      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00682-CR



                                   Robert Bartlett, Appellant

                                                 v.

                                  The State of Texas, Appellee


           FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
    NO. 679168, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                                          OPINION


               A jury convicted Robert Bartlett of the misdemeanor offense of assault based on

evidence that he punched a woman in the mouth, breaking her upper jaw and dislocating teeth,

during an altercation at the 2004 Republic of Texas Motorcycle Rally. The trial court assessed

punishment at one year’s imprisonment and a $2,000 fine, but suspended imposition of the sentence

and placed Bartlett on community supervision for two years.

               Prior to trial, Bartlett had moved unsuccessfully to suppress two categories of

evidence tending to incriminate him: (1) a written statement that he had given following the incident

and (2) photographs of his hand revealing what Bartlett admitted was “a tooth mark or something.”

Bartlett had also moved unsuccessfully to quash the information—which alleged that he had

“intentionally, knowingly, and recklessly” hit the victim on or about the head with his hand—on the
ground that it failed to allege, with reasonable certainty, the acts relied upon to constitute

recklessness. See Tex. Crim. Proc. Code Ann. art. 21.15 (West 1989).

               In three issues on appeal, Bartlett asserts that the trial court abused its discretion in

failing to grant his motion to suppress evidence, refusing to quash the information, and subsequently

submitting an instruction regarding recklessness in the jury charge. We will affirm the judgment.


                                         BACKGROUND

The assault

               Based on the evidence presented at trial, the events in question occurred in the early

morning hours of June 6, 2004, during the annual Republic of Texas Motorcycle Rally at the Travis

County Exposition Center. The rally’s events and activities that evening included a Hank Williams,

Jr. concert. Heidi Amos, her parents, and a group of family friends were returning from the concert

to their campsite on the Expo Center grounds. They were riding in the back of a flatbed trailer,

which was being towed by a small four-wheel “recreational-type vehicle.” According to Amos, they

were proceeding along the only road from the concert area to their campsite, which was crowded

with people on motorcycles, in four-wheel vehicles, and on foot. Amos testified that the scene was

“very much like a parade for the mere fact that there’s so many people, you move very slowly.”

               A motorcyclist, later identified as Bartlett, was riding in the procession immediately

behind Amos’s trailer. Amos testified that Bartlett rode his motorcycle forward until his front

tire wedged against the back of her trailer, and then began performing “burnouts.”1 The force


       1
        A “burnout,” Amos explained, is a technique in which a motorcyclist throttles his or her
engine while the front wheel is held stationary, causing the back wheel to spin uncontrollably, often
accompanied by considerable smoke and loud engine noise. According to Sergeant Chuck Jones of

                                                  2
of the accelerating motorcycle, Amos recounted, began pushing her trailer and the attached four-

wheeler forward into a crowd of pedestrians. Bartlett was asked to stop. He continued. Soon

another motorcyclist joined Bartlett, with the two performing burnouts against the back of Amos’s

trailer. This caused the four-wheeler to be pushed forward with even more force, causing its driver

to begin to lose control.

               Amos’s group expressed displeasure at Bartlett’s behavior. By one account, one of

them threw a beer bottle at Bartlett, hitting him and causing him to fall with his bike. Whatever its

precise origins, a fight broke out between Bartlett and a man named “Roy” from Amos’s group.

Amos testified that the fight lasted approximately two minutes. Afterward, Amos’s group continued

slowly down the road toward their campsite. Amos did not observe Bartlett following them.

               Approximately twenty minutes later, as Amos’s group was continuing along in the

procession in their trailer, they approached an area where Bartlett and his friends were camped.

Another altercation broke out, although witnesses again differed as to how it began. Amos testified

that as her group approached, members of Bartlett’s group moved toward Amos’s trailer and one

threw a beer bottle at Roy. The bottle missed Roy but hit Amos in the chest. Amos testified that this

led to another altercation between Roy and Bartlett. As the two men fought on the ground near the

trailer, a “crowd of people” approached, trying to separate the two. Amos testified that when some

people tried to pull Bartlett away from Roy, Bartlett started to fight them.




the Travis County Sheriff’s Office, whose pivotal role in the underlying events is discussed below,
many of the motorcyclists at the rally would ride around a large loop around the Expo Center
grounds that was “basically called a parade area,” where “the people parade their motorcycles . . .
do burnouts, spin their tires . . . show how fast their bike runs, how much noise it makes . . .
especially at night because of the exhaust lighting up . . . and they just keep going around this loop.”

