Opinion issued September 17, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-01089-CR
                           ———————————
                  JASON RAMJATTANSINGH, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 2019635


                                 OPINION

      Jason Ramjattansingh appeals his conviction for Class A misdemeanor

driving while intoxicated. See TEX. PENAL CODE § 49.04. This Court first rendered

a judgment of acquittal on the charge and remanded for a new trial on the lesser-
included Class B misdemeanor offense.1 The State appealed, and the Court of

Criminal Appeals reversed.2 The case is now on remand for consideration of

Ramjattansingh’s issues not reached in the Court’s first opinion, whether the trial

court erred by (1) denying his requests for jury instructions on unlawful arrests and

custodial interrogation; (2) refusing to allow his counsel to present jury argument on

the unlawfulness of the arrest; and (3) admitting an audio recording of the call for

emergency assistance from a tow truck driver who observed Ramjattansingh driving

erratically the night of his arrest.

       We affirm.

                                       Background

A.     The offense

       In spring 2015, at 9:32 p.m., tow truck driver Joshua Wilson dialed 911 to

report that he was following a “drunk driver” who was “all over the road” and had

almost caused multiple accidents. Wilson described the vehicle to the 911 operator

and provided the license plate number. Not long after Wilson made the call, he and

the driver he was following, Jason Ramjattansingh, pulled off the road into a public

parking lot. Wilson relayed their location over the phone and agreed to stay in the

parking lot with his tow truck’s lights flashing until the police arrived.


1
       Ramjattansingh v. State, 530 S.W.3d 259, 260 (Tex. App.—Houston [1st Dist.]
       2017), rev’d, 548 S.W.3d 540 (Tex. Crim. App. 2018).
2
       Ramjattansingh v. State, 548 S.W.3d 540, 548–52 (Tex. Crim. App. 2018).
                                           2
      Officer S. Delacruz of the Houston Police Department responded. Both

Wilson and Ramjattansingh were standing outside Ramjattansingh’s car when

Officer Delacruz arrived. Officer Delacruz spoke first with Wilson, who told him

that Ramjattansingh had been driving erratically and nearly hit other vehicles.

Officer Delacruz noticed that Ramjattansingh was “swaying,” “couldn’t stand

straight,” and seemed intoxicated. Officer Delacruz handcuffed Ramjattansingh and

secured him in the patrol car at 9:48 p.m. as he awaited the arrival of a DWI unit.

      Officer A. Beaudion arrived around 10:05 p.m. to conduct the DWI

investigation. She took Ramjattansingh out of Officer Delacruz’s patrol car and

removed his handcuffs. Ramjattansingh smelled of alcohol, could not balance

himself, and had slurred speech. He admitted to Officer Beaudion that he had “some

shots of alcohol” and that he had started drinking around 5:00 p.m.

      As part of her investigation, Officer Beaudion administered three field

sobriety tests—the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and

the walk-and-turn test. Ramjattansingh could not complete the HGN test because he

could not hold his head still. And he showed signs of intoxication during the other

two tests—three of four clues on the one-leg stand test and six of eight clues on the

walk-and-turn test. By 10:40 p.m., Officer Beaudion had concluded that

Ramjattansingh was “very intoxicated.” She gave him his statutory warning that he

was under arrest, arrested him, and took him to HPD’s intoxication center. There, at


                                          3
around 11:30 p.m., Ramjattansingh gave two breath samples, the results of which

showed alcohol concentrations of .235 and .220 per 210 liters of breath.

B.     The trial

       The State charged Ramjattansingh with driving while intoxicated and, in

addition, alleged that his breath showed an alcohol concentration of at least .15 “at

the time of the analysis and at or near the time of the commission of the offense,”

thereby elevating the offense from a Class B to a Class A misdemeanor. See TEX.

PENAL CODE § 49.04(b), (d). Ramjattansingh’s plea of “not guilty” led to a jury trial.

       Ramjattansingh filed a written motion to suppress “all evidence seized as a

result of [his] arrest . . . and the search of [his] person, papers, and effects, as well as

all statements, either written or oral, made after arrest.” The motion alleged that the

“arrest and search of [Ramjattansingh] and the seizure of items, papers and effects

from [Ramjattansingh] was affected without valid warrant, or probable cause, or

reasonable suspicion, in violation of the Fourth and Fourteenth Amendments” of the

United States Constitution.

       At argument on the suppression motion, Ramjattansingh urged that the State’s

evidence stemmed from an illegal detention by the tow truck driver, Wilson, and

then an illegal arrest by Officer Delacruz. Wilson unlawfully detained him until the

police arrived, and Officer Delacruz unlawfully arrested him without probable cause

by handcuffing him and placing him in the patrol car. Or, Ramjattansingh argued in


                                             4
the alternative, if Officer Delacruz was only detaining him, his detention became an

arrest when Officer Delacruz towed Ramjattansingh’s car, which Ramjattansingh

alleged occurred before Officer Beaudion arrived and conducted the DWI

investigation.

      The trial court denied the motion and later issued these relevant findings of

fact and conclusions of law:

                               FINDINGS OF FACT

      g. Officer Delacruz spoke to the tow truck driver [Wilson] [who]
         stopped [Ramjattansingh] . . . and explained to Officer Delacruz
         that:

             (i) he had been following [Ramjattansingh] when they were
             driving;

             (ii) [Ramjattansingh] was almost hitting vehicles;

             (iii) [Wilson] had to pull [Ramjattansingh] off the road; and

             (iv) after they stopped, [Wilson] approached [Ramjattansingh]
             and observed signs that suggested [Ramjattansingh] was
             intoxicated.

      h. Officer Delacruz observed that [Ramjattansingh] was standing outside his
         vehicle, could not stand still, and was swaying.

      i. Officer Delacruz determined, based on a totality of the circumstances, that
          [Ramjattansingh] could not safely operate a motor vehicle.

      j. Because a Houston Police Department officer that was specially trained in
          DWI investigations was already on the way, Officer Delacruz did not
          perform further investigation but, instead, handcuffed [Ramjattansingh]
          and detained him in Officer Delacruz’s patrol car until the DWI officer
          arrived.
                                         5
k. Among other things, Officer Delacruz detained [Ramjattansingh] in his
   patrol car for [Ramjattansingh’s] own safety—to keep [Ramjattansingh]
   from falling down.

