                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-15-00291-CR

                                       The STATE of Texas,
                                            Appellant

                                                 v.

                                  Richard Michael DONOHOO,
                                            Appellee

                     From the County Court at Law No. 8, Bexar County, Texas
                                     Trial Court No. 453259
                            Honorable Celeste Brown, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: June 22, 2016

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           The State charged Richard Michael Donohoo with operating a motor vehicle in a public

place while intoxicated with a blood-alcohol concentration of 0.15 or higher. Donohoo filed a

motion to suppress, alleging he was arrested without a warrant in violation of article 14.01 of the

Texas Code of Criminal Procedure and was thereafter subjected to “custodial interrogation without

proper Miranda warnings, field sobriety testing, transport to the Magistrate’s Office for intoxilyzer

testing, and follow-up booking procedures.” After a hearing, the trial court granted Donohoo’s

motion “in all respects.” The trial court’s order incorporated by reference its oral findings of fact
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and conclusions of law from the hearing. We abated the case for the trial court to make additional

findings of fact and conclusions of law. We affirm the trial court’s order in part and reverse and

remand in part.

                                          BACKGROUND

       We summarize the trial court’s findings of fact and conclusions of law as follows: Around

8:45 p.m. on March 9, 2014, officers of the San Antonio Police Department received a call that a

vehicle had struck a light pole. The unidentified caller stated she followed the car to an apartment

complex located on Huebner Road. The caller did not give a description of the driver, speak to the

officers conducting the investigation, or maintain a view of the vehicle once it entered the gated

apartment complex. Approximately forty-five minutes elapsed between the time the accident was

reported and the time the police officers made contact with Donohoo.

       Officer Madiano knocked on Donohoo’s apartment front door and, upon Donohoo opening

it, Officer Madiano told Donohoo his car was about to be towed. Donohoo, “after being coerced

outside under the guise of the vehicle not having a handicap placard, admit[ted] to driving a couple

of hours prior.” Donohoo stated the damage to his vehicle occurred two weeks prior and that he

was unaware of any new damage. Officer Madiano asked Donohoo to come outside and Donohoo

“request[ed] to put pants on.” Donohoo stated he did not remember hitting anything with his car.

After Donohoo left his home, the officers showed him the damage to his car. Donohoo asked to

go back inside less than three minutes after he was “told” to go outside. Officer Madiano told

Donohoo, “No, I want you to stay out here ‘for a sec,’ and look at the damages a while.” Officer

Madiano then called Officer Travis Gourley to come and conduct field sobriety tests.

       Officer Gourley testified that Donohoo’s disorderly clothing was a clue of intoxication, but

Donohoo had asked to put on clothes after being awakened and asked to leave his home. Donohoo

stated he was tired. Officer Gourley conducted the Horizontal Gaze Nystagmus test and asked
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several questions “designed to elicit incriminating responses.” Donohoo admitted he drank three

beverages from 5:00 to 8:30 p.m. He also admitted he drove his vehicle, but stated he was not

aware of any accident occurring that night. Following the field sobriety test, Donohoo was placed

under arrest.

       The trial court concluded Donohoo’s home was not a “suspicious place” under Texas Code

of Criminal Procedure article 14.03(a)(1)’s exception to the warrant requirement for an arrest. It

further “conclude[d] that Donohoo was detained when he was asked to leave his home.” When

Donohoo was detained, the officers lacked reasonable suspicion to support a detention for driving

while intoxicated. Donohoo was never informed that he was free to leave and “in fact, he was told

the opposite.” “[Donohoo] was clearly detained at the point he leaves his home. He requested to

return to his home and was denied that request. A reasonable person would not believe they were

free to leave when an officer says ‘No, I want you to stay here . . . .’” The presence of four police

officers at various points throughout the interaction with Donohoo would cause a reasonable

person to believe his freedom of movement had been restricted.

       The trial court further concluded Donohoo’s statements were not voluntarily made under

voluntary conditions. In addressing whether Donohoo was in custody, the trial court concluded

that a reasonable person would not have felt free to leave because (1) Donohoo was detained when

he left his home; (2) the officers prohibited Donohoo from going back into his home, and (3) four

officers were present throughout the interaction with Donohoo. The trial court found Donohoo was

not given his Miranda warnings until he was informed he was under arrest at 10:32:50 p.m.

