                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00411-CR

                                    Dominique Paul GRAHAM,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                   From the County Court at Law No. 2, Guadalupe County, Texas
                                  Trial Court No. CCL-11-1291
                             Honorable Frank Follis, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 17, 2013

AFFIRMED

           This is an appeal from the trial court’s denial of a motion to suppress in a DWI case.

After the trial court denied the motion, Appellant Dominique Paul Graham pled guilty and was

sentenced to five days in jail, $1000.00 fine and court costs. On appeal, he argues that the trial

court erred in denying his motion to suppress. We affirm the trial court’s judgment.

           At the hearing on the motion to suppress, Department of Public Safety Patrolman

Rudolph Williams testified that at 2:30 a.m. on March 7, 2011, he was on routine patrol in

Guadalupe County when he noticed a vehicle stopped forty to fifty feet before a stop sign in the
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middle of the roadway. After he passed the vehicle, he saw in his rearview mirror that the driver

made a wide right turn. Patrolman Williams testified that he then turned around to try to catch up

with the vehicle. As he was doing so, Patrolman Williams saw the vehicle weaving from lane to

lane and then turn into a subdivision. According to Patrolman Williams, after the vehicle turned

into the subdivision, it almost struck a car parked on the left side of the roadway. The vehicle

then turned into a driveway.

       The driver of the vehicle, whom Patrolman Williams identified as Appellant Graham,

stepped out of his car and immediately raised his hands up. Patrolman Williams testified that he

then asked Graham to step to the sidewalk. Patrolman Williams asked Graham where he was

coming from, and Graham responded he was coming from a friend’s house after having attended

a Spurs game. Patrolman Williams testified that Graham’s eyes were glassy and that Graham

appeared unstable. Patrolman Williams asked Graham if he had been drinking, to which Graham

replied that he had. Patrolman Williams then asked if Graham was in okay condition to drive,

and Graham said he was not. Graham produced his driver’s license, and Patrolman Williams

returned to his patrol car to verify the information on the license. Patrolman Williams then

initiated the field sobriety tests, and according to Williams, during the field sobriety tests,

Graham exhibited signs of intoxication.

       Patrolman Williams testified that during the time that he was asking Graham questions

and performing the field sobriety tests, he had legally detained Graham for an investigation of a

lawful traffic stop. Patrolman Williams testified that Graham was not free to leave until the

investigation was completed. Patrolman Williams also testified that according to Department of

Public Safety procedure, Miranda warnings are required only if someone is under arrest. And,

according to Patrolman Williams, it was only after he administered the sobriety tests that he

placed Graham under arrest.
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       Graham argues that he was under arrest at the time Patrolman Williams began asking him

questions. Thus, according to Graham, the trial court abused its discretion in denying his motion

to suppress because Patrolman Williams did not give the Miranda warnings before interrogating

him. The State, on the other hand, argues that Graham was not in custody but instead was the

subject of an investigative detention. And, as Graham was detained pursuant to an investigative

detention, Patrolman Williams was not required to administer the Miranda warnings. Thus, the

issue in this appeal turns on whether Graham was under investigative detention or under arrest.

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review, giving almost total deference to a trial court’s determination of historical facts and

reviewing de novo the court’s application of the law. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). Further, when the trial court does not make explicit findings of

historical fact, we review the evidence in a light most favorable to the trial court’s ruling. Id. at

327–28.

       The need for Miranda warnings arises when a person is subjected to a custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 444 (1966). And, article 38.22 of the Texas

Code of Criminal Procedure generally precludes the use of statements that result from custodial

interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).

       There are three distinct categories of interactions between police officers and citizens: (1)

encounters; (2) investigative detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.

Crim. App. 2002). In an encounter, no level of suspicion is necessary because citizens are under

no compulsion to remain. Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.—Houston [14th Dist.]

2003, no pet.). In an investigative detention, the citizen is not free to leave, at least for some

period of time. Id. Thus, the officer must have specific articulable facts that, in light of his

experience and personal knowledge, together with inference from those facts, would reasonably
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warrant the intrusion on the freedom of the citizen stopped. Id. That is, there must be a

reasonable suspicion by the officer that some unusual activity is or has occurred, that the

detained person is connected with the activity, and that the unusual activity is related to the

commission of a crime. Id. The third interaction, an arrest, occurs when a citizen has been

actually placed under restraint or taken into custody by an officer or person executing a warrant

of arrest, or by an officer or person arresting without a warrant. TEX. CODE CRIM. PROC. ANN.

art. 15.22 (West 2005); see Gaines, 99 S.W.3d at 666.

       If a citizen is questioned while in custody without first being warned of his Miranda

rights and without voluntarily waiving those rights, then any evidence obtained as a result of that

questioning is inadmissible at trial. See Miranda, 384 U.S. at 479; Hernandez v. State, 107

S.W.3d 41, 47 (Tex. App.—San Antonio 2003, pet. ref’d). Thus, when considering admissibility

of evidence, the Miranda protections apply only when an individual is in custody. Miranda, 384

U.S. at 479; Hernandez, 107 S.W.3d at 47. And, 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 formal arrest. Berkemer v. McCarty, 468 U.S. 420, 442 (1984).

       Being in custody is distinguishable from being held as part of a temporary investigative

detention. Hernandez, 107 S.W.3d at 47. While both are “seizures,” a temporary investigative

detention does not by itself give rise to custody for Miranda purposes. Berkemer, 468 U.S. at

440. A traffic stop is similar to an investigative detention or “Terry” stop, but may escalate into a

custodial interrogation depending on subsequent events. Id. And, generally, a DWI investigation

that includes questioning and field-sobriety tests does not, without more, rise to the level of a

custodial interrogation. See Berkemer, 468 U.S. at 440–41; State v. Stevenson, 958 S.W.2d 824,

828–29 (Tex. Crim. App. 1997).



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       Reviewing the evidence in the light most favorable to the trial court’s ruling, we note that

in this case, Patrolman Williams stopped Graham for traffic violations. Patrolman Williams

observed signs of intoxication and questioned Graham about his drinking and driving. Patrolman

Williams administered field sobriety tests. These facts as testified to by Patrolman Williams

amounted to an investigative detention and did not rise to the level of an arrest until Patrolman

Williams told Graham he was arresting Graham and placed Graham in handcuffs. Up until that

point, Graham was the subject of an investigative detention, and Miranda warnings were not

required. See Berkemer, 468 U.S. at 440–41 (holding that persons temporarily detained pursuant

to traffic stop are not “in custody” for purposes of Miranda); Stevenson, 985 S.W.2d at 828–29

(holding that defendant’s admission he was driver of car involved in accident was not result of

custodial interrogation, regardless of fact he had become focus of an investigation); Hernandez,

107 S.W.3d at 48 (holding that where officer stopped defendant for brief questioning and field

sobriety tests, defendant’s response to questioning that he had drunk nine beers was result of

investigative detention); Vrba v. State, 69 S.W.3d 713, 723–24 (Tex. App.—Waco 2002, no pet.)

(holding that defendant was not in custody when officer asked him if had been drinking and

asked him to perform field sobriety tests).

       Accordingly, we hold the trial court did not err in denying Graham’s motion to suppress

and affirm the trial court’s judgment.


                                                 Karen Angelini, Justice

Do not publish




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