                                                   3
               As the fighting escalated, Amos claims that she stepped off of the trailer and started

to yell, “Hey, this is enough.” Before she finished that statement, Amos testified, Bartlett hit her in

the mouth with his fist. The impact broke Amos’s upper jaw and fractured and dislocated her

two upper front teeth. She then fell onto broken glass, cutting her knee and ankle. EMS was

dispatched to the scene. Because of the large and tightly compacted crowds, EMS used a golf cart

to remove Amos from the Expo Center grounds to an ambulance that it parked at the Center’s front

entrance. It took approximately 35 minutes for EMS to get the golf cart to Amos’s location and

remove her to the waiting ambulance. Amos ultimately required multiple surgeries to her mouth,

plus stitches to her knee.


The investigation

               Sergeant Chuck Jones of the Travis County Sheriff’s Office was the supervisor for

the 2-7 a.m. shift of “uniform security” at the motorcycle rally.2 At the hearing on Bartlett’s motion

to suppress, Sgt. Jones estimated the motorcycle rally crowd at “25, 28,000, I mean, 30,000 . . . it

was packed . . . and we had people left over from the concert, too.” Jones’s security force consisted

of a total of eight officers “actually on duty,” counting Jones and two officers “held over from the

shift before to help us out because we had so much going on.”

               Sgt. Jones was aware that “a pretty severe assault” had been dispatched earlier that

evening and that EMS, with some difficulty because of the large crowds, had transported the victim

to the hospital. One of the deputies on duty had found the location where the assault had occurred




       2
        Jones explained that he was in uniform but off-duty, having clocked out of his normal shift
with Travis County before coming to the Expo Center.

                                                  4
or the victim had been. Jones had directed the deputy to go to the hospital and interview the victim.

Jones, accompanied by another sergeant and a deputy, went to that location. Jones testified that these

were the only two officers he had available at the time. He used his patrol car to get to the location,

observing that “[i]t was really kind of congested for vehicles, so it was hard to get around.”

               At this location, Sgt. Jones explained, were several members of the group that had

been with Amos at the time of the assault and “we had quite a few people trying to tell us what

happened and they were saying that they saw the girl get assaulted.” One individual identified

himself as James Priester. According to Jones, Priester recounted that the assailant had been doing

burnouts against the back of their trailer and that “some of the people in his group,” including

Priester, had “wanted to know what he was doing or got upset with him or started yelling at him, you

know, that kind of a disturbance type thing.” Then, Jones indicated Priester told him, the assailant

“just started hitting people and that’s when the female got assaulted.”

               “Quite a few” of Priester’s group, according to Sgt. Jones, also indicated that “they

found the suspect that did it.”3 Jones, with the two accompanying officers, walked with “several of”

the Priester group toward the area where they indicated the assailant was. Eventually, “several

subjects pointed out [the assailant] in a group of people.” Although the officers had told the Priester

group members to remain “away back from us . . . because we told them not to go any closer because

we didn’t want to have another disturbance,” Jones testified that “they were close enough to point

him out,” and he had no question as to which individual the group had identified.




       3
       By this time, Jones estimated that “an hour . . . hour and a half maybe” had elapsed since
EMS had transported the victim away.

                                                  5
               Sgt. Jones explained that the suspect, whom he later identified as Bartlett, was in the

midst of “another large group of people” at a campsite who appeared to be his friends. Jones asked

the two officers accompanying him to control Bartlett’s group as Jones approached the suspect.

Then, according to Sgt. Jones:


       I came up behind him and told him who I—put my hand on his shoulder I think, I
       believe. I believe I did. I put my hand on his shoulder and my hand on his other
       hand and told him I was with the Sheriff’s Department and he needed to come with
       me and, you know, I didn’t want to have any—any problems. So I put the handcuffs
       on him.


Jones testified that he handcuffed the assault suspect to assure the officer’s safety. At trial, he

elaborated:


       [I]t was a security issue more than anything. I didn’t want him to get hurt. Didn’t
       want us to get hurt. And I wanted to get him out as quickly as I could without
       causing any problems . . . . we had two groups of people at that point. We had Mr.
       Bartlett’s group, and then we had the group with the victim that was pointing him
       out. And I didn’t want that—those groups getting together. I didn’t want to cause
       more problems than we already had.


When asked during the suppression hearing why he didn’t simply interview Bartlett at his campsite,

Jones explained, “We had a lot of people to deal with . . . I didn’t know Mr. Bartlett before that day

and I didn’t know the people in his camp, and we had people yelling at people and other fights going

on, and I took him from the camp for our safety to go some place else and talk.”

