                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-17-00029-CR

                                        Andre J. CHAMPAGNE,
                                                Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR8175
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: January 17, 2018

AFFIRMED

           A jury found Andre Champagne guilty of the offense of driving while intoxicated. The trial

court assessed punishment at three years’ imprisonment and a $1,500 fine. In a single issue on

appeal, Champagne contends the trial court erred by admitting a video recording of his statements

to a police officer in violation of his right to remain silent. We affirm the trial court’s judgment.

                                            BACKGROUND

           On November 26, 2014 San Antonio Police Department (SAPD) Officer Senovio Elizondo

responded to a call regarding a two-vehicle collision. Upon arriving at the scene of the collision,
                                                                                  04-17-00029-CR


Officer Elizondo learned one of the vehicles involved in the collision fled the scene. While

searching for the fleeing vehicle, Officer Elizondo saw an oil trail on the roadway. Officer

Elizondo followed the oil trail, which led him to a parking lot where he encountered a damaged

pickup truck driving slowly through the lot. Upon stopping the truck, Champagne, the driver of

the pickup truck, immediately exited the pickup truck and put his hands up. Officer Elizondo

handcuffed Champagne and placed him in the back seat of the patrol car. Officer Elizondo then

requested the DWI unit to respond to the scene to perform DWI testing on Champagne. According

to Officer Elizondo, he did not arrest Champagne, but merely detained him until the DWI unit

arrived.

       Officer Rivas of the SAPD DWI unit responded to Officer Elizondo’s call for DWI

assistance. Upon arrival, Officer Rivas removed Champagne’s handcuffs and informed him he was

not under arrest, but was only detained for investigation. Officer Rivas advised Champagne of his

rights and interviewed him for several minutes. Ultimately, Officer Rivas arrested Champagne for

driving while intoxicated.

       During the jury trial, the trial court admitted the dashboard camera video from Officer

Rivas’s patrol car over Champagne’s objection. The jury found Champagne guilty of the offense

of driving while intoxicated. This appeal followed.

                                           ANALYSIS

       Champagne contends the trial court erred by admitting Officer Rivas’s dashboard camera

video into evidence. Champagne argues he was in custody from the time Officer Elizondo

handcuffed him and placed him in the back of the patrol car, and that he remained in custody when

Officer Rivas arrived, removed the handcuffs, and interviewed him. Champagne argues that during

the interview, he unequivocally invoked his right to remain silent. Champagne further argues that

by continuing to question him, Officer Rivas violated Champagne’s constitutional right to remain
                                               -2-
                                                                                       04-17-00029-CR


silent, and thus the video recording of Champagne’s responses and refusals to submit to the field

sobriety tests was inadmissible at trial.

                                        Standard of Review

       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not

abuse its discretion unless its ruling lies outside the zone of reasonable disagreement. Id. The trial

court’s ruling admitting or excluding evidence will be upheld if it is reasonably supported by the

record and is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d

410, 418 (Tex. Crim. App. 2008).

                                      Custodial Interrogation

       For a statement obtained during a custodial interrogation to be admissible against a suspect,

the United States Constitution requires the suspect be warned by police that “he has the right to

remain silent, that any statement he does make may be used against him, and that he has the right

to the presence of an attorney.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). Texas law

additionally requires that police inform the suspect he has the right to terminate the interview at

any time. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2016); Williams v. State, 257

S.W.3d 426, 432 (Tex. App.—Austin 2008, pet. ref’d) (“The right to terminate questioning is

among the procedural safeguards that Miranda establishes” to protect the Fifth Amendment right

to remain silent.). This right requires police officers to immediately terminate questioning when a

suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent.” Ramos, 245 S.W.3d at 418 (quoting Miranda, 384 U.S. at 473–74). If a statement

is governed by Miranda, i.e., the statement is made while a suspect is in custody, the “failure to

cut off questioning after a suspect invokes his right to remain silent violates his rights and renders



                                                 -3-
                                                                                       04-17-00029-CR


any subsequently obtained statements inadmissible.” Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.

Crim. App. 1996).

       To preclude a statement from being used against him at trial, a defendant bears the initial

burden of proving the subject statement was the product of custodial interrogation. Gardner v.

State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). Thus, we must first address whether

Champagne was in custody during Officer Rivas’s questioning. See id.

                                              Custody

       In evaluating whether an individual was in custody, we must determine whether, given the

circumstances surrounding the interrogation, a reasonable person would have perceived detention

by law enforcement officers to be a restraint on his movement comparable to the restraint of formal

arrest. Thompson v. Keohane, 516 U.S. 99, 112 (1995). An assessment of whether a suspect has

been detained to the degree associated with arrest is made on a case-by-case basis. Dowthitt, 931

S.W.2d at 255.

