John Byron Simmons v. State

Affirmed and Memorandum Opinion filed July 1, 2008

Affirmed and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00301-CR

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JOHN BYRON SIMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 10

Harris County, Texas

Trial Court Cause No. 1383534

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, John Byron Simmons, of the misdemeanor offense of driving while intoxicated.  The trial court sentenced him to 180 days= confinement in the Harris County Jail, probated for one year, a $350 fine, and thirty hours of community service.  In his sole issue on appeal, appellant contends that the trial court erred by admitting into evidence custodial statements obtained in violation of Miranda v. Arizona.^[1] We affirm.

Factual And Procedural Background

On June 15, 2006, at approximately two o=clock in the morning, Kenneth Street discovered appellant parked across two lanes of traffic near the intersection of Westheimer and Kirkwood.  According to Street=s testimony, appellant=s car was blocking his vehicle from proceeding, so Street stopped about fifty to sixty feet from appellant=s car and honked his horn. When appellant failed to respond, Street flashed his lights and honked again.  Appellant eventually responded by yelling an obscenity.  Street then asked whether appellant was okay and told him to move his car.  Appellant failed to do so and instead continued shouting obscenities at Street.  Street then drove around appellant=s vehicle, pulled into the parking lot of a nearby Jack-in-the-Box restaurant, and entered the drive-through line to purchase food.

Appellant followed Street into the Jack-in-the-Box parking lot.  Once there, appellant stepped outside his car and continued shouting at Street, challenging him to get out of his vehicle.  Street testified that appellant appeared to be Aextremely intoxicated,@ that appellant almost fell down while getting out of his car, that appellant could barely maintain his balance once he exited his car, and that he was slurring his speech.  At this point, Street called the police and reported the incident.  Before the police arrived, appellant entered the drive-through line several cars behind Street, also to purchase food.

Officers Paul Villanueva and Damon Jensen of the Houston Police Department responded to the dispatch, which instructed them to go to the Jack-in-the-Box parking lot for what Officer Villanueva testified was a Atelephoned report of a DWI call.@  Upon their arrival, Officers Villanueva and Jensen met with Street.  He gave the officers a brief account of the incident and identified appellant=s car, which at this point was at the drive-through window.  As appellant was about to exit the parking lot, Officer Villanueva activated his emergency lights and drove in front of appellant=s vehicle, blocking his exit.

Officers Villanueva and Jensen then approached appellant=s car and ordered him to get out of the vehicle.  They took appellant beside their patrol car and began to interview him concerning the incident with Street.  Both officers testified that appellant emitted a strong odor of alcohol, that his eyes were bloodshot, and that his speech was slurred.  Based on appellant=s responses and their own observations, Officers Villanueva and Jensen called for a DWI task force officer to administer field sobriety tests.  Neither Villanueva nor Jensen performed any kind of field sobriety tests on appellant.  While awaiting the arrival of the task force officer, they placed appellantCunhandcuffedCin the back of their patrol car.

Approximately ten to fifteen minutes later, Officer Melody Pritchard of the DWI task force arrived at the scene.  After making contact with Officers Villanueva and Jensen, Officer Pritchard administered four field sobriety tests to appellant, which she recorded on video.^[2] Before administering the field sobriety tests, Officer Pritchard asked appellant whether he had consumed any alcohol that evening, and appellant responded that he had drunk three or four beers.  Officer Pritchard=s questions and appellant=s responses were also captured on video.  Based upon appellant=s performance on the field sobriety tests, Officer Pritchard determined that appellant was intoxicated.  The officers then Atook him into custody and placed him under arrest.@

Appellant was subsequently charged with the misdemeanor offense of driving while intoxicated.  He pleaded not guilty and requested a jury trial.  During trial, the State sought to introduce into evidence the videotape of appellant=s field sobriety tests, which included appellant=s statements regarding his consumption of alcohol and the quantity of drinks consumed.  Appellant contended that he was Ain custody@ following his detention by Officers Villanueva and Jensen.  He objected that without being given Miranda warnings, his statements on the video were the product of custodial interrogation and therefore inadmissible.  After an in camera inspection, the trial court overruled appellant=s objection and admitted the videotape into evidence.  The jury later found appellant guilty of driving while intoxicated, and the trial court sentenced him to 180 days= confinement in the Harris County Jail, probated for one year, a $350 fine, and thirty hours of community service.  This appeal followed.

