OPINION
A jury convicted Robert Bartlett of the misdemeanor offense of assault based on evidence that he punched a woman in the mouth, breaking her upper jaw and dislocating teeth, during an altercation at the 2004 Republic of Texas Motorcycle Rally. The trial court assessed punishment at one year’s imprisonment and a $2,000 fine, but suspended imposition of the sentence and placed Bartlett on community supervision for two years.
Prior to trial, Bartlett had moved unsuccessfully to suppress two categories of evidence tending to incriminate him: (1) a written statement that he had given following the incident and (2) photographs of his hand revealing what Bartlett admitted was “a tooth mark or something.” Bartlett had also moved unsuccessfully to quash the infоrmation — which alleged that he had “intentionally, knowingly, and recklessly” hit the victim on or about the head with his hand — on the ground that it failed to allege, with reasonable certainty, the acts relied upon to constitute recklessness. See Tex.Crim. Proc.Code Ann. art. 21.15 (West 1989).
BACKGROUND
The assault
Based on the evidence presented at trial, the events in question occurred in the early morning hours of June 6, 2004, during the annual Republic of Texas Motorcycle Rally at the Travis County Exposition Center. The rally’s events and activities that evening included a Hank Williams, Jr. concert. Heidi Amos, her parents, and a group of family friends were returning from the concert to their campsite on the Expo Center grounds. They were riding in the back of a flatbed trailer, which was being towed by a small four-wheel “recreational-type vehicle.” According to Amos, they were proceeding along the only road from the concert area to their campsite, which was crowded with people on motorcycles, in four-wheel vehicles, and on foot. Amos testified that the scene was “very much like a parade for the mere fact that there’s so many people, you move very slowly.”
A motorcyclist, later identified as Bartlett, was riding in the procession immediately behind Amos’s trader. Amos testified that Bartlett rode his motorcycle forward until his front tire wedged against the back of her trailer, and then began performing “burnouts.” 1 The force of the accelerating motorcycle, Amos recounted, began pushing her trailer and the attached four-wheeler forward into a crowd of pedestrians. Bartlett was asked to stop. He continued. Soon another motorcyclist joined Bartlett, with the two performing burnouts against the back of Amos’s trailer. This caused the four-wheeler to be pushed forward with even more force, causing its driver to begin to lose control.
Amos’s group expressed displeasure at Bartlett’s behavior. By one account, one of them threw a beer bottle at Bartlett, hitting him and causing him to fall with his bike. Whatever its precise origins, a fight broke out between Bаrtlett and a man named “Roy” from Amos’s group. Amos testified that the fight lasted approximately two minutes. Afterward, Amos’s group continued slowly down the road toward their campsite. Amos did not observe Bartlett following them.
Approximately twenty minutes later, as Amos’s group was continuing along in the procession in their trailer, they approached an area where Bartlett and his friends were camped. Another altercation broke out, although witnesses again differed as to how it began. Amos testified that as her group approached, members of Bartlett’s group moved toward Amos’s trailer and one threw a beer bottle at Roy. The bottle missed Roy but hit Amos in the chest. Amos testified that this led to an
As the fighting escalated, Amos claims that she stepped off of the trailer and started to yell, “Hey, this is enough.” Before she finished that statement, Amos testified, Bartlett hit her in the mouth with his fist. The impact broke Amos’s upper jaw and fractured and dislocated her two upper front teeth. She then fell onto broken glass, cutting her knee and ankle. EMS was dispatched to the scene. Because of the large and tightly compacted crowds, EMS used a golf cart to remove Amos from the Expo Center grounds to an ambulance thаt it parked at the Center’s front entrance. It took approximately 35 minutes for EMS to get the golf cart to Amos’s location and remove her to the waiting ambulance. Amos ultimately required multiple surgeries to her mouth, plus stitches to her knee.
The investigation
Sergeant Chuck Jones of the Travis County Sheriff’s Office was the supervisor for the 2-7 a.m. shift of “uniform security” at the motorcycle rally. 2 At the hearing on Bartlett’s motion to suppress, Sgt. Jones estimated the motorcycle rally crowd at “25, 28,000, I mean, 30,000 ... it was packed ... and we had people left over from the concert, too.” Jones’s security force consisted of a total of eight officers “actually on duty,” counting Jones and two officers “held over from the shift before to help us out because we hаd so much going on.”