       The Court of Criminal Appeals describes “at least four general situations that may

constitute custody:”

       (1) when the suspect is physically deprived of his freedom in any significant way,
       (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law
       enforcement officers create a situation that would lead a reasonable person to
       believe that his freedom of movement has been significantly restricted, and (4)
       when there is probable cause to arrest and law enforcement officers do not tell the
       suspect he is free to leave.

State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (quoting Dowthitt, 931 S.W.2d at

255). “The first three situations require that the restriction on a suspect’s freedom of movement

must reach ‘the degree associated with an arrest’ instead of an investigative detention.” Id. (quoting

Dowthitt, 931 S.W.2d at 255). Although the fourth situation requires that an officer’s knowledge

of probable cause be manifested to the suspect, custody is not established unless that manifestation


                                                 -4-
                                                                                         04-17-00029-CR


of probable cause combined with other circumstances, such as duration or factors relating to the

exercise of police control over the suspect, would lead a reasonable person to believe that he is

under restraint to the degree associated with an arrest. Id.

                In evaluating whether a reasonable person would believe his freedom has
        been restrained to the degree of formal arrest, [we] look[] only to the objective
        factors surrounding the detention. The subjective beliefs of the detaining officer are
        not included in the calculation of whether a suspect is in custody. But if the officer
        manifests his belief to the detainee that he is a suspect, then that officer’s subjective
        belief becomes relevant to the determination of whether a reasonable person in the
        detainee’s position would believe he is in custody. Conversely, any undisclosed
        subjective belief of the suspect that he is guilty of an offense should not be taken
        into consideration—the reasonable person standard presupposes an “innocent
        person.”

State v. Ortiz, 382 S.W.3d 367, 372–73 (Tex. Crim. App. 2012) (references omitted).

        On the other hand, a person held for investigative detention is not in “custody.” Dowthitt,

931 S.W.2d at 255. An investigative detention involves detaining a person reasonably suspected

of criminal activity in order to determine his identity or to momentarily maintain the status quo in

order to garner more information. Terry v. Ohio, 392 U.S. 1, 20–21 (1968). This sort of “Terry

stop” must be a temporary detention, must last no longer than necessary to effectuate the purpose

of the stop, must involve actual investigation, and must use the least intrusive means possible. See

Davis v. State, 947 S.W.2d 240, 244–45 (Tex. Crim. App. 1997) (holding that detention may

continue only so long as “articulable facts” support reasonable suspicion that suspect was engaged

in criminal activity).

        There is no bright-line rule establishing a person who is handcuffed is per se in custody.

Matter of S.C., 523 S.W.3d 279, 283 (Tex. App.—San Antonio 2017, pet. denied). Handcuffing

for purposes of an investigative detention—including investigation, maintenance of the status quo,

and officer safety—does not necessarily give rise to a custodial interrogation. Id. A suspect who

is temporarily handcuffed and placed in the back of a patrol car for purposes of an investigatory


                                                  -5-
                                                                                          04-17-00029-CR


detention is not necessarily in custody, particularly when the officer tells the suspect he is not

under arrest. Id. If an officer tells an individual he is not under arrest, this is the “[m]ost important”

circumstance offsetting physical restraint in determining whether the individual is in custody under

Miranda. Id. (quoting Howes v. Fields, 565 U.S. 499, 515–16 (2012)).

                                              Discussion

          During the jury trial, the state presented the testimony of SAPD Officers Senovio Elizondo

and Steven Rivas. The state also introduced into evidence the dashboard camera video from both

Officer Elizondo’s patrol car and Officer Rivas’s patrol car. The videos were played during the

officers’ testimony.

          The video from Officer Elizondo’s dashboard camera shows Officer Elizondo followed an

oil trail from the scene of an accident to a parking lot, where he encountered Champagne driving

slowly through the lot. Officer Elizondo was the only officer at the scene when he encountered

Champagne in the parking lot. Upon stopping, Champagne immediately exited the pickup truck

without any prompting by Officer Elizondo. Officer Elizondo testified he told Champagne he

handcuffed him and placed Champagne in the patrol car for both his and the officer’s safety.

Officer Elizondo kept Champagne in the back of the patrol car while waiting for the DWI unit to

arrive.

          When Officer Rivas arrived, he removed Champagne’s handcuffs. The video from Officer

Rivas’s dashboard camera shows that after removing Champagne’s handcuffs, Officer Rivas told

Champagne, “Right now you’re not under arrest … right now you’re just being detained, okay?

You are under investigation.” Officer Rivas then advised Champagne of his rights and interviewed

him. Champagne contends that during the interview, he invoked his right to remain silent when,

after Officer Rivas asked him what happened to him that night, Champagne responded, “You

know, I just thought I had the right to remain silent.” Officer Rivas continued questioning
                                                   -6-
                                                                                         04-17-00029-CR


Champagne, who denied he had been drinking and refused to perform any of the field sobriety

tests requested by Officer Rivas. Officer Rivas testified he arrested Champagne for driving while

intoxicated based on the totality of the circumstances, including Champagne’s bloodshot eyes, the

strong odor of intoxicants on his breath, his slurred speech, and his lack of balance.