Issue on Appeal

In his sole issue on appeal, appellant contends that the trial court erred in admitting into evidence his videotaped statements regarding his consumption of alcohol and the quantity of drinks consumed.  Appellant asserts that, because Officers Villanueva and Jensen (1) blocked in his vehicle; (2) removed him from his vehicle and questioned him; and (3) placed him in the back seat of their patrol car to await the arrival of the DWI task force officer, he was Asufficiently restrained of his liberty@ and therefore Ain custody@ for Miranda purposes. Appellant argues that, because he was in custody at the time he was questioned by Officer Pritchard, his statements on the video were the product of custodial interrogation and therefore inadmissible in the absence of Miranda warnings. Appellant further argues that the trial court=s error is constitutional error, and urges us to reverse his conviction and remand the cause for a new trial.

Conversely, the State contends that the trial judge properly admitted appellant=s videotaped statements regarding his consumption of alcohol and the quantity of drinks consumed.  The State asserts that appellant was not under arrest when he made the statements; instead, he was subject to an on-going investigative detention.  The State argues that, because appellant was not Ain custody@ for the purposes of Miranda, Officer Pritchard was not required to Mirandize him before questioning him.  The State further argues that appellant=s videotaped statements were therefore admissible, and that even if the trial court erred in admitting the statements, the error was harmless because the record is Areplete with other evidence@ establishing that appellant Adrank several beers@ that night.

Because we agree with the State that appellant was not Ain custody@ for the purposes of Miranda when Officer Pritchard questioned him, we conclude that his videotaped statements regarding the consumption of alcohol and the quantity of drinks consumed were admissible.  Thus, the trial court did not err in admitting appellant=s videotaped statements into evidence.  We overrule appellant=s sole issue.

Analysis of Appellant=s Issue

A.      Standard of Review and Applicable Law

We review a trial court=s ruling on the admissibility of evidence for an abuse of discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. (citing Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996)).  In conducting our review, we give almost total deference to the trial court=s factual determinations; however, we review de novo the trial court=s application of the law of search and seizure. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will 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.  See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Interactions between police and civilians are divided into three categories: (1) consensual encounters^[3]; (2) investigative detentions; and (3) arrests. See Mount v. State, 217 S.W.3d 716, 724 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  All three categories involve attendant rights and responsibilities.  Josey v. State, 981 S.W.2d 831, 839 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).

An investigative detention occurs when an individual is confronted by a law enforcement officer who, under a display of law enforcement authority, temporarily detains the person for purposes of an investigation.  See State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App.1995)).  While an investigative detention is considered a Aseizure,@ it is characterized by lesser restraint than an arrest. See Berkemer v. McCarty, 468 U.S. 420, 438B40 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996) (stating that an investigative detention is a seizure).  Furthermore, and more importantly, persons temporarily detained for the purposes of an investigation are not Ain custody@ for the purposes of Miranda, and the right to Miranda warnings is not triggered during an investigative detention. See Berkemer, 468 U.S. at 438B40; Arthur v. State, 216 S.W.3d 50, 56, 58 (Tex. App.CFort Worth 2007, no pet.) (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)); see also Hernandez v. State, 107 S.W.3d 41, 47B48 (Tex. App.CSan Antonio 2003, pet. ref=d) (concluding that appellant=s statement that he had consumed nine beers was made during investigatory detentionCprior to full custodial arrestCand therefore Miranda warnings were not required).

The third level of interaction, an arrest, is also a seizure. Francis, 922 S.W.2d at 179. Under Texas law, an arrest occurs when A[a] person . . . 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.@ See Tex. Code Crim. Proc. art. 15.22.  If an individual is subjected to questioning while in custody without first being warned of his Miranda rights and without voluntarily waiving those rights, then any evidence obtained as a result of that questioning is inadmissible at trial.  See Miranda, 384 U.S. at 479; see also Hernandez, 107 S.W.3d at 47. 

Thus, with regard to the admissibility of evidence, the protections of Miranda only apply when an individual is Ain custody.@ See Miranda, 384 U.S. at 479 (explaining that an individual must receive the appropriate warnings when he Ais taken into custody or otherwise deprived of his freedom by the authorities in any significant way@).  In other words, Miranda applies only when an individual is under arrest. See Stansbury v. California, 511 U.S. 318, 322 (1994) (explaining that, for purposes of Miranda, an individual is Ain custody@ when he is placed under formal arrest or his freedom of movement has been restrained to the degree associated with a formal arrest).  Therefore, to determine whether Miranda warnings were required in this caseCand whether appellant=s videotaped statements were admissible at trialCwe must determine whether, at the time the statements were made, appellant was under arrest, or whether he was merely subject to an investigative detention. 

