Opinion issued February 28, 2013.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-01087-CR
                           ———————————
                        LEONARD A. HULL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1317022



                         MEMORANDUM OPINION

      The jury found appellant guilty of intoxication manslaughter and, after

appellant pleaded true to two enhancements, the trial court assessed his punishment

at fifty-five years’ confinement. In appellant’s sole issue on appeal, he contends
that the trial court committed reversible error by denying his motion to suppress his

statement to an officer while he was immobilized for emergency treatment in a

hospital. We affirm.

                                 BACKGROUND

      On February 14, 2009, appellant, Leonard Hull, and five of his friends went

to drink at a sports bar called Black Jack’s. The group included appellant, Jonathan

Lewis, Amanda Willis, Christopher Sneed, and Vanessa Losser. Subsequently,

they all drove to Johnny’s, another bar located nearby. The group continued

drinking at Johnny’s until it closed at 2:00 a.m. After that, they returned to Black

Jack’s to drink some more. The group left Black Jack’s around 3:00 a.m. in their

respective cars. Jonathan Lewis drove his burgundy red Mitsubishi with Amanda

Willis. Christopher Sneed and Vanessa Losser drove in another car. Appellant

drove a blue Jeep, and Christopher Green, the decedent rode with him.


      Elizabeth Johnson was driving on Queenston and West Little York on her

way home from a friend’s house. As she approached a stoplight, she saw two cars

speed behind her and swerved around her. One of the vehicles was the blue Jeep

driven by appellant and the other was the burgundy car driven by Lewis. She saw

both cars stop at the stop light in front of her and saw the group laughing and

joking with each other through their windows. She testified that when the light

turned green, both cars sped off as if they were racing each other. Five to six
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minutes later, when she stopped at another traffic light, a woman ran to her car

crying hysterically and asked her to call 911. Johnson pulled over, called 911, and

walked to the accident scene to help. She testified that the same blue Jeep she had

seen at the intersection earlier had collided with a tree. She saw appellant, who she

identified as the driver of the blue Jeep, on the ground outside the car. Lewis, the

driver of the burgundy car, reached the scene before Johnson and helped appellant

out of the car. Johnson looked into the Jeep to see if anyone else needed help and

saw the male on the passenger side, crushed between the Jeep and the tree.

      Deputy J. Thomas of the Harris County Sheriff’s Department arrived at the

scene and spoke with the witnesses. He investigated the scene and determined,

based on the tire tracks and debris, that the car hit two different curbs and flew

approximately thirty feet before hitting the tree. He also testified that the vehicle

hit the tree on the front right side, and the decedent in the passenger seat was

crushed at the place of impact, between the vehicle and the tree. It was later

determined that the decedent died at the scene from multiple blunt force injuries as

a result of the accident.


      Deputy Thomas contacted Deputy P. Begley and requested that he to go the

hospital where appellant was being transported. Based on his investigation at the

scene, he believed that alcohol played a role in the accident. Deputy Thomas

requested that Deputy Begley speak to appellant and check for signs of

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intoxication.   When Deputy Begley arrived at the hospital, he waited for

appellant’s arrival, and later for the emergency staff to assess his medical needs

      When Deputy Begley approached appellant, appellant was in a hospital bed

on a backboard, with a C-collar around his neck and lower leg injuries. Appellant

was in the emergency room in a double-stacked room that can hold two patients.

There was one other person in the room at the time. Appellant was not under arrest

at the time. At that point, neither Deputy Begley nor any other law enforcement

officer had told appellant that he was under arrest. Deputy Begley testified that, at

the time, he did not intend to arrest appellant. He wanted speak to appellant about

the collision, see what happened, and check for signs of intoxication or

impairment. When he spoke to appellant, he testified that he smelled alcohol

emanating from his person.


