Vangossen, Ernest v. State ( 2000 )

NUMBER 13-98-565-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ERNEST VANGOSSEN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court

of Wharton County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Chief Justice Seerden

This is an appeal from a conviction for driving while intoxicated.⁽¹⁾ By two issues, Ernest Vangossen, appellant, contends that: (1) he was never placed under arrest when requested to give a blood sample under the authority of the implied consent statute; and (2) his consent to give a blood specimen was not voluntary and was not attenuated from his allegedly illegal seizure. We affirm.

Appellant was driving northbound on U.S. Highway 59 at approximately 3:35 p.m. on March 27, 1998. His vehicle collided with a guardrail and both appellant and the vehicle ended up on the highway median. DPS Trooper Daniel Terronez arrived on the scene and conducted an investigation. After examining the accident site, Terronez encountered appellant, who acknowledged that he was the driver of the vehicle in question.⁽²⁾ During the course of this encounter, Terronez detected a strong odor of alcohol on appellant's breath. Terronez asked appellant if he had been drinking, and appellant nodded affirmatively. Terronez then conducted a horizontal gaze nystagmus test, which appellant failed.

At that point, Terronez informed appellant that he was under arrest. Appellant was placed in the trooper's vehicle for transport to a nearby hospital where a blood sample would be extracted. Appellant was not handcuffed and rode to the hospital in the front seat of the Trooper's vehicle. Terronez did not administer the Miranda warnings at any point during this trip.

Upon their arrival at the hospital, Terronez escorted appellant to a lab within the hospital. Once there, Terronez read a statutory warning to appellant, known within DPS as a DIC-24. This warning reads, in pertinent part:

You are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place while intoxicated . . . . You will be asked to give a specimen of your breath and/or blood . . . . If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than ninety (90) days . . . .

Appellant consented to a withdrawal of his blood. After the sample was taken, Terronez placed appellant with a sober friend, rather than taking appellant to jail. Appellant was not taken before a magistrate. The test results revealed that appellant had .37 grams of alcohol per 100 milliliters of blood at the time of his arrest, or nearly four times the legal limit. Appellant was then charged with driving while intoxicated. Terronez sent a letter to appellant on May 17, 1998, informing him of the charges.

The case was set for trial. Appellant filed a motion to suppress the results of the blood test, claiming that he was either not under arrest or was illegally under arrest at the time the sample was taken. He argued that because he was illegally detained, his deemed consent to the blood test was invalid. Tex. Transp. Code Ann. 724.011(a) (Vernon 1999). Therefore, he contended, the blood test was illegal and the results thereof should be suppressed. After hearing testimony and argument, the trial court denied appellant's motion. Appellant subsequently pleaded guilty to the offense of driving while intoxicated.

In reviewing a ruling on a motion to suppress, we determine if the record supports the trial court's factual findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We view the evidence in the light most favorable to the trial court's ruling. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Absent a clear abuse of discretion, we will not disturb the trial court's ruling. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).

By his first issue, appellant contends he was not arrested when the blood sample was taken. Appellant notes that article 15.22 of the Texas Code of Criminal Procedure states that a person is under arrest "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." He contends, however, that this definition does not account for the distinction between a custodial arrest and a shorter, investigative detention, such as a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He contends that in this case, his detention was more akin to a Terry stop than a custodial arrest.

A person is "seized" for constitutional purposes when, under the circumstances surrounding that seizure, a reasonable person would believe that he or she is not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980). At the time an individual is seized, his or her interaction with the authorities is no longer considered an "encounter" and is, therefore, imbued with the constitutional protections embodied in the Fourth Amendment. However, the courts of this state have become increasingly aware of the amorphous distinction between seizures which are investigative detentions, on the one hand, or custodial arrests on the other. Recently, the court of criminal appeals noted that the heretofore applied standards such as: (1) whether one's liberty of movement has been restricted; (2) whether a person has been actually placed under restraint; and (3) whether a reasonable person would have believed that he was not free to leave, have been inadequate. Francis v. State, 922 S.W.2d 176, 179 (Tex. Crim. App. 1996)⁽³⁾ (citations omitted). To eliminate the ambiguity, the court proposed a new test, namely "whether, given the totality of the circumstances, a reasonable person would believe the seizure was to be brief." Id.

In assessing this standard, the court provided a laundry list of factors which a court may consider. It noted at the outset of its analysis that "the actual length of time the seizure lasts, while important, is not dispositive." Id. In other words, "it is erroneous to assume that a reasonable person would have believed that the seizure was to be brief simply because it actually was brief." Id. Another element is the type and scope of the seizing officer's questions. "The officer's questions must be such that they either vitiate or confirm his reasonable, articulable suspicions, thereby leading to either release or arrest." Id. Additionally, the court held that certain actions by authorities may be considered. Such actions include: (1) the use of handcuffs; (2) drawn weapons; (3) approach by officers far outnumbering the number of citizens; (4) use of threatening language; (5) moving the citizen to another location; and (6) use of physical force to restrain the citizen. Id. at 180. The court warned, however, that these factors only provide "amplification of a reasonable person's sense that he or she will not soon be free to leave." Id.

