*1 (Tex.App.-Austin matter, pre our review of practical denied). writ interest issue in this case is de judgment Toshiba, at 785-86.
novo. See Freight contends that the Feb- National 3, 2000, merely a ruary letter constitutes question letter in reads The text of the representation Snyder’s of from letter as follows: is defi- counsel. It asserts that the letter compen- cient it does not demand February because right paid. or to be We sation assert MELINDA WOODWARD by disagree. begins The letter referenc- Company & Ins. Crawford adjuster’s claim ing the claims number 209 S. Danville Ste# let- identifying Snyder as a claimant. The Abilene, Texas 79605 adjuster additionally the claims ter advised Snyder’s bills would be for- medical mini- for her review. At a to her
warded mum, of letter constitutes an assertion is similar to right paid. to be The letter Dear Ms. Woodward: Bevers, the court deter- the letter which Please advised that we been be notice of mined to constitute written to JOHN B. SNY- represent retained Bevers, noted in claim. Id. at 603. As bodily injuries DER the above for not demand an exact amount writing need incident. referenced damage. Id. Na- every or list element of representation in Please reflect our 5 is overruled. Freight’s tional Issue No. your direct all future corre- files and concerning this matter spondence Ruling This Court’s our client has through this office. When damages of The trial court’s award treating physician, been released expenses is re- Snyder past for medical specials all medical will forward we The re- and remanded for trial. versed you your review. judgment court’s mainder of the trial If has a recorded given our client affirmed. statement, for a request this is written look of such statement. We copy you on this working with
forward case, original) (emphasis terms,
By express its Section a claim. requires written notice of 304.104 RODRIGUEZ, Appellant, Rafael Javier compensation or A “claim” a demand for right paid. John an assertion of a be Tex., v. Kenneco Higgins Inc. son & of Texas, Appellee. STATE (Tex. Inc., 507, 531
Energy, No. 13-02-607-CR. an exact A claim need not demand damage. every or list element amount Texas, Appeals Court (Tex. Soule, 599, Bevers v. Christi-Edinburg. Corpus writ). Howev no App.-Fort Worth April er, notice merely provides a document that injuries does resulting of an accident Brice, constitute a claim. Robinson *7 McAllen, Garza, appellant. for
Rolando Hake, Dist. Asst. Crim. Theodore C. Alaniz, Asst. Dist. Atty., Amy Howell appellee. Atty., Edinburg,
OPINION YÁÑEZ.
Opinion Justice jury appellant, A found Rafael Javier assault1 Rodriguez, guilty of intoxication years impris- him to six and sentenced $10,000.00 By fine. eleven onment and (1) issues, challenges legal sufficiency of the evidence to and factual (issues his conviction one support (2) two); the trial court’s denial of his (a) was suppress grounds motion to on (issue three) (b) unlawfully arrested and/or (issue four); unlawfully he was detained (3) videotape in violation admission code of of articles 38.22 and 38.23 of the (issue (4) five); criminal admis- procedure sion of his refusal to take a breath test (a) grounds that his con- his residence on six) (issue tinued detention was unlawful (b) statutory given he was not warnings required sample to take a breath arrest, if and if he was he was under (as argues), under arrest the State improper request sample for a breath (issue seven); pho- the exclusion of two (issue tographs eight); from evidence his motion for new trial the denial of *8 (a) the State failed to disclose grounds (issue defense favorable to his evidence (b) nine), newly-discovered favorable likely changed would (issue (c) ten), and of the trial outcome failing ineffective for to trial counsel was (issue elev- the favorable evidence discover en). affirm. We (Vernon 49.07(a)(1) 1. See Tex. Pen.Code Ann. § thereafter, Background2 was released Shortly appellant
I. friend, by a and was driven home on the eve- approximately p.m. At 9:30 Jackson, Espiridion (“Speedy”) Honorable 8, 2001, then ning appellant, of November County justice peace Hidalgo of the Texas, Elsa, judge in municipal was driv- at that time. residence in ing a van on FM 88 near his motorcycle The van struck a driven that at Rodriguez Elsa. Officer J.P. testified trial, time, At Officer Jaime police Linda Perez. offi- only he was the Elsa police that he was the first Cano testified sobriety to conduct field tests. cer certified of the acci- officer to arrive at the scene he According Rodriguez, to Officer when arrived, that when he station, dent. Cano testified had police appellant arrived at the missing its motorcycle, he observed Rodriguez released. After Officer been driver, on the side of the front wheel and Hoyos De advised the Chief that Officer road, seventy-five feet from approximately sobriety to conduct field was not certified gathered at the scene the van. Onlookers tests, the Chief ordered Officer pinned Perez was under- reported that to an- go appellant’s to to house conduct department fire neath the van. EMS and sobriety field test and obtain a blood other Perez from under the personnel removed appellant. Offi- specimen or breath from that Perez had suf- van. Cano testified approximately cer testified that injuries and that she was fered severe forty after the acci- an hour and minutes emergency scene for airlifted from the dent, appellant’s he arrived at residence treatment. three additional field sobri- performed tests, ety appellant passed. which Officer ap-
