                                    NO. 12-16-00195-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

NATHAN ALLEN KING,                               §      APPEAL FROM THE
APPELLANT

V.                                               §      COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE                                         §      VAN ZANDT COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Nathan Allen King appeals his conviction for driving while intoxicated. In one issue,
Appellant challenges the trial court’s admission of his statements to the police. We affirm.


                                         BACKGROUND
       Appellant was charged by information with DWI. He pleaded “not guilty,” and the
matter proceeded to a jury trial.
       At trial, the evidence showed that Sergeant Mike Samford of the Wills Point Police
Department initiated a traffic stop on Appellant after observing a lit cigarette exit his vehicle’s
window. Upon contact with Appellant, Samford smelled the odor of an alcoholic beverage.
Samford began a DWI investigation, which Texas Department of Public Safety Trooper Phillips
subsequently assumed.        After his investigation, Phillips concluded that Appellant was
intoxicated.
       Ultimately, the jury found Appellant “guilty” of DWI. The trial court assessed his
punishment at confinement for 180 days, suspended for a term of twelve months, with
confinement for six days as a condition of community supervision, and a $1,000 fine. This
appeal followed.
                                       ARTICLE 38.22 VIOLATION
       In his sole issue, Appellant complains that the trial court erred by overruling his objection
to the admission of certain statements he made to the police.
Standard of Review and Applicable Law
       Generally, we review a trial court’s decision to admit evidence under an abuse of
discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We
must 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. Willover v. State, 70 S.W.3d 841, 845 (Tex.
Crim. App. 2002). We will not reverse a trial court’s ruling admitting evidence unless that ruling
falls outside the zone of reasonable disagreement. See Burden v. State, 55 S.W.3d 608, 615
(Tex. Crim. App. 2001).
       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       Article 38.22 of the code of criminal procedure provides as follows:


       Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial
       interrogation shall be admissible against the accused in a criminal proceeding unless:

       (1) an electronic recording, which may include motion picture, video tape, or other visual
           recording, is made of the statement;
       (2) prior to the statement but during the recording the accused is given the warning in Subsection
           (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any
           rights set out in the warning;
       (3) the recording device was capable of making an accurate recording, the operator was
           competent, and the recording is accurate and has not been altered;
       (4) all voices on the recording are identified; and
       (5) not later than the 20th day before the date of the proceeding, the attorney representing the
           defendant is provided with a true, complete, and accurate copy of all recordings of the
           defendant made under this article.




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TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3 (West Supp. 2016). These requirements do not
apply to voluntary statements or statements not stemming from custodial interrogation. Id. § 5
(West Supp. 2016).
       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. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The reasonable person
standard presupposes an innocent person. Id. Situations that might constitute custody include
(1) when the suspect is physically deprived of his freedom of action in a 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 that he is free to leave. Id. at 255. Situation four
does not automatically establish custody; rather, custody is established if the manifestation of
probable cause, combined with other circumstances, would lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest. Id.
Analysis
        At trial, Sergeant Samford testified that when he detected the odor of an alcoholic
beverage, he asked Appellant to step out of the vehicle. Appellant initially told Samford that he
drank two beers that day. Based on the odor’s strength, Samford believed Appellant drank more
than two beers. Samford asked for a breath sample, but Appellant refused. Samford then asked
Appellant to “just be honest,” and Appellant stated that he drank six or seven beers. Appellant’s
counsel objected to this testimony, contending that his statements were involuntary and the State
failed to comply with Article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22. The trial court
overruled the objection and granted Appellant a running objection to any further testimony
regarding statements he made. Samford testified that there was no videotape of the events. He
further stated that he did not place Appellant in handcuffs or under arrest, and he did not make
any statements that would lead Appellant to believe he was under arrest.




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         On appeal, Appellant first filed a brief arguing that the trial court erred by failing to
conduct a hearing as required by Article 38.22 to determine the admissibility of his statements. 1
The State filed a motion to abate, which we granted. The trial court conducted a suppression
hearing on the matter and issued findings of fact and conclusions of law. At the suppression
hearing, Sergeant Samford testified that he stopped Appellant for littering, an arrestable offense.
Samford was in uniform and armed with a firearm and an alternative force weapon. He took
Appellant to the back of his vehicle. Appellant gave Samford his driver’s license and proof of
insurance. Samford did not tell Appellant that he was free to leave. He conducted a horizontal
gaze nystagmus test, which confirmed his suspicion that Appellant drank more than two beers.
         On direct examination, Samford testified that after he conducted the HGN test, he
believed Appellant was intoxicated and told him so. On redirect, however, Samford testified that
he did not recall whether he told Appellant he believed he was intoxicated. On recross, Samford
said he never reached a conclusion that Appellant was guilty of driving while intoxicated, but he
had reasonable suspicion for the offense and therefore called a trooper to investigate.
         In its written findings of fact and conclusions of law, the trial court determined that
Sergeant Samford did not arrest Appellant, that Samford’s conduct would not lead a reasonable
person to believe he was under custodial arrest, and that all of Appellant’s statements to Samford
were made before his arrest and were voluntary. In Appellant’s supplemental brief, he argues
that the trial court erred by concluding he was not in custody after Samford told him that his eyes
showed he was intoxicated, and consequently overruling his objection to the admission of his
subsequent statements.
         If Sergeant Samford told Appellant he believed he was intoxicated, the statement would
constitute a manifestation of probable cause and weigh in favor of a finding that Appellant was
in custody at that point. See Dowthitt, 931 S.W.2d at 255. But, as the exclusive trier of fact and
judge of the witnesses’ credibility, the trial court was free to disregard Samford’s testimony that
he told Appellant his eyes showed he was intoxicated, especially given the fact that Samford
later testified he did not recall whether he made the statement. See Maxwell, 73 S.W.3d at 281;
see also Ross, 32 S.W.3d at 855. Based on our review of the totality of the circumstances, we
conclude that the record supports the trial court’s conclusion that Appellant was not in custody

         1
          “In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must
make an independent finding in the absence of the jury as to whether the statement was made under voluntary
conditions.” TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6 (West Supp. 2016).


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until his arrest by Trooper Phillips. See Dowthitt, 931 S.W.2d at 255. Therefore, the trial court
did not abuse its discretion by overruling Appellant’s Article 38.22 objection. See TEX. CODE
CRIM. PROC. ANN. art. 38.22 § 5. Accordingly, we overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice


Opinion delivered July 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 31, 2017


                                         NO. 12-16-00195-CR


                                      NATHAN ALLEN KING,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the County Court at Law
                        of Van Zandt County, Texas (Tr.Ct.No. 2014-00089)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