                      CONCLUSIONS OF LAW

18. A private citizen may arrest an individual that breaches the peace in his
   presence. TEX. CODE CRIM. PROC. art. 14.01(a) [(providing that “peace
   officer or any other person, may, without a warrant, arrest an offender
   when the offense is committed in his presence or within his view, if the
   offense is . . . an offense against the public peace”)].

                                       ...

24. Here, [Wilson] had probable cause to believe that [Ramjattansingh]
   committed the offense of reckless driving, in a manner constituting the
   breach of the peace, in his presence and view.

25. [Wilson] was authorized to arrest [Ramjattansingh] for reckless driving.

                                       ...

27. Notwithstanding probable cause to arrest [Ramjattansingh] for reckless
   driving, the first responding officer, Delacruz, had reasonable suspicion to
   detain [Ramjattansingh] for suspicion of reckless driving and driving while
   intoxicated—based on the 911 call and dispatch information, his
   conversations with the tow truck driver, and his personal observations of
   the defendant, coupled with his own training and experience—until the
   already-dispatched DWI investigation officer arrived and conducted her
   investigation. . . .

28. Officer Delacruz’s act of handcuffing [Ramjattansingh] and placing
   [Ramjattansingh] in the back seat of his patrol car to await Officer
   Beaudion did not elevate the detention to an arrest. . . .

29. Reasonable suspicion to justify [Ramjattansingh’s] detention did not
   dissipate at any time before probable cause existed to support his arrest.



                                   6
      30. [Ramjattansingh’s] detention by Officer Delacruz, and later arrest by
         Officer Beaudion, was reasonable and, thus, did not violate the Fourth
         Amendment or its counterpart.

      During the State’s case, Officers Delacruz and Beaudion testified about the

DWI investigation and the circumstances of the arrest. Officer Delacruz contradicted

himself about towing Ramjattansingh’s car. Officer Delacruz first testified that the

time recorded on the HPD form towing slip—10:00 p.m.—was the time he began

filling out paperwork, not when Ramjattansingh’s car was towed. Officer Delacruz

testified on cross-examination, however, that the car was towed at 10:00 p.m., a time

which he acknowledged was before Officer Beaudion arrived and before he could

authorize a tow under HPD’s policy for vehicle tows incident to arrest. Officer

Beaudion testified that Ramjattansingh’s car was in the parking lot when she arrived.

      The State also presented testimony from M. Skeleton, an HPD employee who

administered Ramjattansingh’s breath test, and C. Bishop, a technical supervisor for

the Texas Department of Public Safety Breath Alcohol Testing Program. Bishop

opined that an average person would have to drink about 11 shots to produce a result

of .220 on a breath test and that someone with that alcohol concentration would have

lost the normal use of his physical and mental faculties. She conceded, however, that

she could not say what Ramjattansingh’s alcohol concentration was when he was

driving and that any attempt to do so would be speculative. She testified that

retrograde extrapolation—extrapolating backward in time from breath test results to


                                         7
estimate an alcohol concentration at an earlier point—is possible. But the facts that

must be known to make such an extrapolation—the time of the traffic stop, the time

of the breath test and its results, the driver’s last meal, what he ate, and the time of

his last alcoholic drink—were unknown.

      Bishop also conceded that, given the limited facts available and how the body

processes alcohol, it was possible that Ramjattansingh’s alcohol concentration was

below the legal limit of .08 when he was driving. For example, if he quickly drank

several alcoholic beverages before getting behind the wheel, his alcohol

concentration could have been below the legal limit while driving but later tested

higher because his alcohol concentration would have increased over time.

      After the close of evidence and based on Officer Delacruz’s conflicting

testimony about the timing of the tow, Ramjattansingh requested an exclusionary-

rule instruction under Article 38.23 of the Code of Criminal Procedure on the

lawfulness of his arrest and a voluntariness instruction under article 38.22 for his

statements to Officer Beaudion. See TEX. CODE CRIM. PROC. arts. 38.22–.23. The

trial court denied the requested jury instructions and then denied Ramjattansingh’s

related request to allow jury argument on the lawfulness of his arrest.

      The trial court charged the jury on both the Class A and the lesser-included

Class B misdemeanor offenses of driving while intoxicated. See TEX. PENAL CODE

§ 49.04. As for the Class A misdemeanor, the charge instructed the jury that it could


                                           8
find Ramjattansingh guilty if it found that he drove while intoxicated with a “breath

analysis of at least .15 at the time of the analysis, and at or near the time of the

commission of the offense, as charged in the Information.” And, that is what the jury

found, leading to a conviction for the Class A misdemeanor offense.

C.    Ramjattansingh’s appeal to this Court

      Ramjattansingh appealed the conviction. In our original opinion, this Court

sustained his first appellate issue, which asserted that the evidence was legally

insufficient to sustain the jury’s guilty finding on the Class A misdemeanor offense

under the charge given to the jury. See Ramjattansingh, 530 S.W.3d at 264. The

Court noted that the DWI statute “merely requires a defendant to have an alcohol

concentration of .15 at the time of analysis to elevate the offense to a Class A

misdemeanor.” Id. at 262. But the State’s information alleged more: “that

Ramjattansingh had an alcohol concentration of .15 or more both at the time of the

analysis and at or near the time of the offense.” Id. (emphasis added). By alleging

more, the Court held, the State was required to prove its allegations that went beyond

the statutory elements. Id. at 263.

      Because this Court sustained Ramjattansingh’s sufficiency challenge, the

Court did not reach his issues alleging additional trial errors. Id. at 265. The Court

reversed Ramjattansingh’s conviction for the Class A misdemeanor of driving while




                                          9
intoxicated, rendered a judgment of acquittal on that offense, and remanded for a

new trial on the lesser-included Class B misdemeanor offense. Id.