      First, Deputy Begley asked appellant for basic identification information,

including his address and phone number to see that if it matched the information

on his driver’s license. Appellant was responsive and conscious. Then Deputy

Begley asked him what happened in regards to the collision, and appellant

responded that he did not remember. When Deputy Begley asked him specifically

if he was involved in the collision, appellant responded, “What the fuck do you

think?” When asked what type of vehicle he was in, appellant responded that he

did not remember. When asked who was sitting in the vehicle with him, he

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responded that he did not remember. He also told Deputy Begley that he did not

remember anything prior to the crash and did not respond when asked whether he

was racing another vehicle. Deputy Begley then asked him if he had consumed

any alcohol. Appellant responded that he had “a lot.” He specifically stated that he

drank “four Crown and waters.” Deputy Begley then asked him if he had taken

any medication or illegal narcotics, to which appellant said no. Deputy Begley

also asked whether appellant had eaten anything that day and when was the last

time he slept. Deputy Begley determined, based on his questioning and the alcohol

odor, that appellant was intoxicated. He then proceeded to try to give appellant a

horizontal gaze nystagmus test, a standardized field sobriety test. However,

appellant refused to perform the test. Deputy Begley then placed him under arrest

and read him the DWI statutory warning requesting a blood specimen. After

appellant’s refusal, Deputy Begley retrieved a mandatory blood draw form

authorizing him to retrieve appellant’s blood for alcohol testing. A nurse at the

hospital drew his blood and tested it with a blood draw kit. Deputy Begley then

stayed with appellant until the deputy was relieved.

      The blood test results showed that appellant’s blood alcohol content was

0.19 grams of alcohol per one hundred millimeters of blood. The legal limit in

Texas is .08 grams of alcohol per one hundred millimeters of blood. Dr. F. Guale,

the Assistant Chief Toxicologist at the Harris County Institute of Forensic

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Sciences, also tested appellant’s blood. He testified that, based on appellant’s age,

weight, height and the time of the collision, appellant’s blood alcohol was an

estimated .21 grams of alcohol per one hundred millimeters of blood. He further

testified that there was no way appellant’s blood was below .08 grams at the time

of the collision.

                            MOTION TO SUPPRESS

      In appellant’s sole issue on appeal, appellant argues that the trial court

committed reversible error when it denied his motion to suppress his statements

made to the police when he was hospitalized. Appellant contends that the

statements should have been suppressed because they were taken in violation of his

rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Specifically,

appellant contends that because he was immobilized at the hospital, the

interrogation was custodial and he had not been properly advised of his rights

before making the statements.

Standard of Review

      We review the trial court’s ruling on a motion to suppress evidence for abuse

of discretion, using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85,

88–89 (Tex. Crim. App. 1997). We give “almost total deference” to the trial court’s

findings of historical fact that are supported by the record and to mixed questions

of law and fact that turn on an evaluation of credibility and demeanor. Id. at 89.


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We review de novo the trial court’s determination of the law and its application of

law to facts that do not turn upon an evaluation of credibility and demeanor. Id.

When the trial court has not made a finding on a relevant fact, we imply the finding

that supports the trial court’s ruling, so long as it finds some support in the record.

State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006); see Moran v.

State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the trial

court’s ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex.

Crim. App. 2006).

Custody

         Appellant contends that the trial court should have suppressed his statements

to Deputy Begley at the hospital because they were taken in violation of his

Miranda rights. The State responds that Miranda is not applicable because

appellant was not in custody at the time he gave his statement. We agree with the

State.


         Miranda requirements apply to statements given when a suspect is in

custody. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. 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.

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury

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v. California, 511 U.S. 318, 322–25, 114 S. Ct. 1526, 1528–30 (1994)). The

“reasonable person” standard presupposes an innocent person. Dowthitt, 931

S.W.2d at 254 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388

(1991)).


      The determination of custody is entirely objective, and the subjective intent

of law-enforcement officials is not relevant unless communicated through their

words or actions to the suspect. Dowthitt, 931 S.W.2d at 254. The subjective belief

of the suspect is also not relevant. Id. “Detention and questioning by a police

officer during a DWI investigation, without more, is not custody.” Clark v. State,

01-07-00993-CR, 2009 WL 566448 at *3 (Tex. App.—Houston [1st Dist.] Mar. 5,

2009, no pet.) (citing State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim.

