                          NUMBER 13-11-00328-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                            v.

CLINT SAENZ,                                                                 Appellee.


                     On appeal from the 28th District Court
                          of Nueces County, Texas.


                DISSENTING MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
        Dissenting Memorandum Opinion by Justice Rose Vela

       The State appeals from a trial court order suppressing the oral statements of the

defendant, Clint Saenz, after he was indicted for third-offense driving while intoxicated. I

would reverse and remand to the trial court.
        I would hold that the record conclusively established both that Officer Bintliff had

reasonable suspicion to detain Saenz at the time he originally stopped Saenz and that

Saenz had not been arrested or placed in custody before he made the oral statements to

Officer Sanders.

A. Reasonable Suspicion

        An officer has reasonable suspicion to detain a person if he has specific articulable

facts that, combined with rational inferences from those facts, would lead the officer to

conclude that the person detained is, has been, or soon will be, engaged in criminal

activity.    Derichweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).            In

determining whether an individual was in custody, a court must examine all of the

circumstances surrounding the interrogation, but the ultimate inquiry is simply whether

there [was] a formal arrest or restraint on freedom of movement of the degree associated

with a formal arrest." See Stansbury v. California, 511 U.S. 318, 322 (1994) (internal

quotes omitted); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) ("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.").    An "officer's views concerning the nature of an interrogation, or beliefs

concerning the potential culpability of the individual being questioned, may be one among

many factors that bear upon the assessment whether that individual was in custody, but

only if the officer's views or beliefs were somehow manifested to the individual under

interrogation and would have affected how a reasonable person in that position would

perceive his or her freedom to leave." See Stansbury, 511 U.S. at 325.

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       The record shows that Officer Bintliff was dispatched to the Whataburger just after

2:00 a.m. because of a fight. The tip the officer received regarding the individuals

involved in the fight matched Saenz's and his passenger's descriptions at the scene.

Additionally, it appeared to the officer that Saenz was in the process of operating a

vehicle while intoxicated.   Officer Bintliff noted that the back-up lights were on, the

vehicle Saenz was occupying was improperly parked in two spaces, including a

handicapped parking spot, and Saenz had a confused and dazed look. All of these

factors could lead to reasonable suspicion to stop Saenz for one or more offense,

including DWI.

B. Miranda Warnings

       When a defendant seeks to suppress a statement on the basis of an alleged

Miranda violation, he bears the burden to show that the statement was the product of

custodial interrogation. See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App.

2007); Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005). "In determining

whether an individual was in custody, a court must examine all of the circumstances

surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a

formal arrest or restraint on freedom of movement of the degree associated with a formal

arrest." See Stansbury v. California, 511 U.S. at 322 (internal quotes omitted); Dowthitt

v. State, 931 S.W.2d at 254 ("A person is in custody only if, under the circumstances, a[n

objectively] reasonable person would believe that his freedom of movement was

restrained to the degree associated with a formal arrest.") (internal quotes omitted).

       A person who is stopped only temporarily is not in custody for purposes of

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Miranda. State v Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008). Appellate

courts review the legal determination of detention, reasonable suspicion, and probable

cause under the Fourth Amendment de novo while granting great deference to a trial

court's factual findings. Id. at 286–87. The United States Supreme Court has long held

that an officer has the right to briefly detain and investigate a person when the officer has

a reasonable suspicion that the person is involved in criminal activity. Id. at 287.

       The record shows that Saenz was not free to leave; but he was being temporarily

detained while the officer conducted his investigation. A temporary detention, in which

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

been committed is allowed. Terry v. Ohio, 392 U.S. 1, 21 (1968); Sheppard, 271 S.W.3d

at 287. But a Fourth Amendment Terry detention is not a custodial arrest. Id. at 289.

       Here, the stop began as a temporary detention. While Saenz was placed in the

patrol car, although he was not free to leave, he was not arrested. He was not placed in

handcuffs. Officer Bintliff dispatched the DWI unit shortly after he arrived. The police

report shows only a twelve-minute delay between the time that Officer Bintliff was

dispatched at 2:13 a.m. and Officer Sanders being dispatched at 2:25 a.m. There is

nothing in the record to show that the temporary detention became an arrest prior to

Officer Sanders asking Saenz questions. While Saenz was with Officer Sanders, Bintliff

continued to investigate.     The record showed that Officer Bintliff had reasonable

suspicion to detain Saenz and that Saenz had not been arrested or placed into custody

before he made statements to Officer Sanders. Giving deference to the trial court's fact

findings and applying a de novo standard of review to pure questions of law and mixed

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questions that do not depend on credibility determinations, I would hold that the trial court

erred in granting the motion to suppress. Therefore, I respectfully dissent.




                                                    ROSE VELA
                                                    Justice

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

Delivered and filed the 28th
day of December, 2012.




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