D.    The State’s further appeal to the Court of Criminal Appeals

      The Court of Criminal Appeals granted review on “whether the State’s choice

to include the extra element of ‘at or near the time of the commission of the offense,’

in the Class A allegation in this case, and its acquiescence in a jury charge including

that same extra element” meant that the reviewing court should assess the sufficiency

of the evidence against the charge given, rather than a hypothetically correct charge

without the extra element. See Ramjattansingh, 548 S.W.3d at 545. And the Court

of Criminal Appeals reversed this Court’s ruling because, “[i]f a jury instruction

includes the elements of the charged crime but incorrectly adds an extra, made-up

element, a sufficiency challenge is still assessed against the elements of the charged

crime, regardless of the source of the extra element.” Id. at 552. The Court of

Criminal Appeals remanded “for proceedings consistent with [its] holding.” Id.

      Because Ramjattansingh’s sufficiency argument hinged on its contention that

the state was required to prove the erroneously heightened element contained in the

charge, the Court of Criminal Appeals’s decision that sufficiency is assessed against

a hypothetically correct charge disposed of his sufficiency challenge. We now turn

to Ramjattansingh’s four remaining issues on remand.




                                          10
      Jury Instructions on Unlawful Arrest and Custodial Interrogation

      In his second and third issues, Ramjattansingh contends that some evidence

showed that Officer Delacruz arrested him without probable cause, rather than

merely detaining him until Officer Beaudion arrived to investigate whether he had

driven while intoxicated, and that his statements to Officer Delacruz and Officer

Beaudion he sought to exclude were made while he was unlawfully in custody and

before he was given his statutory warnings. See TEX. CODE CRIM. PROC. art. 38.22,

§ 3 (requiring that defendant be warned of rights before custodial interrogation if

resulting confession is to be admissible at trial). Ramjattansingh relies on evidence

that Officer Delacruz handcuffed and placed him in the back of Officer Delacruz’s

patrol vehicle and had Ramjattansingh’s car towed from the scene before Officer

Beaudion arrived. Based on this evidence, Ramjattansingh argues, the trial court

should have instructed the jury under Article 38.23—regarding excluding

unlawfully obtained evidence—and Article 38.22—regarding voluntariness of

statements made in custodial interrogation—to consider whether police obtained the

intoxication evidence in violation of Ramjattansingh’s rights and to disregard any

evidence unlawfully obtained. See TEX. CODE CRIM. PROC. art. 38.22, § 3; id. art.

38.23(a).




                                         11
A.    Standard of review

      The trial court must give the jury a written charge that sets forth the law

applicable to the case. TEX. CODE CRIM. PROC. art. 36.14; Oursbourn v. State, 259

S.W.3d 159, 179 (Tex. Crim. App. 2008). When a party contends that the trial court

erred in its charge to the jury, we must determine whether the charge was erroneous

and, if so, whether the error was harmful under the appropriate harm-analysis

standard. Celis v. State, 416 S.W.3d 419, 423 & n.3 (Tex. Crim. App. 2013).

B.    Jury charge was not erroneous under Article 38.23(a)

      The Code of Criminal Procedure prohibits the use of evidence obtained in

violation of a defendant’s legal or constitutional rights. TEX. CODE CRIM. PROC. art.

38.23(a). Unlawfully obtained means that there is a causal connection between the

illegal or unconstitutional conduct about which the defendant complains and the

acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App.

2002). If the evidence raises a material fact issue about whether police obtained

evidence in violation of the defendant’s rights, the jury must be instructed to

disregard that evidence if it believes the evidence was unlawfully or

unconstitutionally obtained or if it has a reasonable doubt in this regard. See Jackson

v. State, 468 S.W.3d 189, 199 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

      A material issue of fact requiring this instruction exists only when: (1) the

evidence heard by the jury raised an issue of fact; (2) the evidence about that fact


                                          12
was affirmatively contested; and (3) the contested issue of fact was material to the

lawfulness of the challenged conduct in obtaining the evidence. Oursbourn, 259

S.W.3d at 177; Serrano v. State, 464 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.]

2015, pet. ref’d). Thus, the jury instruction must address the parties’ disagreement

about a “specific historical fact that is material to the legality of obtaining the

evidence.” Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008). If there

is not a dispute about a material fact issue, or if other facts that are not in dispute

suffice to support the lawfulness of the challenged conduct, then the trial judge

should decide the legality of the conduct as a question of law. Madden, 242 S.W.3d

at 510. Likewise, if the dispute concerns the legal consequences of undisputed facts,

the issue is for the court to decide. Robinson v. State, 377 S.W.3d 712, 721–22 (Tex.

Crim. App. 2012).

      Here, Ramjattansingh and the State disagree about whether Officer Delacruz

arrested him or merely detained him. Despite their disagreement, however, only a

single historical fact relating to this disagreement was disputed before the jury—

whether Officer Delacruz had Ramjattansingh’s car towed before Officer Beaudion

arrived at the scene and conducted her DWI investigation. Officer Delacruz

contradicted himself. He initially said that the towing slip, on which he recorded the

time as 10:00 p.m., memorialized when he began filling out the paperwork to have

Ramjattansingh’s car towed, not when Ramjattansingh’s car actually was towed.


                                          13
Officer Delacruz explained that both the car and the wrecker were still in the parking

lot when Officer Beaudion arrived at 10:05 p.m. But Officer Delacruz later testified

that the tow slip’s 10:00 p.m. notation showed that Ramjattansingh’s car was towed

at that time—before Officer Beaudion arrived—and that he had no legal authority to

tow Ramjattansingh’s car then. For her part, Officer Beaudion said that

Ramjattansingh’s car was still on scene when she arrived.

      We conclude that Ramjattansingh was not entitled to a jury instruction under

Article 38.23 because the lone contested fact issue—whether his car was towed

before or after Officer Beaudion’s arrival—was immaterial to the lawfulness of the

challenged conduct in obtaining the evidence of his intoxication.

