                                    NO. 07-05-0334-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                 SEPTEMBER 28, 2007
                           ______________________________

                         RUBEN PINA LOVINGTON, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

                 FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

            NO. 05-2745; HONORABLE CARTER T. SCHILDKNECHT, JUDGE
                         _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                 MEMORANDUM OPINION


       Through four issues, appellant Ruben Pina Lovington appeals his conviction for

driving while intoxicated, enhanced. In his first and second issues, appellant asserts the

trial court erred by admitting a videotape depicting his conduct and an utterance he made

while sitting alone in a patrol car, before he received the admonitions required by Miranda1

and article 38.22 of the Texas Code of Criminal Procedure. By his third and fourth issues,

appellant contends the evidence was legally and factually insufficient to establish



       1
           Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
reasonable suspicion for the stop of his motor vehicle by law enforcement. Finding

appellant’s utterance and conduct were not subject to constitutional and statutory warnings

because they were voluntary and not the subject of interrogation, and finding the question

of reasonable suspicion to detain is not subject to a factual and legal sufficiency review,

we affirm.


                                        Background


       Texas Department of Public Safety Trooper Joel Calloway was on routine vehicle

patrol near Tahoka about 4:30 on the afternoon of appellant’s arrest when he observed

appellant operating a vehicle with an expired registration sticker. He turned his patrol car

and followed appellant’s vehicle, signaling him to pull over, but appellant turned onto a dirt

county road before finally stopping.


       At appellant’s vehicle, Trooper Calloway noticed a strong odor of alcohol and

observed beer cans and open containers inside the vehicle. Appellant was not able to

produce a driver’s license or proof of insurance.


       Appellant initially told the trooper he was going home but then admitted he lived in

Lubbock and turned on the county road to avoid a traffic stop. Appellant stated he had

consumed an alcoholic beverage. During the discussion that followed, the quantity,

according to appellant, ranged from two beers to “two quarts.”


       Trooper Calloway administered the horizontal gaze nystagmus field sobriety test and

observed six clues. Appellant refused to participate in any other field sobriety tests.


                                              2
Calloway then arrested appellant for driving while intoxicated. Calloway’s patrol car

camera recorded the field test and his related contact with appellant.


       The case was tried to a jury and Trooper Calloway was the lone witness. During his

testimony, the State played a portion of his videotaped encounter with appellant. The jury

convicted appellant of driving while intoxicated, enhanced to a felony by two prior

convictions. The court sentenced appellant to sixty years confinement in the Institutional

Division of the Texas Department of Criminal Justice. Appellant timely perfected his

appeal.


                           Appellant’s First and Second Issues


       We discuss appellant’s first and second issues jointly. Appellant contends the court

abused its discretion by admitting portions of the video recording from the patrol car made

before he received the statutory and Miranda warnings.2


       We review the trial court’s admission of evidence under an abuse of discretion

standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We must

uphold the trial court's ruling if the admission of the evidence was within the zone of



       2
         In one sentence under his first issue, appellant argues the portion of the videotape
in question was not relevant. Appellant’s brief does not frame the contention as an issue
nor does it present supporting record citations and authorities. Therefore, the question is
not properly before us. Tex. R. App. P. 38.1(h). But even were the issue raised in this
Court, the videotape evidence of appellant’s demeanor and speech would be relevant. In
a trial for driving while intoxicated, evidence may include relevant photographs or
videotapes. See Tex. R. Evid. 401 and 1001; Griffith v. State, 55 S.W.3d 598, 601
(Tex.Crim.App. 2001) (audio portions of videotape circumstantially relevant because any
signs of impairment in speech are relevant to definition of intoxication).

                                             3
reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 390

(Tex.Crim.App. 1990, op. on reh'g)).


       The camera in Trooper Calloway’s patrol car recorded portions of his roadside

encounter with appellant. In a preliminary hearing, the court observed the videotape before

ruling certain questions by the trooper and responses of appellant, made after appellant

was placed under arrest, were inadmissible because they were not preceded by the

constitutional and statutory warnings. It excluded the portion of the videotape depicting

these events. Appellant’s complaint arises from the State’s presentation to the jury of

excerpts of other recorded events occurring after his arrest. In the contested video

segment, appellant appears handcuffed and apparently alone in the patrol car. Following

momentary inactivity, he uses his foot to increase the volume of the patrol car’s radio.

