                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  MELERIE VILLALOBOS,                              §
                                                                    No. 08-17-00184-CR
                                Appellant,         §
                                                                      Appeal from the
  v.                                               §
                                                                County Criminal Court No. 2
                                                   §
  THE STATE OF TEXAS,                                             of El Paso County, Texas
                                                   §
                                Appellee.                           (TC# 20150C00038)
                                                   §


                                             OPINION

          Appellant Melerie Villalobos was convicted of DWI, second offense. On appeal, she

contends: (1) the trial court abused its discretion in denying her motion to suppress because she

was in custody at the time she made the incriminating statements to police; and (2) the trial court

failed to submit findings and conclusions that were sufficient to allow this Court to review the trial

court’s application of the law to the facts surrounding its denial of the motion to suppress. We

affirm.

                                         BACKGROUND

          This case involves a DWI stop on New Year’s Eve. Officer Ricardo Machuca was

working an extra-duty shift in the early morning hours of January 1, 2015. He was one of the
additional officers sent out every year on New Year’s Eve to stop individuals who are driving

while intoxicated. Around 2:00 a.m., Machuca observed a vehicle travelling in the opposite lane

at a high rate of speed. His radar indicated the vehicle was going 51 mph in a 35-mph zone, so

he initiated a traffic stop after activating his emergency lights and the dash-cam recorder in his

patrol car. The vehicle pulled over onto a side street and came to a complete stop, and Machuca

approached the driver.

       Apellant Melerie Villalobos was the driver of the vehicle. Machuca’s dash cam-corder

recorded the encounter between Machuca and Villalobos. Machuca informed her he had pulled

her over for speeding and asked her for her driver’s license and insurance, however, Villalobos

told him she did not have a driver’s license. Machuca observed she slurred her words when

responding and had red, bloodshot eyes. He also noticed a strong smell of alcohol coming from

within the vehicle. Machuca asked her why she did not have a license and asked how much she

had had to drink that night. She responded that she had consumed five beers and two shots and

had just left a bar called Smokey’s where she had gotten into a fight with her boyfriend.

Villalobos provided Machuca with her name and date of birth, and the officer returned to his

vehicle to confirm her identity.

       While back at his vehicle, Machuca radioed for assistance from an officer certified to

conduct field-sobriety tests. Officer Anthony Alegre arrived to help Machuca’s investigation

within a few minutes. Alegre instructed Villalobos to get out of her vehicle and had her perform

Standardized Field Sobriety Tests. While taking the tests, Villalobos repeatedly complained that

she was cold. Alegre offered several times to allow Villalobos to perform the tests at the police

station instead of on the cold streets, telling her that she was not under arrest but was only being


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detained. In each instance, she refused and asserted she wanted to go ahead with the tests.

Ultimately, Villalobos failed the tests, and Alegre placed her under arrest for driving while

intoxicated.

          Prior to trial, Villalobos moved to suppress evidence of her statements that she had just left

a bar and had consumed five beers and two shots, arguing that she was under arrest at the time

Machuca asked her how much she had had to drink and had not been read her Miranda1 warnings.

The trial court denied the motion. A jury found Villalobos guilty of driving while intoxicated.

The trial court placed Villalobos on community supervision for a period of fifteen months, assessed

a $500 fine, court costs of $492, and restitution in the amount of $96. This appeal followed.

                                                 DISCUSSION

          In two issues, Villalobos contends that the trial court: (1) abused its discretion in denying

her motion to suppress because she was in custody at the time she made the incriminating

statements; and (2) failed to submit findings and conclusions that are sufficient to allow this Court

to review its application of the law to the facts surrounding its denial of the motion to suppress.

                                           Custody Under Miranda

                                               Standard of Review

          We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In doing so, we afford almost total

deference to the trial court’s determination of historical facts when those facts are supported by

the record, and we will uphold the trial court’s decision if it is correct under any theory of law

applicable to the case. State v. Stevens, 235 S.W.3d 736, 739–40 (Tex.Crim.App. 2007); see



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    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                       3
Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). We apply de novo review to the

trial court’s ultimate legal conclusions, provided the trial court did not resolve them based on an

evaluation of credibility and demeanor, giving due deference to the trial court’s factual assessment

of the circumstances. State v. Saenz, 411 S.W.3d 488, 494 (Tex.Crim.App. 2013); Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

                                         Applicable Law

       A person in custody must be informed in clear and unequivocal terms that he has the right

to remain silent before he is subjected to interrogation. Miranda, 384 U.S. at 467. But a

defendant seeking the suppression of a statement on Miranda grounds has the threshold burden of

clearly establishing that his statements were given during custodial interrogation. Herrera v.

