                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-12-00488-CR


                         CAROLINE ELISE LEWIS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Court at Law No. 1
                                    Randall County, Texas
             Trial Court No. 2011-0722-1, Honorable James W. Anderson, Presiding

                                   September 30, 2013

                                        OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Caroline Elise Lewis, appeals her conviction for the offense of driving

while intoxicated,1 and resulting sentence of ninety days incarceration in the Randall

County Jail, suspended for a period of nine months, and $500 fine. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2012).
                             Factual and Procedural Background


       At approximately 3:20 a.m. on September 16, 2011, Canyon police officer Tyler

Smith received a dispatch in reference to a hit-and-run accident. When Smith arrived,

he interviewed an eyewitness to the accident that reported that a small gray SUV

collided with a parked car.


       Approximately thirty minutes after Smith arrived at the scene of the accident, a

tan Suburban pulled up. Appellant‟s fiancé, Mark Glawe, exited the Suburban and

initiated a conversation with Smith. Smith asked Glawe if he was responsible for the

accident and Glawe stated that he was. However, as Smith questioned Glawe about

the accident, Smith became skeptical of Glawe‟s admission.            Eventually, Glawe

disavowed his admission of guilt and informed Smith that it was his girlfriend, appellant,

that had run into the car. Appellant was sitting in the passenger seat of the Suburban

that Glawe had arrived in.


       Smith then approached appellant while she remained seated in the Suburban.

When Smith asked appellant what happened, she began crying hysterically and

admitted that she was the one that had collided with the parked car. During this brief

exchange, Smith detected the odor of alcohol emanating from appellant. In response to

further questioning, appellant admitted that she had “had too much to drink.” At this

point, Smith placed appellant in the back seat of his patrol car.


       Smith did not perform any field sobriety tests at the scene because he felt the

weather was such that performing the tests would not be safe. Smith had another

officer transport appellant to the Randall County Correctional Facility where sobriety

                                             2
tests were performed and a breath test was administered. Prior to placing appellant in

the back seat of the other officer‟s vehicle, Smith handcuffed appellant.


      Appellant was charged with the offense of driving while intoxicated. Prior to trial,

appellant filed a motion to suppress evidence contending, inter alia, that evidence was

acquired after she was illegally detained and arrested. The trial court held a hearing on

appellant‟s motion to suppress. Smith was the only witness to testify at this hearing. At

the conclusion of the hearing, the trial court denied appellant‟s motion.       Appellant

subsequently entered an open plea of nolo contendere while preserving her right to

appeal the denial of her motion to suppress. The trial court accepted appellant‟s plea,

and sentenced appellant to ninety days incarceration in the Randall County Jail,

suspended for nine months, and a $500 fine. Appellant timely appealed.


      By two issues, appellant challenges the trial court‟s denial of her motion to

suppress. By her first issue, she contends that the trial court‟s ruling was erroneous

because appellant was “unlawfully seized” when she was detained at the scene of the

accident, and when she was subsequently arrested. By her second issue, appellant

contends that the trial court‟s ruling was erroneous because appellant was arrested for

driving while intoxicated but no witness ever saw appellant drive. However, because

appellant‟s two issues interrelate, we will address them together.


                                   Standard of Review


      Both of appellant‟s issues challenge the trial court‟s ruling on her motion to

suppress. When reviewing a trial court's decision on a motion to suppress, we apply a

bifurcated standard of review, giving almost total deference to a trial court's

                                            3
determination of historical facts and reviewing the court's application of search and

seizure law de novo. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002);

Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial court is the sole

judge of the credibility of the witnesses and their testimony. Maxwell, 73 S.W.3d at 281.

When, as here, the trial court does not file findings of fact, we view the evidence in the

light most favorable to the trial court's ruling, and assume that the trial court 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) (citing Carmouche

v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000)). If the trial court's decision is

correct under any theory of law applicable to the case, the decision will be sustained.

Id. at 855-56 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990)).


       Appellant bears the initial burden of proving that a warrantless search or seizure

occurred. See Bishop v. State, 85 S.W.3d 819, 822 (Tex.Crim.App. 2002) (en banc).

Once this burden has been met, the burden shifts to the State to show that the search

or seizure was reasonable.         Id.    For purposes of constitutional analysis, both

investigative detentions and arrests are seizures. Johnson v. State, 912 S.W.2d 227,

235 (Tex.Crim.App. 1995). The differences between the two types of seizures are the

degree of intrusion involved and the different legal justifications required. Id.


