 Affirmed and Memorandum Opinion filed July 7, 2015.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00510-CR


                     WILLIAM MICHAEL DIXON, Appellant

                                         V.

                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 208th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1383453


                        MEMORANDUM OPINION

      We consider two issues in this appeal from a conviction for driving while
intoxicated: (1) whether the trial court abused its discretion by denying a motion to
suppress a recorded statement, and (2) whether the evidence is legally sufficient to
support the conviction. We conclude that the trial court did not abuse its discretion
by denying the motion to suppress, and we further conclude that the evidence is
sufficient. We therefore affirm the trial court’s judgment.
                                BACKGROUND

      The complainant’s car was rear-ended by a truck. The collision did not cause
serious damage to either person or property. When the complainant exited her car,
she saw appellant getting out of the driver’s door of the truck that hit her.
According to the complainant, appellant looked upset, was not walking straight,
and was slurring his speech. The complainant asked appellant if he was drunk, but
appellant ignored her and walked away.

      When an officer arrived, several tow truck drivers were already there, and
they were trying to prevent appellant from leaving the scene of the accident. The
officer saw appellant walk away from the accident and throw a beer bottle into a
ditch. The officer quickly handcuffed appellant and placed him into the back of the
patrol car. The officer did not advise appellant that he was under arrest and he did
not warn appellant of his rights under Miranda.

      A dashboard camera in the officer’s patrol car recorded the officer’s
investigation. As the officer was processing appellant’s background information,
appellant stated that he was “f****d up.” The officer responded, “You’re f****d
up? Then why [were] you driving?” Appellant answered, “Because that bitch got
me f****d up.” After a short pause, appellant continued, “Should have left it in the
garage, man, I don’t know why I was driving.”

      Appellant asked the officer several times if he would be taken to jail, but the
officer responded that he was not sure yet. Appellant recanted his statement, said
that he had not been driving, and pleaded with the officer repeatedly to let him
walk home.

      Appellant waited in the back of the patrol car for about thirty-five minutes
before the officer transported him to a police substation. At the substation, the


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officer administered three field-sobriety tests: the horizontal gaze nystagmus test,
the walk and turn test, and the one-legged stand test. Appellant displayed clues of
intoxication on all three tests.

      Appellant moved to suppress his recorded statement on the grounds that he
was in custody at the time of the statement. In a pretrial hearing, appellant testified
that he was not free to leave after the officer placed him in the patrol car. Appellant
also testified that he could not recall whether the officer had read him his rights.
The trial court denied the motion, and the recorded statement was published to the
jury during the trial on the merits.

      Appellant’s main defensive theory at trial was that he was not the driver. In
support of this theory, appellant called his girlfriend as a defense witness. The
girlfriend testified that appellant was a passenger in the back of the truck and that
another man had been driving at the time of the accident. The girlfriend explained
that she and the other man left appellant at the scene because they wanted to avoid
the police.

      Prior to trial, the complainant identified appellant in a photo array, but the
identification was somewhat tentative. The complainant wrote on the photo array
that appellant was “possibly” the man she had seen on the night of the accident.
During the trial itself, the complainant expressed much more certainty. She
testified that appellant was the only person who had exited the truck, and she was
sure that appellant had been driving at the time of the accident. The State produced
additional evidence to support the complainant’s in-court identification: on the
night of the accident, the keys to the truck were found inside appellant’s pocket.




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                            MOTION TO SUPPRESS

      In his first issue, appellant argues that the trial court erred by denying the
motion to suppress his recorded statement. Appellant contends that the statement
was inadmissible because it was obtained during a custodial interrogation and
without the benefit of his Miranda warnings. The State responds that the statement
was admissible because it was given voluntarily during an investigative detention,
rather than in custody. We agree with the State.

I.    Applicable Law and Standard of Review

      A defendant’s oral statements made during a custodial interrogation are
inadmissible unless the defendant was warned of his rights under Miranda. See
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). If the oral
statements were made during a noncustodial detention, the trial court is not
required to suppress them even in the absence of these warnings. See Rodriguez v.
State, 939 S.W.2d 211, 215 (Tex. App.—Austin 1997, no pet.) (op. on reh’g).

      Case law separates interactions among officers and citizens into three
categories: (1) consensual encounters, (2) investigative detentions, and (3) arrests
or their custodial equivalent. See Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.
App. 2010). Both detention and arrest involve a restraint on one’s freedom of
movement; the difference is in the degree. See State v. Sheppard, 271 S.W.3d 281,
290 (Tex. Crim. App. 2008). An arrest places a greater degree of restraint on an
individual’s freedom of movement than does an investigative detention. Id. at 290.
The mere act of handcuffing, as was done here, does not establish custody; rather,
it is one of a range of relevant factors in determining that a suspect is in custody.
See Ortiz v. State, 421 S.W.3d 887, 890 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d); see also Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002)


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(holding that an investigative detention did not evolve into an arrest simply
because the officer handcuffed the defendant).

      When considering whether a person is in “custody” for Miranda purposes,
we apply a “reasonable person” standard, i.e., 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.” See
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). This inquiry
requires an examination of all of the objective circumstances surrounding the
interaction at issue. See Herrera, 241 S.W.3d at 525. The subjective belief of law
enforcement officials about whether a person is a suspect does not factor into the
determination unless an official’s subjective belief was somehow conveyed to the
person who was questioned. Id. at 525–26. The defendant bears the initial burden
of demonstrating that a statement was the product of a custodial interrogation, and
the State has no burden to show compliance with Miranda until the defendant
meets that initial burden. See Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim.
App. 2005).