       The record in this case indicates Champagne was not in custody during the time he was

handcuffed in Officer Elizondo’s patrol car or being questioned by Officer Rivas. Rather, he was

merely detained for officer safety and investigatory purposes. Although the officers in this case

physically deprived Champagne of his freedom of movement and Officer Elizondo acknowledged

Champagne was not free to leave while he was handcuffed in the patrol car, an officer may

handcuff a suspect to detain him for purposes of officer safety and to preserve the status quo.

Matter of S.C., 523 S.W.3d at 284. Officer Elizondo testified he told Champagne he handcuffed

Champagne for both his and the officer’s safety. At the time, Officer Elizondo was the only officer

on the scene and Champagne, upon stopping, immediately exited the pickup truck without any

prompting by Officer Elizondo. See Rhodes v. State, 913 S.W.2d 242, 247 (Tex. App.—Fort Worth

1995), aff’d, 945 S.W.2d 117–18 (Tex. Crim. App. 1997) (holding defendant was merely detained

where officer testified he handcuffed defendant primarily out of concern for officer safety and

officer was alone with the defendant in the dark). Further, handcuffing Champagne preserved the

status quo, i.e., prevented Champagne from attempting to leave the scene while they waited on the

DWI unit to arrive. Notably, once the second officer arrived on the scene, the handcuffs were

removed from Champagne.

       Moreover, courts have held that an important factor in determining whether a defendant is

in custody is whether an officer tells the suspect he is not under arrest and only being detained.

See Matter of S.C., 523 S.W.3d at 284. (holding defendant was merely detained for investigative

purposes when officers handcuffed him and placed him in the back of patrol car, but told him he
                                                -7-
                                                                                      04-17-00029-CR


was not arrested and only being detained). In this case, Officer Rivas explained to Champagne he

was not under arrest, but was being detained for an investigation. Furthermore, probable cause to

arrest Champagne for driving while intoxicated did not arise until after the interview, during which

Officer Rivas observed Champagne’s bloodshot eyes, the strong odor of intoxicants on his breath,

his slurred speech, and his lack of balance.

        This case is factually analogous to Hauer v. State, where our sister court held the defendant

was merely detained for investigative purposes where an officer was the only officer on the scene,

handcuffed the defendant, and placed him in the back seat of the patrol car for thirty minutes while

waiting on another officer to arrive to conduct a DWI investigation. Hauer v. State, 466 S.W.3d

886, 891–92 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Likewise, in this case Officer

Elizondo was alone at the scene, handcuffed Champagne, and placed him in the patrol car while

waiting on the DWI unit to arrive to conduct an investigation. Thus, Champagne was not under

arrest while he was handcuffed in Officer Elizondo’s patrol car or being questioned by Officer

Rivas. Rather, he was merely detained for purposes of investigation and officer safety. See id.; See

also Hernandez v. State, 107 S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d)

(holding defendant was merely detained for investigation while officer administered three field

sobriety tests prior to full custodial arrest).

        On the facts of this case, Champagne was not in custody for Miranda purposes until Officer

Rivas formally arrested him after Champagne refused to perform any field sobriety tests. See

Hernandez, 107 S.W.3d at 48. Although Officer Rivas advised Champagne of his rights prior to

questioning him, doing so does not conclusively establish that Champagne was under arrest or in

custody. See Lopez v. State, 314 S.W.3d 54, 59 (Tex. App.—San Antonio 2010, pet. ref’d).

        Based on the evidence, we conclude the temporary restriction on Champagne’s freedom of

movement did not rise to the degree associated with an arrest and would not lead a reasonable
                                                  -8-
                                                                                      04-17-00029-CR


person to believe that he was under arrest. See Matter of S.C., 523 S.W.3d at 284. Because

Champagne was not in custody, the video relating his responses to Officer Rivas’s questions and

his refusals to submit to field sobriety tests was admissible at trial. See Hernandez, 107 S.W.3d at

48.

       Defendant did not meet his initial burden of proving his statements to Officer Rivas were

the product of custodial interrogation. See Gardner, 306 S.W.3d at 294. Having determined

Champagne was not in custody at the time of the subject statements, we need not address his

contention Officer Rivas violated his right to remain silent by failing to cut off questioning.

       Accordingly, the trial court did not abuse its discretion by admitting into evidence Officer

Rivas’s dashboard camera video. We overrule Champagne’s sole issue on appeal.

                                           CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.

                                                  Irene Rios, Justice

DO NOT PUBLISH




                                                -9-