      Ramjattansingh contends that Officer Delacruz arrested him without probable

cause, rather than detaining him for investigation, based on Officer Delacruz’s

concession that he had not investigated whether Ramjattansingh committed a crime

but had handcuffed him, placed him in the back of the patrol car, and towed his car.

This last circumstance, Ramjattansingh argues, reveals he was arrested because, as

Officer Delacruz testified, HPD policy provides for the towing of vehicles only after

an arrest. But, as the trial court found in its findings and conclusions, Officer

Delacruz had reasonable suspicion to detain Ramjattansingh for both reckless

driving and driving while intoxicated before Officer Beaudion arrived to conduct her

investigation. Officer Delacruz’s acts of handcuffing and placing Ramjattansingh in


                                         14
a patrol car did not transform the detention into an arrest. Whether the timing of the

later towing of Ramjattansingh’s car is evidence of an arrest, it does not affect the

lawfulness of any arrest. Assuming Officer Delacruz arrested Ramjattansingh, the

timing of the tow is unrelated to whether there was probable cause for an arrest.

      Because the timing of the tow is immaterial to the lawfulness of Officer

Delacruz’s ostensible arrest of Ramjattansingh, a jury finding that the car was towed

before Officer Beaudion conducted the DWI investigation could not serve as a basis

for the jury to disregard the evidence that Ramjattansingh smelled of alcohol, had

poor balance and slurred speech, admitted he had “some shots of alcohol” and had

started drinking around 5:00 p.m., and showed signs of intoxication during certain

field sobriety tests. See Holmes, 248 S.W.3d at 200 (jury instruction must address

parties’ dispute about “specific historical fact that is material to the legality of

obtaining the evidence”); see also, e.g., Madden, 242 S.W.3d at 517–18 (trial court

did not err by refusing to instruct jury where disputed fact would not affect

lawfulness of detention). The trial court did not err by refusing to instruct the jury

under Article 38.23(a), and we overrule Ramjattansingh’s second issue. See Madden,

242 S.W.3d at 510, 517–18; Serrano, 464 S.W.3d at 7.

C.    Any jury charge error under Article 38.22 was harmless

      “A statement of an accused may be used in evidence against him if it appears

that the same was freely and voluntarily made without compulsion or persuasion.”


                                         15
TEX. CODE CRIM. PROC. art. 38.21. A defendant may claim his statement was not

freely and voluntarily made under several different theories: “(1) Article 38.22, §

6—general voluntariness; (2) Miranda v. Arizona[3] as expanded in Article 38.22,

§§ 2 and 3 (the Texas confession statute); or (3) the Due Process Clause.”

Oursbourn, 259 S.W.3d at 169 (internal footnotes omitted). “The theory of

involuntariness determines whether and what type of an instruction may be

appropriate. Thus, the first step in deciding upon an appropriate jury instruction is

identifying the theory of involuntariness.” Id. (internal footnotes omitted).

      On appeal, Ramjattansingh asserts involuntariness under Article 38.22.

Article 38.22 aims to protect suspects from police overreaching. Id. at 172. Yet, as

the Court of Criminal Appeals explained:

      Section 6 of that article may also be construed as protecting people from
      themselves because the focus is upon whether the defendant voluntarily
      made the statement. Period. Does it appear—as Article 38.21
      requires—that the statement was freely and voluntarily made without
      compulsion or persuasion? Or, in the case of a custodial-interrogation
      statement, did the suspect “knowingly, intelligently, and voluntarily”
      waive the rights set out in Article 38.22 § 2(a) or § 3(a)? These inquiries
      do not turn solely on police overreaching. The behavior of the police
      may or may not be a factor. A confession given under the duress of
      hallucinations, illness, medications, or even a private threat, for
      example, could be involuntary under Article 38.21 and the Texas
      confession statute.




3
      384 U.S. 436 (1966).

                                          16
Id. (internal footnotes omitted); see Morales v. State, 371 S.W.3d 576, 583–84 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d) (identifying fact scenarios that could

raise claims of involuntariness under Articles 38.21 and 38.22).

      There are three types of statutory jury instructions that correspond with the

theories of involuntariness: again, “(1) a ‘general’ Article 38.22, § 6 voluntariness

instruction; (2) a ‘general’ Article 38.22, § 7 warnings instruction (involving

warnings given under § 2 and § 3); and (3) a ‘specific’ Article 38.23(a) exclusionary-

rule instruction.” Oursbourn, 259 S.W.3d at 173. The Section 6 “general” instruction

asks the jury in essence, “Do you believe, beyond a reasonable doubt, that the

defendant’s statement was voluntarily made? If it was not, do not consider the

defendant’s confession.” Id. The Section 7 instruction sets out the requirements of

Article 38.22, § 2 or § 3 and asks the jury to decide whether all those requirements

were met.4 Id. The Article 38.23(a) “specific” instruction, discussed above, is fact-

based. Id. at 173–74 (stating, as an example of Article 38.23(a) instruction, “Do you

believe that Officer Obie held a gun to the defendant’s head to extract his statement?

If so, do not consider the defendant’s confession.”).

      The Court of Criminal Appeals has acknowledged that “confusion exists

about which, if any, jury instruction is appropriate.” Id. at 174. The Texas statutory



4
      Article 38.22, § 2 and § 3 incorporate the requirements of Miranda v. Arizona, 384
      U.S. 436 (1966).
                                          17
claim, which Ramjattansingh asserts on appeal, warrants only an Article 38.22, § 6

“general” voluntariness instruction. “It is the defendant’s responsibility to delineate

which type of ‘involuntariness’ he is claiming—a general (perhaps subjective) lack

of voluntariness or a specific police-coerced lack of voluntariness”—so that the

judge can determine the appropriate instruction. Id.

