                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-18-00294-CR

                                    Michael Lemone ROBERTS,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                    From the County Court at Law No. 14, Bexar County, Texas
                                     Trial Court No. 526617
                       Honorable Susan Elizabeth Skinner, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: May 15, 2019

AFFIRMED

           Michael Lemone Roberts was convicted by a jury of driving while intoxicated and

sentenced by the trial court to six months in jail probated for eighteen months. On appeal, Roberts

asserts the trial court erred in denying his motion to suppress. Roberts also asserts the evidence is

legally insufficient to support his conviction. We affirm the trial court’s judgment.
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                                           BACKGROUND

         Seconds after a car accident involving a car and a truck, Roberts was seen walking and then

running away from the scene. Residents in the neighborhood chased Roberts as he ran from the

scene.

         Based on information regarding the direction in which Roberts fled, Investigator Melanie

Bowser drove to a baseball field about three or four blocks from the accident scene and observed

Roberts walking next to the field. When Investigator Bowser activated her lights, Roberts ran into

a wooded area. With the assistance of a flashlight, Investigator Bowser located Roberts lying on

his stomach in the tree line. Investigator Bower pointed her gun at Roberts and ordered him to

crawl out. Roberts initially stated he was “not going anywhere” before eventually crawling out.

Investigator Bowser immediately smelled a strong odor of alcohol emitting from Roberts.

Investigator Bowser handcuffed Roberts and assisted him to his feet.          Investigator Bowser

observed that Roberts was too unsteady to stand without leaning on her patrol car for support.

         Investigator Bowser asked Roberts if he was involved in an accident, which Roberts

denied. Roberts also refused to perform field sobriety tests or to provide a breath or blood

specimen. Investigator Bowser arrested Roberts and returned with him to the accident scene.

Investigator Bowser conducted a field identification and stated a witness at the scene identified

Roberts as the person who fled the accident scene. Investigator Bowser did not know the identity

of the witness.

         Investigator Bowser obtained a search warrant to draw a specimen of Roberts’s blood.

Subsequent testing revealed Roberts’s blood alcohol content was 0.134.

         The trial court denied Roberts’s motion to suppress, and a jury found him guilty of driving

while intoxicated. Roberts appeals.




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                          REASONABLE SUSPICION/PROBABLE CAUSE

       In his first two issues, Roberts asserts the trial court erred in denying his motion to suppress

all evidence obtained as a result of his illegal arrest. Roberts argues Investigator Bowser lacked

reasonable suspicion to detain him or probable cause to arrest him. Specifically, Roberts argues

none of the witnesses at the accident scene saw Roberts driving the car involved in the accident.

       A.      Standard of Review

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

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). Because

the trial judge is the sole judge of credibility of witnesses and the weight to be given to their

testimony at a suppression hearing, we afford almost complete deference to the trial court’s

determination of the historical facts. Id. at 190. “However, whether the facts, as determined by

the trial court, add up to reasonable suspicion or probable cause is a question to be reviewed de

novo.” State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim. App. 2017).

       B.      Applicable Law

       “[A]n investigative detention occurs when a person yields to [a] police officer’s show of

authority under a reasonable belief that he is not free to leave.” Crain v. State, 315 S.W.3d 43, 49

(Tex. Crim. App. 2010). “Reasonable suspicion to detain a person exists when a police officer has

specific, articulable facts that, when combined with rational inferences from those facts, would

lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in

criminal activity.” Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016) (internal quotation

omitted).

       “Probable cause [to arrest] exists where the facts and circumstances known to law

enforcement officers are sufficient in themselves to warrant a man of reasonable caution in the

belief that an offense has been or is being committed.” Marcopoulos v. State, 538 S.W.3d 596,


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599–600 (Tex. Crim. App. 2017) (internal quotation omitted). We must consider the totality of

the circumstances known to the officer in determining the existence of probable cause. Id. at 600.

       C.      Analysis

       As previously noted, Roberts argues Investigator Bowser did not have reasonable suspicion

or probable cause because none of the witnesses at the accident scene saw him driving the car

involved in the accident. In evaluating whether “reasonable suspicion” exists however, we are

permitted to consider rational inferences from the specific, articulable facts. Furr, 499 S.W.3d at

878. Furthermore, in evaluating probable cause, we consider the totality of the circumstances.

Marcopoulos, 538 S.W.3d at 599–600.

