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 2006-02

Robert W. Sykora v. State ( 2006 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-05-171 CR

    ____________________



    ROBERT W. SYKORA, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the County Court at Law

    Liberty County, Texas

    Trial Cause No. 78409



    MEMORANDUM OPINION

    Robert W. Sykora pled "no contest" to the offense of driving while intoxicated. The trial court sentenced him to 180 days confinement in the county jail, suspended the imposition of the sentence, and placed him on community supervision for one year. Sykora appeals from a pretrial ruling denying his motion to suppress. He argues the investigative detention was, in fact, an illegal arrest and the officers failed to warn him of his legal rights before obtaining the physical evidence. (1)

    On September 13, 2004, the dispatcher informed Deputy Ott that a citizen-informant had reported, and was following, a person driving a vehicle on the wrong side of the road and on the improved shoulder. While Deputy Ott was in route to the scene, the citizen-informant continued to follow the vehicle and to communicate with dispatch. Upon Deputy Ott's arrival, Ott observed a vehicle matching the report description parked in the grass off the improved shoulder of the roadway.

    Approaching the vehicle, Ott observed Sykora seated behind the steering wheel and the car's ignition and headlights were on. Ott smelled alcohol on Sykora and noticed Sykora's slurred speech. Ott asked Sykora to get out of the vehicle; the deputy observed that Sykora was unsteady on his feet. When Ott asked Sykora if he had consumed any alcohol, Sykora first responded "no." Sykora then admitted he had consumed alcohol earlier that day, but did not know how much. Suspecting Sykora had been driving while intoxicated, Ott placed him in wrist restraints and for safety reasons put him in the back seat of the patrol car. Because Ott was not certified to perform the field sobriety or breath tests, he awaited the arrival of backup to administer the tests and continue the investigation.

    Deputy Ott testified Sykora sat handcuffed in the patrol car for less than five minutes while they awaited the troopers' arrival. Once at the scene, Trooper Foley administered the field sobriety tests, placed Sykora under arrest for DWI, read him the breath test statutory warning, and gave him Miranda warnings. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 2005); Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The troopers transported Sykora to the Liberty jail to administer the breath test, which gave a "point 201 and point 204" result.

    In his sole issue on appeal, Sykora argues the trial court erred in denying his motion to suppress. He alleges the detention lasted forty minutes and constituted an arrest because he was in handcuffs in the back of the patrol car and not free to leave. He maintains he was subjected to questioning without any statutory warnings, and argues the evidence flowing from the unlawful arrest (the field sobriety tests, breath test, traffic stop videotape, and his statements) should have been suppressed. Sykora also argues the motion to suppress should have been granted because Trooper Foley failed to follow proper procedures in administering the HGN and breath tests.

    In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to a trial court's determination of historical facts and review de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). When the trial court, as in this case, did not make explicit findings of historical facts, we review the evidence in a light most favorable to the ruling and assume the court made implicit findings of fact supported by the record. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000)). As the factfinder and sole judge of the witnesses' credibility and the weight to be given their testimony, the trial judge may choose to believe or disbelieve any or all of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We must sustain the trial judge's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005).

    Sykora appears to argue the detention was illegal because the officers never saw him operate a vehicle or commit any crimes; the description of erratic driving came from a citizen-informant. A police officer may conduct a brief investigative detention or "Terry stop" when the officer has reasonable suspicion to believe that an individual is involved in criminal activity. Balentine, 71 S.W.3d at 768. "The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity." Id. Reasonable suspicion for a traffic stop does not have to arise from the officer's personal observation, but may arise from information supplied by a citizen-eyewitness. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). Based on the information from the citizen-informant and Deputy Ott's corroborating observations, we conclude Ott's stop of Sykora was justified.   

    Sykora argues the handcuffing and the detention's length of time transformed the detention into an arrest. Relying on Hernandez v. State, 107 S.W.3d 41, 47 (Tex. App.--San Antonio 2003, pet. ref'd), he maintains he was "under arrest" because a reasonable person, handcuffed and placed in the back of a patrol car for approximately forty minutes, would have felt "under arrest." The record, however, does not establish the forty-minute time frame asserted by Sykora. While forty-one minutes elapsed from the time of the dispatch until the two troopers arrived at the scene, Sykora was not handcuffed the entire time. During those forty-one minutes, Ott responded to dispatch and drove to the scene, approached Sykora, asked for his identification and about consumption of alcohol, and observed him as he exited his car. All of this occurred before Ott handcuffed Sykora and put him in the patrol car.