After one of the onlookers identified attempted to Rodriguez testified that he van, as driver of the Officer pellant required statutory appellant read him appellant and asked approached Cano unable to do so warnings, but he was said he Appellant had occurred. what Offi- kept interrupting. appellant because dog. hit a Cano directed thought he had requested that he Rodriguez testified cer car. police in Cano’s Offi- appellant sit either a breath appellant provide and directed Hoyos cer Ricardo De arrived appellant refused. sample, but blood transport appel- Flavio Officer Garcia con- in order to police lant to the station Sufficiency Legal and Factual II. appellant. on duct a field test issues, appellant In his first and second appellant testified that he drove Garcia legally and factu- evidence is contends the car; he station in Cano’s support his conviction. ally insufficient camera inside unaware that video ap- with his conversation the car recorded Review A. Standard Hoyos De testi- pellant during the drive. review, sufficiency we legal In a station, conducted three at the
fied that light most evidence in the all of the view ap- appellant, which sobriety tests field deter verdict and then favorable to the Chief, Primiti- Elsa Police pellant passed. fact could rational trier of whether a mine he observed Rodriguez, testified that vo the essential elements have found sobriety tests at the of the field only one This a reasonable doubt.3 beyond crime passed the test. station and that *9 testimony the officers ly the of testimony testi- from appellant's and the 2. Because investigating accident. greater detail mony others are discussed in of below, discussion in this section we limit our 814, State, 817 143 S.W.3d 3. Escamilla v. events, primari- chronology of taken to a brief Virgi (citing v. (Tex.Crim.App.2004) Jackson
437 only the verdict aside light, and we will set gives play responsibil “full to the standard that the verdict if is so weak the evidence fairly fact to resolve ity of the trier of unjust, or manifestly and clearly wrong testimony, weigh in the to conflicts that the strong so contrary evidence is evidence, infer and to draw reasonable beyond a reasonable proof standard of facts.”4 from basic facts to ultimate ences are been met.10 We doubt could sufficiency legal We measure light in the the evidence not bound to view against the elements of the the evidence may and prosecution, most favorable by a cor hypothetically offense as defined testimony of all the wit- consider the jury charge rect for the case.5 “Such Disagreeing with the fact finder’s nesses.11 charge accurately would be one that sets only when appropriate determination is law, indict out the is authorized clearly indicates that such the record ment, unnecessarily increase the does not necessary the occurrence step to arrest unnecessarily or proof burden State’s otherwise, def- injustice; due of a manifest liability, and restrict the State’s theories of accorded the fact finder’s erence must be offense adequately particular describes the determinations, concern- particularly those the defendant was tried.”6 which credibility of the evi- ing weight dence.12 fact, jury, The as the trier of
may apply use common sense and common Here, convicted of intoxi- appellant was observation, knowledge, experience Thus, cor- hypothetically cation assault. (1) gained ordinary giving affairs when ef jury if jury charge rect would ask the may (3) (2) fect the inferences that be reason operated a motor vehicle appellant ably from fact drawn the evidence.7 As intoxicated, by reason of that while finder, jury judge is the exclusive intoxication, bodily inju- caused serious credibility weight and the witnesses ry to another.13 testimony.8 jury be afforded their Analysis B. facts, accept is free one version of another, reject reject all or of a Legal Sufficiency 1. testimony.9 witness’s issue, chal In his first review, sufficiency of the evidence sufficiency lenges legal
In a factual
Specifically, he
support
we view all of the evidence in a neutral
his conviction.
State,
341,
nia,
307,
2781,
319,
Penagraph v.
623 S.W.2d
443 U.S.
99 S.Ct.
9.
(1979)).
L.Ed.2d 560
(Tex.Crim.App.1981).
319,
Jackson,
4.