State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007). A person is “in custody” for Miranda

purposes when there is either (1) a formal arrest or (2) a restraint on the person’s freedom of

movement to the degree an objectively reasonable person would otherwise associate with a formal

arrest. Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 677 (Tex.Crim.App. 2009). The Court of

Criminal appeals has given us four non-exclusive situations that may constitute custody:

       (1)     when the suspect is physically deprived of his freedom of action in any
               significant way;

       (2)     when a law enforcement officer tells the suspect that he cannot leave;

       (3)     when law enforcement officers create a situation that would lead a
               reasonable person to believe that his freedom of movement has been
               significantly restricted; and

       (4)     when there is probable cause to arrest and law enforcement officers do not
               tell the suspect that he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). The first three situations will


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demonstrate custody only where the defendant’s freedom of movement is restricted to the degree

associated with formal arrest, as opposed to a merely investigative detention. Id. The fourth

situation will only support a finding of custody where the officer’s knowledge of probable cause

to arrest is conveyed to the suspect or otherwise made clear to him. Id. We measure the

existence of custody based on objective circumstances and not on the subjective perceptions of

either law enforcement or the suspect, unless the interrogator conveys his subjective views to the

suspect or otherwise makes them manifest. Saenz, 411 S.W.3d at 496–97. Once the defendant

establishes that he was in police custody, the burden shifts to the State to prove the defendant either

received the appropriate Miranda warnings or else that they questioned the defendant pursuant to

a valid Miranda exception. Wilkerson v. State, 173 S.W.3d 521, 532 (Tex.Crim.App. 2005).

       While a traffic stop significantly curtails the freedom of action of an individual, and

therefore constitutes a seizure under the Fourth Amendment, a person subject to a traffic stop or

other investigatory detention is not automatically considered “in custody” for purposes of

Miranda. State v. Ortiz, 382 S.W.3d 367, 374 (Tex.Crim.App. 2012); State v. Stevenson, 958

S.W.2d 824, 829 (Tex.Crim.App 1997)(fact that defendant becomes focus of a DWI investigation

during a stop does not, standing alone, give rise to custody)(citing Berkemer v. McCarty, 468 U.S.

420, 423 (1984)). But that does not mean a traffic stop or investigatory detention cannot evolve

into full custody and trigger Miranda protections. Saenz, 411 S.W.3d at 496–97. We make that

determination by considering the totality of the circumstances. Id.

                                              Analysis

       Here, Villalobos asserts all four Dowthitt situations were present when she made her

incriminating statements to Officer Machuca. She contends: (1) she was physically deprived of


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her freedom of action by being forced to wait in her vehicle for the second officer to arrive to

perform the field-sobriety tests; (2) she was indirectly told she could not leave because Officer

Alegre told her she had the choice of performing the tests either there or at the police station; (3)

Officer Machuca created a situation that would lead a reasonable person to believe her freedom of

movement had been significantly restricted by making her wait for a second officer after she had

admitted to coming from a bar and consuming multiple alcoholic drinks that evening; and (4) it

was unclear when the officer’s reasonable suspicion matured into probable cause.

       But Villalobos fails to argue her point in light of the requirement that the defendant’s

freedom of movement be restricted to the degree associated with formal arrest, as opposed to an

investigative detention, or that the officer’s knowledge of probable cause to arrest be made clear

to the defendant. Here, the trial court found that: Officer Machuca pulled Villalobos over for

speeding; she could not produce a driver’s license when asked; Machuca noticed she exhibited

signs of intoxication during this exchange; Machuca asked her if she had been drinking and she

replied that she had just come from a bar and had consumed five beers and two shots; Machuca

requested assistance from an officer certified to perform field-sobriety tests; Villalobos was

waiting in her vehicle from the time she was pulled over to when she was asked to perform the

tests; when Officer Alegre arrived and conducted the tests, he informed Villalobos she had the

option to perform the tests at the station because she was only being detained and was not under

arrest; and Villalobos failed the field-sobriety tests and only then was placed under arrest and read

her statutory warnings. These findings are supported in the record by the testimony of Officers

Machuca and Alegre, and by the dashcam videos of the incident. Accordingly, we must give

these historical findings almost total deference. Stevens, 235 S.W.3d at 739–40.


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        As already noted, a DWI investigation conducted during a traffic stop does not, standing

alone, give rise to custody. Stevenson, 958 S.W.2d at 829; see also McRae v. State, 152 S.W.3d

739, 749 (Tex.App—Houston [1st Dist.] 2004, pet. ref’d)(“A DWI investigation that includes

questioning and field-sobriety tests does not, without more, rise to the level of a custodial

interrogation.”)(citing Stevenson, 958 S.W.2d at 828–29). At no point during the investigation or

her performance of field-sobriety tests was Villalobos’s freedom of action restricted to the degree

associated with formal arrest, as demonstrated by the fact that she was allowed to wait in her

vehicle while waiting for Officer Alegre and by his statements during the field-sobriety tests that

she was not under arrest but was only being detained.          See Dowthitt, 931 S.W.2d at 255;

Stevenson, 958 S.W.2d at 829. The officers also did not communicate any knowledge of probable

cause to arrest Villalobos during the investigation or otherwise make clear to her they had probable

cause to arrest her. Applying de novo review to the determination on custody, the trial court did

not err in determining Villalobos was not in custody at the time she made incriminating statements

to Officer Machuca. Saenz, 411 S.W.3d at 496–97. Accordingly, Villalobos’s first issue is

overruled.