    Article 15.22 of the Texas Code of Criminal Procedure states that "[a] person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). The United States Supreme Court has held that persons reasonably suspected of criminal activity may be stopped and briefly detained even if probable cause to arrest is not then present. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). The Texas Court of Criminal Appeals has applied Terry in deciding whether an arrest has occurred. See Amores v. State, 816 S.W.2d 407, 411-12 (Tex. Crim. App. 1991). Whether a detention has become an arrest depends on the facts and circumstances of the detention. Id. at 412. An officer's belief a person is detained but not arrested is not determinative of the issue, although it is a factor to be considered in determining whether an arrest has occurred. Id.; Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.--Houston [1st Dist.] 2003), rev'd on other grounds, 138 S.W.3d 331 (Tex. Crim. App. 2004). We are to judge the reasonableness of the officer's actions from the perspective of a reasonable officer at the scene, rather than with the benefit of hindsight. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997). "Police may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety." Wappler, 104 S.W.3d at 668 (citing Rhodes, 945 S.W.2d at 117). When deciding whether an investigative detention was unreasonable or evolved into an arrest, common sense and ordinary human experience govern over rigid criteria. Balentine, 71 S.W.3d at 771.

    The Court of Criminal Appeals has held that handcuffing by itself will not necessarily convert a temporary detention into an arrest. See Rhodes, 945 S.W.2d at 117; Mayes v. State, 726 S.W.2d 937, 943-44 (Tex. Crim. App. 1986); see also Balentine, 71 S.W.3d at 771 (Investigative detention of a suspect did not evolve into an arrest, although suspect alleged a reasonable person would not have believed he was free where officer handcuffed suspect and put him in back of patrol car because officer feared for his own safety.); Wappler, 104 S.W.3d at 668. Handcuffing as part of a temporary investigative detention on occasion and in limited circumstances may be reasonably necessary to assure safety. See Rhodes, 945 S.W.2d at 118. Deputy Ott testified he restrained Sykora "for his safety and mine and put him in the rear of my vehicle due to traffic and his and [my] welfare on the side of the road." Because Ott was not certified to administer field sobriety tests he awaited the arrival of an officer with that certification. Given the testimony concerning roadway traffic, Sykora's slurred speech and unsteadiness on his feet, safety concerns, and the necessity of awaiting the arrival of officers certified in the administration of field sobriety tests, it was reasonable for Ott to secure Sykora to complete the investigation. In this case under these circumstances, Ott's handcuffing of Sykora was justified by Ott's safety concerns and the necessity of waiting for the arrival of officers certified to administer the field sobriety tests.

    Sykora also argues the length of the detention (2) was unreasonable and transformed the detention into an arrest. While the length of the detention may render a Terry stop unreasonable, there is no "bright line" time limit. Balentine, 71 S.W.3d at 770 (citing United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)). The reasonableness of the detention depends upon whether the police diligently pursued a means of investigation to quickly eliminate or support his suspicions. Balentine, 71 S.W.3d at 770. The detention must be temporary and the questioning can only last as long as needed to effectuate the stop's goal. Id. (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). Ott testified he was not certified to administer field sobriety tests; he waited for officers certified to administer the tests. He diligently pursued a means of investigation likely to dispel or confirm his suspicions as to Sykora's intoxication as quickly as possible. See Sharp, 470 U.S. at 687 n.5 (It was appropriate for a patrolman who lacked training and experience in dealing with narcotics investigation to detain suspect and await more experienced officer); Hartman v. State, 144 S.W.3d 568, 574 (Tex. App.--Austin 2004, no pet.) (It was reasonable for officer to call for backup because he lacked video equipment in patrol car to tape performance of field sobriety test, even though this required a short wait.). We conclude the detention lasted no longer than was necessary to ascertain whether Sykora was driving while intoxicated.

    Sykora also contends that Deputy Ott's detention constituted an arrest, and therefore, evidence obtained after the detention was inadmissible, because Sykora was not read his Miranda rights. See Miranda, 384 U.S. at 444. Miranda warnings are not required when the person is not in custody. Vrba v. State, 69 S.W.3d 713, 724 (Tex. App.--Waco 2002, no pet.). The United States Supreme Court has said that a person is not in "custody" for Miranda purposes when he has been stopped for a traffic violation and asked to perform a field sobriety test. See Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); Vrba, 69 S.W.3d at 723. The administration of field sobriety tests is not custodial in nature and does not require Miranda warnings. See Berkemer, 468 U.S. at 441-42. Under the specific facts of this case, the temporary detention awaiting the administration of the field sobriety tests of Sykora did not require Miranda warnings. After the results of the field sobriety tests, Foley arrested Sykora, reapplied the handcuffs and read Sykora his rights.