Sgt. Jones was aware that “a pretty severe assault” had been dispatched earlier that evening and that EMS, with some difficulty because of the large crowds, had transported the victim to the hospital. One of the deputies on duty had found the location where the assault had occurred or the victim had been. Jones had directed the deputy to go to the hospital and interview the victim. Jones, accompanied by another sergeant and a deputy, went to that location. Jones testified that these were the only two officers he had available at the time. He used his patrol car to get to the location, observing that “[i]t was really kind of congested for vehicles, so it was hard to get around.”
At this location, Sgt. Jones explained, were several members of the group that had been with Amos at the time of the assault and “we had quite a few people trying to tell us what happened and they were saying that they saw the girl get assaulted.” One individual identified himself as James Priester. According to Jones, Priester recounted that the assailant had been doing burnouts against the back of their trailer and that “some of the people in his group,” including Priester, had “wanted to know what he was doing or got upset with him or started yelling at him, you know, that kind of a disturbance type thing.” Then, Jones indicated Pries-ter told him, the assailant “just started hitting people and that’s when the female got assaulted.”
“Quite a few” of Priester’s group, according to Sgt. Jones, also indicated that “they found thе suspect that did it.”
3
Jones, with the two accompanying officers, walked with “several of’ the Priester
Sgt. Jones explained that the suspect, whom he later identified as Bartlett, was in the midst of “another large group of people” at a campsite who appeаred to be his friends. Jones asked the two officers accompanying him to control Bartlett’s group as Jones approached the suspect. Then, according to Sgt. Jones:
I came up behind him and told him who I — put my hand on his shoulder I think, I believe. I believe I did. I put my hand on his shoulder and my hand on his other hand and told him I was with the Sheriffs Department and he needed to come with me and, you know, I didn’t want to have any — any problems. So I put the handcuffs on him.
Jones testified that he handcuffed the assault suspect to assure the officer’s safety. At trial, he elaborated:
[I]t was a security issue more than anything. I didn’t want him to get hurt. Didn’t want us to get hurt. And I wanted to get him out as quickly as I could without causing any problems .... we had two groups of people at that point. We had Mr. Bartlett’s group, and then we had the group with the victim that was pointing him out. And I didn’t want that — those groups getting together. I didn’t want to cause more problems than we already had.
When asked during the suppression hearing why he didn’t simply interview Bartlett at his campsite, Jones explained, ‘We had a lot of people to deal with ... I didn’t know Mr. Bartlett before that day and I didn’t know the people in his camp, and we had people yelling at people and other fights going on, and I took him from the camp for our safety to go some place else and talk.”
Sgt. Jones recounted that the suspect “wanted to know what was going on” and that Jones “just kind of explained to him that I needed to talk to him.” The sergeant acknowledged that Bartlett was “pretty cooperative” and “didn’t give me any trouble at all,” but observed that Bartlett’s friends “were a little agitated that I was taking Mr. Bartlett.” Jones noted that “[w]e were actually inside a group of people,” so “we backed out of that group of people,” and “actually some of them followed me out of the crowd a little bit.” Jones assured the crowd, “calm down, I got to talk to him, but I’ll bring him back.” He explained these actions:
Because I didn’t want another problem. We had three officers, we were grossly outnumbered. Like I said, I didn’t know Mr. Bartlett’s group or Mr. Pries-ter’s group before that so I didn’t know what was going to happen. At that point I didn’t have Mr. Bartlett identified or anything, so I told them that to keep the other problems from happening.
