                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 SERGIO CALDERON,                                               No. 08-09-00315-CR
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                           County Court at Law No. 1
                                                 §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                        Appellee.                               (TC # 20080C14983)
                                                 §

                                          OPINION

       Sergio Calderon was convicted by a jury of driving while intoxicated. In accordance with

the State’s plea offer, the court assessed his punishment at 180 days in jail, but suspended the

sentence and placed him on community supervision for fifteen months. For the reasons that follow,

we affirm.

                                     FACTUAL SUMMARY

       El Paso Police Officers Eduardo Castañon and Cristobal Herrera observed Appellant’s

vehicle stopped in an oncoming traffic lane at 1:30 in the morning. When they approached the

vehicle, the officers saw Appellant slumped over the steering wheel, apparently asleep. The engine

was running and the gear shift was in drive, but Appellant had his foot on the brake pedal. Castañon

and Herrera pounded on the windows and yelled for him to wake up. When Appellant awakened,

Officer Castañon instructed him to put the vehicle in park. According to the officers, Appellant

appeared disoriented and began fumbling with a cell phone, the windshield wipers, and other vehicle

controls. He eventually put the vehicle in park and unlocked the door. Officer Castañon reached

in to take the key out of the ignition and immediately smelled alcohol on Appellant. He asked
Appellant to step out of the vehicle. When Appellant did so, he stumbled to the point of almost

falling. Officer Castañon noticed that he had glossy, bloodshot eyes. The recording device in the

officers’ car was not capable of recording sound, so they called for another officer to bring her car,

which had a functioning audio and video recorder. While waiting for the other car to arrive, they

made Appellant stand with his hands on their patrol unit for approximately ten minutes. Once the

other car arrived, Officer Castañon conducted three field sobriety tests and concluded that Appellant

was intoxicated. At that point, Appellant was formally arrested.

       In addition to Officer Castañon’s observations, Officer Herrera testified that he smelled

alcohol, noticed that Appellant had bloodshot eyes and slurred speech, and saw him fail two of the

three field sobriety tests. The third officer also observed that Appellant was unsteady on his feet and

that Officer Castañon had to help him stand.

                     ADMISSION OF OUT-OF-COURT STATEMENTS

       During Castañon’s testimony, the State played State’s Exhibit 4, the video and audio

recording of Appellant’s encounter with the officers. In Issue One, Appellant contends that the trial

court abused its discretion by denying his motion to suppress statements made by him and by Officer

Castañon. He argues that the admission of his statements in State’s Exhibit 4 violated Article 38.22

of the Texas Code of Criminal Procedure and that the admission of Castañon’s narration of the

events shown in the exhibit violated the hearsay rule. The State asserts that these arguments are not

preserved for review and that they fail on the merits in any event.

                                       Preservation of Error

       The State initially argues that Appellant’s first issue is not preserved because he did not file

a motion to suppress. Although Appellant uses the term “motion to suppress” in his brief, the record

does not reflect that he filed a written motion to suppress. However, Appellant’s counsel objected
to the admission of State’s Exhibit 4 at trial, specifically “any audio on there, under 38.22 on

Miranda and 38.23, and hearsay.” Counsel and the trial judge then engaged in a discussion outside

the jury’s presence, spanning over five pages in the reporter’s record, as to whether the recording

depicted a custodial interrogation. The court ultimately overruled Appellant’s objection, but granted

him a running objection. Because Appellant’s arguments were raised at trial and ruled on by the

judge, they are preserved for review. See TEX .R.APP.P 33.1(a); see also Ross v. State, 678 S.W.2d

491, 493 (Tex.Crim.App.1984)(“When no pretrial hearing is held, the defendant must object when

the evidence is offered at trial to preserve error on appeal.”).

        The State next argues that Appellant has failed to preserve anything for review because his

brief does not complain of any specific statement, nor does it discuss the case law regarding custodial

interrogations. Within the discussion of Issue One, Appellant’s brief contains four pages of

quotations from State’s Exhibit 4, with Appellant’s words in italics and Castañon’s words in bold.

Thus, the brief adequately identifies the specific statements that were purportedly admitted in error.