    Sykora next argues Trooper Foley improperly administered the tests and the results should have been suppressed. Sykora complains the horizontal gaze nystagmus (HGN) test was performed while the patrol car's emergency "strobe" lights were activated. At the hearing, Sykora failed to establish the "strobe" lights compromised the administration of the tests or accuracy of the results. We agree with the trial court that the effect of the "strobe" lights, if in fact they were activated, goes to the weight of the tests, not their admissibility. See McRae v. State, 152 S.W.3d 739, 743 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (Slight variations in the administration of HGN test go to the weight of the evidence, not its admissibility.). The trial court did not abuse its discretion in refusing to suppress the HGN test result.  

    As for the breath test, Sykora contends Trooper Foley could not have observed Sykora for fifteen minutes prior to administering the test, as required by law. Sykora also asserts Trooper Foley could not explain how to properly administer the breath test or the time it takes the machine to go through its internal checks. Texas Transportation Code section 724.064 provides that in a trial for an offense under Chapter 49 of the Penal Code, an "analysis of a specimen of the person's blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible." Tex. Transp. Code Ann. § 724.064 (Vernon 1999). Pursuant to section 724.016, the breath specimen must be taken and analyzed under rules adopted by the Department of Public Safety codified in the Texas Administration Code. Tex. Transp. Code Ann. § 724.016 (Vernon 1999); see 37 Tex. Admin. Code § 19.3 (Vernon 2005). The rules require the operator of the test to "remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth" and that "[d]irect observation is no longer necessary to ensure the validity or accuracy of the test result[.]" 37 Tex. Admin. Code § 19.3(c)(1). The State is not required to prove compliance with section 19.3(c)(1) unless a fact issue is raised with respect to that particular requirement. Davis v. State, 949 S.W.2d 28, 30 (Tex. App.--San Antonio 1997, no writ).

    Sykora asserts the fifteen-minute time requirement was not satisfied and he appears to argue the statutorily required fifteen minutes must occur in the breath test room. Sykora's argument ignores the portion of the regulation stating direct observation is not necessary. See id. at 31 (The presence requirement was met where the arresting officer who also administered the breath test included the portion of the time in which he transported the suspect who rode handcuffed in the back seat of the officer's patrol car in his computation of time he observed the suspect prior to administering the test.) Trooper Foley testified that it took "roughly 30-40 minutes" for him to transport Sykora from the scene to the breath test room, and he administered the test after observing Sykora for at least fifteen minutes. The evidence establishes the fifteen-minute requirement was satisfied.

    Furthermore, as with the HGN test, the allegation here that the breath test was improperly administered goes to the weight of the test, not its admissibility. See Slagle v. State, 570 S.W.2d 916, 919 (Tex. Crim. App. 1978) (Evidence concerning variables involved in administration of a breath test went to weight of test results, not to admissibility.); Ray v. State, 749 S.W.2d 939, 944 (Tex. App.--San Antonio 1988, writ ref'd), overruled in part by Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996) (Evidence that the breath test supervisor did not observe the suspect for fifteen minutes prior to administering test went to the weight of the evidence, not its admissibility.). The court did not abuse its discretion in refusing to suppress the breath test.

    We conclude the trial court did not abuse its discretion in denying the motion to suppress. Sykora's point of error is overruled.

    AFFIRMED.

    ___________________________________

    DAVID GAULTNEY

    Justice



    Submitted on December 1, 2005

    Opinion Delivered February 22, 2006

    Do Not Publish



    Before McKeithen, C.J., Gaultney and Horton, JJ.

    1. Although not asserted specifically in his motion, Sykora also argued at the hearing on his motion to suppress that the field sobriety and breath tests were improperly administered and therefore inadmissible.

    2.

    As we have noted, the length of the detention is disputed. There is some testimony indicating a range of five minutes to at least ten. The trial judge weighs the credibility of the witnesses and the weight to be given their testimony. Ross, 32 S.W.3d at 855. We defer to his resolution of the historical facts. See Balentine, 71 S.W.3d at 768.