Sgt. Jones escorted Bartlett back towаrd his patrol car, which was located, according to Jones’s varying estimates, 400-500 or “a few thousand” yards away. As they approached the car, according to Jones, the Priester group “became belligerent,” “started getting a little bit aggressive,” and “mouthing off’ to Bartlett. Jones placed Bartlett in the back seat. (At this point, Priester looked inside the ear and positively identified Bartlett as the assailant.) Sgt. Jones observed that some
Meanwhile, Sgt. Jones recounted, “Mr. Bartlett’s group had come over to Mr. Priester’s group and they were exchanging words and we were trying to separate everybody.” The situation was deteriorating to the point that Jones “didn’t feel it was safe to be there.” He decided that “it would be best to get [Bartlett] out of here.” Jones testified that, given the circumstances, using a patrol car was both the safest and the “only feasible way” of transporting Bartlett. Jones testified that he told Bartlett that he was not under arrest but that “we were going to go someplace where we could talk, because there was [sic] more problems coming to us as we were getting back to the car.”
Sgt. Jones drove his patrol car, with Bartlett in the back seat, approximatеly two thousand yards away from the two rival groups to a location that he described as follows:
It’s a show barn. It’s an open area, open walls where they had — where they keep all the vendors for these motorcycle rallies, and the area that we had was — it was just a little temporary looking little four foot fence that went from the vendor area to where the registration and, you know, they kept all the drinks and stuff like that. The — the area we were at was a table right inside there....
Jones testified that he uncuffed Bartlett when they walked into the barn and sat at the table. Jones added that other people were walking through the open area and could see Jones sitting at the table with Bartlett. Jones further observed that there wаs nothing “hanging on the wall or anything” indicating that the area was “the place of business” for the Travis County Sheriffs Office.
Jones reiterated to Bartlett that “he wasn’t under arrest, that he was ... just up there to talk to me and I wanted to hear his side of the story.” 4 Jones also explained to Bartlett that he had earlier used the handcuffs “for our safety.” Bartlett began to explain to Jones his version of events. To summarize, Bartlett claimed that Amos and Priester’s group were the first aggressors, knocking him to the ground and hitting him. Only then, Bartlett claimed, did he hit back.
As they were talking, Jones asked Bartlett if he “would like to make a statement.” According to Jones, Bartlett replied, “sure.” Jones again told Bartlett, “I tell people I’m not going to arrest them, I keep my promise. You know, ... you’re not going to go to jail no matter what you tell me.” Then, leaving Bartlett unattended and uncuffed at the table, Jones walked to his patrol car, retrieved a “voluntary statement” form, and returned to the table. At this point, Jones recited to Bartlett the
Miranda
5
warnings printed on the top of the form. Jones testified that Bartlett understood the warnings and demonstrated to Jones’s satisfaction that he could read. Jones transcribed Bartlett’s oral account and handed it to Bartlett to review.
The first time I was on my bike and I bumped a trailer. I put my wheel against the trailer and did burn outs. Some guy jumped off the trailer and knocked me down, hit me in the face and kicked me. Everybody broke the fight up and the trailеr left. About half [an] hour later the trailer came back around. The people started yelling at me. We were all fighting and everyone was hitting me. There were four or five people hitting me and I was hitting at the people back. I hit everyone that pulled me around and if I hit a girl I don’t remember. I got cuts on my right hand that look like a tooth mark or something. I’m sorry if I hurt someone.
Jones informed Bartlett that the statement would be “turned in to our detectives” and that they could later “get a warrant for your arrest.” While they were at the barn, Jones took some photographs of Bartlett, displaying the “cuts on my right hand” that Bartlett had described in his statement.
After taking Bartlett’s statement, Jones put Bartlett back in the patrol car, this time without handcuffs, and returned Bartlett tо his group. Jones told the group that he had “kept his promise” about returning Bartlett to them, and asked them to stay away from Priester’s group.
Proceedings below
Bartlett was subsequently charged by information with “intentionally, knowingly, and recklessly” assaulting Amos. Prior to trial, Bartlett moved to suppress his written statement and the photographs as fruits of a warrantless arrest without probable cause or lawful authority.
6
The parties similarly joined issue as to whether Bartlett was “in custody” within the meaning of article 38.22, code of criminal procedure, at the time he gave his written statement.