App. 1997). Simply being the focus of a criminal investigation does not amount to

being in custody. Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.—San Antonio

2003, no pet.).

      However, an interview that begins as noncustodial may escalate into a

custodial interrogation because of police conduct during the encounter. Dowthitt,

931 S.W.2d at 255. In Dowthitt, the Court of Criminal Appeals outlined four

situations in which custody might arise: (1) when the suspect is physically

deprived of his freedom of action in any significant way, (2) when a law

enforcement officer tells a suspect that he cannot leave, (3) when law enforcement

                                        8
officers create a situation that would lead a reasonable person to believe that his

freedom of movement has been significantly restricted, and (4) when there is

probable cause to arrest, and law enforcement officers do not tell the suspect that

he is free to leave. Id.

       Appellant likens this case to the third situation outlined in Dowthitt, arguing

that because appellant was confined to a hospital bed, he could have reasonably

believed that his freedom of movement was significantly restricted. Appellant

argues that this establishes that he was in custody for purposes of Miranda and that

his statements to the officer are inadmissible.

       A statement made by a defendant to an officer while they are being treated at

a hospital does not automatically become custodial interrogation. See Guerrero v.

State, 605 S.W.2d 262, 265 (Tex. Crim. App. 1980) (holding that there was no

custodial interrogation when an officer asks persons in an emergency room

whether they were driving a car from an accident); see also Newsome v. State, 02-

07-273-CR, 2008 WL 4938096 at *4 (Tex. App.—Fort Worth Nov. 20, 2008, pet.

ref’d) (holding that defendant’s statements were not a result of custodial

interrogation when he was questioned at the hospital after a gun-shot wound);

Yarborough v. State, 178 S.W.3d 895, 899–902 (Tex. App.—Texarkana 2005, pet.

ref’d) (holding that defendant’s statements were not made as a result of custodial

interrogation when his movements were restrained only to the extent that he

                                          9
received medical treatment for his stab wounds); Redmond v. State, 30 S.W.3d

692, 696–97 (Tex. App.—Beaumont 2000, pet. ref’d) (holding that there was no

custodial interrogation when officer asked defendant, who was neither in custody

nor under arrest at the time, but who was in an ambulance with two broken legs,

strapped into a gurney, what had happened); Vessels v. State, 938 S.W.2d 485, 486,

488 (Tex. App.—El Paso 1996, no pet.) (holding that defendant’s statements were

not the result of custodial interrogation when he went to a hospital for treatment of

a gun-shot wound to his hand).

      Appellant’s argument relies on Gattis v. State and Bell v. State to argue that

he was in custody because he reasonably believed that his freedom of movement

was restrained by his hospital treatment. 14-03-00045-CR, 2004 WL 2358455 at

*3 (Tex. App.—Houston [14th Dist.] Oct. 21, 2004, no pet.); 881 S.W.2d 794, 799

(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). However, those cases do not

apply here. In Gattis, the court held that arrest was complete when the officer told

appellant that he was under arrest while he was restrained to the hospital bed with

his head immobilized. Gattis, 2004 WL 2358455 at *3. The court reasoned that

although the restraint was imposed by the hospital for the purposes of treating

appellant, he could have reasonably believed that he was under restraint when he

was confined to the bed and was told he was under arrest. Id. Similarly, in Bell, the

court held that appellant was under arrest because a “reasonable person, injured

                                         10
and lying on a hospital stretcher, hearing from a police officer the words ‘you are

under arrest’ and ‘placed under arrest,’ could conclude that he was not free to

leave.” Bell, 881 S.W.2d at 799. In both cases, the court determined that the

appellant was under arrest because a person confined to a hospital bed, combined

with a statement from an officer that they were under arrest, could reasonably

believe that they were under arrest and not free to leave for the purposes of

Miranda. In this case, appellant was confined to a hospital bed, but the officer did

not tell him that he was under arrest until after he refused to take an alcohol blood

test. Therefore, appellant was not in custody when he gave earlier statements to the

officer.

       We overrule appellant’s sole issue.

                                  CONCLUSION

       We affirm the judgment of the trial court.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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



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