               Sgt. Jones recounted that the suspect “wanted to know what was going on” and that

Jones “just kind of explained to him that I needed to talk to him.” The sergeant acknowledged that

Bartlett was “pretty cooperative” and “didn’t give me any trouble at all,” but observed that Bartlett’s



                                                  6
friends “were a little agitated that I was taking Mr. Bartlett.” Jones noted that “[w]e were actually

inside a group of people,” so “we backed out of that group of people,” and “actually some of them

followed me out of the crowd a little bit.” Jones assured the crowd, “calm down, I got to talk to him,

but I’ll bring him back.” He explained these actions:


       Because I didn’t want another problem. We had three officers, we were grossly
       outnumbered. Like I said, I didn’t know Mr. Bartlett’s group or Mr. Priester’s group
       before that so I didn’t know what was going to happen. At that point I didn’t have
       Mr. Bartlett identified or anything, so I told them that to keep the other problems
       from happening.


               Sgt. Jones escorted Bartlett back toward his patrol car, which was located, according

to Jones’s varying estimates, 400-500 or “a few thousand” yards away. As they approached the car,

according to Jones, the Priester group “became belligerent,” “started getting a little bit aggressive,”

and “mouthing off” to Bartlett. Jones placed Bartlett in the back seat. (At this point, Priester looked

inside the car and positively identified Bartlett as the assailant.) Sgt. Jones observed that some of

the people in the Priester group appeared intoxicated, and some had black eyes, cuts, and scratches.

They confirmed, in response to Jones’s inquiry, that they had been in an altercation, which Jones

deduced was the same one in which Bartlett had been involved.

               Meanwhile, Sgt. Jones recounted, “Mr. Bartlett’s group had come over to

Mr. Priester’s group and they were exchanging words and we were trying to separate everybody.”

The situation was deteriorating to the point that Jones “didn’t feel it was safe to be there.” He

decided that “it would be best to get [Bartlett] out of here.” Jones testified that, given the

circumstances, using a patrol car was both the safest and the “only feasible way” of transporting

Bartlett. Jones testified that he told Bartlett that he was not under arrest but that “we were going to

                                                  7
go someplace where we could talk, because there was [sic] more problems coming to us as we were

getting back to the car.”

                Sgt. Jones drove his patrol car, with Bartlett in the back seat, approximately two

thousand yards away from the two rival groups to a location that he described as follows:


        It’s a show barn. It’s an open area, open walls where they had—where they keep all
        the vendors for these motorcycle rallies, and the area that we had was—it was just
        a little temporary looking little four foot fence that went from the vendor area to
        where the registration and, you know, they kept all the drinks and stuff like that.
        The—the area we were at was a table right inside there. . . .


                Jones testified that he uncuffed Bartlett when they walked into the barn and sat at the

table. Jones added that other people were walking through the open area and could see Jones sitting

at the table with Bartlett. Jones further observed that there was nothing “hanging on the wall or

anything” indicating that the area was “the place of business” for the Travis County Sheriff’s Office.

                Jones reiterated to Bartlett that “he wasn’t under arrest, that he was . . . just up there

to talk to me and I wanted to hear his side of the story.”4 Jones also explained to Bartlett that he had

earlier used the handcuffs “for our safety.” Bartlett began to explain to Jones his version of events.

To summarize, Bartlett claimed that Amos and Priester’s group were the first aggressors, knocking

him to the ground and hitting him. Only then, Bartlett claimed, did he hit back.

                As they were talking, Jones asked Bartlett if he “would like to make a statement.”

According to Jones, Bartlett replied, “sure.” Jones again told Bartlett, “I tell people I’m not going

to arrest them, I keep my promise. You know, . . . you’re not going to go to jail no matter what you


        4
           Jones added that, in fact, he “didn’t have the manpower or the inclination to take [Bartlett]
to jail that night, so I had already made up my mind that I wasn’t going to make an arrest.”

                                                    8
tell me.” Then, leaving Bartlett unattended and uncuffed at the table, Jones walked to his patrol car,

retrieved a “voluntary statement” form, and returned to the table. At this point, Jones recited to

Bartlett the Miranda5 warnings printed on the top of the form. Jones testified that Bartlett

understood the warnings and demonstrated to Jones’s satisfaction that he could read. Jones

transcribed Bartlett’s oral account and handed it to Bartlett to review. Bartlett signed and initialed

the statement. Its contents were the following:


       The first time I was on my bike and I bumped a trailer. I put my wheel against the
       trailer and did burn outs. Some guy jumped off the trailer and knocked me down, hit
       me in the face and kicked me. Everybody broke the fight up and the trailer left.
       About half [an] hour later the trailer came back around. The people started yelling
       at me. We were all fighting and everyone was hitting me. There were four or five
       people hitting me and I was hitting at the people back. I hit everyone that pulled me
       around and if I hit a girl I don’t remember. I got cuts on my right hand that look like
       a tooth mark or something.