This portion of the brief also cites several statutes and cases, and applies the cited authority to the

facts of the case. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App. 2003)(holding that

a brief was inadequate because it failed to apply the law to the facts). Although the brief should have

addressed whether the recording depicts a custodial interrogation, it is not so deficient that it fails

to preserve Appellant’s arguments.

                                       Appellant’s Statements

        State’s Exhibit 4 depicts Appellant’s performance on the field sobriety tests. Appellant’s

brief cites the following colloquy between Officer Castañon and Appellant, which begins during the

final test.

        Appellant: Is there any way -- I mean, can I --
Officer: Can you what?

Appellant: I mean, when you’re doing this, sir -- I mean, can I call my brother, sir,
because --

Officer: No, you can’t make any phone calls right now, okay? You’re taking this
test. After the test, I told you maybe. Okay? We’ll see how that -- we’ll see how
you do that, okay? So did you understand those instructions?

Appellant: I understand that, but I mean --

Officer: Do you understand the instructions?

Appellant: I understand that, but I mean, I’m asking, can I just --

Officer: No. I told you already you can’t make any phone calls, okay? No phone
calls yet. I told you later on maybe, okay? Okay? I need you to finish this test. All
right? Okay. So go ahead. Put your feet together and whichever foot you want to
raise, you raise it. Whether or not it’s your right or your left, raise it six inches off
the ground, point your toe, and count out loud, okay.

Appellant: Do you know Talavera, Joe?

Officer: I don’t know who that is. Okay?

Appellant: Do you know a Mike Nuñez?

Officer: I don’t know who that is either. Why? What do they matter? Okay? So go
ahead. You know that you -- go ahead. Start.

Appellant: Can I do it with my right foot?

Officer: Either foot, whichever one you want. You’ve got to keep your hands at your
side and count out loud, okay?

Appellant: How much time? Ten? Five?

Officer: No, until I tell you to stop. You keep counting until I tell you to stop.

Appellant: No, I’m not going to do that.

Officer: Why not?

Appellant: [Inaudible].
       Officer: All right. You’re not even counting. Are you -- you’re not able to do it?
       No?

       Appellant: I’m trying to. I mean --

       Officer: You’re not even starting to count or anything, you know.

       Appellant: No, you know what -- [inaudible].

       Officer: You can’t do it?

       Appellant: You know what? That’s why I’m asking you. I mean -- all I’m asking
       you is, I mean -- I --

       Officer: Okay. Look. I need you to -- I need you to turn around, face away. I’m
       placing you under arrest for driving while intoxicated, okay?

       Appellant: Ah, man.

       Officer: Give me your other hand. Step over here in front of the unit.

       Appellant: Can I call him?

       Officer: You know what? Maybe once we get to the station. We’ll see.

       Appellant: I mean, I know -- I’m a cop.

After Officer Castañon advised Appellant of his rights, the following colloquy occurred:

       Officer: Why are you refusing to give breath, man?

                                             .   .     .

       Appellant: Because I’m a cop.

       Officer: Because you’re a cop?

       Appellant: [Inaudible].

       Officer: You’re not a cop, man.

       Appellant: Yes, I am.

       Officer: All right. Sit tight, man.
       Appellant: [Inaudible].

       Officer: What do you want?

       Appellant: I mean, can I use the restroom at least?

       Officer: We’ll see once we get down to the station.

       Appellant: [Inaudible].

       Officer: Right now? We can’t. Where am I going to take you? Out in the middle
       of the desert? No. You have to wait until you get to a rest room.

       Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of an

accused’s statement resulting from a custodial interrogation unless the accused was advised of his

Miranda rights and voluntarily waived those rights. TEX .CODE CRIM .PROC.ANN . art. 38.22, §§ 2(a),

3(a)(2)(West 2005); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

see also Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007)(“Our construction of

‘custody’ for purposes of Article 38.22 is consistent with the meaning of ‘custody’ for purposes of

Miranda.”). The warnings required by Article 38.22 and Miranda only apply when a suspect is in

custody. Herrera, 241 S.W.3d at 526.

