defendant’s “behavior, statements or anything past the
point she (the Defendant) asked for an attorney” on the video (State’s
Exhibit Number One.) The Defendant’s counsel did not identify the
specific statements or behavior or other specific evidence that it was
requesting the Court to suppress even after the Court inquired regarding
what were the particular statements.

                        CONCLUSIONS OF LAW

1. Per Article 28.01 (Sec. 2) of the Texas Code of Criminal Procedure, the
Defendant failed to raise the matters asserted by the oral Motion to
Suppress at the pre-trial hearing and failed to show good cause why such
matters should later be considered at trial; and therefore, should not have
been allowed to be raised at trial. Defendant failed to object to the
evidence at the earliest possible opportunity. Marini v. State, 593 S.W.2d
709 (Tex. Crim. App. 1980)[.]

      ....

5. At the time that the Defendant referenced her right to counsel, she was
not in custody and not under custodial interrogation nor had judicial
proceedings been initiated against her. Accordingly, her Fifth and Sixth
Amendment right to counsel had not yet attached. Lajoie v. State, 237
S.W.3d 345 (Tex. App.—Fort Worth 2007, no pet.)[.]



                                    5
      6. There was not an incriminating statement made by Defendant where
      she clearly admitted to an element of the subject offense. The statements
      of Defendant were evidence of intoxication due to the confusing nature of
      what she said and how she stated it.

      7. Defendant’s global objection was not a timely, specific objection
      identifying the specific behavior, statements or other evidence of which
      Defendant complained. Turner v. State, 805 S.W.2d 423 (Tex. Crim. App.
      1991); Texas Rules of Evidence 103. Consequently, due to the lack of
      specificity by the Defendant, the Court was unable to discern any
      potentially non-admissible evidence from admissible evidence.

      8. Defendant had no right to counsel at the videotaping that was
      conducted prior to the filing of the DWI complaint before initiation of formal
      adversary proceedings. Forte v. State, 707 S.W.2d 89 (Tex. Crim. App.
      1986)[.]

      9. Officer Allen developed probable cause for the arrest of the Defendant
      for the subject offense at a later time in his investigation.

      10. In accordance with the conclusions recited above, the Court admitted
      State’s Exhibit Number One (audio and visual recording) into evidence.

                     II. STANDARD OF REVIEW AND APPLICABLE LAW

      Whether the trial court properly denied a defendant’s motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—

Corpus Christi 2009, no pet.). 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). We give almost total deference to a trial

court’s determination of historic facts and mixed questions of law and fact that rely upon

the credibility of a witness, but apply a de novo standard of review to pure questions of

law and mixed questions that do not depend on credibility. Martinez v. State, 348

S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We view the evidence in the light most

favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24. We must uphold the trial

                                            6
court’s ruling if it is reasonably supported by the record and is correct under any theory

of law applicable to the case, even if the trial court gave the wrong reason for its ruling.

State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006). We will overturn the ruling only if it is “outside

the zone of reasonable disagreement.” Martinez, 348 S.W.3d at 922.

        A trial court’s ultimate “custody” determination “presents a ‘mixed question of law

and fact.’” Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (quoting

Thompson v. Keohane, 516 U.S. 99, 112–13 (1995)). “Therefore, we afford almost total

deference to a trial judge’s ‘custody’ determination when the questions of historical fact

turn on credibility and demeanor.” Id. at 526–27. “Conversely, when the questions of

historical fact do not turn on credibility and demeanor, we will review a trial judge’s

‘custody’ determination de novo.” Id. at 527.

        As set forth in Miranda v. Arizona, police are required to warn suspects of certain

constitutional rights prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436,

444 (1966). Article 38.22 of the Texas Code of Criminal Procedure also governs the

admissibility of statements made during a custodial interrogation. See TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 3 (West 2005). Miranda             and     article   38.22    warnings      are

necessary only when a person is subject to custodial interrogation.                      Herrera, 241

S.W.3d at 526 (stating that both article 38.22 and Miranda apply when persons are in

custody and being interrogated).3


        3
          Miranda warnings include a statement regarding the right to remain silent, that any statement
made may be used as evidence, that you have the right to have an attorney present during questioning,
and if you are unable to hire an attorney, you have the right to have an attorney appointed if you cannot
afford one. Miranda v. Arizona, 384 U.S. 436, 444 (1966). These warnings largely overlap with those
required by the Texas Code of Criminal Procedure, article 38.22, section 2(a), except that section 2(a)
includes an additional warning that the accused “has the right to terminate the interview at any time[.]”
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West 2005).