2. Factual tes- credibility given to witness weight and issue, appellant con By his second review of timony.15 hold that a neutral We factually insufficient tends the evidence that the evi- demonstrates the evidence intoxication support the elements to the support to factually sufficient dence is (that the accident and causation appellant’s overrule jury’s verdict. We intoxication). that by reason of caused second issue. above, to the evidence cited In addition upon following the evidence relied we note Suppress III. Motion to by appellant. issue, appellant contends In his third that at the Hoyos testified
Officer De motion to denying in his trial court erred station, field performed he three police arrested without suppress because he was appel- that sobriety appellant tests on and trial argues the Hoyos probable Appellant cause. lant all three tests. De passed “the fruits of suppressed should have that he conducted a second field court testified ar- everything Rod- derived from unlawful sobriety presence [his] test Chief rest,” appellant passed including videotape police the second riguez. After test, station, appel- car, police ordered that and Chief the events at the Similarly, Rodri- lant be released. Chief to a breath test any refusals to submit present that he was guez appellant’s testified when or later at police station sobriety one of the field appellant took Appellant argues residence. appellant passed and the test.
tests pursuant excluded should have been ap- J.P. testified Officer to the United States Fourth Amendment forty an hour and minutes proximately article 38.23 of the Texas Constitution and accident, he conducted an addi- after of Criminal Procedure.16 Code appel- tional three field tests at issue, appellant in his fourth Similarly, residence, appellant passed and lant’s deny- trial court erred contends that the only Appellant tests. testified that he had suppress because ing his motion night consumed one beer the of the acci- argues Appellant detention was unlawful. Ac- dent and that he was not intoxicated. to the Fourth Amendment pursuant appellant, the beer that was cording of criminal article of the code 38.23 found in the driver’s front console was have ex- the trial court should procedure, his, friend, belonged Speedy to his but everything derived cluded the “fruits of he and Jackson. Jackson testified that detention,” including from unlawful [his] ear- appellant together were at barbecue car, the events videotape police in the evening in the and that he had con- lier station, refusals to at the beers; however, did not sumed several station test at the submit to breath drinking. recall whether he saw appellant’s residence. or later at wrong that he in the Appellant denied lane when the accident occurred. of Review A. Standard sufficiency re- conducting In a factual Applicable Law view, court must avoid substi- appellate ruling on a mo A trial court’s for that of the fact- tuting judgment its generally reviewed suppress upon the fact- tion finder and must not intrude IV; Johnson, amend. 16. See U.S. CONST. at 7. TEX.CODE CRIM. (Vernon 38.23 PROC.ANN. art. Custody B. suppression In a abuse of discretion.17 *12 judge is the sole trier of hearing, the trial Applicable Law 1. credibility of the judge fact and rule, person is general As a weight given to be witnesses and during a custody not in under Miranda23 reviewing a trial testimony.18 In their ques stop.24 routine traffic Detention suppress, motion to we ruling court’s on a during a tioning by police officers DWI deference to the trial afford almost total more, investigation, without custod in custody of the historical facts A motorist is not under y.25 court’s determination stop for “during a routine traffic Miranda especially when supports, that the record the circum suspicion of DWI because findings evaluating turn on the trial court’s completely place do not the driver stances credibility and demeanor.19 a witness’s mercy police.”26 prophy “[T]he at the amount of deference We afford the same by do warnings required Miranda lactic ruling “application the trial court’s objectively officer has not attach until the as questions,” fact also known law to environment and has created a custodial fact,” if re- of law and questions “mixed the accused his intention communicated