See
Tex.Code Crim. Proc. Ann. art. 38.22 (West 2005) (placing conditions on evidentiary use of written statements “made by an accused as a result of custodial interrogation”);
Miranda v. Arizona,
Bartlett also moved to quash the information on the basis that the State failed to allege, with reasonable certainty, the acts relied upon to constitute recklessness. See Tex.Code Crim. Proc. Ann. art. 21.15 (West 1989). The trial court denied the motion to quash, but expressly allowed Bartlett “to reurge the motion at trial.” Bartlett did raise the argument at trial, objecting on the same grounds to the trial court’s inclusion of a recklessness instruction in the jury charge. The trial court overruled the objection.
After hearing the evidence at trial, the jury found Bartlett guilty of the оffense of assault with bodily injury. Bartlett elected to have the trial court assess punishment, and punishment was assessed at one year’s imprisonment and a $2,000 fine. The court suspended imposition of the sentence and placed Bartlett on two years’
DISCUSSION
Motion to suppress
In his first issue, Bartlett contends that the trial court abused its discretion in denying his pretrial motion to suppress his written statement and photographs. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review.
Ford v. State,
Bartlett urges that his “statement and the photographs of him are the products of an unlawful arrest and an improper custodial interrogation.” In support, he devotes much of his briefing to establishing that Sgt. Jones had “seized” him under the meaning of the Fourth Amendment and article I, section 9 of the Texas Constitution.
See California v. Hodari D.,
The State concedes that Sgt. Jones “seized” Bartlett, but argues that the seizure did not constitute “custody” or a warrantless arrest, but was instead an investigative detention.
7
Under both the Fourth Amendment and article I, section 9 of the Texas Constitution, a law enforcement officer may stop and briefly detain a person without probable cause whom he reasonably suspects of criminal activity.
Balentine v. State,
In his briefing, Bartlett did not squarely address the State’s contention that Sgt. Jones’s seizure of him constituted an investigative detention, arguing essentially that he was seized and that status, without more, equals an arrest and custody. During oral argument, Bartlett disputed whether the State met its burden of justifying an investigative detention as of the time Jones initially restrained him. An investigative detention is justified when the detaining officer has specific articula-ble facts, which, taken together with rational inferences from those facts, lead him reasonably to suspect that the person detained actually is, or has been, or soon will be involved in criminal activity.
Balen-tine,
Bartlett further suggests that the extent or degree of his restraint— especially the fact he was handcuffed and placed in the patrol car — would have caused a reasonable person to believe his freedom of movement was restrained to the degree associated with a formal arrest. However, an officer conducting an investigative detention may use such force as is reasonably necessary under the circumstances to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety.
Rhodes,
Also bearing on the custody inquiry is the principle that the “reasonable person” standard presupposes an innocent person.
Florida v. Bostick,
Sgt. Jones testified that he handcuffed Bartlett — whom had just been identified by several people as the perpetrator of a “pretty severe assault” — to ensure both Bartlett’s safety and his own. Rather than questioning Bartlett at his campsite, Sgt. Jones sought to “get him out as quickly as I could” in order to head off a potentially volatile situation between Bartlett’s “large
On this record, the trial court could have impliedly found that Sgt. Jones’s decision to transport Bartlett away from the scene in his patrol car was reasonably necessary to maintain the status quo and effect the safety of both the officers and Bartlett himself.
See Josey,
Adding further support to these implied findings are the events once Sgt. Jones and Bartlett reached the “show barn” a safe distance from the volatile environment from which they came. Jones removed the handcuffs from Bartlett and did not apply them again. Jones also explained to Bartlett that he had used the handcuffs “for our safety.” Further, Sgt. Jones actually conducted an investigation, asking Bartlett to tell his side of the story.
See Rhodes,
Sgt. Jones also repeatedly voiced his intent not to arrest Bartlett, but only to question or “talk to him.” An officer’s subjective views may be relevant to thе custody determination to the extent they are communicated and would affect a reasonable person’s understanding of his freedom of action.
See Stansbury,
Finally, the setting to which Bartlett was transported is relevant to the custody determination. The record reflects that
In summary, the record supports the conclusion that Sgt. Jones’s seizure of Bartlett was an investigative detention, not an arrest or custody. The district court did not abuse its discretion in overruling Bartlett’s motion to suppress. We overrule Bartlett’s first issue.
