                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-16-00422-CR

                                            Ruben ZAVALA,
                                               Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 2, Bexar County, Texas
                                     Trial Court No. 485563
                              Honorable Jason Wolff, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: February 8, 2017

AFFIRMED

           A jury convicted Ruben Zavala of driving while intoxicated. In a single issue, Zavala

argues the trial court erred when it denied his motions to suppress statements he made to a police

officer during a traffic stop. Zavala contends his statements should have been suppressed because

they were made during a custodial interrogation in violation of the Fifth Amendment and article

38.22 of the Texas Code of Criminal Procedure. We affirm.
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                                                       BACKGROUND

            Shortly after midnight on March 13, 2015, on-duty San Antonio Police Officer Robert

Gaitan was driving on Military Drive in San Antonio, when he saw a car abruptly change lanes

and cut off another car. Gaitan initiated a traffic stop of the car that had performed the unsafe

maneuver. After the car stopped, Gaitan approached the driver of the car, who was Zavala, and

asked him how he was and, referring to his erratic driving, asked him what he was doing. Zavala

responded by saying that he had been drinking and using his cell phone. Shortly thereafter, Gaitan

directed Zavala to get out of his car and, after talking to Zavala for a while, administered part of a

field sobriety test to Zavala. Gaitan then advised Zavala that another officer would be coming to

the scene to conduct additional field sobriety testing. After the other officer conducted additional

field sobriety testing, Zavala was formally arrested for driving while intoxicated.

            Zavala was charged with driving while intoxicated and pled not guilty. Zavala filed

motions to suppress his oral statements to the police. The trial court held a suppression hearing.

Zavala offered, and the trial court admitted, a video and audio recording from the dashboard

camera mounted in Gaitan’s patrol car. Gaitan also testified at the hearing. The trial court

concluded that Zavala was temporarily detained and that the detention did not escalate to the point

of an arrest. 1 Because Zavala’s statements were not the product of a custodial interrogation, the



1
    Specifically, the trial court stated:

            The officer testified—and I found him to be credible—that he observed traffic violations—a couple
            of traffic violations, one of which presented a danger to others on the roadway. It was 12:30 at night.
            Upon approach he smelled intoxicants. There was admission of drinking. He observed glassy, red
            eyes, slurred speech, swayed while he was walking. Again, the admission of drinking. Certainly, the
            officer has reasonable suspicion to detain the defendant and do an investigation as to whether or not
            probable cause existed to arrest for driving while intoxicated.

                       He conducted an HGN, and while that may not get in front of a jury, he can certainly use
            it to inform his decision to further detain the defendant. It was a temporary detention. He added that
            he’d get another officer to give a full and complete test, and, “If you pass the test, you pass the test.”


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trial court denied the motions to suppress. The case was tried before a jury, which found Zavala

guilty of driving while intoxicated. This appeal ensued.

                             APPLICABLE LAW AND STANDARD OF REVIEW

       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 v. Arizona, 384 U.S. 436, 444-45 (1966); see U.S. CONST. amend. V. 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. 2016). Miranda and article 38.22 apply only to

custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Texas

courts construe “custody” under article 38.22 consistent with the meaning of “custody” for

purposes of Miranda. Id.

       The purpose of the warnings required by Miranda and article 38.22 is to safeguard a

person’s privilege against self-incrimination during custodial interrogation. Gardner v. State, 306

S.W.3d 274, 294 (Tex. Crim. App. 2009). “If an individual is subjected to questioning while in

custody without first being warned of his rights and without voluntarily waiving those rights, then

any evidence obtained as part of that questioning may not be used against him at trial.” Hernandez

v. State, 107 S.W.3d 41, 47 (Tex. App.—San Antonio 2003, pet. ref’d). When seeking the

suppression of unwarned statements, the defendant bears the burden to prove that the statements

were the product of custodial interrogation. Herrera, 241 S.W.3d at 526.


                [P]rior to doing any kind of pat-down on [Zavala], he asked, “Do you have any knives?”
       Certainly, he can do a search for officer safety and [he] does ask if it’s okay to search. I’ll be honest
       with you, I don’t know what the defendant says. I can’t tell whether he says yes or no, but he at least
       physically complies.

                 All of this, in my opinion, is a temporary detention. It did not escalate into the point of an
       arrest, and therefore, your motion is denied.

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         As a general rule, persons temporarily detained pursuant to an ordinary traffic stop are not

“in custody” for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440 (1984);

Hernandez, 107 S.W.3d at 47. A traffic stop that includes questioning and field sobriety tests does

not, without more, rise to the level of a custodial interrogation. Berkemer, 468 U.S. at 440-42;

State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex. Crim. App. 1997). While a routine traffic stop

generally does not place a person in custody for Miranda purposes, it may escalate from a non-

custodial detention to a custodial detention when the detainee’s freedom of movement is restrained

to the degree associated with a formal arrest. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.