to questions ultimate turns on solving those him custody to the accused to effectuate 27 credibility and demeanor.20 evaluating self.” However, questions we review de novo in determining In whether an questions of law and fact” law and “mixed inqui ultimate custody, dividual was not turn on an evaluation credi- that do a formal arrest ry is whether there was bility and demeanor.21 movement of the on freedom of restraint arrest.28 with a formal degree associated ruling on uphold a trial court’s We objec on the depends The determination reasonably suppression motion if it is circumstances, subjective not on the tive record and is correct on supported interrogating officers or of either the views Moreover, person being questioned.29 applicable to the case.22 any theory of law 420, 440, State, 669, (Tex. McCarty, 468 U.S. 24. Berkemer v. 672 17. See Ford v. 26 S.W.3d (1984). 2000, 3138, (citing pet.) Oles 317 App.-Corpus Christi no S.Ct. 82 L.Ed.2d 104 103, State, (Tex.Crim.App. S.W.2d 106 v. 993 1999)). 824, Stevenson, S.W.2d v. 958 25. See State 1997). (Tex.Crim.App. 828-29 Ballard, 889, (Tex. S.W.2d 891 State v. 987 18. Crim.App.1999). State, 110, Galloway v. 778 S.W.2d 112 26. Ross, 853, (Tex. 1989, pet.). 856 19. State v. 32 no (Tex.App.-Houston Dist.] [14th State, Crim.App.2000); v. 955 Guzman 85, (Tex.Crim.App.1997). 89 822, 824 Abernathy 963 S.W.2d 27. v. ref'd). pet. (Tex.App.-San Antonio 856; Guzman, Ross, 955 at 20. 32 S.W.3d S.W.2d at 89. (Tex. v. 28. Lewis 856; Guzman, Ross, ref'd) (citing pet. App.-Fort Worth 318, 322, California, S.W.2d at 89. Stansbury 511 U.S. (per 128 L.Ed.2d S.Ct. 22. Villarreal curiam)). (Tex.Crim.App. 436, 444, Id. Arizona, 384 U.S. 23. See Miranda v. (1966). 86 S.Ct. 16 L.Ed.2d his or her to believe person reasonable on an ad hoc is made
the determination
significant-
if the man-
movement has been
Custody is established
freedom of
basis.30
cause,
restricted,
proba-
with
there is
probable
combined
when
ly
ifestation of
circumstances,
would lead
reason-
enforcement
other
to arrest and law
ble cause
he is under
she is
person
suspect
able
believe
he or
do not tell
officers
second,
with
degree
first,
associated
restraint
In the
free to leave.35
per-
“arrest” occurs “when
arrest.31 An
free-
situations,
upon
the restrictions
third
successfully
liberty of movement
son’s
degree
must rise to
of movement
dom
*13
restrained,
this is
whether
restricted or
to an
opposed
as
with an arrest
associated
force or
by
physical
an officer’s
achieved
regard
investigative detention.36 With
to the officer’s
suspect’s
submission
scenario,
knowledge
officers’
fourth
complete only if
authority.”32 An arrest is
must be manifested
probable
of
cause
suspect’s posi-
person
“a reasonable
subject.37
the situation to
tion would have understood
that an
be
The fact
of move-
a restraint on freedom
constitute
investigation
the focus of a DWI
comes
law associ-
degree
ment of the
which the
automatically
an investi
not
convert
does
subjec-
a formal arrest.”33 The
ates with
into an arrest and custo
gatory detention
either the
officer or
tive intent of
An officer’s knowl
interrogation.38
dial
defendant is irrelevant.34
cause to arrest for a DWI
edge
probable
appeals
of criminal
has out-
The court
automatically
custody.39
establish
does
may
general
lined some
situations
the mere hand
cases hold that
Numerous
following:
custody, including the
constitute
automatically
does not
cuffing
suspect
of a
(1)
suspect
physically deprived
when the
is
stop into a full-
investigative
transform an
of action in
of his or her freedom
arrest.40
blown
way,
enforce-
significant
when
law
transported
is
person
When
suspect
officer tells the
he or she
ment
facility by an officer
leave,
to a
enforcement
enforcement
law
cannot
when law
if the
investigation,
an
in the course of
create a situation that would lead
officers
Dowthitt,
State,
31. Id.
37. Id.
State,
(Tex.
32.
v.
13 S.W.3d
Medford
Crim.App.2000).
of the code of
Article 15.22
Stevenson,
at 829.
38.
958 S.W.2d
provides:
person is
procedure
"[a]
criminal
actually placed
arrested when he has been
Lewis,
7;
39. See id. at 829 n.
custody by
or taken into
an
under restraint
712.
4|
executing
person
a warrant of ar
officer or
rest,
arresting
person
with
officer or
an
See, e.g.,
40.
Rhodes
However, this is not a con
out a warrant.”