Applying these criteria to the case at bar, we conclude that Trooper Terronez's interaction with appellant rose to the level of an arrest. Upon his initial contact with appellant, it is clear that Terronez was simply investigating the circumstances surrounding the incident. Nothing in the record indicates that appellant was in any way detained during this encounter. However, as the encounter persisted, Terronez developed at least reasonable suspicion to believe that appellant had been operating a motor vehicle while intoxicated. We reach that conclusion based upon not only Terronez's reported observations, but also from the very answers appellant admits to providing to Terronez. Appellant agrees that he told Terronez that he (appellant) was operating the vehicle which was involved in the accident. Appellant furthermore agrees that he told Terronez that he had been drinking alcohol prior to the incident. Based on those facts, Terronez's encounter became an investigative detention for a sufficient period to administer a field sobriety test, to which appellant consented. Upon appellant's inability to pass the sobriety test, Terronez had fully developed probable cause to arrest appellant for driving while intoxicated.

Appellant argues that several factors indicate that he was not subject to a "custodial arrest." First, he contends that he was not handcuffed. See Delk v. State, 855 S.W.2d 700 (Tex. Crim. App. 1993). While the use of handcuffs is certainly a consideration in assessing a suspect's freedom of movement, we find no authority indicating that all arrested persons must be handcuffed. Next, appellant contends that because he was placed in the front seat of the Trooper's vehicle for transport to the hospital, he was not under arrest. However, the mere fact that appellant was placed into the vehicle with an intent to be taken to a different location falls within the Francis court's indicia of arrest.

Appellant further argues that he was never administered Miranda warnings⁽⁴⁾ while purportedly under arrest. However, the failure of authorities to administer the Miranda warnings has no bearing on our determination of the present Fourth Amendment issue; instead, it goes to the voluntariness of confessions following arrest under the protections of the Fifth Amendment. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1977); Jones v. State, 742 S.W.2d 398, 402 (Tex. Crim. App. 1987). In this same vein, appellant contends that because he was not taken before a magistrate following his seizure, he could not be deemed to be under arrest. Tex. Code Crim. Proc. Ann. art. 14.06(a) (Vernon 1998). However, the failure to take an arrestee before a magistrate has no bearing on the validity of the arrest itself. See generally Jones v. State, 944 S.W.2d 642, 649-50 (Tex. Crim. App. 1996) (delay or failure in taking accused before magistrate may invalidate a confession upon proof of a causal connection between the delay and the confession); Lookingbill v. State, 855 S.W.2d 66, 75 (Tex. App.--Corpus Christi 1993, pet ref'd) (same).

Finally, appellant contends that he was not arrested because he was released into the custody of a friend after the blood sample was taken, rather than being taken to jail. This, again, however, has no bearing on the legality of the arrest. This fact indicates that after the blood sample was taken, appellant was free to go; it does not, however, negate the expressly-stated fact that prior to that time, appellant was not at liberty to leave.

We find that after Terronez informed appellant that he was under arrest, a reasonable person would not have believed that the seizure would be brief. Accordingly, we hold that appellant was validly under arrest at the time his blood sample was taken. Appellant's first issue is overruled.

By his second issue, appellant contends that his consent to the blood test was invalid. The relevant statute provides:

If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place . . . the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration. . . .

Tex. Transp. Code Ann. 724.011(a) (Vernon 1998). We have held that appellant was under arrest at the time his blood sample was extracted. Because appellant was under arrest, Terronez read him the statutorily-required warnings which include an admonition that refusal to consent to the requested test will automatically result in drivers' license suspension. Tex. Transp. Code Ann. 724.015(2) (Vernon 1998). Appellant then consented to the test. We find no coercion present in this circumstance which would vitiate the voluntariness of appellant's consent. Accord Nottingham v. State, 908 S.W.2d 585, 589 (Tex. App.--Austin 1995, no pet.). The second issue is overruled.

We hold that the trial court did not abuse its discretion in denying appellant's motion to suppress. Accordingly, the judgment of the trial court is AFFIRMED.

_________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 23rd day of March, 2000.

1. Tex. Penal Code Ann. 49.04(b) (Vernon 1998).

2. This was corroborated by another witness at the scene.

3. The opinion in Francis is actually a concurring and dissenting opinion authored by Judge Baird to the court's dismissal of a petition for discretionary review as improvidently granted. However, the proposed holding espoused by Judge Baird has subsequently been relied upon by at least two of our sister courts and has now gained the tacit approval of the court of criminal appeals based upon the refused petition in Tate. See Glenn v. State, 967 S.W.2d 467, 470 (Tex. App.--Amarillo 1998, pet. dism'd); Tate v. State, 939 S.W.2d 738, 749 (Tex. App.--Houston [14th Dist.] 1997, pet ref'd).

4. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).