       Here, the testimony presented at the suppression hearing established Richard Reyna saw

Roberts eight to ten feet from the car just seconds after the accident, and the car’s driver’s side

door was open. Reyna was one of the people who chased Roberts when he started running from

the scene after an onlooker yelled at Roberts not to run. Reyna testified regarding the path of the

chase and saw Roberts being arrested. Reyna walked to the location where Roberts was arrested

and told the police Roberts was the man he was chasing. See State v. Martinez, No. PD-0324-17,

2019 WL 137754, at *4 (Tex. Crim. App. Jan. 9, 2019) (holding sum of information known to

cooperating officers should be considered in assessing probable cause). Investigator Bowser found

Roberts at a location in the direction where a bystander saw him run. Investigator Bowser smelled

a strong odor of alcohol immediately upon encountering Roberts, who had red, bloodshot eyes and

was unsteady on his feet. Finally, Roberts refused to perform field sobriety tests. See State v.

Garrett, 22 S.W.3d 650, 655 (Tex. App.—Austin 2000, no pet.) (“While we regard absent factors

as a part of the totality of the circumstances, they are only a part, and where many of the missing

factors are due to a defendant’s conduct, we believe that the officers could reasonably consider

that conduct as part of the totality of the circumstances.”). Given the totality of the circumstances


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and the reasonable inferences that can be drawn from the facts, we hold the trial court did not abuse

its discretion in finding Investigator Bowser had reasonable suspicion to detain Roberts and

probable cause to arrest him.

       Roberts’s first and second issues are overruled.

                                   CUSTODIAL INTERROGATION

       In his third issue, Roberts contends the trial court should have suppressed statements he

made after Investigator Bowser ordered him out of the woods at gunpoint. Roberts asserts the

statements were made as a result of custodial interrogation, and he had not been given his Miranda

rights. We apply the same standard of review detailed above in reviewing this issue.

       A.      Applicable Law

       “A person is in ‘custody’ only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal arrest.”

Hines v. State, 383 S.W.3d 615, 621 (Tex. App.—San Antonio 2012, pet. ref’d) (internal quotation

omitted). The Texas Court of Criminal Appeals has outlined four situations that may constitute

custody: “(1) when a suspect is physically deprived of his freedom of action in any significant

way; (2) when a police officer tells a suspect he cannot leave; (3) when a police officer creates 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 a police officer does not

tell a suspect he is free to leave.” Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

In the first, second, and third situations, the restrictions upon the suspect’s freedom of movement

must rise to the degree associated with an arrest as opposed to an investigative detention. Id.

       Statements made by a suspect during a custodial interrogation are inadmissible unless

certain warnings were given to the suspect before he made those statements. Miranda v. Arizona,




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384 U.S. 436, 444 (1966). A defendant has the burden to establish he was in custody before the

State bears the burden to show compliance with Miranda. Hines, 383 S.W.3d 621.

       Although a person who has been handcuffed has been detained, there is no bright-line rule

that handcuffing a suspect always constitutes an arrest. State v. Sheppard, 271 S.W.3d 281, 283

(Tex. Crim. App. 2008); Campbell v. State, 325 S.W.3d 223, 234 (Tex. App.—Fort Worth 2010,

no pet.). Handcuffing a suspect during an investigative detention may be appropriate “when

reasonably necessary to effect the goal of the detention: investigation, maintenance of the status

quo, or officer safety.” Campbell, 325 S.W.3d at 234. Other factors that bear on the issue of

whether a particular seizure is an arrest or merely an investigative detention are “[t]he nature of

the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and

the reaction of the suspect.” Id. “It is also important to consider whether the officer actually

conducts an investigation after seizing the suspect—that is, whether the officer briefly questions

the suspect about his identity, his reason for being in the area, or similar reasonable inquiries of a

truly investigatory nature.” Id. (emphasis added).

       Custodial interrogation is defined as questioning initiated by law enforcement. Lam v.

State, 25 S.W.3d 233, 239 (Tex. App.—San Antonio 2000, no pet.); see also Griffith v. State, 55

S.W.3d 598, 603 (Tex. Crim. App. 2001) (“Questions normally accompanying the processing of a

D.W.I. arrestee do not constitute interrogation. ... ‘In the context of an arrest for driving while

intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an

interrogation within the meaning of Miranda.’”) (quoting South Dakota v. Neville, 469 U.S. 553,

564 n.15 (1983)) Spontaneous statements that are not in response to questioning are not the

product of custodial interrogation. See Dossett v. State, 216 S.W.3d 7, 24 (Tex. App.—San

Antonio 2006, pet. ref’d).