       I’m sorry if I hurt someone.


Jones informed Bartlett that the statement would be “turned in to our detectives” and that they could

later “get a warrant for your arrest.” While they were at the barn, Jones took some photographs of

Bartlett, displaying the “cuts on my right hand” that Bartlett had described in his statement.

                After taking Bartlett’s statement, Jones put Bartlett back in the patrol car, this time

without handcuffs, and returned Bartlett to his group. Jones told the group that he had “kept his

promise” about returning Bartlett to them, and asked them to stay away from Priester’s group.




       5
           See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

                                                  9
Proceedings below

                Bartlett was subsequently charged by information with “intentionally, knowingly, and

recklessly” assaulting Amos. Prior to trial, Bartlett moved to suppress his written statement and the

photographs as fruits of a warrantless arrest without probable cause or lawful authority.6 The parties

similarly joined issue as to whether Bartlett was “in custody” within the meaning of article 38.22,

code of criminal procedure, at the time he gave his written statement. See Tex. Code Crim. Proc.

Ann. art. 38.22 (West 2005) (placing conditions on evidentiary use of written statements “made by

an accused as a result of custodial interrogation”); Miranda v. Arizona, 384 U.S. 436, 444 (1966);

Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996). The trial court denied the

motion, stating that “I do find the State met its burden of showing some evidence of some

circumstances that gave rise to the need to transport Mr. Bartlett away from the scene” and that

Bartlett “was not in custody” when giving his statement.

                Bartlett also moved to quash the information on the basis that the State failed to

allege, with reasonable certainty, the acts relied upon to constitute recklessness. See Tex. Code

Crim. Proc. Ann. art. 21.15 (West 1989). The trial court denied the motion to quash, but expressly

allowed Bartlett “to reurge the motion at trial.” Bartlett did raise the argument at trial, objecting on

the same grounds to the trial court’s inclusion of a recklessness instruction in the jury charge. The

trial court overruled the objection.




        6
         During the hearing, Bartlett’s trial counsel specifically relied on “Article I, Section 9 of the
Texas Constitution, the Fourth Amendment and the Fourteenth Amendment of the United States
Constitution, Article 38.23 and Chapter 14 of the Code of Criminal Procedure.”

                                                   10
               After hearing the evidence at trial, the jury found Bartlett guilty of the offense of

assault with bodily injury. Bartlett elected to have the trial court assess punishment, and punishment

was assessed at one year’s imprisonment and a $2,000 fine. The court suspended imposition of the

sentence and placed Bartlett on two years’ community supervision. This appeal followed.


                                          DISCUSSION

Motion to suppress

               In his first issue, Bartlett contends that the trial court abused its discretion in

denying his pretrial motion to suppress his written statement and photographs. We review a trial

court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Ford v. State,

158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given to their testimony. State v. Ross,

32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give trial courts almost complete deference in determining historical facts, but we

review de novo the trial court’s application of the law. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). Where, as here, the trial court did not make explicit written findings of

fact, we view the evidence in the light most favorable to the trial court’s rulings and assume that

the trial court made implicit findings of fact that are supported by the record. Ford, 158 S.W.3d

at 493. We “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. Steelman, 93 S.W.3d 102, 107

(Tex. Crim. App. 2002).




                                                 11
               Bartlett urges that his “statement and the photographs of him are the products of an

unlawful arrest and an improper custodial interrogation.” In support, he devotes much of his briefing

to establishing that Sgt. Jones had “seized” him under the meaning of the Fourth Amendment and

article I, section 9 of the Texas Constitution. See California v. Hodari D., 499 U.S. 621, 628 (1991)

(Fourth Amendment “seizure” occurs when reasonable person would not believe that he was free

to leave and either (1) officer applied physical force with lawful authority, or (2) suspect submitted

to assertion of authority); Johnson v. State, 912 S.W.2d 227, 232-35 (Tex. Crim. App. 1995)

(holding that the Hodari D standard also defines “seizures” under article I, section 9). Bartlett

describes his seizure interchangeably as “custody” and a warrantless arrest. He asserts that “he was

seized and restrained of his liberty (i.e., under arrest) from the moment that Jones placed him in

handcuffs, identified himself as being with the Sheriff’s Department, placing his hands upon

Appellant, and telling him ‘he needed to come with me.’” Bartlett argues that Sgt. Jones lacked

probable cause or legal authority to arrest him or take him into custody without a warrant.