(holding
bright-
(Tex.Crim.App.1997)
no
trolling legal
Id. at
definition of "arrest.”
handcuffing is
providing that
line rule exists
773-74;
art.
see
Tex.Code Crim. Proc. Ann.
equivalent
arrest and that
always the
(Vernon
15.22
officers
under arrest when
Rhodes was not
him); Mays
handcuffed
(citing
Medford,
U.S. v.
escalate into a interrogation.43 custodial Here, Officer Cano testified that he was The Texas Court of Criminal first to arrive at officer Davis v. Appeals stressed scene the accident. After Officer Cano 240, 245 (Tex.Crim.App.1997), emergency assisted personnel removing investigative tempo detention must be *14 van, from the victim underneath the Cano rary longer necessary no and last than is appellant him approached and asked what purpose stop, of the to effectuate happened. appellant Cano that testified investigative should employed methods thought dog. said he he had hit a Cano reasonably be the least intrusive means appellant further testified that he directed verify to officer’s dispel available police walking toward his car and while to suspicion period in a short of time.44 “The car, he appellant noticed smelled propriety stop’s judged of the duration strongly of also whether alcohol. Cano testified by assessing police diligently was so pursued appellant staggering badly a means of that was investigation to likely dispel suspicions or confirm that he had hold on to Cano’s their shoulder Thus, con from quickly.”45 keep falling the constitutional down. Cano testified post-stop investigations sobriety siderations for are he did not conduct tests field at long in du whether the detention was too the scene of the because he accident was ration, police diligently whether to do testified officers not certified so. He also pursued investigation means of that were not call an did outside law enforcement (such DPS) likely suspicions entity to confirm or as dispel their to assist conduct- boss, quickly, police ing and whether officers were tests Chief Rod- such because his in recognizing unreasonable less intrusive told him to do so.48 riguez, not Cano State, State, 502, 100, (Tex. Joseph v. 505 v. 102 41. Anderson 932 S.W.2d 46. 865 S.W.2d (Tex. 1996). Crim.App. 1993, ref'd). pet. App.-Corpus Christi 1121, Beheler, v. 463 U.S. 1124- California State, 922, (Tex. 925 47. Burkes v. 3517, (1983); 77 103 S.Ct. 1275 L.Ed.3d Crim.App.1991). (Tex. Dancy Crim.App.1987). that he did 48. Chief testified not Rodriguez, 43. State v. at the scene re- order officers ref'd). (Tex.App.-El pet. Paso calling from He testified that a frain DPS. station, trooper eventually DPS came to the (Tex. 44. Davis v. appellant approximately thirty after minutes Crim.App. was released. (quoting Id. Perez (Tex.App.-Houston no Dist.] [1st pet.)). not arrest and did he was under appellant for he was concerned testified that because “safety,” appellant he directed to leave. Garcia appellant’s him he was free tell testified that police in his car. Cano station, to sit appellant was at the testified arrest appellant under he did not consider room, is nor- which booking to the taken him car. police to sit in the when he told that have been suspects mally used Hoyos police the second Garcia testified placed De under arrest. Officer acci- arrive at the scene of the officer to of field the first round he did not observe that he encoun- Hoyos dent. De testified Hoyos administered sobriety tests that De was es- appellant appellant when tered station, but observed appellant at the Hoyos car. De police corted to Cano’s of tests. Garcia testified the second round appel- alcohol on testified that he smelled that, appellant did opinion, in his Hoyos De ordered Officer lant’s breath. of tests because the second round “pass” appellant transport Garcia to during leaning filing on a cabinet he was sobriety a field test could station so that opin- that in his Garcia testified the tests. Hoyos appellant.49 De be conducted normal use ion, did not have the he did not want to conduct testified faculties at physical of his or mental scene because field tests administered. time the tests were and his people” “a lot of there there were safety.” Hoyos “main concern De put testified that Officer Cano Appellant though that even the accident oc- testified him and told in a car at the scene *15 home, appellant’s curred in front of he (Cano) [appel- him “would have to take he go appellant would not have allowed to testified that the officer Appellant lant].” the scene of the home or otherwise leave that “he would have to appellant’s told wife Hoyos he not accident. De testified did that Appellant testified take me in.” appellant at the and did not arrest scene car, over walking police to the he stumbled appellant tell he was under arrest. De “nobody to According appellant, a cable. DPS, that he called even Hoyos testified anything” at the scene. Offi- asked [him] him though Chief had told not going that he was appellant cer told Garcia eventually A ar- trooper to do so. DPS police Ap- station. appellant to take to the station, police at the but did not rived he did not feel free pellant testified perform any sobriety appellant tests on at the station for Appellant was leave. already released. because he had been not twenty minutes and was approximately testified that he trans- Officer Garcia Appellant told that he could leave. as ported appellant police to the station Appellant under arrest. thought he was Hoyos. ordered De Garcia tes- Officer a refuse to submit to testified he did not appellant told to take to the tified he was he was at the station because breath test troopers DPS arrived. station before Appel- not to submit to such test. asked following simply Garcia testified he was troop- told that a DPS lant testified he was why appellant not know orders and did and that he en route to the station er was being taken to the station. Garcia was test breathalyzer to a going to submit was if had asked to be appellant testified that arrived, that trooper but Chief when the station, he way on the to the released trooper him Rodriguez released before Hoyos and asked for would have called De tell arrived. testified he did not instruction. Garcia station, though not certified to even he is Hoyos that he conduct-