                       Sufficiency of the Trial Court’s Essential Findings

        In her second issue, Villalobos contends the trial court’s findings of fact and conclusions

of law, as issued, are insufficient for this Court to adequately review the trial court’s application

of the law to the facts.

                                          Applicable Law

        In order that an appellate court may adequately review a trial court’s ruling on a motion to

suppress, the trial court is required to state its “essential findings” justifying its ruling on the


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motion.   Saenz, 411 S.W.3d at 495; State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.

2011)(citing State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006)). “Essential findings”

are “findings of fact and conclusions of law adequate to provide an appellate court with a basis

upon which to review the trial court’s application of the law to the facts.” Elias, 339 S.W.3d at

674. When a trial court fails to issue essential findings, the appropriate remedy is to abate the

proceedings and remand the case to the trial court for additional findings sufficient for review.

Saenz, 411 S.W.3d at 495.

                                             Analysis

       Here, Villalobos contends the trial court failed to state its essential findings adequately

enough for our Court to review its determination of whether the facts surrounding Officer

Machuca’s questioning of her gave rise to custody for Miranda purposes. Specifically, she

contends the trial court failed to explain what facts gave officers reasonable suspicion or probable

cause, or what facts gave rise to reasonable suspicion or probable cause. As summarized above,

the trial court issued the following findings and conclusions:

       1. The Court finds that Officer Machuco, of the EPPD, was proceeding eastbound
          on Montwood, near Lee and Montwood, El Paso, Texas, and on that early
          morning of January 1st, 2015, noticed a Jeep, driven by the Defendant, traveling
          at a high rate of speed, passing vehicles in a westerly direction on Montwood
          Avenue;

       2. The Court finds that the officer turned around and proceeded to follow the
          defendant on Montwood Avenue and confirmed her speed at approximately 51
          miles per hour in a 35-mile-per-hour zone, and further determines that he turned
          on his overhead lights and siren;

       3. The Court find that the defendant pulled into Jacqueline Ann Street and parked
          her car on the curbside. The Court finds that after a few seconds, Officer
          Machuca approaches the vehicle on the driver’s side and asks the defendant for

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   proof of insurance and driver’s license. After a few seconds, the defendant
   indicates she has no license or could not produce a license. Further, the officer
   engages a question as to where she was coming from and if she had been
   drinking, to which the defendant responds that she was at Smokey’s and had
   five beers and two shots (State’s Exhibit 1);

4. The Court finds that during this engagement, the officer detects a strong odor
   of alcohol about her person. The Court finds that Officer Machuca then calls a
   TOM unit from the DWI Task Force to assist him further in the investigation
   within a reasonable time. The Court finds that Officer Alegre, of the EPPD,
   arrives and confers with Officer Machuca. At this time, the defendant has been
   inside of her vehicle. The Court finds, thereafter, the defendant is asked to exit
   her vehicle to begin SFSTs conducted by Officer Alegre. The defendant
   performs the HGN and then before the one-leg stand and heel-to-toe test is
   administered, finds that the officer advised the defendant that because it is cold
   that the next battery of tests could be performed at the station and not in the
   field, since she was only being detained and not arrested (State’s Exhibit 4).
   The Court finds that on many occasions, it was stated to her that she could
   perform these tests at the police station, but that she would rather perform them
   at the scene;

5. The Court finds that Officer Machuca obtained her coat and provided it to the
   defendant before the tests are administered. The defendant appears to have
   failed the tests or had difficulty performing the tests. The Court further finds
   that Officer Alegre explained and demonstrated the heel-to-toe test and one-leg
   stand test to the defendant (State’s Exhibit 4). The Court finds that Officer
   Alegre read the statutory warnings (State’s Exhibit 2 and State’s Exhibit 4). The
   Court finds that the defendant was administered the Miranda warnings (State’s
   Exhibit 4). The Court then finds that the defendant was arrested and taken to
   the police station. At the station, she was read State’s Exhibit 3, wherein she
   signed the document consenting to a specimen of her blood.

                           .                .               .

1. The Court concludes that Officer Machuca had reasonable suspicion to detain
   the defendant;

2. The Court concludes that the statements made by the defendant were made
   while the defendant was detained along a public street, and no field sobriety
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           tests had been ordered prior to these statements and were not a result of
           custodial interrogation;

       3. The Court concludes that the officers had probable cause to arrest the defendant
          for driving while intoxicated;

       4. The Court further determines that the defendant voluntarily signed the consent
          form to give a specimen of her blood.

These findings and conclusions allow us on review to determine: (1) what Officers Machuca and

Alegre did, said, and asked; (2) when their actions occurred; (3) what Villalobos did and said; and

(4) when her actions occurred.        Accordingly, they establish the relevant circumstances

surrounding Villalobos’s detention and questioning, and thus sufficiently provide this Court with

“a basis upon which to review the trial court’s application of the law to the facts.” Elias, 339

S.W.3d at 674. Because these findings are adequate to allow us to determine whether Villalobos

was in custody at the time of the complained-of statements, Issue Two is overruled. Nguyen, 292

S.W.3d at 677.

                                        CONCLUSION

       Having overruled Issues One and Two, the decision of the trial court is affirmed.



August 21, 2019
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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