Appellant is silent for a time, apparently listening to music from the radio, before suddenly

yelling, “That’s right. Slam it, bitch.”3


       As we interpret appellant’s admissibility argument, he contends once custody

attaches, triggering entitlement to constitutional and statutory admonitions before

interrogation, all utterances and non-verbal expressions of a suspect that follow, until the

warnings are given, are properly excluded from evidence. We disagree.


       The United States Constitution provides that evidence obtained as a result of a

custodial interrogation is inadmissible unless the State proves the officer gave proper


       3
         Having reviewed the videotape, we find a portion of appellant’s utterance inaudible.
However, in its brief the State agrees these were appellant’s words, and we accept the
parties’ version of this fact.

                                             4
warnings and shows an affirmative waiver of rights by the accused. Miranda v. Arizona,

384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Ancira v. State, 516 S.W.2d

924, 926 (Tex.Crim.App. 1974). The Texas codification of the Miranda warnings is art.

38.22. Lemmons v. State, 75 S.W.3d 513, 519 (Tex.App.–San Antonio 2002, pet. ref’d).


      Custodial interrogation is questioning initiated by law enforcement officers after a

person is taken into custody or otherwise deprived his or her freedom of action in any

significant manner. Miranda, 384 U.S. at 444; Ruth v. State, 645 S.W.2d 432, 435

(Tex.Crim.App. 1979). Custodial interrogation includes express questioning of a suspect

as well as words or actions by police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response. Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990), quoting Rhode

Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). For the

sake of this discussion, it is important to note Miranda did not hold that all statements

obtained by police should be considered the product of interrogation. Rather, as the Court

explained:


      In dealing with statements obtained through interrogation, we do not purport
      to find all confessions inadmissible. Confessions remain a proper element
      in law enforcement. Any statement given freely and voluntarily without any
      compelling influences is, of course, admissible in evidence. The fundamental
      import of the privilege while an individual is in custody is not whether he is
      allowed to talk to the police without benefit of warnings and counsel, but
      whether he can be interrogated. There is no requirement that police stop a
      person who enters a police station and states that he wishes to confess to
      a crime, or a person who calls the police to offer a confession or any other
      statement he desires to make. Volunteered statements of any kind are not
      barred by the Fifth Amendment and their admissibility is not affected by our
      holding today.


                                            5
Miranda, 384 U.S. at 478 (footnote omitted) (emphasis supplied).


       In like manner, art. 38.22 applies only to statements made as the result of custodial

interrogation. See art. 38.22, § 5 ("Nothing in this article precludes the admission of a

statement made by the accused . . . that does not stem from custodial interrogation. . . .").


       Thus, the questioned evidence is not subject to exclusion simply because appellant

was in custody at the time.        The evidence must also have been the product of

interrogation. When appellant used his foot to adjust the patrol car radio and yelled, he

was alone in the vehicle. Under the facts presented here, the trooper did not take an

action reasonably likely to elicit an incriminating response by leaving appellant alone in the

patrol car for a few minutes. Appellant was not subjected to custodial interrogation at the

time of the events in question. The trial court did not abuse its discretion by admitting the

portion of the videotape in question.


       Appellant’s first and second issues are overruled.


                           Appellant’s Third and Fourth Issues


       In his third and fourth issues, appellant complains that the evidence was legally or

factually insufficient to establish that Trooper Calloway possessed reasonable suspicion

to stop appellant.


       A criminal defendant is entitled to a legal and factual sufficiency review of the

evidence supporting the elements of the offense. Geesa v. State, 820 S.W.2d 154, 159



                                              6
(Tex.Crim.App. 1991); Hanks v. State, 104 S.W.3d 695, 703 (Tex. App.–El Paso 2003),

aff’d, 137 S.W.3d 668 (Tex.Crim.App. 2004). But here the trooper’s reasonable suspicion

to effect the stop of appellant was not part of the State’s burden of proof.4 Nor can we see

that an issue relating to the propriety of the trooper’s stop of appellant was otherwise

preserved for review. See Tex. R. App. P. 33.1. Therefore, appellant’s issues three and

four present nothing for our consideration, and are overruled.


                                        Conclusion


       Having overruled appellant’s four issues, we affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice




Do not publish.




       4
         It was for the State to prove beyond a reasonable doubt and persuade the jury that
appellant was intoxicated while operating a motor vehicle in a public place and, for
enhancement, that he had two prior driving while intoxicated convictions. Tex. Pen. Code
Ann. § 49.04(a); 49.09(b). Appellant stipulated to the two prior convictions of driving while
intoxicated.

                                             7
