Barney Lee Weimer v. State

AFFIRMED and Opinion Filed May 7, 2019
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-18-00717-CR
BARNEY LEE WEIMER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 068803
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Reichek
A jury convicted Barney Lee Weimer of possession of methamphetamine in the amount of
four grams or more but less than 200 grams, and the trial court assessed punishment, enhanced by
two prior felony convictions, at twenty-eight years in prison. In two issues, appellant argues the
trial court erred in admitting a statement he made to a police officer during a traffic stop and in
failing to grant testimonial immunity to a witness. After reviewing the record, we overrule both
issues and affirm the trial court’s judgment.
FACTUAL BACKGROUND
At about 3:30 a.m. on August 27, 2017, Cpl. Allen Adams of the Sherman Police
Department was patrolling an area of the city prone to burglaries and drug traffic. He saw appellant
riding a bicycle that was “not illuminated or very illuminated.” Appellant failed to stop at a stop
sign, and Adams decided to make a traffic stop. He called for Officer Austin Ross to assist him.
Adams stopped appellant, explained why he stopped him, and obtained identification.
Adams asked appellant where he was going, and appellant pointed to a nearby house where police
previously had complaints of drug traffic. Adams asked for appellant’s consent to a “pat down,”
and appellant agreed. Ross performed the search and found a baggie in appellant’s front pocket.
The baggie contained a crystal-like substance. According to Adams, appellant said the substance
was rock salt, not “meth.” Appellant told the officers the baggie was left at his house by someone
who he would not name, and appellant found it earlier that night while looking for money.
Over objection, Adams testified that because appellant indicated he was able to distinguish
between rock salt and methamphetamine, he asked appellant when the last time he used
methamphetamine and appellant said “yesterday.”1 After a field test showed the substance tested
positive for methamphetamine, appellant was arrested and placed in handcuffs. Body camera and
in-car videos of the stop were admitted as evidence over appellant’s objection and showed the
interaction, including the complained-of exchange, between the officers and appellant. The video
also showed a third officer at the scene while Adams was awaiting the field test results.
Appellant testified in his defense. He told jurors the baggie found by the police belonged
to Shawn Williams. He said Williams brought the baggie to his house a few weeks earlier.
According to appellant, Williams sold “stuff to people” that “wasn’t real” and told appellant the
baggie contained salt. Appellant said he found the baggie underneath his recliner earlier that night,
put it in his pants pocket with the intent to throw it away, but then forgot about it.
1
The trial court determined this evidence was admissible following a hearing outside the presence of the jury.
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ADMISSION OF STATEMENT
In his first issue, appellant contends the trial court erred by admitting his statement, in
response to the officer’s question, that he used methamphetamine “yesterday.” He argues he was
in custody at the time he made the statement and had not been given his warnings as required under
Texas Code of Criminal Procedure article 38.22, rendering the statement inadmissible.
Article 38.22 of the code of criminal procedure requires the suppression of statements made
during a custodial interrogation unless certain statutorily prescribed warnings are given. See TEX.
CODE CRIM. PROC. ANN. art. 38.22. Custodial interrogation means questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom in any significant way. Lewis v. State, 72 S.W.3d 704, 706 (Tex. App.—Fort Worth 2002,
pet. ref’d).
Texas courts construe “custody” under article 38.22 consistent with the meaning of
“custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Herrera v. State, 241 S.W.3d
520, 526 (Tex. Crim. App. 2007). 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. In making the custody
determination, we consider all of the objective circumstances, but an official’s subjective belief is
not a factor unless that official’s subjective belief was somehow conveyed to the person who was
questioned. Herrera, 241 S.W.3d at 526.
As a general rule, persons temporarily detained pursuant to an ordinary traffic stop are not
“in custody” for purposes of Miranda. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.
2012). However, a routine traffic stop may escalate from a noncustodial detention to a custodial
detention when the detainee’s freedom of movement is restrained to the degree associated with a
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formal arrest. Id. There are four general situations which transform a noncustodial interrogation
into a custodial interrogation: (1) when the suspect is physically deprived of his freedom of action
in any significant way, (2) when a law enforcement officer tells the suspect that 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 he is free to leave. Dowthitt, 931
S.W.2d at 255. With respect to the first through third situations, the restriction upon freedom of
movement must amount to the degree associated with an arrest as opposed to an investigative
detention. Id. As for the fourth situation, the officers’ knowledge of probable cause must be
manifested to the suspect. Id.
Appellant argues that under Dowthitt prongs (1), (3), and (4), he was in custody when he
made the incriminating statement. He asserts that custody was established by evidence that his
bicycle was pulled over and he was “surrounded by police, who had put his hands behind his back,
albeit for officer safety, to search his pockets.” Further, he asserts police had probable cause to
arrest him for possession of methamphetamine as soon as they removed the baggie from his pocket
and he was not told he was free to leave. We cannot conclude this evidence established custody.