To determine whether an interaction is an arrest or an investigative detention, we employ a multi-factor test, and examine (1) the length of the detention; (2) the amount of force employed; and (3) whether the officers actually conduct an investigation.  See Mount, 217 S.W.3d at 724.  We consider the totality of the circumstances, and look to the beginning of the officers= intrusion and evaluate the reasonableness of each incremental level of intrusion based on the information the officers possessed at that time. See Josey, 981 S.W.2d at 839; see also Mount, 217 S.W.3d at 724 (citing Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997)) (stating that whether a detention is an actual arrest or an investigative detention depends upon the reasonableness of the intrusion under all of the facts).  We now turn to appellant=s specific arguments.

B.      Application of Law to the Facts

Appellant contends that the means by which Officers Villanueva and Jensen confronted  him in the Jack-in-the-Box parking lotCspecifically by blocking his vehicle in the drive-through line, removing him from his car and questioning him, and placing him in the back seat of their patrol carCAsufficiently restrained [him] of his liberty to characterize the encounter as an arrest.@  Appellant emphasizes the fact that his vehicle was blocked in by the officers= patrol car, which had its emergency equipment activated, and cites three cases in support of his argument that the means by which the officers restrained him rendered the interaction an arrest.  See McCraw v. State, 117 S.W.3d 47, 54 (Tex. App.CFort Worth 2003, pet. ref=d); Villalobos v. State, 999 S.W.2d 132, 134B35 (Tex. App.CEl Paso 1999, no pet.); Taylor v. State, 874 S.W.2d 362, 365 (Tex. App.CFort Worth 1994, no pet.).

Conversely, the State contends that the circumstances of the interaction between appellant and Officers Villanueva and Jensen remained within the bounds of an investigative detention, rather than an arrest.  The State asserts that, based on Street=s personal account of appellant=s conduct, Officers Villanueva and Jensen acquired reasonable suspicion to detain appellant.  The State argues that the officers= method of initiating the stop was reasonable, considering that appellant was about to drive onto a public street.  The State further asserts that, once appellant was detained, Officers Villanueva and Jensen immediately began interviewing him and noticed signs of intoxication, thus indicating that the officers were actually conducting an investigation rather than effectuating an arrest.  Finally, the State argues that the particulars of the interaction between appellant and Officers VillanuevaCthat appellant=s car was blocked in, that appellant was removed from his vehicle and questioned, and that appellant was placed in the back of the patrol carCdid not elevate the investigative detention to an arrest.  We agree with the State.

During an investigative detention, an officer may employ the force reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Mount, 217 S.W.3d at 724.  However, if the force utilized exceeds that reasonably necessary to effect the goal of the stop, the force may then transform an investigative detention into a full-blown arrest. Id. at 724B25. Reasonableness must be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight, and allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly-changing circumstances. Id. at 725.  Additional factors to consider include the officer=s opinion of whether the stop was an investigative detention or an arrest, and whether the officers actually conducted an investigation after seizing the suspect. See id.  Above all, in our evaluation of reasonableness, Acommon sense and ordinary human experience must govern over rigid criteria.@ See Rhodes, 945 S.W.2d at 118.

Based on the totality of the circumstances, we conclude that, at the time his statements were made, appellant was subject to an investigative detention, and was not under arrest.  Each level of the officers= intrusion was reasonable under the circumstances.  We will address each in turn, examining the appropriate factors.

1.       Blocking-In Appellant=s Vehicle Did Not Render the Interaction an Arrest.

First, the means by which Officers Villanueva and Jensen initially confronted appellant in the Jack-in-the-Box parking lot, by activating their emergency equipment and blocking appellant=s vehicle in the drive-through line, did not in and of itself render the interaction an arrest. The officers= decision to block appellant=s vehicle was reasonably necessary to effect the goal of the detention:  to safely investigate the information provided by Street that appellant may have been driving while intoxicated. See Mount, 217 S.W.3d at 726B27 (concluding that officers= blocking of appellant=s car, removing him at gunpoint, then conducting field sobriety tests was reasonable under the circumstances and amounted only to an investigative detention); see also Rhodes, 945 S.W.2d at 117 (stating that boxing in a suspect=s car and drawing weapons does not automatically convert an investigative detention into an arrest).