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       B.        Analysis

       In this case, Roberts ran from Investigator Bowser when she activated her lights and hid in

a wooded area requiring Investigator Bowser to use her flashlight to locate him. Given the time

of day, the darkness of the area, and Roberts’s efforts to evade Investigator Bowser, Investigator

Bowser’s use of her handgun to order Roberts from the wooded area, and her use of handcuffs to

detain him were both reasonably necessary to effect the goal of the detention. Campbell, 325

S.W.3d at 234.

       Roberts’s statement that he was “not going anywhere” was in response to a command by

Investigator Bowser to crawl out from the wooded area, not in response to questioning by

Investigator Bowser. Accordingly, the statement was not in response to custodial interrogation.

       Roberts’s second statement regarding his not being involved in an accident was made as

Investigator Bowser conducted her investigation after detaining him. Her questions related to his

reason for being in the area, a request to submit to field sobriety tests, and a request to provide a

blood or breath specimen, which are reasonable inquiries of a truly investigatory nature. See id.

Because we hold Investigator Bowser’s questioning was of a truly investigatory nature to effect

the goal of the detention, we hold Roberts’s statement that he was not involved in an accident was

not the result of custodial interrogation.

       Roberts’s third issue is overruled.

                                             SUFFICIENCY

       In his fourth issue, Roberts contends the evidence is legally insufficient to support his

conviction. Specifically, Roberts asserts the record contains no evidence establishing he drove the

car while intoxicated prior to the accident.




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         A.     Standard of Review

         When addressing a challenge to the sufficiency of the evidence, we consider whether, after

viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). This standard requires us to defer “to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id. “We may not re-weigh the evidence or substitute

our judgment for that of the factfinder.” Zuniga v. State, 551 S.W.3d 728, 732 (Tex. Crim. App.

2018).

         “Direct evidence and circumstantial evidence are equally probative, and circumstantial

evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Id. at 733. Additionally,

“juries are permitted to draw any reasonable inferences from the facts so long as each inference is

supported by the evidence presented at trial.” Id. “[A] inference is a conclusion reached by

considering other facts and deducing a logical consequence from them.” Hooper v. State, 214

S.W.3d 9, 16 (Tex. Crim. App. 2007).

         B.     Analysis

         A person commits the offense of driving while intoxicated “if the person is intoxicated

while operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a). The two

elements of the offense challenged by Roberts in his brief are whether the evidence is sufficient to

prove: (1) he was driving the car that was involved in the accident; and (2) he was intoxicated

while driving the car.

         With regard to the evidence establishing Roberts was driving the car, Reyna testified he

heard the accident and arrived at the scene within five seconds. Upon arriving at the scene, he saw


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the driver’s side door to the car was open, and Roberts was about eight feet from the car. Roberts

was initially walking away from the car but began running when onlookers at the scene yelled at

him not to run. The jury also heard a 911 call from Horando 1 Vasquez. Vasquez told the 911

operator that he heard the accident, ran out, and starting chasing the man who ran away because

“they” said that he was the driver. Finally, the evidence established Roberts was the owner of the

car. From this evidence, the jury could draw a reasonable inference that Roberts was driving the

car. See Hernandez v. State, 13 S.W.3d 78, 80–81 (Tex. App.—Texarkana 2000, no pet.) (rejecting

argument that evidence was insufficient to establish appellant was driver of pickup truck involved

in an accident because he “was placed by witnesses, immediately after the accident, on the driver’s

side of a pickup truck which belonged to him”).

           With regard to the evidence establishing Roberts was intoxicated while driving the car,

Investigator Bowser smelled a strong odor of alcohol immediately upon encountering Roberts

which was within one to two minutes after she was pointed in the direction he had fled. See

Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting “factfinder may draw an

inference of guilt from the circumstance of flight”). She also observed he had red, bloodshot eyes

and was so unsteady that he had to use the patrol car to support himself. Finally, the evidence

established Roberts’s blood alcohol concentration was 0.134 at the time of the blood draw.

Although Roberts contends the testimony that he was unsteady on his feet is inconsistent with his

ability to run away from the accident scene, we may not reweigh the evidence. See Zuniga, 551

S.W.3d at 732. Accordingly, based on the foregoing evidence, the jury could infer Roberts was

intoxicated when he was driving the car.

           Roberts’s fourth issue is overruled.



1
    The first name is spelled based on the manner in which it is pronounced on the tape from the 911 call.


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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




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