       The trial court clarified that its order suppresses “the officers’ testimony, the video, and the

results of the Standardized Field Sobriety Test.” To understand what evidence was suppressed, we

reviewed the record to discern what “video” the trial court referred to in its findings of fact and

conclusions of law. The record contains three electronic files on which there are audio-video
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recordings from the time that the officers first arrived at the apartment complex until after Donohoo

was handcuffed and informed he was under arrest. The three files contained audio-video

recordings of different parts of the officers’ interactions with Donohoo.

       The first audio-video file contains an audio recording of a discussion when the two officers

went to Donohoo’s home, but the officers and Donohoo cannot be seen in the video. Before

Donohoo stated he would come outside, the two officers talked to Donohoo about whether he was

drinking and driving earlier that evening. Donohoo then left his home and the officers showed

Donohoo the damage to the side of his vehicle. Donohoo and one of the officers had another

conversation about whether Donohoo was drinking and driving earlier that evening. When an

officer asked for his identification, Donohoo asked to go back inside. The officer then stated, “No,

I want you to stay out here ‘for a sec,’ and look at the damages a while.” An officer and Donohoo

continued to discuss whether Donohoo was drinking and driving. The audio on the first file was

then muted.

       On the second audio-video file, an officer and Donohoo can be seen standing in the parking

lot. Donohoo stated he was cold. When an officer asked Donohoo if he wanted to get a jacket,

Donohoo invited the officers into his home where they continued their conversation. Two more

officers, including Officer Gourley, arrived and Donohoo and the other two officers came out to

the parking lot. The audio on the second file was then muted. The third file shows Donohoo coming

out of his home with an officer. Officer Gourley and Donohoo discussed what happened earlier

that evening and whether Donohoo was drinking and driving. Officer Gourley then conducted a

horizontal-gaze-nystagmus (HGN) test. Officer Gourley told Donohoo that he believed Donohoo

was drinking and driving, informed Donohoo that he was placing him under arrest, and then placed

handcuffs on Donohoo. Donohoo was thereafter given his Miranda warnings. The third audio-

video file continues for approximately forty more minutes.
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          The State appeals, arguing the trial court erred by granting Donohoo’s motion to suppress.

The State supplemented its briefing to address the trial court’s additional findings and conclusions

regarding whether and when Donohoo was in custody under Miranda v. Arizona, 384 U.S. 436

(1966).

                                       STANDARD OF REVIEW

          We review a trial court’s ruling on a motion to suppress under a bifurcated standard.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review a trial court’s

conclusions of law de novo. Id. at 328. If a trial court’s fact findings are supported by the record

or are based on evaluation of witness credibility and demeanor, we should afford them almost total

deference. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). “The trial judge is the

sole trier of fact and judge of the credibility of the witnesses and the weight to be given their

testimony.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court “is

entitled to believe or disbelieve all or part of the witness’s testimony—even if that testimony is

uncontroverted—because he has the opportunity to observe the witness’s demeanor and

appearance.” Id. “If the trial judge makes express findings of fact, we view the evidence in the

light most favorable to his ruling and determine whether the evidence supports these factual

findings.” Id. “We will sustain the trial court’s ruling if that ruling is ‘reasonably supported by the

record and is correct on any theory of law applicable to the case.’” Id. at 447-48 (quoting State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). However, we cannot blind ourselves to

indisputable facts shown by video recordings that contradict the trial court’s findings. See

Carmouche, 10 S.W.3d at 332.

                                              ANALYSIS

          The trial court concluded Donohoo was detained without reasonable suspicion “when he

was asked to leave his home.” The trial court also concluded that the interaction became a custodial
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interrogation without proper Miranda warnings when his request to go back inside his home was

denied and when four officers were present. The trial court also concluded that Donohoo was

unlawfully arrested without a warrant after the HGN test because the officers lacked probable

cause and Donohoo was not found in a “suspicious place.”

       The State contends the officers’ encounter with Donohoo was consensual and,

alternatively, the officers had reasonable suspicion to detain Donohoo. The State also argues the

officers had probable cause to arrest Donohoo and that article 14.01’s “suspicious place” exception

to the prohibition against warrantless arrests applies in this case. In its supplemental briefing, the

State contends Donohoo was not in custody for purposes of Miranda.

A. Police–Citizen Interactions under the Fourth Amendment

       “There are three distinct types of police-citizen interactions: (1) consensual encounters that

do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment

seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal

activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only

if supported by probable cause.” Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013).

“Which type of encounter exists under a given set of historical facts is a question of law that is

reviewed de novo.” Melendez v. State, 467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no

pet.) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).