                                         Confrontation


       A law enforcement officer is permitted to approach a citizen and ask questions

without reasonable suspicion or probable cause. Id. (citing Florida v. Royer, 460 U.S.

491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).           These sorts of consensual


                                              4
confrontations are acceptable so long as a reasonable person would feel free to

disregard the police and go about her business. Id. However, when the citizen yields to

a display of authority under circumstances in which a reasonable person would believe

that she was not free to leave, an investigative detention has occurred. Kelm v. State,

No. 03-07-00047-CR, 2007 Tex. App. LEXIS 8851, at *7 (Tex.App.—Austin Nov. 9,

2007, no pet.) (mem. op., not designated for publication) (citing Johnson, 912 S.W.2d at

236).


        In the present case, Smith had no contact with appellant until after Glawe

fabricated a story about having driven the car that collided with the parked vehicle

followed by his admission that it was appellant that had been driving. At this point,

Smith approached appellant, who remained in the Suburban while Smith asked her

“what had happened.” Under the circumstances, this was a consensual confrontation.

While it is true that Smith testified that appellant was not free to leave at that time,

appellant did not yield to a display of authority.        As a result of Smith‟s question,

appellant “kind of broke down” emotionally and admitted the accident was her fault. At

this time, Smith detected an “odor of alcohol” emanating from appellant. Glawe and

appellant also both admitted that appellant “had too much to drink” prior to the accident.

Each of these specific articulable facts were obtained by Smith during this consensual

confrontation.


                                    Detention or Arrest


        After obtaining the above-identified information, Smith placed appellant in his

patrol car while he finished his investigation of the accident. After another officer arrived


                                              5
at the scene, Smith removed appellant from his patrol car, placed her in hand restraints,

and had the other officer transport appellant to the Randall County Correctional Facility

for sobriety testing. We must first decide whether this seizure of appellant‟s person was

an investigative detention or a custodial arrest because the nature of the seizure

determines the constitutional parameters that apply in determining its legality.     See

Moore v. State, 55 S.W.3d 652, 655 (Tex.App.—San Antonio 2001, no pet.).


      Whether a seizure of a person is an investigative detention or an arrest depends

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

S.W.2d 407, 412 (Tex.Crim.App. 1991).             “An investigative detention, to be

constitutionally valid, may be founded upon a reasonable, articulable suspicion that the

person detained is connected with criminal activity . . . but an arrest, to pass

constitutional muster, must be supported by the greater conclusiveness of probable

cause to believe that a particular person has committed or is committing an offense.”

Id. at 411. “A person is arrested when he has been actually placed under restraint or

taken into custody by an officer . . . .” TEX. CODE CRIM. PROC. ANN. art. 15.22 (West

2005).2 In assessing whether a seizure is an investigative detention or an arrest, 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 v. State, 945 S.W.2d 115, 118 (Tex.Crim.App. 1997). Handcuffing

alone will not necessarily convert a temporary detention into an arrest. See id. at 117-

18. Police may use such force as is reasonably necessary to effectuate the goal of the



      2
        Further reference to provisions of the Texas Code of Criminal Procedure will be
by reference to “article ___” or “art. ___.”

                                            6
detention, whether that be investigation, maintenance of the status quo, or officer

safety. Id. at 117.


       Certain non-exclusive factors that can be used to determine whether a seizure

has elevated into a custodial arrest include: (1) the basis for the encounter; (2) whether

the encounter was consensual; (3) the duration of the encounter; (4) investigative

methods used to confirm suspicions; (5) whether officers informed the suspect that she

was or was not free to leave; (6) whether weapons were displayed or other force was

used; (7) the number and demeanor of officers present at the seizure; (8) the extent of

the suspect‟s restraint; (9) whether the suspect was transported to another location

against her will; and (10) whether the suspect was free to leave. Moore, 55 S.W.3d at

656.


       The State contends that appellant was simply detained until after sobriety tests

were administered and appellant‟s breath was tested because these actions were

investigatory. The State‟s position draws some support under the Moore factors. The

encounter was initiated by Glawe while Smith was investigating a hit-and-run accident.

The encounter between Smith and appellant was consensual. Smith did not display any

weapons or use any force to obtain appellant‟s compliance. There was only one officer

at the scene until a second officer arrived to transport appellant to the Randall County

Correctional Facility for sobriety testing. While appellant was transported to another

location against her will, the reason that she was taken to the Randall County

Correctional Facility was because Smith felt that the weather would prevent him from

performing field sobriety tests on appellant safely. These factors suggest that appellant

was being detained to allow Smith to further investigate whether she had committed the

                                            7
offense of driving while intoxicated through the point when sobriety tests were

administered at the Randall County Correctional Facility.