       A trial judge’s determination regarding custody presents a mixed question of law and fact,

meaning that we afford almost total deference to the determination when questions of historical fact

turn on credibility and demeanor. Id. at 526-27. If the questions of historical fact do not turn on

credibility and demeanor, we review the determination de novo. Id. at 527. In this case, the trial

judge determined that Appellant was not in custody based on counsel’s legal arguments regarding

the undisputed facts. We therefore review the determination de novo.

       For purposes of Article 38.22 and Miranda, a person who is temporarily detained pursuant

to an ordinary traffic stop is not “in custody.” See Berkemer v. McCarty, 468 U.S. 420, 440, 104
S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); State v. Stevenson, 958 S.W.2d 824, 828 (Tex.Crim.App.

1997). But “the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom

of action is curtailed to a degree associated with formal arrest.” Berkemer, 468 U.S. at 440 [internal

quotation marks omitted].       Thus, a noncustodial traffic stop may escalate into a custodial

interrogation. Stevenson, 958 S.W.2d at 828.

        Appellant points out that Officer Castañon admitted on cross-examination that Appellant was

in custody and was not free to leave for approximately an hour before he was advised of his rights.

However, Officer Castañon’s “unarticulated plan has no bearing on the question whether [Appellant]

was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in

[Appellant’s] position would have understood his situation.” Berkemer, 468 U.S. at 442.

        In Berkemer, an officer saw the defendant’s car weaving in and out of a lane. Id. at 423. The

officer pulled the car over and asked the defendant to get out. As he got out of the car, the officer

noticed that he was having difficulty standing. Although the officer concluded at that point that the

defendant would be charged with a traffic offense and that he was not free to leave, the officer did

not communicate this information to the defendant. The officer conducted a field sobriety test and

asked the defendant whether he had been using intoxicants. After the defendant answered

affirmatively, he was formally placed under arrest. Id. The Supreme Court held that the defendant

was not in custody for purposes of Miranda until his formal arrest. Id. at 441-42.

        The facts in Berkemer are similar to the facts here except that approximately one hour passed

before Appellant was arrested, whereas in Berkemer, “[o]nly a short period of time elapsed between

the stop and the arrest.” Id. at 441; see also id. at 437 (“The vast majority of roadside detentions last

only a few minutes.”). In Stevenson, however, an encounter that lasted approximately one hour was

held not to constitute custody. See 958 S.W.2d at 829; see also State v. Stevenson, 993 S.W.2d 857,
869 (Tex.App.--Fort Worth 1999, no pet.)(pointing out on remand that the defendant was not

formally arrested until almost an hour into the investigation).

       This case is similar to Espinoza v. State, No. 08-05-00241-CR, 2007 WL 179059 (Tex.App.--

El Paso Jan. 25, 2007, no pet.)(not designated for publication). In Espinoza, as in this case, the

police discovered a driver asleep behind the wheel with the car in park and the driver’s foot on the

brake. 2007 WL 179059, at *1. The police knocked on the car windows and eventually woke up

the driver. A strong odor of alcohol emanated from the car. The driver was groggy, incoherent, and

slurred his speech. After failing three field sobriety tests, he was arrested. Id. Relying on Berkemer

and Stevenson, we held that the driver was not in custody regardless of whether he was free to leave

or whether the officer had probable cause to arrest. Id. at *3. We likewise conclude in this case that

Appellant was not in custody before his formal arrest.

       Even if Appellant had been in custody, his statements did not result from an interrogation.

For purposes of Miranda, “interrogation” refers to any words or actions on the part of the police that

the police should know are reasonably likely to elicit an incriminating response from the suspect.

Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.), citing Rhode Island v.

Innis, 446 U.S. 291, 300-301, 100 S.Ct.1682, 1689-90, 64 L.Ed.2d 297 (1980). Officers are not

interrogating a suspect when they ask him to perform field sobriety tests and instruct him on how

to do the tests. Id. From a review of the colloquy quoted above, it is clear that Appellant asked most

of the questions. The few questions asked by Officer Castañon focused on whether Appellant

understood the instructions for the test. Although he twice asked Appellant whether he was able to

do the test, these questions did not amount to an interrogation under the circumstances. See id. at
532 (asking whether a suspect was “too intoxicated to understand” did not constitute interrogation).1

                                         Officer Castañon’s Statements

         Appellant argues that the above-quoted statements by Officer Castañon were inadmissible

hearsay. We apply an abuse of discretion standard when reviewing a trial court’s decision to admit

evidence over a hearsay objection. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003).