See United States v. Watson, 423 U.S. 411, 417 (1976); Tex. Code Crim. Proc. Ann. art. 14.03(a)(1),

(2) (West Supp. 2007).

               The State concedes that Sgt. Jones “seized” Bartlett, but argues that the seizure did

not constitute “custody” or a warrantless arrest, but was instead an investigative detention.7 Under

both the Fourth Amendment and article I, section 9 of the Texas Constitution, a law enforcement

officer may stop and briefly detain a person without probable cause whom he reasonably suspects

of criminal activity. Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (citing Terry


       7
          The State concedes that at the time he initiated the seizure, Sgt. Jones lacked probable
cause or lawful authority to arrest Bartlett.

                                                 12
v. Ohio, 392 U.S. 1, 21-22 (1968)); Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

Although both constitute seizures, investigative detentions are not arrests, and are not subject to

the requirements of a warrant or probable cause. See State v. Moore, 25 S.W.3d 383, 386

(Tex. App.—Austin 2000, no pet.).8 Nor do investigative detentions constitute “custody” in the

sense of article 38.22 and Miranda.        “A person is in custody if, under the totality of the

circumstances, a reasonable person would believe his freedom of movement was restrained to the

degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt

v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996); Houston v. State, 185 S.W.3d 917,

920 (Tex. App.—Austin 2006, pet. ref’d).          Thus, a valid investigative detention, which is

characterized by lesser restraint than an arrest, does not constitute custody. See Berkemer

v. McCarty, 468 U.S. 420, 438-39 (1984) (traffic stops and Terry stops are considered seizures but

not custody because of their “nonthreatening,” “noncoercive,” and “brief” character compared

to formal arrests); Dowthitt, 931 S.W.2d at 255 (“Stansbury indicates that the restriction upon




       8
           By post-submission letter, Bartlett emphasizes a recent decision from the Dallas Court of
Appeals, State v. Purdy, No. 05-07-00133-CR, 2008 Tex. App. LEXIS 102 (Tex. App.—Dallas Jan.
9, 2008, no pet. h.), which he cites for the proposition that “an ‘arrest’ under Article 14.03, C. Cr.
P., is not limited to a formal, custodial arrest, and may include detention pursuant to a reasonable
suspicion.” To the extent Bartlett views Purdy as blurring the distinctions between investigative
detentions and arrests in any manner relevant to this case, we reject that contention. Purdy and
the line of decisions on which it relies stand for the narrow concept that the limitations
within subsections (d) and (g) of article 14.03 on warrantless “arrests” by law enforcement officers
outside their territorial jurisdictions similarly restrict such officers’ investigative detentions. See
Purdy, 2008 Tex. App. LEXIS 102, at *5-*6 (discussing Brother v. State, 166 S.W.3d 255, 256-60
(Tex. Crim. App. 2005), cert. denied, 546 U.S. 1150 (2006)); see also State v. Kurtz, 152 S.W.3d
72, 79-80 (Tex. Crim. App. 2005); and Mitchell v. State, 187 S.W.3d 113, 116 (Tex. App.—Waco
2006, pet. ref’d).

                                                  13
freedom of movement must amount to the degree associated with an arrest as opposed to an

investigative detention.”).

               In his briefing, Bartlett did not squarely address the State’s contention that Sgt.

Jones’s seizure of him constituted an investigative detention, arguing essentially that he was seized

and that status, without more, equals an arrest and custody. During oral argument, Bartlett disputed

whether the State met its burden of justifying an investigative detention as of the time Jones initially

restrained him. An investigative detention is justified when the detaining officer has specific

articulable facts, which, taken together with rational inferences from those facts, lead him reasonably

to suspect that the person detained actually is, or has been, or soon will be involved in criminal

activity. Balentine, 71 S.W.3d at 769. The record supports the trial court’s implied findings of such

facts here. Jones testified that a “pretty severe assault” at the motorcycle rally had, in fact, been

reported earlier in the evening and that EMS had transported an injured victim to the hospital. Jones

proceeded to the location that a deputy had previously determined to be the site of the assault. While

there, several persons claiming to be eyewitnesses to the assault approached the officers, described

what had happened, and volunteered that they could identify the assailant and knew where he was.