      1.     Article 38.22, § 6 (general voluntariness) instructions

      Article 38.22, Section 6 provides:

      In all cases where a question is raised as to the voluntariness of a
      statement of an accused, the court must make an independent finding
      in the absence of the jury as to whether the statement was made under
      voluntary conditions. If the statement has been found to have been
      voluntarily made and held admissible as a matter of law and fact by the
      court in a hearing in the absence of the jury, the court must enter an
      order stating its conclusion as to whether or not the statement was
      voluntarily made, along with the specific finding of facts upon which
      the conclusion was based, which order shall be filed among the papers
      of the cause. Such order shall not be exhibited to the jury nor the finding
      thereof made known to the jury in any manner. Upon the finding by the
      judge as a matter of law and fact that the statement was voluntarily
      made, evidence pertaining to such matter may be submitted to the jury
      and it shall be instructed that unless the jury believes beyond a
      reasonable doubt that the statement was voluntarily made, the jury shall
      not consider such statement for any purpose nor any evidence obtained
      as a result thereof. In any case where a motion to suppress the statement
      has been filed and evidence has been submitted to the court on this
      issue, the court within its discretion may reconsider such evidence in
      his finding that the statement was voluntarily made and the same
      evidence submitted to the court at the hearing on the motion to suppress
      shall be made a part of the record the same as if it were being presented
      at the time of trial. However, the state or the defendant shall be entitled
      to present any new evidence on the issue of the voluntariness of the
      statement prior to the court’s final ruling and order stating its findings.


                                           18
TEX. CODE CRIM. PROC. art. 38.22, § 6.

      The language “where a question is raised” contrasts with the language in

Article 38.22, Section 7 and Article 38.23 which speaks of the evidence raising an

issue. Compare TEX. CODE CRIM. PROC. art. 38.22 § 6 (emphasis added), with TEX.

CODE CRIM. PROC. art. 38.22, § 7 (“When the issue is raised by the evidence . . . .”),

38.23(a) (“where the legal evidence raises an issue”). Section 6 contemplates this

sequence of events: (1) a party notifies the trial judge that there is an issue about the

voluntariness of the confession (or the trial judge raises the issue on his own); (2)

the trial judge holds a hearing outside the presence of the jury; (3) the trial judge

decides whether the confession was voluntary; (4) if the trial judge decides that the

confession was voluntary, it will be admitted, and a party may offer evidence before

the jury suggesting that the confession was not in fact voluntary; (5) if the State

offers the evidence before the jury, the trial judge gives the jury a voluntariness

instruction. Oursbourn, 259 S.W.3d at 175. It is only after the defendant notifies the

trial judge of the voluntariness issue (or the trial judge raises it on his own) that a

chain of other requirements comes into play, triggering the defendant’s right to a

jury instruction. Id.

      And Section 6 dictates that the instruction read: “unless the jury believes

beyond a reasonable doubt that the statement was voluntarily made, the jury shall

not consider such statement for any purpose nor any evidence obtained as a result


                                           19
thereof.” TEX. CODE CRIM. PROC. art. 38.22, § 6. Because Section 6 contains its own

jury-instruction provision, the jury-instruction provision in Section 7 does not

control. Oursbourn, 259 S.W.3d at 175 (explaining that “obvious purpose of Section

7 is to authorize and require jury instructions regarding the warnings and safeguards

for written and oral statements outlined in Article 38.22, § 2 & § 3 (warnings on the

right to remain silent, right to counsel, etc.)”).

       For that reason, a Section 6 instruction becomes “law applicable to the case”

if the parties actually litigate a Section 6 voluntariness issue before the trial court. If

the parties litigate the voluntariness issue, the defendant need not specifically request

a jury instruction to obligate the court to give one, though a request would still be

necessary to obtain the most beneficial harm analysis under Almanza v. State.

Ourbsourn, 259 S.W.3d at 175-176 (“some harm” versus “egregious harm”).

       2.     Article 38.22, § 7 (statutory warnings) instructions

       Under Section 7 of Article 38.22, if the defendant made his statement as the

result of custodial interrogation, he is also entitled—when the issue is raised by the

evidence—to have the jury decide whether he was adequately warned of his rights

and knowingly and intelligently waived them:

       When the issue is raised by the evidence, the trial judge shall
       appropriately instruct the jury, generally, on the law pertaining to such
       statement.

TEX. CODE CRIM. PROC. art. 38.22, § 7.


                                            20
      The phrase “the issue” refers to compliance with the statutory warnings set

out in Sections 2 and 3 of Article 38.22 and the voluntariness of the defendant’s

waiver of the rights. Oursbourn, 259 S.W.3d at 176. For it to be “raised by the

evidence” there must be a genuine factual dispute, as under Article 38.23. Id. The

same procedures—including a hearing outside the presence of the jury and the entry

of written findings—that apply to a general voluntariness challenge under Section 6,

also apply to a challenge to the sufficiency of warnings and a defendant’s voluntary

waiver of the rights communicated by those warnings. Id. As with Section 6, the trial

court’s Section 7 jury instructions are “general” ones that set out the pertinent law

and legal requirements of Sections 2 and 3 of Article 38.22. Id.

      3.     There is not “some harm”

      As explained above, Ramjattansingh raised and litigated a general

voluntariness issue before the trial court, then a Section 6 instruction became the law

applicable to the case, requiring the trial court to give the instruction regardless of

whether Ramjattansingh specifically requested it. Id. at 176, 180. If Ramjattansingh

was entitled to a Section 6 instruction but did not request it, however, we must

review the effect of the instruction’s omission for egregious harm. See id. at 182 &

n.89; see also Almanza, 686 S.W.2d at 171.

      At trial, Ramjattansingh challenged the voluntariness of his oral statements to

Officer Beaudion. Both in a motion to suppress and in hearings outside the jury’s


                                          21
presence, Ramjattansingh asserted that those statements were involuntary because

he already was under arrest when the DWI investigation began (because Officer

Delacruz handcuffed him, restrained him in the back of a patrol car, and towed his

car) but had not yet received his Miranda warnings. The trial court denied

Ramjattansingh’s motion to suppress and subsequent objections and admitted

Officer Beaudion’s testimony about the DWI investigation and the video-recording

of the investigation into the evidence.