       However, consideration of the remaining Moore factors leads this Court to

conclude that appellant was placed under arrest before she was transported to the

Randall County Correctional Facility. It appears that the encounter between Smith and

appellant lasted approximately 45 minutes, and that appellant was secured in the back

seat of Smith‟s patrol car for the majority of that time. Smith testified that he requested

another officer to transport appellant to the Randall County Correctional Facility but,

while waiting on this other officer to arrive, Smith was not actually investigating whether

appellant had committed the offense of driving while intoxicated. 3 While Smith did not

inform appellant that she was or was not free to leave, his actions were sufficient to

convey that she was not free to leave. Further, Smith testified that he would not have

allowed appellant to leave had she expressed her desire to do so. Finally, when Smith

removed appellant from the back seat of his patrol car to transfer her to the other

officer‟s car, he placed appellant in handcuffs.         Smith provided no reasonable

explanation as to why he placed appellant in handcuffs at this time. When we consider

the totality of the circumstances, we conclude that appellant was arrested at least by the

time that Smith removed her from his patrol car, placed handcuffs on her, and had her

transported to the Randall County Correctional Facility against her will.




       3
         It appears that Smith was arranging for the parked vehicle that appellant
collided with to be towed during this time.

                                             8
                                   Lawfulness of Arrest


       While we have concluded that appellant was placed under arrest prior to the

administration of sobriety and breath testing, we further conclude that this warrantless

arrest of appellant was authorized by article 14.03(a)(1) of the Texas Code of Criminal

Procedure.4 See art. 14.03(a)(1) (West Supp. 2012).


       Warrantless arrests are authorized only in limited circumstances outlined

primarily in Chapter 14 of the Texas Code of Criminal Procedure. Swain v. State, 181

S.W.3d 359, 366 (Tex.Crim.App. 2005). One of these exceptions, article 14.03(a)(1),

authorizes the warrantless arrest of an individual found in a suspicious place under

circumstances reasonably showing the individual committed a breach of the peace.

See art. 14.03(a)(1). Driving while intoxicated is a breach of the peace. See Miles v.

State, 241 S.W.3d 28, 42 (Tex.Crim.App. 2007) (citing Romo v. State, 577 S.W.2d 251,

252-53 (Tex.Crim.App. 1979)).


       “[T]he test under [a]rticle 14.03(a)(1) is a totality of the circumstances test. First,

probable cause that the defendant committed a crime must be found and second, the

defendant must be found in a „suspicious place.‟” Dyar v. State, 125 S.W.3d 460, 468


       4
         Appellant‟s arguments rely heavily on Kelm, 2007 Tex. App. LEXIS 8851, at
*13-14, and that opinion‟s analysis of whether a warrantless arrest was authorized by
article 14.01(b) in a somewhat similar factual scenario. However, because the trial
court did not enter findings of fact and conclusions of law in this case, we are required
to affirm if the trial court's decision is correct under any theory of law applicable to the
case. Ross, 32 S.W.3d at 855-56. Concluding that the trial court‟s ruling was correct
under article 14.03(a)(1), we need not and do not address appellant‟s argument
regarding the applicability of article 14.01(b) to appellant‟s warrantless arrest. Further,
under article 14.03(a)(1), Smith was not required to see appellant operate a motor
vehicle as a condition to arresting her without a warrant. As such, we need not address
appellant‟s second issue.

                                              9
(Tex.Crim.App. 2003).     Probable cause for a warrantless arrest exists when the

arresting officer possesses reasonably trustworthy information sufficient to warrant a

reasonable belief that an offense has been or is being committed.         See Amador v.

State, 275 S.W.3d 872, 878 (Tex.Crim.App. 2009). We review whether the State has

carried its burden of proving whether probable cause existed de novo. See Paulea v.

State, 278 S.W.3d 861, 865 (Tex.App.—Houston [14th Dist.] 2009, pet. ref‟d).             In

conducting this review, we are to consider the totality of the circumstances surrounding

the arrest. See id.