       “Police officers are as free as any other citizen to knock on someone’s door and ask to talk

with them.” Garcia-Cantu, 253 S.W.3d at 243. “Such consensual encounters may be

uncomfortable for a citizen, but they are not Fourth Amendment seizures.” Wade, 422 S.W.3d at

667 (footnote omitted). A consensual encounter becomes a detention when an officer “by means

of physical force or show of authority, has in some way restrained the liberty of a citizen.” Garcia-

Cantu, 253 S.W.3d at 242. “It is the display of official authority and the implication that this
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authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure.

At bottom, the issue is whether the surroundings and the words or actions of the officer and his

associates communicate the message of ‘We Who Must Be Obeyed.’” Id. at 243. “Courts must

take into account the totality of the circumstances of the interaction to decide whether a reasonable

person would have felt free to ignore the police officer’s request or terminate the consensual

encounter.” Wade, 422 S.W.3d at 667.

        The trial court “found” Donohoo was “coerced outside” when he was told that his car was

about to be towed for not having a handicap placard. Although the trial court and the dissent

characterize this determination as a “finding” of fact, whether an encounter is “coerced” (i.e. not

consensual) and amounts to an investigative detention involves an application of law to facts, and

is not a question of fact. Garcia-Cantu, 253 S.W.3d at 241. It is a legal conclusion as to the type

of encounter that existed under the historical facts found by the trial court. See Melendez, 467

S.W.3d at 592. We therefore review the trial court’s legal conclusion that Donohoo was “coerced

outside” de novo and afford it no deference. See Garcia-Cantu, 253 S.W.3d at 241; Meadoux v.

State, 307 S.W.3d 401, 407 (Tex. App.—San Antonio 2009), aff’d, 325 S.W.3d 189 (Tex. Crim.

App. 2010).

        Although the trial court found that two officers went to Donohoo’s door and Donohoo was

“asked to come outside,” the audio-video recordings show that an officer knocked on Donohoo’s

door or window and told him his car was about to be towed. 1 Before Donohoo said he would come

outside, Donohoo told the officers he had been drinking, he owned the Lincoln car that was parked

in a handicap spot without a handicap placard and had driven that evening, and his car had

sustained damage to its right side two weeks prior to that evening. One of the officers told Donohoo


1
  Although the dissent characterizes the officer’s statements as a “threat” that the officers would tow Donohoo’s car
if he did not come outside, the trial court did not make this finding.

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he could smell alcohol on his breath. After Donohoo was informed there was “fresh damage” along

the left side of this vehicle, Donohoo informed the officers he would put on some pants and come

outside. The trial court’s findings that around 9:30 p.m., Officer Madiano came to Donohoo’s

home with another officer, repeatedly knocked on Donohoo’s door, and told Donohoo that his car

was about to be towed, are supported by the record.

        But before Donohoo left his apartment, the officers had not commanded Donohoo under

their official authority to leave his home or otherwise restrained his liberty. See Garcia-Cantu, 253

S.W.3d at 242. There was no display of official authority implying that Donohoo could not have

ignored the officer’s statement that his car was about to be towed and terminated his encounter

with the officers. See id. at 243; see also Lopez v. State, No. 04-13-00300-CR, 2014 WL 5353627,

at *5 (Tex. App.—San Antonio Oct. 22, 2014, pet. ref’d) (mem. op., not designated for publication)

(holding five minutes of continuous knocking in the middle of the night might be annoying, but is

not a “display of official authority”). Applying the law to the historical facts found by the trial

court, we hold Donohoo was not detained when he left his home. 2

B. Custodial Interrogation under the Fifth Amendment

        Under the Fifth Amendment, statements made by a suspect during a custodial interrogation

are inadmissible unless certain warnings were given to the suspect before he makes those

statements. Miranda, 384 U.S. at 444-45. Article 38.22 of the Texas Code of Criminal Procedure

also requires the suppression of statements made during a custodial interrogation unless certain

statutorily prescribed warnings are given. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp.

2015); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). “Thus, the concerns raised

by failing to comply with Miranda only arise when the individual is subject to both (1) custody by


2
  We need not address the State’s alternative argument that if Donohoo was detained when he left his home, the
officers had reasonable suspicion. See TEX. R. APP. P. 47.1.

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a law enforcement officer and (2) an interrogation.” Martinez-Hernandez v. State, 468 S.W.3d

748, 757 (Tex. App.—San Antonio 2015, no pet.).