      We conclude that because Ramjattansingh raised and litigated the

voluntariness of his oral statements to Officer Beaudion, Article 38.22, Section 6

became the law applicable to the case, and the trial court had a duty to prepare a jury

charge that accurately set out the law. See Oursbourn, 259 S.W.3d at 176, 179; see

also TEX. CODE CRIM. PROC. art. 36.14. Because it prepared a charge that did not

include any voluntariness instruction, the trial court erred by not accurately setting

out the law. Oursbourn, 259 S.W.3d at 176, 179.

      Ordinarily, we would next determine whether we evaluate the error for some

harm or for egregious harm. Nowhere in the record do we find a request from

Ramjattansingh for a Section 6 instruction, the instruction he contends on appeal the

trial court should have given. See TEX. CODE CRIM. PROC. art. 38.22, § 6; Oursbourn,

259 S.W.3d at 169, 173–74 (making it defendant’s burden to specify his

involuntariness theory). Instead, Ramjattansingh made this request:


                                          22
      I have another one [request for jury instruction]. This one is actually
      under 38.22, that I still assert that my client was . . . was placed in
      custody by Officer Delacruz, prior to Officer Beaudion’s arrival, that
      he made statements to Officer Beaudion afterward that, I think, are
      subject to 38.22 Section 3 which require statutory warnings under 38.22
      Section 2(a). Those were not given in this case. He was not Mirandized
      or given any statutory warnings under the Code of Criminal Procedure
      that would inform him that he has a right to remain silent and not answer
      the officer’s questions after he’s been handcuffed, placed in the back of
      a car, and by some of the evidence his vehicle towed.

Given the references to the statutory warnings contemplated by Sections 2 and 3 and

Miranda v. Arizona, we construe this request as one for a “general” warnings

instruction under Section 7. See TEX. CODE CRIM. PROC. art. 38.22, § 2 (providing

that accused’s written statement made as result of custodial interrogation is not

admissible unless, before making statement, accused received warnings about right

to remain silent, right to have attorney, and right to terminate interview); id. art.

38.22, § 3 (requiring same warnings before oral statements made as result of

custodial interrogation are admissible); id. art. 38.22, § 7 (“When the issue is raised

by the evidence, the trial judge shall appropriately instruct the jury, generally, on the

law pertaining to such statement.”); see also Oursbourn, 259 S.W.3d at 173.

      We need not decide which harm standard applies because even under that

lesser “some harm” standard, the trial court’s error is not reversible. Under the “some

harm” standard, reversal is required if the error is “calculated to injure the rights of

the defendant,” which means there must be “some harm” to the defendant. Almanza,

686 S.W.2d at 171. “Although the ‘some harm’ standard is ‘less stringent,’ it

                                           23
nonetheless requires a reviewing court to determine actual, rather than mere

theoretical, harm.” State v. Sciacca, 518 S.W.3d 460, 464 (Tex. App.—Houston [1st

Dist.] 2016, no pet.) (citing Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.

2013)); Johnson v. State, 981 S.W.2d 759, 761–64 (Tex. App.—Houston [1st Dist.]

1998, pet. ref’d) (concluding that potential for harm is inadequate and that record

lacked evidence of actual harm.).

      While the error here had the potential to harm Ramjattansingh, neither the

record nor Ramjattansingh’s arguments persuade us that any harm was realized here.

To determine harm, we consider the following: (1) the jury charge as a whole; (2)

the arguments of counsel; (3) the entirety of the evidence; and (4) any other relevant

factors present in the record. Reeves, 420 S.W.3d at 816.

      The third factor is dispositive here. Ramjattansingh did not put to the jury the

issue of whether his statements to Officer Beaudion were involuntary because he

had not received his warnings. Given that Ramjattansingh did not draw the jury’s

attention to a lack of warnings, it is less likely the jury was influenced by the

omission of a jury instruction than by the weight of the probative evidence itself. See

Johnson, 981 S.W.2d at 763 (noting that “state of the evidence, including the

contested issues and weight of probative evidence, is the most important factor in

the analysis”).




                                          24
      Even without Ramjattansingh’s oral statements to Officer Beaudion regarding

his drinking, the entirety of the evidence adduced at trial strongly supported the

jury’s verdict. The jury heard the audio-recording of Wilson’s call for emergency

assistance, where Wilson reported that Ramjattansingh was driving erratically and

had nearly caused multiple accidents. Officer Delacruz observed signs that

Ramjattansingh was intoxicated, specifically that Ramjattansingh was swaying and

unable to stand still. Officer Beaudion observed a strong smell of alcohol on

Ramjattansingh’s breath and testified that he indicated multiple clues for

intoxication on the one-leg and walk-and-turn field sobriety tests and could not

complete the HGN because he could not hold his head still. The jury could watch

Ramjattansingh’s poor performance on the field-sobriety tests in the video-

recording. And the State presented evidence of Ramjattansingh’s breath samples

showing a breath alcohol content in excess of the legal limit.

      The second factor, the arguments of counsel, is also in the State’s favor.

Although the State referenced Ramjattansingh’s statements to Officer Beaudion in

its summation of the evidence in closing argument, it did not emphasize them. And

neither did Ramjattansingh. His closing focused on what he perceived were other

weaknesses in the State’s case, including that the State did not have any testimony

from Wilson, that Officer Delacruz had not investigated how long Ramjattansingh




                                         25
had been stopped before Officer Delacruz was on scene, and that the State did not

prove Ramjattansingh’s blood alcohol content while he was driving.