2012).

         Both an investigative detention and an arrest involve a restraint on a person’s freedom of

movement. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). An arrest, however,

is a greater restraint upon a person’s freedom of movement than is a temporary detention. Id. There

is no bright-line test for distinguishing between an investigative detention and arrest; instead,

courts consider a number of factors, including: (1) the amount of force displayed; (2) the duration

of the detention; (3) the efficiency of the investigative process and whether it is conducted at the

original location or the person is transported to another location; (4) the officer’s expressed

intent—that is, whether he told the person that he was under arrest or was being detained only for

a temporary investigation; and (5) any other relevant factors. Id. at 291. When the degree of

incapacitation appears more than necessary to simply safeguard the officers and assure the

suspect’s presence during a period of investigation, it suggests the detention is an arrest. Id.

Furthermore, handcuffing is but one of a range of relevant factors in a custody determination.

Ortiz, 382 S.W.3d at 374.

         In determining whether a person is in custody, courts determine whether, given the

circumstances surrounding the interrogation, a reasonable person would have perceived the
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detention to be a restraint on his movement comparable to the restraint of formal arrest. Id. at 372.

In evaluating whether a reasonable person would believe his freedom has been restrained to the

degree of formal arrest, we consider the objective factors surrounding the detention. Id. Unless the

officer manifests his belief to the detainee that he is a suspect, the subjective beliefs of the detaining

officer are not relevant to the determination of whether a reasonable person in the detainee’s

position would believe he is in custody. Id. A suspect is “in custody” for Miranda purposes if a

reasonable person would believe that his freedom of movement was restrained to the degree

associated with a formal arrest under the circumstances of the interrogation. Herrera, 241 S.W.3d

at 525.

          A trial court’s ultimate custody determination presents a mixed question of law and fact.

Id. at 526. Therefore, we give almost total deference to the trial court’s custody determination

when the questions of historical fact turn on credibility and demeanor. Id. at 526-27. Conversely,

when the questions of historical fact do not turn on credibility and demeanor we review the trial

court’s custody determination de novo. Id. at 527. “The ultimate legal determination of whether an

individual was in custody requires an appellate court to take the facts, as assessed for weight and

credibility by the trial court, and then to make a legal determination as to whether those facts

amount to custody under the law.” State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013).

                                               ANALYSIS

          In his brief, Zavala argues that he was “in custody” for purposes of Miranda and article

38.22 when Gaitan asked him to exit his car and opened the car door from the outside. According

to Zavala, an innocent person under these circumstances would have felt that he was in custody at

this time. In response, the State argues that the trial court correctly determined that Zavala was

only temporarily detained. The facts are uncontested. We, therefore, apply a de novo standard of



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review and make a legal determination as to whether Zavala’s investigative detention escalated

from a non-custodial detention to a custodial detention at the relevant time.

         The evidence presented at the suppression hearing consisted of Gaitan’s testimony and the

video and audio recording from the dashboard camera mounted in Gaitan’s patrol car. Gaitan

testified that he pulled Zavala over after observing him commit two traffic violations. 2 The second

violation occurred when Zavala cut off another vehicle causing it to brake “pretty hard.” According

to Gaitan, Zavala would have caused an accident if the other driver had not been paying attention.

Gaitan said he made Zavala aware of the traffic violations and Zavala admitted that he had been

consuming alcohol. Gaitan also noticed Zavala’s eyes were red and glassy, his speech was slurred,

and he was swaying while he walked. Gaitan performed part of a field sobriety test and asked a

driving while intoxicated task force officer to come to the scene to continue the investigation.

Gaitan said he never placed Zavala in handcuffs, nor did he place him inside his patrol car.

According to Gaitan, he pulled the door open after Zavala “undid” the door from the interior door

handle. At one point, Gaitan told Zavala he was driving under the influence and that his driving

was unsafe.

         The video and audio recording shows that at the beginning of the stop Gaitan said to Zavala,

“How’s it going? What’s wrong with you?” Zavala responded, but his response is inaudible. Gaitan

then said, “What’s wrong with you? Huh? Why are you driving like that, man?” Again, Zavala’s

response is inaudible. Shortly thereafter, Gaitan asked Zavala, “Let me see your license? Do you

have a license?” Zavala told Gaitan he had a license and he handed something to him. Gaitan then

directed Zavala to remain in his car.