One of these individuals, James Priester, identified himself to Jones. Several members of this group,

including Priester, then led Sgt. Jones to Bartlett’s location, where they pointed out Bartlett as the

assailant. These specific facts gave Sgt. Jones a basis to reasonably suspect that Bartlett had been

involved in the reported assault and warranted his temporary detention for further investigation. See

State v. Fudge, 42 S.W.3d 226, 228-32 (Tex. App.—Austin 2001, no pet.) (cab driver’s unsolicited,

in-person report to law enforcement that he had seen another motorist driving as if drunk and

identification of the vehicle when it approached was sufficient to warrant an investigatory stop).

                                                  14
               Bartlett further suggests that the extent or degree of his restraint—especially the fact

he was handcuffed and placed in the patrol car—would have caused a reasonable person to believe

his freedom of movement was restrained to the degree associated with a formal arrest. However, an

officer conducting an investigative detention may use such force as is reasonably necessary under

the circumstances to effect the goal of the stop: investigation, maintenance of the status quo, or

officer safety. Rhodes, 945 S.W.2d at 117. Whether such use of force elevates the detention to

custody or an arrest turns on the reasonableness of the intrusion under all of the facts. Moore,

25 S.W.3d at 386. Factors that may be considered in this inquiry include the degree of force

employed, the nature of the crime under investigation, the degree of suspicion, the location of the

detention, the time of day, the reaction of the suspect, and whether the officer actually conducts an

investigation. Id. “[C]ommon sense and ordinary human experience must govern over rigid

criteria.” Rhodes, 945 S.W.2d at 118. “Furthermore, allowances must be made for the fact that

officers must often make quick decisions under tense, uncertain and rapidly changing

circumstances.” Id. Consequently, there may be circumstances in an investigative detention that

reasonably justify an officer handcuffing a suspect, Balentine, 71 S.W.3d at 771 (“There is no

bright-line test providing that mere handcuffing is the equivalent of an arrest.”); Rhodes, 945 S.W.2d

at 117-18, placing a suspect in a police car, Balentine, 71 S.W.3d at 771, or transporting the suspect

to another location for questioning. Josey v. State, 981 S.W.2d 831, 841 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d) (“Safety and security reasons may justify moving a suspect from one

location to another during an investigatory stop.”).

               Also bearing on the custody inquiry is the principle that the “reasonable person”

standard presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438 (1991); Dowthitt,

                                                 15
931 S.W.2d at 254; Ramirez v. State, 105 S.W.3d 730, 738 (Tex. App.—Austin 2003, no pet.).

Moreover, the determination of custody depends on the objective circumstances of the interrogation,

not the subjective views of the person being questioned or the subjective intent of the officer to arrest

or not arrest. Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254; Houston, 185 S.W.3d at 920.

But the subjective intent of the officer may be relevant as a circumstance of the interrogation if it is

conveyed to the individual being questioned, but only to the extent that the communication of those

views would affect a reasonable person’s understanding of his freedom of action. See Stansbury,

511 U.S. at 325; Dowthitt, 931 S.W.2d at 254; Houston, 185 S.W.3d at 920.

                Sgt. Jones testified that he handcuffed Bartlett—whom had just been identified by

several people as the perpetrator of a “pretty severe assault”—to ensure both Bartlett’s safety and

his own. Rather than questioning Bartlett at his campsite, Sgt. Jones sought to “get him out as

quickly as I could” in order to head off a potentially volatile situation between Bartlett’s “large group

of people” and the similarly “large” Priester group. Jones observed that the three officers “were

grossly outnumbered” by the two groups. Jones saw fit to “back[] out of that group of people,”

whom he characterized as “agitated,” and some even started to follow the uniformed officers.

“Because [he] didn’t want another problem,” Jones assured Bartlett’s group, “calm down, I got to

talk to him, but I’ll bring him back.” Jones recounted that the situation degraded as they proceeded

to the patrol car, where they were confronted by the “belligerent” Priester group, some of whom were

intoxicated and showed signs they had been in a fight. Worse, according to Sgt. Jones, Bartlett’s

group came over “to Mr. Priester’s group and they were exchanging words and we were trying to

separate everybody.” Jones “didn’t feel it was safe to be there,” and used his patrol car to remove



                                                   16
Bartlett from the treacherous environment. Given the circumstances, Jones believed that the patrol

car was the safest and “only feasible way” to remove Bartlett.

               On this record, the trial court could have impliedly found that Sgt. Jones’s decision

to transport Bartlett away from the scene in his patrol car was reasonably necessary to maintain the

status quo and effect the safety of both the officers and Bartlett himself. See Josey, 981 S.W.2d

at 841 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); Perez v. State, 818 S.W.2d 512, 516

(Tex. App.—Houston [1st Dist.] 1991, no pet.). The same can be said regarding Jones’s decision

to handcuff Bartlett. See United States v. Sanders, 994 F.2d 200, 205-08 (5th Cir. 1993)

(summarizing cases in which handcuffing suspect was deemed necessary “to allow the officer to

pursue his investigation without fear of violence.”).