       Looking to the jury charge as a whole, the first factor, we note that while the

charge lacked Section 6’s language, the charge instructed the jurors that they were

“the exclusive judges of the facts proved, of the credibility of the witnesses, and of

the weight to be given to the evidence.” Nothing in the record suggests that the jury

did not follow this instruction given by the court. See Thrift v. State, 176 S.W.3d

221, 224 (Tex. Crim. App. 2005) (in the absence of rebuttal evidence, “the court

presumes that the jury follows the trial court’s instructions”). This general

instruction, however, would not direct the jury to consider voluntariness specifically

and offered no guidance for how to evaluate the voluntariness of Ramjattansingh’s

statements or any mechanism for disregarding them. See Oursbourn v. State, 288

S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, no pet.). This factor weighs in

Ramjattansingh’s favor, but in light of the other factors, it does not show actual harm.

A review of the record reveals no other basis for harm.

       Any conclusion that the omission of a Section 6 instruction influenced jurors

is speculative. Indeed, it assumes that because there was potential for harm, that

harm indeed occurred. We hold that the trial court’s failure to instruct the jury under

Section 6 did not do some harm to Ramjattansingh. We overrule Ramjattansingh’s

third issue.


                                          26
                     Jury Argument about Warrantless Arrest

      In his fourth issue, Ramjattansingh contends that the trial court abused its

discretion by disallowing his counsel from arguing to the jury that Officer Delacruz

unlawfully arrested him. Ramjattansingh posits that the jury could have concluded

from the evidence that he was already under arrest when his car was towed away,

which may have taken place before Officer Beaudion arrived and developed

probable cause for his arrest through her investigation of whether he was driving

while intoxicated.

A.    Standard of review and applicable law

      We review rulings limiting the scope of closing argument for an abuse of

discretion. Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)).

      The purpose of closing argument is to help the jury draw proper conclusions

from the evidence. Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988).

Counsel therefore must confine their arguments to the evidence. Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008). In general, proper jury argument by the

defense consists of summarizing the evidence, drawing reasonable deductions from

the evidence, and responding to the State’s argument. See id. Defense counsel may

argue any theory supported by the evidence as well as legal, fair, and legitimate




                                        27
inferences from the evidence. Vasquez, 484 S.W.3d at 531 (citing Wilson v. State,

473 S.W.3d 889, 901-02 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)).

      The improper denial of a jury argument that the defense is entitled to make

may constitute the denial of the right to counsel. Davis, 329 S.W.3d at 825. But a

defendant may not make arguments contrary to the law. Id. Nor is he entitled to make

arguments outside the evidence. Vasquez, 484 S.W.3d at 531 (citing Borjan v. State,

787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (per curiam)).

B.    The trial court did not err by disallowing the defense’s argument

      At trial, Ramjattansingh contended that Officer Delacruz unlawfully arrested

him and moved to suppress all later-gathered evidence of his intoxication. The trial

court heard Ramjattansingh’s motion outside the presence of the jury. During this

hearing, Officer Delacruz testified that, when he arrived at the scene, he concluded

that it was not safe to allow Ramjattansingh back on the road based on: (1)

Ramjattansingh’s signs of intoxication, specifically swaying and inability to stand

still; and (2) a conversation with the tow truck driver, Wilson, who told Officer

Delacruz that Ramjattansingh had almost struck other vehicles. Thus, Officer

Delacruz explained, he handcuffed Ramjattansingh and put him in the back of his

patrol car both for his own safety and Ramjattansingh’s safety—to prevent him from

falling down and sustaining an injury—to await the arrival of a DWI unit that was

en route to the scene. It took that DWI unit—Officer Beaudion—about 15 minutes


                                        28
to arrive after Officer Delacruz put Ramjattansingh in the back of the patrol car.

Officer Delacruz agreed that he did not investigate whether there was probable cause

to arrest Ramjattansingh. Based on this testimony, which did not differ from Officer

Delacruz’s later testimony before the jury, the trial court denied Ramjattansingh’s

motion to suppress. The trial court then entered findings and conclusions, including

that Officer Delacruz had reasonable suspicion to detain Ramjattansingh until

Officer Beaudion arrived to investigate and that handcuffing Ramjattansingh and

placing him in the patrol car did not transform the detention into an arrest.

      Ramjattansingh neither challenges the trial court’s denial of his motion to

suppress nor its corresponding findings of fact and conclusions of law. Instead, he

argues that it was the jury’s prerogative to consider whether he was arrested without

probable cause and that his counsel should have been allowed to try to persuade the

jury of this fact. We disagree. Whether a defendant was detained pending an

investigation or arrested is a legal determination for the court to make, rather than a

fact issue for resolution by the jury. See State v. Sheppard, 271 S.W.3d 281, 291

(Tex. Crim. App. 2008). Likewise, the trial judge decides whether the facts show

probable cause. See Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006)

(probable cause subject to de novo review on appeal). The trial court therefore did

not abuse its discretion by disallowing the defense from arguing these issues to the

jury, as the jury could not resolve questions of law.


                                          29
      We overrule Ramjattansingh’s fourth issue.

                     911 Calls and the Confrontation Clause

      In his fifth issue, Ramjattansingh contends that the trial court erred by

allowing the jury to listen to a recording of Wilson’s telephone call for emergency

assistance. He argues that the statements made by Wilson, who did not honor a

subpoena to appear at trial, were testimonial and that allowing the jury to listen to

the recording therefore violated Ramjattansingh’s rights under the Sixth

Amendment’s Confrontation Clause.

A.    Standard of review and applicable law

      The Confrontation Clause provides that the accused has the right to be

confronted with the witnesses against him in a criminal trial. U.S. CONST. amend.

VI. Thus, it bars out-of-court testimonial statements unless the witness is unavailable

to testify at trial and the defendant had had a chance to cross-examine him. Martinez

v. State, 327 S.W.3d 727, 738 (Tex. Crim. App. 2010) (citing Crawford v.