      Several factors often come into play in considering whether a particular
interaction amounted to an arrest or detention, including the amount of force
displayed, the duration of detention, the efficiency of the investigative process,
whether it was conducted at the original location or the person was transported to
another location, and whether the officer told the detained person that he or she
was under arrest or was being detained only for a temporary investigation. See
Sheppard, 271 S.W.3d at 291 (citing George E. Dix and Robert O. Dawson, Texas
Practice: Criminal Practice and Procedure § 7.34 (2d ed. 2001)).

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard, giving almost total deference to the court’s determination of historical

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facts that are supported by the record and reviewing the court’s application of the
law to the facts de novo. See State v. McClain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). When,
as here, the trial court does not make explicit findings of fact, we review the
evidence in the light most favorable to the trial court’s ruling. See Carmouche v.
State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000).

II.   Analysis

      The video evidence shows that when the officer arrived at the scene, he
could not immediately locate the driver who had caused the accident. Tow truck
drivers advised the officer that appellant was involved with the accident, and the
officer could see that appellant was trying to leave. Based on appellant’s actions,
the trial court could have reasonably found that the officer needed to detain
appellant in order to preserve the scene. See Rhodes v. State, 945 S.W.2d 115, 117
(Tex. Crim. App. 1997) (“[O]fficers may use such force as reasonably necessary to
effect the goal of the stop: investigation, maintenance of the status quo, or officer
safety.”); see also Wert v. State, 383 S.W.3d 747, 754 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (holding that officers had acted reasonably by detaining the
defendant in handcuffs when the record showed that the defendant had made
“repeated attempts to get up” and leave the scene).

      Placing appellant in handcuffs and into the back of the patrol car does not
necessitate a finding of custody. See Sheppard, 271 S.W.3d at 291. The officer
testified that he used the restraints so that he “could finish up the investigation of
the crash.” There is no indication that the officer used more force than was
reasonably necessary to effectuate the detention. Accordingly, the evidence does
not support a finding that the interaction evolved into an arrest. Id. (“If the degree
of incapacitation appears more than necessary to simply safeguard the officers and

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assure the suspect’s presence during a period of investigation, this suggests the
detention is an arrest.”); see also Ortiz, 421 S.W.3d at 891.

      Before appellant made his oral statement, his interaction with the officer was
quite limited. In fact, the officer quickly returned to the scene of the crash after
appellant was placed in the back of the patrol car. The officer came back to the
patrol car approximately thirteen minutes later, and it was at that time that
appellant volunteered to the officer that he had been driving. A reasonable person
would not think that he was under arrest after waiting alone in a patrol car for such
a short duration. Cf. Balentine, 71 S.W.3d at 770 & n.7 (holding that a detention of
less than an hour was not unreasonable under the circumstances).

      The record shows that there was some transportation in this case. The officer
detained appellant a short distance away from the scene of the accident. Moments
after placing appellant in the back of the patrol car, the officer moved his patrol car
around the corner to bring the patrol car closer to the scene of the accident. The
transportation lasted less than a minute. A reasonable person would not have
believed that the transportation graduated the detention into a formal arrest. See
Joseph v. State, 865 S.W.2d 100, 103 (Tex. App.—Corpus Christi 1993, pet. ref’d)
(holding that the defendant had not been placed under arrest when the officer
transported him five blocks to allow for a witness to identify him).

      Throughout their interaction, the officer repeatedly advised appellant that he
did not know if appellant was going to jail. Even though the officer did not
expressly indicate that appellant was being detained, a reasonable person would
not have believed that his freedom of movement was restrained to the extent of a
formal arrest. See Balentine, 71 S.W.3d at 767–68 (holding that, even though the
officer did not tell the defendant whether he was being arrested or detained, the
interaction did not elevate from a detention to an arrest); Ortiz, 421 S.W.3d at 889

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(holding that the interaction was a detention rather than an arrest where the officer
told the defendant, “[Y]ou’re not under arrest right now. You’re just being
detained until we figure out what’s going on.”).

      Considering all the factors together, the trial court reasonably concluded that
appellant was in a detention, rather than under arrest, at the time of his recorded
statement. Because appellant was not in custody, the trial court did not abuse its
discretion by denying the motion to suppress. See Ortiz, 421 S.W.3d at 891.

                      SUFFICIENCY OF THE EVIDENCE

      In his second issue, appellant argues that the evidence presented in the case
is legally insufficient to support the conviction.

I.    Applicable Law and Standard of Review

      To obtain a conviction for driving while intoxicated, the State was required
to prove that appellant was intoxicated while operating a motor vehicle in a public
place. See Tex. Penal Code § 49.04(a). Where, as here, the State also sought the
enhanced offense of a felony in the third degree, the State was further required to
show that appellant has previously been convicted twice of driving while
intoxicated. Id. § 49.09(b)(2). Appellant stipulated at trial that he had two prior
convictions, and on appeal, he does not dispute that that there is legally sufficient
evidence of his intoxication, or that he was in a public place at the time of the
accident. His sole appellate argument is that there is no evidence that he was
operating a motor vehicle.

      When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

                                           8
2013). The evidence is insufficient when the record contains no evidence, or
merely a “modicum” of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App.2007).

II.   Analysis

      The record contains ample evidence that appellant was operating a motor
vehicle. Appellant stated on video that he was driving the truck. The complainant
identified appellant as the driver, and the officer testified that he found the keys to
the truck in appellant’s pocket. There was some evidence presented that calls this
element into question: appellant’s girlfriend testified that appellant was not the
driver, and the complainant was unsure of her identification of appellant when she
was shown the photo array. However, the jury was free to resolve this conflict in
the evidence and find that appellant was driving at the time of the accident.



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      Viewing the record in the light most favorable to the verdict, we conclude
that there is sufficient evidence from which a jury could find every element of the
offense beyond a reasonable doubt.

                                 CONCLUSION

      The trial court’s judgment is affirmed.



                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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