      In the present case, Smith possessed probable cause to believe that appellant

had committed the offense of driving while intoxicated by the time that appellant was

arrested. The facts upon which probable cause is predicated include Glawe‟s fabricated

story, recantation of that story, and implication of his girlfriend having caused the hit-

and-run accident; appellant‟s admission that she was operating the vehicle that ran into

the parked vehicle; appellant‟s flight from the scene of the accident; Smith‟s detection of

the odor of alcohol emanating from appellant; appellant‟s highly emotional state; and

appellant‟s admission she “had too much to drink.”        Considering the totality of the

circumstances surrounding appellant‟s warrantless arrest, we conclude that Smith

possessed reasonably trustworthy information sufficient to warrant a reasonable belief

that appellant had committed the offense of driving while intoxicated. See Dyar, 125

S.W.3d at 468 (probable cause based on officer being informed that driver in one-car

accident was taken to hospital, officer found appellant at hospital, appellant exhibited

many characteristics of being intoxicated, and appellant admitted to drinking and

driving); Perez v. State, Nos. 10-09-00022-CR through 10-09-00024-CR, 2010 Tex.


                                            10
App. LEXIS 6984, at *5 (Tex.App.—Waco Aug. 25, 2010, no pet.) (mem. op., not

designated for publication) (probable cause of DWI based on appellant‟s performance of

field sobriety tests, and his admission that he had been drinking, driving, and in the

traffic accident); Cribley v. State, No. 04-04-00047-CR, 2005 Tex. App. LEXIS 6078, at

*3 (Tex.App.—San Antonio Aug. 3, 2005, no pet.) (mem. op., not designated for

publication) (probable cause of DWI based on appellant‟s admission of involvement in

auto accident, smell of alcohol on appellant‟s breath, and admission by appellant that

she had consumed about six beers).


      However, for appellant‟s warrantless arrest to be justified under article

14.03(a)(1), the State must also prove that appellant was found in a suspicious place.

See Dyar, 125 S.W.3d at 468. Few places, if any, are inherently suspicious. Id. at 464-

65. The determination of whether a place is suspicious requires a highly fact-specific

analysis. Id. at 468. Any place may become suspicious when an individual at the

location and the accompanying circumstances raise a reasonable belief that the

individual committed a crime and exigent circumstances call for immediate action or

detention by the police. Swain, 181 S.W.3d at 366. A key factor in determining whether

a place is suspicious is how much time has passed between the crime and the

apprehension of the suspect. See Dyar, 125 S.W.3d at 468.


      Based on the facts present in this case, we conclude that the scene of the hit-

and-run accident was a suspicious place. Clearly, the scene of the hit-and-run was the

scene of a crime. When appellant voluntarily returned to the scene, admitted that she

had been driving the vehicle that collided with the parked vehicle, and further admitted

that she had had too much to drink before the accident, Smith could reasonably believe,

                                          11
based on the surrounding circumstances, that appellant had committed the offense of

driving while intoxicated.   See Banda v. State, 317 S.W.3d 903, 912 (Tex.App.—

Houston [14th Dist.] 2010, no pet.). Further, Smith needed to take prompt action to

ascertain appellant‟s blood-alcohol level. See Sandoval v. State, 35 S.W.3d 763, 769

(Tex.App.—El Paso 2000, pet. ref‟d) (“Proving intoxication is an essential element of the

offense [of driving while intoxicated], and testing for alcohol levels is a time-sensitive

matter.”).   The relatively short amount of time elapsed between the collision and

appellant‟s return to the scene—approximately 30 minutes to an hour—also supports

the conclusion that appellant was found in a suspicious place. See Johnson v. State,

722 S.W.2d 417, 419-21 (Tex.Crim.App. 1986) (finding location to be a suspicious place

two hours after murder committed there).


       Because the totality of the circumstances show that Smith possessed probable

cause to believe that appellant had committed the offense of driving while intoxicated,

appellant was found in a suspicious place, and exigent circumstances called for

immediate action by Smith, we conclude that appellant‟s warrantless arrest was justified

under article 14.03(a)(1). See art. 14.03(a)(1); Swain, 181 S.W.3d at 366; Dyar, 125

S.W.3d at 468. Consequently, appellant was lawfully arrested prior to being transported

to the Randall County Correctional Facility for sobriety and breath testing.


                                        Conclusion


       After reviewing the record in the light most favorable to the trial court‟s ruling, we

conclude that the trial court did not err in denying appellant‟s motion to suppress

evidence because it is supported by the evidence and legally correct. See Ross, 32


                                             12
S.W.3d at 855-56. We affirm the judgment of the trial court. See TEX. R. APP. P.

43.2(a).




                                    Mackey K. Hancock
                                        Justice


Publish.




                                       13