               Adding further support to these implied findings are the events once Sgt. Jones and

Bartlett reached the “show barn” a safe distance from the volatile environment from which they

came. Jones removed the handcuffs from Bartlett and did not apply them again. Jones also

explained to Bartlett that he had used the handcuffs “for our safety.” Further, Sgt. Jones actually

conducted an investigation, asking Bartlett to tell his side of the story. See Rhodes, 945 S.W.2d at

119, 119-20 (Meyers, J., concurring) (suggesting that “whether a detention is an arrest or an

investigatory stop turns, in large part, upon whether an investigation has occurred).

               Sgt. Jones also repeatedly voiced his intent not to arrest Bartlett, but only to question

or “talk to him.” An officer’s subjective views may be relevant to the custody determination to the

extent they are communicated and would affect a reasonable person’s understanding of his freedom

of action. See Stansbury, 511 U.S. at 325. Jones testified that he “didn’t have the manpower or the

inclination to take [Bartlett] to jail that night, so I had already made up my mind that I wasn’t going

                                                  17
to make an arrest.” When Jones detained Bartlett, he told Bartlett’s friends, “I got to talk to him, but

I’ll bring him back.” This evidence supports the trial court’s implied finding that Bartlett heard these

statements. Also, at the patrol car, Jones recounted that he told Bartlett he was not under arrest and

that “we were going to go someplace where we could talk, because there was [sic] more problems

coming to us as we were getting back to the car.” Further, when at the show barn, Jones reiterated

to Bartlett that “he wasn’t under arrest, that he was . . . just up there to talk to [Jones] and [Jones]

wanted to hear his side of the story.”

                Finally, the setting to which Bartlett was transported is relevant to the custody

determination. The record reflects that the “show barn” was an “open area” with “open walls”

“where they keep all the vendors.” Sgt. Jones explained that other people were walking through this

area and could see him sitting at the table with Bartlett. Jones also testified that there was nothing

in the area indicating that it was “the place of business” for the Travis County Sheriff’s Office. In

addition, Sgt. Jones, after having informed Bartlett that he was not under arrest, left Bartlett alone

and uncuffed while he went to his patrol car to retrieve the “voluntary statement” form.

                In summary, the record supports the conclusion that Sgt. Jones’s seizure of Bartlett

was an investigative detention, not an arrest or custody. The district court did not abuse its discretion

in overruling Bartlett’s motion to suppress. We overrule Bartlett’s first issue.


Motion to quash

                In his second issue, Bartlett asserts that the trial court abused its discretion in

overruling his motion to quash the information. Whether a charging instrument provides sufficient




                                                   18
notice to the accused is a question of law that we review de novo. See State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004).

                The information alleged, in relevant part:


        Robert Bartlett, the Defendant, on or about June 6, 2004, did then and there
        intentionally, knowingly, and recklessly cause bodily injury to Heidi Amos by hitting
        Heidi Amos on or about the head with the Defendant’s hand.


Bartlett complains that the information fails to provide notice of the act or acts the State relies upon

to constitute the culpable mental state of recklessness. In particular, he relies on article 21.15 of the

code of criminal procedure, which states:


        Whenever recklessness or criminal negligence enters into or is a part or element of
        any offense, or it is charged that the accused acted recklessly or with criminal
        negligence in the commission of an offense, the complaint, information, or
        indictment in order to be sufficient in any such case must allege, with reasonable
        certainty, the act or acts relied upon to constitute recklessness or criminal negligence,
        and in no event shall it be sufficient to allege merely that the accused, in committing
        the offense, acted recklessly or with criminal negligence.


Tex. Code Crim. Proc. Ann. art. 21.15.

                The State responds that article 21.15 is inapplicable. It relies on Crawford v. State,

646 S.W.2d 936 (Tex. Crim. App. 1983), which involved an indictment alleging—like the

information here—that the defendant had acted “intentionally, knowingly, and recklessly.” Id. at

937. Crawford had moved to quash the indictment, urging that it “failed to allege with reasonable

certainty the act or acts relied on to constitute recklessness.” Id. The trial court overruled the

motion, and Crawford was ultimately convicted. Crawford appealed, bringing a single point of error



                                                   19
challenging the trial court’s ruling on his motion to quash. The court of criminal appeals affirmed,

reasoning that:


        All three of the culpable mental states, intentionally, knowingly, and recklessly, were
        alleged. Since it is sufficient to allege either of the culpable mental states, the
        indictment on its face alleges two culpable mental states, intentionally and
        knowingly, which are not subject to the complaint concerning the culpable mental
        state, recklessly, made in the appellant’s motion to quash. The indictment is
        sufficient and we need not determine the requirements of the indictment, if recklessly
        had been the only alleged culpable mental state.