2
 Although Gaitan did not testify about the details of the first violation, the video and audio recording indicates that it
consisted of Zavala driving in the median towards another vehicle and then suddenly veering off to one side.

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        Next, Gaitan walked back to his patrol car, where he remained for about ten minutes. Gaitan

then returned to Zavala’s car, approaching the driver’s side window. A second officer approached

the passenger-side window. As Gaitan approached, he asked Zavala, “It’s Ruben, right?” Gaitan

then directed Zavala “to get outside the vehicle.” Gaitan placed his hand on the window frame of

the car and pulled on the door to open it. Gaitan then asked, “How much did you have to drink?”

Zavala apparently answered, “Two beers,” to which Gaitan responded, “It’s always two beers.”

As Zavala exited the car, he dropped something and Gaitan told Zavala that he would pick it up

for him. Gaitan then directed Zavala to walk to the area behind Zavala’s car. Zavala complied,

walking to the area behind his car on his own. After picking up the dropped object, Gaitan walked

with Zavala to the area behind Zavala’s car. As they walked, Gaitan did not touch Zavala, nor did

he handcuff Zavala or restrain Zavala in any way.

        Once both Gaitan and Zavala arrived at the area behind Zavala’s car, Gaitan and Zavala

stood face to face and had a conversation. Zavala started telling him about his current problems.

Gaitan told Zavala that he was a grown man and not to cry in front of him. Gaitan recounted some

of the details of Zavala’s erratic driving and then administered part of a field sobriety test to Zavala.

Gaitan asked Zavala if he was sure that he had consumed only two beers. Thereafter, Zavala

pleaded with Gaitan to allow him to resume driving his car. Gaitan told Zavala he could not allow

him to resume driving because it would be unsafe for other drivers on the road. Gaitan also told

Zavala “if you have to go in, then you have to go in.” Zavala indicated that he did not understand

why he would have to “go in,” to which Gaitan responded, “You are driving under the influence,

man.” Gaitan then explained to Zavala that another officer was on the way to give him the “full

test,” and “if you pass the test, you pass the test, okay.” Next, Gaitan asked Zavala if he had

anything in his pockets, such as any knives. Gaitan also asked permission to search Zavala “real

quick.” Although Zavala’s answer is inaudible, Zavala appeared to give consent to search. Gaitan
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then conducted a brief pat-down search of Zavala, and told Zavala to place his hands on the patrol

car. Zavala complied. Finally, Gaitan told Zavala, “Hang tight, right there, man. Give me one

second. … Hang out right there.”

       In arguing that he was in custody when he exited his car, Zavala focuses on Gaitan’s

remarks, asserting that they were enough to make Zavala feel that his freedom of movement was

restricted to the degree associated with a formal arrest. Although Gaitan communicated to Zavala

that he believed Zavala was driving while intoxicated, Gaitan also made clear to Zavala that this

belief would be confirmed or denied by another officer who would perform additional field

sobriety testing. In other words, Gaitan clearly communicated to Zavala that he was still being

investigated for driving while intoxicated. As additional support for his argument that he was in

custody, Zavala emphasizes that Gaitan conducted a pat-down search and directed him to place

his hands on the patrol car. However, we conclude that the pat-down search and the placement of

Zavala’s hands on the patrol car did not escalate the temporary investigative detention to a

custodial detention. These actions were minimally intrusive and were done to safeguard the

officers at the scene and to ensure Zavala’s presence until the task force officer arrived.

       We now examine all of the objective circumstances to determine whether Zavala’s

temporary investigative detention escalated to the functional equivalent of a formal arrest. At the

relevant time, only two officers were on the scene and neither of them displayed any force. In fact,

only one of the officers on the scene, Gaitan, had any interaction with Zavala. Additionally, Zavala

was never handcuffed. The duration of the detention was not excessive. The investigation, which

was relatively efficient, was conducted at the location of the original traffic stop. Zavala was not

transported to another location. Gaitan told Zavala that another officer was coming to the scene to

conduct additional field sobriety tests, and indicated that if he passed these tests he would be

allowed to go. Thus, Gaitan informed Zavala that the detention was only temporary and
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investigatory in nature. Based on all of the objective circumstances, we conclude that a reasonable

person in Zavala’s situation would not have believed that his freedom of movement was restricted

to the degree associated with a formal arrest.

       We conclude that the objective circumstances failed to show that Zavala was restrained to

the degree associated with a formal arrest. Because Zavala failed to meet his burden to prove that

he was in custody at the time he made his statements to Gaitan, the trial court did not err in denying

Zavala’s motions to suppress. The judgment of the trial court is therefore affirmed.

                                                  Karen Angelini, Justice


Do not publish




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