Upon their arrival at the scene, Officers Villanueva and Jensen gathered information from Street regarding the incident involving appellant.  Minutes later, when Officers Villanueva and Jensen noticed appellant=s car beginning to exit the drive-through, the officers made the sudden decision to block his car from exiting because, in Officer Jensen=s words, Awe didn=t want to take a chance of it possibly getting out on the street and causing harm.@  From the perspective of a reasonable officer at the scene, and under these rapidly-changing circumstances, we find that the officers= decision to block appellant=s car was reasonable, and did not exceed the force reasonably necessary to effect the goal of the stop.  See Green v. State, No. 14-03-00213-CR, 2004 WL 1381021, at *4B5 (Tex. App.CHouston [14th Dist.] June 22, 2004, pet. ref=d) (mem. op., not designated for publication) (concluding that appellant was not under arrest when officer blocked his vehicle and approached him with his service revolver drawn; officer noticed appellant=s car leaving the scene and actions were reasonable to protect officer safety).

Furthermore, the cases cited by appellant are distinguishable.  See McCraw, 117 S.W.3d at 54; Villalobos, 999 S.W.2d at 134B35; Taylor, 874 S.W.2d at 365.  In McCraw, police officers blocked the defendant=s vehicle in the driveway of his home and ordered him out of the vehicle at gunpoint while they searched the vehicle for a firearm. McCraw, 117 S.W.3d at 53.  However, the officers neither questioned the defendant during the search of his vehicle, nor questioned his wife until after locating the weapon.  Id.  The court concluded that, because the officers never questioned appellant or otherwise conducted an investigation during the search of the vehicle, the contact could not be characterized as an investigative detention. Id.

Similarly, in Villalobos, police officers blocked the defendant=s vehicle, ordered him out of the vehicle, and patted him down without questioning him. Villalobos, 999 S.W.2d at 135.  The court held that these actions constituted a custodial arrest, rather than an investigative detention. See id. at 134B35.  However, here the record demonstratesCand the parties concedeCthat Officers Villanueva and Jensen immediately began interviewing appellant once he was detained.^[4] At that point, the officers noticed signs of intoxication and made the decision to investigate further.  Thus, unlike the situation in McGraw and Villalobos, here the officers actually conducted an investigation; their actions did not constitute an arrest. Cf. Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991) (stating that, when no investigation is undertaken, Athe detention cannot be considered investigatory and rises to the level of an arrest@).

Appellant=s reliance on Taylor is also misplaced.  There, the court found that the defendant was under arrest when, in an apparent sting operation, police officers blocked her vehicle in a carwash stall and questioned her with at least one revolver drawn. See Taylor, 874 S.W.2d at 364B65.  However, here the record shows that Officers Villanueva and Jensen confronted appellant by activating their emergency equipment and preventing his exit from the drive-through line.  They did not confront appellant with their revolvers drawn or otherwise exhibit more force than was reasonably necessary to effectuate the goal of the detention. We now examine the reasonableness of the next level of the officers= intrusion.

2.       Removing Appellant From His Vehicle and Questioning Him Did Not Transform the Investigative Detention Into an Arrest.

Next, the officers= removal of appellant from his vehicle and their questioning of appellant did not transform the investigative detention into an arrest.  These acts did not exceed the force reasonably necessary to effect the goal of the detention:  investigation. See Berkemer, 468 U.S. at 442 (removing appellant from his vehicle and asking him a Amodest number of questions@ did not transform the investigative detention into an arrest); see also State v. Waldrop, 7 S.W.3d 836, 839 (Tex. App.CAustin 1999, no pet.) (concluding that appellant was not Ain custody@ for Miranda purposes when he was removed from his truck and questioned by an officer).  Moreover, after removing appellant from his vehicle, and while they interviewed him, Officers Villanueva and Jensen observed that appellant had bloodshot eyes, that his speech was slurred, and that he emitted a strong odor of alcohol.  In light of these facts, the officers acted reasonably in continuing to detain appellant in order to investigate whether he had been driving while intoxicated. See Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979) (facts that come to an officer=s attention during the course of a routine traffic stop may justify a continued detention and a broader investigation); see also State v. Stevenson, 958 S.W.2d 824, 828B29 (Tex. Crim. App. 1997) (detention and questioning by police officer during a DWI investigation, without more, is not custody).

Furthermore, both officers testified that appellant was only detained while he waited for the DWI task force officer to arrive, and that he was not under arrest at this time.  Although the officers= testimony is not dispositive in determining whether an arrest has taken place, it is a factor we consider. See Rhodes, 945 S.W.2d at 117.  We next examine the reasonableness of the final level of the officers= intrusion.