         Appellant relies on Fischer v. State, in which the Court of Criminal Appeals held that an

“officer’s factual observations of a DWI suspect, contemporaneously dictated on his patrol-car

videotape,” were not “admissible as a present sense impression exception to the hearsay rule.” 252

S.W.3d 375, 376 (Tex.Crim.App. 2008). In Fischer, a police officer repeatedly walked away from

the suspect to dictate his observations into his microphone. See id. at 377. Immediately after asking

the suspect how much he had to drink, for example, the officer told the suspect “to stay where he

was, and . . . walked back to his patrol car and dictated into his microphone that [the suspect] had

‘glassy, bloodshot eyes’ and ‘slurred speech’” and “that he had smelled ‘the strong odor of alcoholic

beverage.’” Id. The Court of Criminal Appeals held that “[t]his calculated narrative in an

adversarial setting was a ‘speaking offense report,’” rather than “the type of unreflective,

street-corner statement that the present sense impression exception to the hearsay rule is designed

to allow.” Id. at 376.

         This case is distinguishable from Fischer. As the State points out, most of Officer

Castañon’s statements were not offered for the truth of the matter asserted, and thus were not

hearsay. See TEX .R.EVID . 801(d); see also Kirk v. State, 199 S.W.3d 467, 479 (Tex.App.--Fort


         1
            The discussion above applies to the part of the encounter that occurred before Appellant was arrested and
advised of his Miranda rights. In his brief, Appellant also quotes the colloquy that occurred after Officer Castañon read
him his rights, including the question “W hy are you refusing to give breath, man?” Appellant states that the record does
not show that he waived his Miranda rights. However, an express waiver is not required. Joseph v. State, 309 S.W .3d
20, 24 (Tex.Crim.App. 2010). Appellant does not contend that his statements were involuntary.
Worth 2006, pet. ref’d)(holding that a detective’s questions were not hearsay because they were

admitted to give context to the suspect’s replies). The only statements by Officer Castañon that

resemble the statements in Fischer are his two comments that Appellant was “not even counting”

or “not even starting to count.” Unlike in Fischer, however, these comments were not part of a

separate narration that was calculated to inform a future fact-finder about facts that were not already

obvious from the videotape. Instead, the comments were made directly to Appellant, as Officer

Castañon attempted to determine whether Appellant was going to be able to complete the test. They

were unreflective statements, which the present sense impression exception to the hearsay rule

allows. See Fischer, 252 S.W.3d at 376. We overrule Issue One.

                                      JURY INSTRUCTION

       In Issue Two, Appellant complains that the trial court abused its discretion in denying his

request for a jury instruction pursuant to Article 38.23 of the Texas Code of Criminal Procedure.

That statute allows the jury to “be instructed that if it believes, or has a reasonable doubt,” that

evidence was obtained illegally, it “shall disregard any such evidence so obtained.” TEX .CODE

CRIM .PROC.ANN . art. 38.23(a).

       The first step in analyzing a claim of jury-charge error is to determine whether there actually

was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009). An Article

38.23 instruction is appropriate only if there is a dispute about a specific issue of fact. Madden v.

State, 242 S.W.3d 504, 509-10 (Tex.Crim.App. 2007). “If there is no disputed factual issue, the

legality of the conduct is determined by the trial judge alone, as a question of law.” Id. at 510.