        With regard to the trial court’s conclusion regarding Miranda and article 38.22, the State

argues that Donohoo was not in custody. A person may be in custody in at least four general

situations:

        (1) when the suspect is physically deprived of his freedom in any significant way,
        (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law
        enforcement officers create a situation that would lead a reasonable person to
        believe 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
        he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). “The determination of custody

must be made on an ad hoc basis, after considering all of the (objective) circumstances.” Id. “When

making custody determinations, Texas courts have also considered whether: (1) the officer was

conducting an investigation; (2) the suspect was handcuffed; (3) the officers used weapons to

detain the suspect; (4) police outnumbered the individuals detained; (5) threatening language was

used; (6) the suspect was transported to another location; (7) the suspect’s [movement] was

blocked; and (8) physical force was used.” Estrada v. State, No. 04-12-00136-CR, 2012 WL

6720655, at *3 (Tex. App.—San Antonio Dec. 28, 2012) (mem. op., not designated for

publication), aff’d, PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014) (not

designated for publication). If a person voluntarily agrees to accompany law enforcement officers

to a different location to answer questions about an incident, the person is not in custody. Martinez-

Hernandez, 468 S.W.3d at 758.

        The trial court concluded Donohoo was in custody before he was formally arrested on the

basis of its findings that an officer denied Donohoo’s request to go back inside his home; Donohoo

was being asked questions designed to illicit incriminating responses; and four officers were


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present. These findings are supported by the record. However, the audio-video recordings show

that Donohoo did not have his identification on his person and asked to go back inside in response

to an officer’s request to see it; an officer permitted Donohoo to go back into his home to get a

jacket because Donohoo stated he was cold; and Donohoo then invited the officers to come inside

his home. The audio-video recordings also establish that before Donohoo was placed under arrest,

Donohoo had not been handcuffed, the officers had not exhibited weapons or used threatening

language, Donohoo had not been involuntarily transported to another location, Donohoo’s

movement had not been blocked, and the officers had not used physical force. See Estrada, 2012

WL 6720655, at *3. We hold, under these circumstances, Donohoo was not in custody before

Officer Gourley placed Donohoo under arrest for driving while intoxicated.

                                            “SUSPICIOUS PLACES”

        The State contends the trial court erred by concluding Donohoo’s home was not a

“suspicious place” under article 14.03 of the Texas Code of Criminal Procedure. Article

14.03(a)(1) permits peace officers to make warrantless arrests of “persons found in suspicious

places and under circumstances which reasonably show that such persons have been guilty of some

. . . breach of the peace.” TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015). 3 The

Court of Criminal Appeals has construed this exception to the warrant requirement as coterminous

with the “exigent circumstances” doctrine under the Fourth Amendment. See Swain v. State, 181

S.W.3d 359, 366 (Tex. Crim. App. 2005). Thus, article 14.03(a)(1) authorizes a warrantless arrest

only if the arresting officer has probable cause “and exigent circumstances call for immediate

action or detention by police.” Id.




3
 We note that “driving while intoxicated is a breach of the peace.” Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim.
App. 2004).

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        The State’s only argument that exigent circumstances called for Donohoo’s immediate

arrest was “the need to obtain [Donohoo’s] blood-alcohol level created an exigency that called for

immediate detention by the police.” 4 The Supreme Court of the United States has held that the

natural dissipation of alcohol in a suspect’s body does not present “a per se exigency that justifies

an exception to the Fourth Amendment’s warrant requirement.” Missouri v. McNeely, 133 S. Ct.

1552, 1556 (2013). If the “warrant process will not significantly increase the delay before the blood

test is conducted because an officer can take steps to secure a warrant while the suspect is being

transported to a medical facility by another officer,” then “there would be no plausible justification

for an exception to the warrant requirement.” Id. at 1561. During cross-examination, Officer

Gourley testified he arrested Donohoo because he had probable cause and did not need further

justification. Officer Gourley further admitted he did not know how to obtain an arrest warrant

because he had only filled out requests for search warrants to draw blood. Therefore, McNeely

forecloses the State’s position. See id. at 1556-61. We hold article 14.03(a)(1) did not authorize

Officer Gourley to arrest Donohoo without a warrant. See Swain, 181 S.W.3d at 366.

                                                CONCLUSION

        We affirm the trial court’s order suppressing all evidence obtained after Officer Gourley

placed Donohoo under arrest. We reverse the trial court’s order suppressing evidence obtained

before Officer Gourley formally placed Donohoo under arrest. We remand the case to the trial

court for further proceedings consistent with this opinion.

                                                        Luz Elena D. Chapa, Justice

DO NOT PUBLISH




4
 The State does not argue that any other exigency justified bypassing the Fourth Amendment’s warrant requirement.
See TEX. R. APP. P. 38.1(i), 47.1.

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