3.       Placing Appellant in the Back of the Patrol Car Did Not Transform the Investigative Detention Into an Arrest.

Finally, the officers= decision to place appellant in the back of their patrol car to await the arrival of the DWI task force officer did not transform the investigative detention into an arrest. Placing appellant in the back of the patrol carCunhandcuffedCdid not exceed the force reasonably necessary to effect the goal of the detention. See Stephenson v. State, No. 01-96-01114-CR, 1997 WL 751109, at *6 (Tex. App.CHouston [1st Dist.] Dec. 4, 1997, pet. ref=d) (not designated for publication) (placing a DWI suspect unhandcuffed in the back of a patrol car pending the arrival of a DWI task force officer was reasonable restraint and did not render the detention an arrest; the detaining officer Asought only to maintain the status quo@ until the task force officer arrived). Officer Jensen testified that he placed appellant in the back seat of the patrol car to await the arrival of the DWI task force officer so that appellant Adidn=t go anywhere, [didn=t] drink any alcohol or throw up, or anything like that.@  Based on these facts, the officers= placement of appellant in the back seat of the patrol car was reasonably necessary to maintain the status quo until the DWI task force officer arrived. See Nargi v. State, 895 S.W.2d 820, 823 (Tex. App.CHouston [14th Dist.] 1995), pet. dism'd, 922 S.W.2d 180 (Tex. Crim. App.1996) (chasing, ordering suspect to the ground, then handcuffing suspect was reasonable restraint and force did not constitute arrest); Gunnel v. State, No. 14-04-00214-CR, 2005 WL 481355, at *7 (Tex. App.CHouston [14th Dist.] March 1, 2005, pet. dism=d) (mem. op., not designated for publication) (finding that suspect was subject to only an investigative detention when he was handcuffed and placed in the back of the patrol car).

Moreover, the length of appellant=s detention was reasonable under the circumstances.^[5] An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).  Officer Jensen estimated that the elapsed time between contact with appellant and the arrival of the DWI task force was Amaybe ten to fifteen minutes.@  We conclude that the length of appellant=s detention did not go beyond the boundaries of an investigative detention. See Vallejo v. State, No. 03-00-00750-CR, 2001 WL 1422132, at *1 (Tex. App.CAustin Nov. 15, 2001, no pet.) (not designated for publication) (twenty-minute wait for a DWI task force officer did not transform the investigative detention into an arrest); Stephenson, 1997 WL 751109, at *6 (characterizing fifteen-minute wait for DWI task force as Abrief,@ and did not render investigative detention an arrest).

Therefore, based on the totality of the circumstances, we hold that, at the time his videotaped statements were made, appellant was the subject of an investigative detention.  He was not under arrest.  Accordingly, appellant=s videotaped statements regarding his alcohol consumption were not the product of  custodial interrogation and were admissible even absent Miranda warnings.  Thus, the trial court did not abuse its discretion in admitting appellant=s videotaped statements into evidence.  We overrule appellant=s sole issue.

                                                      Conclusion

Having addressed and overruled appellant=s sole issue, we affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Hudson.*

Do Not Publish C Tex. R. App. P. 47.2(b).

_________________________________

*  Senior Justice J. Harvey Hudson sitting by assignment.

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^[1]  384 U.S. 436 (1966).

^[2]  Specifically, Officer Pritchard administered the Horizontal Gaze Nystagmus (HGN) test, the Romberg test, the Aone-leg stand@ test, and the Awalk-and-turn@ test on appellant.  Officer Pritchard testified that appellant=s performance on the HGN test indicated Aintoxication,@ while his performance on the Romberg, one-leg stand, and walk-and-turn tests indicated Aa high level of intoxication.@

^[3]  A consensual encounter occurs when a law enforcement officer approaches an individual in public to ask questions. See Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  An officer needs no justification for a consensual encounter, which triggers no constitutional protections. Id.  Because the parties do not allege that the present suit involves a consensual encounter between appellant and Officers Villanueva and Jensen, we focus our discussion on the latter two types of interactions.

^[4]  Specifically, Officer Villanueva testified that he and Officer Jensen Ainterviewed@ appellant after they ordered him out of his vehicle.  Officer Jensen specified that he actually spoke to appellant at the scene, and asked him Awhat he was doing@ and A[whether] he had been drinking,@ based on the information provided by Street.  In addition, appellant asserts in his brief that A[he] was removed from his vehicle and questioned by the officers.@

^[5]  Though appellant does not independently challenge the length of his detention as a factor bearing on our determination, we nonetheless address it because it is a factor we consider.  See Mount, 217 S.W.3d at 724.