       Appellant apparently believes that there was a factual dispute as to whether he was in custody

during his encounter with Officer Castañon. In his brief, he argues that “the factual dispute was

whether evidence was obtained through custodial interrogation of Appellant without Appellant being
Mirandized.” He notes that the trial court “admitted evidence based on the State’s contention that

Appellant was not in custody. As such, a fact question was raised as to the underlying legality of the

custodial interrogation . . . .” Appellant does not identify any dispute about the historical facts

underlying his encounter with the officers; his complaint relates to the legal significance of those

facts. Because Appellant is raising a legal, rather than a factual, dispute, he was not entitled to the

Article 38.23 instruction. See Mbugua v. State, 312 S.W.3d 657, 669-70 (Tex.App.--Houston [1st

Dist.] 2009, pet. ref’d)(“A jury may not be instructed under article 38.23(a) to determine whether a

person is ‘in custody’ because such an instruction requires the jury to resolve an issue of law, not of

fact.”). We overrule Issue Two.

                                       JURY ARGUMENT

       In Issue Three, Appellant argues that the State made three improper closing arguments. First,

the prosecutor stated, “When somebody gets behind a vehicle that weighs two tons and they get on

the road -- even when there’s no alcohol involved, there are a lot of fatalities that are involved when

there’s a car accident.” Second, the prosecutor stated, “You have the right to know that you can take

your child to the hospital at 1:30 in the morning, driving on 54, and getting off on the Gateway and

know that someone else isn’t just going to drive right into you . . . when driving down the road.”

Third, the prosecutor stated, “You have the right . . . to go to the pharmacy, to visit your relatives,

to leave town on vacation or to head to the airport without having to worry that someone else is

going to prod into your vehicle at 1:30 in the morning.” Appellant contends that these statements

introduced facts that were not in the record.

       Closing arguments are generally limited to a summation of the evidence, reasonable

deductions from the evidence, answers to the arguments of opposing counsel, and pleas for law

enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). If an argument
exceeds the permissible bounds of these topics, it still does not amount to reversible error unless, in

light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory

statute, or injects new facts harmful to the defendant into the trial. Id.

       Although it is generally improper to argue facts outside the record, statements of common

knowledge are an exception to this rule. Nenno v. State, 970 S.W.2d 549, 559 (Tex.Crim.App.

1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App. 1999). It is

common knowledge that car accidents, including those caused by drunk drivers, can cause fatalities.

See English v. State, 828 S.W.2d 33, 38 (Tex.App.--Tyler 1991, pet. ref’d)(“It is common knowledge

that in this state each year, many people are killed or seriously injured in automobile collisions as

a result of alcohol-intoxicated drivers . . . . It cannot be denied that a motor vehicle operated by an

intoxicated driver instantly becomes an instrument capable of inflicting death or serious bodily injury

on any person, who by chance comes within its path.”). Accordingly, the prosecutor’s first statement

was not improper.

       Counsel have “wide latitude without limitation in drawing inferences from the evidence so

long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.” Gaddis v.

State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). The record in this case establishes that

Appellant was asleep in his vehicle, which was stopped in an oncoming traffic lane with its engine

running and its transmission in drive gear. The prosecutor’s second and third statements were

reasonable deductions from this evidence. Cf. Porter v. State, 601 S.W.2d 721, 723 (Tex.Crim.App.

[Panel Op.] 1980)(holding that statement that “people can be killed” was a reasonable deduction

from evidence that a firearm was used).

       The second and third statements also constituted proper pleas for law enforcement. In

comparison, in another driving while intoxicated case, the prosecutor asked the jury to consider “the
people who have to travel our highways” and that “[w]hen you and your family are on these

highways driving you can’t help but sometimes wonder if some drunk driver is going to hit you, run

over you and kill you.” Strahan v. State, 172 Tex.Crim. 478, 358 S.W.2d 626, 627 (Tex.Crim.App.

1962). The Court of Criminal Appeals held that these arguments were proper pleas for law

enforcement. Id.; cf. Porter, 601 S.W.2d at 723 (holding that statement that “people can be killed

in armed robberies” was proper plea for law enforcement in aggravated robbery case); Pittman v.

State, 9 S.W.3d 432, 434 (Tex.App.--Houston [14th Dist.] 1999, no pet.)(holding that prosecutor was

making a proper plea for law enforcement when he suggested seven times that the defendant, a DWI

recidivist, would eventually “kill someone”). We overrule Issue Three and affirm the judgment of

the trial court.


May 4, 2011
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