There is no bright-line test for distinguishing between an investigative detention and arrest;
instead, courts consider a number of factors, including: (1) the amount of force displayed; (2) the
duration of the detention; (3) the efficiency of the investigative process and whether it is conducted
at the original location or the person is transported to another location; (4) the officer’s expressed
intent—that is, whether he told the person that he was under arrest or was being detained only for
a temporary investigation; and (5) any other relevant factors. State v. Sheppard, 271 S.W.3d 281,
291 (Tex. Crim. App. 2008).
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Cpl. Adams stopped appellant and was ultimately joined by two other officers. None of
the officers drew a weapon or otherwise acted in any threatening manner toward appellant. Only
seven minutes elapsed between the time of the stop and appellant’s arrest. During this time,
appellant agreed to a search, and one of the officers had appellant put his hands behind his back
while he performed the search; appellant was not handcuffed. The baggie was found during the
search, and appellant immediately told the officers it was rock salt. Although Adams testified he
had probable cause to arrest appellant once the substance was found, he did not communicate that
fact to appellant. Having found the suspicious substance, the police could continue to detain
appellant briefly to investigate that circumstance. While another officer performed a field test of
the substance, appellant again told Adams the substance was rock salt, not “meth.” Because
appellant indicated he could distinguish between the two, Adams asked when he last used “meth,”
eliciting appellant’s response of “yesterday.” Shortly after, the field test results showed the
substance was positive for methamphetamine and appellant was arrested.
Having reviewed the evidence and presupposing an innocent person, the record does not
demonstrate that appellant was physically deprived of his freedom in any significant way, any
officer created a situation that would lead a reasonable person to believe his freedom of movement
had been significantly restricted, or any officer had probable cause to arrest and manifested that
probable cause to appellant but did not tell appellant he was free to leave. Accordingly, his
statement was not the product of custodial interrogation. At most, it was merely the result of an
investigative detention and was admissible even in the absence of the warnings set out in article
38.22. See Arthur v. State, 216 S.W.3d 50, 57 (Tex. App.—Fort Worth 2007, no pet.) (concluding
defendant not in custody when officer asked defendant where she had been and whether she had
been drinking; statements were not product of custodial interrogation but merely result of
investigative detention); Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San Antonio 1998,
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pet. ref’d) (concluding defendant’s statement that he had four drinks in response to officer’s
question was not result of custodial interrogation but was part of temporary investigation to
determine whether defendant was driving while intoxicated). We overrule the first issue.
TESTIMONIAL IMMUNITY
In his second issue, appellant contends the trial court erred in failing to grant testimonial
immunity to a witness after the State made the offer, denying him his right to present a defense
and his right to compulsory process.
After the State rested, defense counsel told the judge he wanted to call a witness who he
believed would invoke the Fifth Amendment. The witness, Shawn Williams, was the person who
appellant claimed left the bag of methamphetamine at his house. Williams was under indictment
in an unrelated case and had been advised by his attorney not to testify.
In a hearing outside the presence of the jury, Williams told the judge he would invoke his
Fifth Amendment right not to testify as advised by his counsel. At that point, there was some
discussion among the prosecutor, defense counsel, and Williams’s counsel during which the State
offered “immunity for [Williams] for his testimony.” But after further discussion on the terms or
scope of any potential testimonial or use immunity, the State withdrew the offer. When defense
counsel argued the prosecutor had already given Williams testimonial immunity, the trial judge
explained that the State withdrew the offer before it was accepted or finalized.
“Immunity . . . is the coin the government must pay to obtain the waiver of a person’s right
against self-incrimination and the information that he has about some crime.” Smith v. State, 70
S.W.3d 848, 861 (Tex. Crim. App. 2002) (Johnson, J., concurring). Thus, only the government
can decide how much information it wants to “buy” and how much it is willing to pay for it in
terms of either “use” or “transactional” immunity. Id.
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Here, the prosecutor did not bind herself to any agreement; rather, she withdrew her offer
of immunity before any agreement was reached. Moreover, appellant has cited no case for the
proposition that the State is precluded from withdrawing its offer of immunity before any offer is
finalized. Because the record does not show that the defense witness was granted immunity in this
case, appellant has not shown error. We overrule the second issue.
We affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180717F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BARNEY LEE WEIMER, Appellant On Appeal from the 397th Judicial District
Court, Grayson County, Texas
No. 05-18-00717-CR V. Trial Court Cause No. 068803.
Opinion delivered by Justice Reichek;
THE STATE OF TEXAS, Appellee Justices Schenck and Osborne participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 7, 2019
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