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       In determining whether an individual was in custody, the ultimate inquiry is

whether there was a formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest. Rodriguez v. State, 191 S.W.3d 428, 440 (Tex. App.—

Corpus Christi 2006, pet. ref’d); see Herrera, 241 S.W.3d at 525. The determination

depends on the objective circumstances, not on the subjective views of either the

interrogating officers or the person being questioned. Rodriguez, 191 S.W.3d at 440.

Moreover, the determination is made on an ad hoc basis. Id. at 440–41. At trial, the

defendant bears the initial burden of proving that a statement was the product of

custodial interrogation. Herrera, 241 S.W.3d at 526.

       Four general situations may constitute custody for purposes of Miranda and

article 38.22: (1) the suspect is physically deprived of his freedom of action in any

significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3)

law enforcement officers create a situation that would lead a reasonable person to

believe that his freedom of movement has been significantly restricted; or (4) there is

probable cause to arrest the suspect, and law enforcement officers do not tell the

suspect he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App.

1996); Rodriguez, 191 S.W.3d at 441. In the first, second, and third situations, the

restrictions upon freedom of movement must rise to the degree associated with an

arrest as opposed to an investigative detention.          Dowthitt, 931 S.W.2d at 255;

Rodriguez, 191 S.W.3d at 441.         With regard to the fourth scenario, the officers’

knowledge of probable cause must be manifested to the subject. Dowthitt, 931 S.W.2d

at 255; Rodriguez, 191 S.W.3d at 441. “[T]he question turns on whether, under the




                                             8
facts and circumstances of the case, ‘a reasonable person would have felt that he or

she was not at liberty to terminate the interrogation and leave.’” Ervin v. State, 333

S.W.3d 187, 205 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting Nguyen v.

State, 292 S.W.3d 671, 678 (Tex. Crim. App. 2009)).

         A person held for an investigative detention is not in custody. Campbell v. State,

325 S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no pet.) (citing Dowthitt, 931

S.W.2d at 255). Persons who are temporarily detained pursuant to traffic stops to

investigate drunken driving are not, during the investigation following the stop,

considered as having been taken into custody for purposes of Miranda or article 38.22

warnings.      See Berkemer v. McCarty, 468 U.S. 420, 440, 442 (1984); State v.

Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997); Rodriguez, 191 S.W.3d at

440.     Subsequent events, however, may cause a traffic stop to escalate to a custodial

encounter. Stevenson, 958 S.W.2d at 828. The fact that an appellant becomes the

focus of a DWI investigation does not automatically convert an investigatory detention

into an arrest and custodial interrogation. Rodriguez, 191 S.W.3d at 441. An officer’s

knowledge of probable cause to arrest for a DWI does not automatically establish

custody. Id.

         With these principles in mind, we turn to whether the DVD containing appellant’s

roadside conversation with Officer Allen was admissible under Miranda and article

38.22.

                                       III. DISCUSSION

         Appellant argues that she was in custody when she asked to speak to an

attorney and that, therefore, her subsequent videotaped statements should not have



                                             9
been admitted into evidence. In support of her argument, appellant points to Officer

Allen’s pre-trial testimony that although he did not explicitly tell appellant that she could

not leave the accident scene, “it was clear that she wasn’t going to be allowed to just

walk away.” The State argues that: (1) Officer Allen’s questioning of appellant was an

investigative detention to determine facts regarding the accident; (2) because appellant

was not in custody when she requested an attorney, she was not entitled to the

protections against custodial interrogation; and (3) even if the trial court erred in

admitting State’s Exhibit 1 containing appellant’s roadside statements, any error was

harmless because there was other overwhelming evidence of appellant’s guilt.

       We agree with the State that appellant was not in custody when she requested

an attorney.    A defendant’s Sixth Amendment right to counsel, which provides a

defendant a right to assistance of counsel in a criminal prosecution, is invoked when

formal charges have been filed against him. Griffith v. State, 55 S.W.3d 598, 603 (Tex.

Crim. App. 2001); see U.S. CONST. amend. VI. A person does not become an “accused”

simply because she has been detained by the government with the intention of filing

charges against her. Griffith, 55 S.W.3d at 603–04. In this case, formal adversary

judicial proceedings had not started because the State had not filed any charges

against appellant, and therefore, appellant’s Sixth Amendment right to counsel had not

yet attached. See id. at 604; see also Duke v. State, No. 2-02-290-CR, 2003 Tex. App.

LEXIS 2651, at *5 (Tex. App.—Fort Worth March 27, 2003, no pet.) (mem. op.) (not

designated for publication) (holding that administering blood-alcohol test to appellant

after he had requested, but not received, the advice of counsel did not violate his Sixth

Amendment right to counsel because State had not yet filed charges against him).