Motion to quash
In his second issue, Bartlett asserts that the trial court abused its discretion in overruling his motion to quash the information. Whether a charging instrument provides sufficient notice to the accused is a question of law that we review de novo.
See State v. Moff,
The information alleged, in relevant part:
Robert Bartlett, the Defendant, on or about June 6, 2004, did then and there intentionally, knowingly, and recklessly cause bodily injury to Heidi Amos by hitting Heidi Amos on or about the head with the Defendant’s hand.
Bartlett complains that the information fails to provide notice of the aсt or acts the State relies upon to constitute the culpable mental state of recklessness. In particular, he relies on article 21.15 of the code of criminal procedure, which states:
Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offensе, acted recklessly or with criminal negligence.
Tex.Code Crim. Proc. Ann. art. 21.15.
The State responds that article 21.15 is inapplicable. It relies on
Crawford v. State,
All three of the culpable mental states, intentionally, knowingly, and recklessly, were alleged. Since it is sufficient to allege either of the culpable mental states, the indictment on its face alleges two culpable mental states, intentionally and knowingly, which are not subject to the complaint concerning the culpable mental state, recklessly, made in the appellant’s motion to quash. The indictment is sufficient and we need not determine the requirements of the indictment, if recklessly had been the only alleged culpable mental state.
Bartlett attempts to distinguish
Crawford
as addressing not the sufficiency of notice, but the concept of “fundamental defect” in charging instruments then recognized by the court of criminal appeals. Under this concept, if a charging instrument failed to allege all elements of the offense, any subsequent judgment of conviction was deemed void and could be attacked at any time on direct appeal or through a post-conviction habeas petition.
See Ex parte Patterson,
The defendant in
Crawford
had moved to quash the indictment, according to the court of criminal appeals, on the basis that the instrument “failed to allege with
reasonable certainty
the act or acts relied on to constitute recklessness.”
The charging instrument here, like that in
Crawford,
alleges not only recklessness, but intentional and knowing conduct. The
Crawford
court relied on this feature of the instrument in holding that it “need not determine the requirements of the indictment, if recklessly had been the only al
Relying on the same underlying theory, Bаrtlett asserts in his third issue that the trial court abused its discretion in instructing the jury regarding the culpable mental state of recklessness. Bartlett acknowledges that this issue would be foreclosed by our adverse disposition of his second issue. Consequently, we overrule Bartlett’s third issue.
CONCLUSION
Having overruled Bartlett’s issues on appeal, we affirm the judgment of the trial court.
Notes
. A “burnout,” Amos explained, is a technique in which a motorcyclist throttles his or her engine while the front wheel is held stationary, causing the back wheel to spin uncontrollably, often accompanied by considerable smoke and loud engine noise. According to Sergeant Chuck Jones of the Travis County Sheriff’s Office, whose pivotal role in the underlying events is discussed below, many of the motorcyclists at the rally wоuld ride around a large loop around the Expo Center grounds that was "basically called a parade area,” where "the people parade their motorcycles ... do burnouts, spin their tires ... show how fast their bike runs, how much noise it makes ... especially at night because of the exhaust lighting up ... and they just keep going around this loop.”
. Jones explained that he was in uniform but off-duty, having clocked out of his normal shift with Travis County before coming to the Expo Center.
. By this time, Jones estimated that “an hour ... hour and a half maybe” had elapsed since EMS had transported the victim away.
. Jones added that, in fact, he "didn’t have the manpower or the inclination to take [Bartlett] to jail that night, so I had already made up my mind that I wasn’t going to make an arrest.”
.
See Miranda v. Arizona,
. During the hearing, Bartlett’s trial counsel specifically relied on "Article I, Section 9 of the Texas Constitution, the Fourth Amendment and the Fourteenth Amendment of the United States Constitution, Article 38.23 and Chapter 14 of the Code of Criminal Procedure.”
. The State concedes that at the time he initiated the seizure, Sgt. Jones lacked probable cause or lawful authority to arrest Bartlett.
. By post-submission letter, Bartlett emphasizes a recent decision from the Dallas Court of Appeals,
State v. Purdy,
.
See State v. McCoy,