Washington, 541 U.S. 36, 68 (2004)). But the Confrontation Clause does not require

the exclusion of non-testimonial statements. Sanchez v. State, 354 S.W.3d 476, 485

(Tex. Crim. App. 2011). There is not a comprehensive definition of testimonial

statements. See Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010);

Martinez, 327 S.W.3d at 738 (quoting Crawford, 541 U.S. at 68). In general, a

statement is testimonial if a reasonable person would have understood that law


                                          30
enforcement officers were conducting a criminal investigation and collecting

evidence for the purpose of prosecution. See Wall v. State, 184 S.W.3d 730, 745

(Tex. Crim. App. 2006). Statements made during a 911 call under circumstances

objectively showing that the primary purpose of the call was to enable police

assistance for an ongoing emergency, however, are not testimonial. Cook v. State,

199 S.W.3d 495, 497–98 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (relying on

Davis v. Washington, 547 U.S. 813 (2006)); see also Michigan v. Bryant, 562 U.S.

344, 358 (2011). Whether a given statement is testimonial or not is a question of law.

Langham, 305 S.W.3d at 576. We therefore review this issue de novo. Wall, 184

S.W.3d at 742.

B.    The recording was not testimonial.

      The United States Supreme Court addressed “when statements made to law

enforcement personnel during a 911 call” are testimonial in Davis. 547 U.S. at 817.

The Davis caller sought emergency assistance for a “domestic disturbance.” Id. at

817. She reported that her ex-boyfriend had hit her, described the context of the

assault, identified the assailant by name and birthdate, and informed the operator that

he was fleeing. Id. at 817–18. The Court concluded that the caller was seeking help

in an emergency, rather than acting as a witness or testifying, and that her statements

were therefore non-testimonial. Id. at 828.




                                          31
      The Court explained that statements are not testimonial “when made in the

course of police interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to meet an ongoing

emergency.” Id. at 822. In contrast, statements are testimonial “when the

circumstances objectively indicate that there is no such ongoing emergency, and that

the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Id. Ordinarily, a 911 call serves

the former purpose rather than the latter one. See id. at 827.

      The courts consider four factors when assessing the purpose of a call,

specifically whether:

          (1) the caller spoke about events as they took place, rather than describing
              past events;

          (2) the caller requested assistance for an ongoing emergency, rather than
              providing a narrative report of crime absent imminent danger;

          (3) the operator’s questions and the caller’s answers were necessary to
              resolve a present emergency, rather than to learn of past events; and

          (4) the frantic nature of the call and the issue of safety dominated over a
              sense of formal information gathering.

Id.

      This Court has previously applied Davis in the context of a 911 call reporting

a drunk driver. See Cook, 199 S.W.3d at 496–98. In Cook, an agitated caller reported

that another driver had made an obscene gesture and thrown a beer bottle at his truck.


                                          32
Id. at 496. The caller also told the operator that the other driver was drunk. Id. Our

court upheld the admissibility of the emergency-assistance call because the call

concerned “a potential crime in progress,” was initiated by the caller, was informal,

and took place at the beginning of the police investigation. Id. at 498; see Ruth v.

State, 167 S.W.3d 560, 569 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(holding that statements made during 911 call were non-testimonial after observing

that nothing in record suggested “call, in which a witness to a crime in progress at

her home summoned the police, deviate[d] from the typical, non-testimonial 911

call”).

          We conclude that, like the emergency-assistance calls in Davis and Cook,

Wilson’s 911 call was made mainly to enable a police response to an ongoing

emergency. Wilson requested police assistance to apprehend a “drunk driver” who

was “all over the road” and had almost caused multiple accidents. When Wilson

called, Ramjattansingh was on the road. Wilson told the dispatcher their location and

provided the make, model, color, and plate number of Ramjattansingh’s car. Later,

Wilson informed the dispatcher that he and Ramjattansingh had pulled into a parking

lot and said that he would stay there with his truck’s flashing lights on until the police

arrived. While in the parking lot, Wilson could be heard speaking directly to

Ramjattansingh, asking whether he had been drinking and telling him that he almost

caused accidents and should not be driving. In sum, Wilson related events as they


                                           33
happened, reporting a drunk driver who was still on the road and posed an ongoing

danger, his statements were for immediate police assistance, were frequently made

without prompting or in response to questioning, and were spontaneous and

concerned public safety. Each of the factors identified in Davis and applied in Cook

show that Wilson’s 911 call was not testimonial. See Davis, 547 U.S. at 827–28;

Cook, 199 S.W.3d at 498. The trial court therefore did not err in admitting the audio

recording of the call.

      Ramjattansingh argues that Wilson’s 911 call was testimonial because its

primary purpose was to serve as an out-of-court substitute for trial testimony. See

Michigan, 562 U.S. at 358 (distinguishing non-testimonial statement from

testimonial statement based on whether statement is “not procured with a primary

purpose of creating an out-of-court substitute for trial testimony”). He reasons that

this is so because Wilson’s statements proved that Ramjattansingh “drove and

operated a motor vehicle while intoxicated, events potentially relevant to later

criminal prosecution.” That the statements were inculpatory does not affect whether

they were testimonial. Wilson’s report of a drunk driver on the road concerned the

sort of ongoing emergency likely to render statements made in connection with it

non-testimonial. See Cook, 199 S.W.3d at 498. As the Davis Court observed, trial

witnesses do not take the stand “to proclaim an emergency and seek help.” 547 U.S.

at 828. Wilson’s call was not analogous to courtroom testimony.


                                         34
      Ramjattansingh further argues that any emergency dissipated once he and

Wilson pulled into the parking lot. We have no quarrel with the proposition that

statements that begin as a plea for emergency assistance can evolve into testimonial

statements. See Davis, 547 U.S. at 828–29; Langham, 305 S.W.3d at 579. But that

is not what happened here. The emergency was not contained because without the

police intervention that Wilson was still seeking, Ramjattansingh could have

wandered off or returned to the road and put himself and others at risk of harm.

      We overrule Ramjattansingh’s fifth issue.

                                    Conclusion

      Having overruled all Ramjattansingh’s issues on appeal, we affirm the trial

court’s judgment of conviction.




                                              Sarah Beth Landau
                                              Justice

Panel consists of Justices Keyes, Higley, and Landau.

Publish. TEX. R. APP. P. 47.2(b).




                                         35