                                             10
       A defendant's Fifth Amendment right to counsel, which protects a defendant from

governmental compulsion to be a witness against herself, is invoked when she is

subjected to custodial interrogation.   Griffith, 55 S.W.3d at 602. “[P]olice words or

actions ‘normally attendant to arrest and custody’ do not constitute interrogation.” Id. at

603 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)) (noting that appellant’s

refusal to submit to breathalyzer test did not result from a custodial interrogation).

“Questions normally accompanying the processing of a D.W.I. arrestee do not constitute

interrogation.” Id.

       Officer Allen testified that appellant was initially detained to determine her

involvement in the accident and that he continued to question her to determine whether

she was intoxicated. This case is similar to the circumstances in Lewis v. State and

other cases holding that the roadside questioning of motorists suspected of DWI did not

constitute “custodial interrogation” subject to Miranda warnings. 72 S.W.3d 704, 713

(Tex. App.—Fort Worth 2002, pet. ref’d).         In Lewis, a police officer investigating a

vehicular collision questioned the driver of one of the vehicles about the accident, and

noticed that he smelled of alcohol and had bloodshot and glassy eyes. See id. at 706.

In response to the officer’s question, the appellant stated that he had consumed about

five beers. See id. The Lewis court held that the trial court did not err in admitting the

statement because appellant was not in custody when he made the statement. See id.

at 713; see also Stevenson, 958 S.W.2d at 829 (holding that accident investigation that

became DWI investigation, including questioning and field-sobriety tests, did not rise to

level of custodial interrogation); Hutto v. State, 977 S.W.2d 855, 858 (Tex. App.—

Houston [14th Dist. 1998, no pet.) (concluding, in investigation of one-car accident, that



                                            11
the appellant’s roadside statements to officer that he was driving truck and had four

beers were admissible because appellant was not in custody under Miranda); see also

Hines v. State, No. 04-11-577, 2012 Tex. App. LEXIS 7233, at *13 (Tex. App.—San

Antonio August 29, 2012, pet. ref’d) (op.) (designated for publication) (holding that

appellant’s statements to officer during accident investigation that became a DWI

investigation were admissible because appellant was not in custody).

      We hold that appellant did not meet her burden to establish that she was in

custody. Thus, the trial court did not abuse its discretion in denying appellant’s motion

to suppress. We overrule appellant’s sole issue.

                                  IV. CORRECTED JUDGMENT

      We note that the judgment, signed by the trial court on December 15, 2011,

inaccurately states that appellant pleaded guilty and waived a jury trial. On October 15,

2012, this Court received a supplemental clerk’s record containing a nunc pro tunc

judgment signed by the trial court on October 10, 2012. The nunc pro tunc judgment

correctly states that appellant pleaded not guilty and a jury found her guilty of DWI, a

class B misdemeanor offense. However, the nunc pro tunc judgment incorrectly states

that the jury assessed appellant’s punishment at 180 days’ confinement in county jail

and a $500 fine plus costs.

      The reporter’s record of the December 15, 2011 sentencing hearing reflects that

punishment was assessed by the trial court—not the jury. At the conclusion of the

hearing, the trial court: (1) imposed a sentence of 180 days’ confinement in county jail,

but suspended the sentence and placed appellant on community supervision for two

years; (2) assessed a $500 fine plus court costs; (3) ordered one hundred hours of



                                           12
community service as a condition of community supervision, to be completed in ten

months; (4) ordered appellant to complete DWI school within 180 days; (5) ordered

restitution in the amount of $800 payable to Sheri Patton; and (6) ordered appellant to

serve ten days in county jail as a condition of her community supervision.

      “A trial court’s pronouncement of sentence is oral, while the judgment, including

the sentence assessed, is merely the written declaration and embodiment of that oral

pronouncement.”    Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

“When the oral pronouncement of sentence and the written judgment vary, the oral

pronouncement controls.” Id. Accordingly, we modify the nunc pro tunc judgment to

accurately reflect the record. The rules of appellate procedure provide that an appellate

court may modify the trial court’s judgment and affirm it as modified. TEX. R. APP. P.

43.2(b); see Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986) (holding that

when an appellate court has the necessary data and evidence before it for modification,

the judgment and sentence may be modified on appeal).

                                        V. CONCLUSION

      We affirm, as modified, the trial court’s nunc pro tunc judgment.



                                                ________________________
                                                DORI CONTRERAS GARZA
                                                Justice

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

Delivered and filed the
29th day of November, 2012.




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