Id. at 937. As the State views the case, Crawford holds that article 21.15 governs only when

recklessness is the sole culpable mental state alleged—not where, as here, recklessness is

alleged along with intentional or knowing conduct. This Court has previously expressed the same

view, albeit in dicta.9

                  Bartlett attempts to distinguish Crawford as addressing not the sufficiency of notice,

but the concept of “fundamental defect” in charging instruments then recognized by the court of

criminal appeals. Under this concept, if a charging instrument failed to allege all elements of the

offense, any subsequent judgment of conviction was deemed void and could be attacked at any time

on direct appeal or through a post-conviction habeas petition. See Ex parte Patterson, 969 S.W.2d

16, 18 (Tex. Crim. App. 1998) (surveying this history). By contrast, certain other defects in charging


        9
          See State v. McCoy, 64 S.W.3d 90, 94 n.2 (Tex. App.—Austin 2001, no pet.) (holding that
charging instrument alleging only reckless conduct failed to comply with article 21.15, but
distinguishing those alleging intentional, knowing, and reckless conduct on basis that under
Crawford, an “indictment alleging that defendant acted intentionally, knowingly, and recklessly need
not comply with article 21.15 requirements.”); see also Griffin v. State, No. 03-02-00016-CR, 2003
Tex. App. LEXIS 1711, at *3 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op., not designated
for publication) (“[B]ecause the indictment alleged that Griffin acted intentionally and knowingly,
as well as recklessly, compliance with article 21.15 was not required.” (citing Crawford)).

                                                   20
instruments were considered merely of “form” and were required to be raised in a timely manner or

be waived. See Gengnagel v. State, 748 S.W.2d 227, 228-29 (Tex. Crim. App. 1988). Regarding

article 21.15’s requirements in particular, the court of criminal appeals distinguished between the

failure of a charging instrument “to allege with reasonable certainty the acts relied upon to constitute

recklessness,” which it deemed a complaint of “form” that “g[a]ve[] the accused grounds to

complain before trial of inadequate ‘notice,’” and a failure to allege “the acts themselves,” which

constituted a fundamental defect. Id.; see Graham v. State, 657 S.W.2d 99, 104 (Tex. Crim. App.

1983). Contrary to Bartlett’s view, Crawford addresses the former type of challenge.

               The defendant in Crawford had moved to quash the indictment, according to the court

of criminal appeals, on the basis that the instrument “failed to allege with reasonable certainty the

act or acts relied on to constitute recklessness.” 646 S.W.2d at 937 (emphasis added). This was the

sole issue on appeal. Id. The court of criminal appeals termed such a complaint one of “form” that

“gives the accused grounds to complain before trial of inadequate ‘notice.’” Gengnagel, 748 S.W.2d

at 228-29. The defendant employed the appropriate procedural mechanism—a motion to quash—for

challenges based on inadequate notice. See id. at 228. Although the Crawford court did not

elaborate extensively on its reasoning, its references to the “sufficiency” of the indictment are

consistent with the court’s nomenclature in cases involving notice-based challenges. See Graham,

657 S.W.2d at 104; cf. Gengnagel, 748 S.W.2d at 230 (referring to a “fundamentally defective”

charging instrument). We see no basis for distinguishing what would appear to be the squarely

controlling precedent of the court of criminal appeals in Crawford.




                                                  21
                   The charging instrument here, like that in Crawford, alleges not only recklessness,

but intentional and knowing conduct. The Crawford court relied on this feature of the instrument

in holding that it “need not determine the requirements of the indictment, if recklessly had been the

only alleged culpable mental state.” 646 S.W.2d at 937. The same rationale is fatal to Bartlett’s

complaint regarding article 21.15. We accordingly overrule Bartlett’ second issue.

                   Relying on the same underlying theory, Bartlett asserts in his third issue that the trial

court abused its discretion in instructing the jury regarding the culpable mental state of recklessness.

Bartlett acknowledges that this issue would be foreclosed by our adverse disposition of his second

issue. Consequently, we overrule Bartlett’s third issue.


                                              CONCLUSION

                   Having overruled Bartlett’s issues on appeal, we affirm the judgment of

the trial court.



                                                   __________________________________________

                                                   Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: February 21, 2008

Publish




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