49. Officer De testified sobriety appellant at the conduct such tests. ed field tests on Analysis pre- sobriety test at the scene would have significant safety risk. There sented Hoyos Officers Cano and De both at the accident present were four officers they ap smelled alcohol on testified Cano, Garcia, Hoyos, scene: Officers De open An can of beer was pellant’s breath. addition, Officer Rodriguez. In Chief front console.50 found the driver’s side Rodriguez arrived at the scene few J.P. investigating the accident The officers called. On these minutes after he was victim, Perez, had knew that the suffered facts, failed we conclude the officers facts, injuries.51 the is serious On these intox- investigate appellant whether was investigation was whether requiring sue employ and failed to re icated at the scene was intoxicated. The record appellant flects, however, reasonably that the officers did not intrusive means “least actually attempt investigate suspi- this issue verify dispel available to [their] investigating scene. The officer did of time.”52 Because period cion a short to whether he question appellant as (conducting investigative questioning and, so, if much drinking had how been tests) until sobriety field did not occur in alcohol had consumed. The “least transported po- appellant after if to determine trusive means” available station, investiga- conclude that the lice we appellant was intoxicated was to conduct appellant at the scene tive detention of the acci field test at the scene custody into when he was taken escalated testified that Although dent. Officer Cano to the station.53 he was not certi he did not do so because tests, fied to conduct such he also testified C. Probable Cause Rodriguez, the that he called Officer J.P. Having determined City of Elsa officer certified only custody when he was taken to taken into tests, conduct such to the scene. Officer station, we turn to whether the that he arrived at the testified to arrest or probable cause officers had eight five to minutes approximately scene *16 (1) custody driving for take into appellant called, appellant he but that had after was (2) any or other offense. while intoxicated already been taken to the station. why he Hoyos De was asked When Officer Applicable Law 1. conduct a field test at did not officers have Law enforcement accident, he said there were scene of the a car accid authority investigate “main concern people” lot of and his “a investigation, an officer During the However, ent.54 there is no evi safety.” was constituting facts develop additional conducting a field must in the record that dence dent, only short dis- was able to walk although pas- two she Appellant that 50. testified riding of the sengers in the back seat the aid of a walker. were tances with van, was alone in the front seat. he Davis, at 245. 52. See 947 S.W.2d Perez was re- Cano testified that when 51. van, leg her left was from beneath the moved See id. that right shoulder. Perez testified over her broken, leg leg lower was upper was her her 545.351(b)(2) § 54. See TEX. TRANSP. CODE ANN. almost places, her foot was broken in two 1999) (Vernon (operator shall control vehicle severed, multiple burns suffered she colliding anoth speed to avoid with as needed approx- hospitalized for legs. She was on her vehicle); Maxcey v. er numerous imately weeks and underwent four 1999, no trial, (Tex.App.-Houston Dist.] [14th grafts. time of surgeries and skin At the pet.). acci- after the approximately seven months to arrest cause probable an officer to have for cause to arrest an individual probable The State driving In order to intoxicated. intoxicated.55 for while driving while arrest, an officer officers’ observa on the argues make a full custodial that based scene, proba cause to believe had probable must have the officers tions at arresting has committed or is person he is for intoxi appellant arrest cause to ble cause an offense.56 Probable committing driving intoxicated. cation assault or while and circumstances where the facts exists Moreover, that even if argues the State and of which knowledge the officer’s within cause to ar probable lacked the officers reasonably trustworthy information he has while intoxicat appellant driving for rest to warrant are sufficient themselves ed, clearly probable cause there was caution in the belief man of reasonable public for intoxication.58 We arrest him has committed particular person that a if unnecessary to decide it is conclude an offense.57 committing appel cause to arrest probable was there intoxicated because driving lant for while Analysis him to arrest for probable cause there was (1) Here, ap Officer Cano testified intoxication. public acknowledged he the driver of pellant was thought he had hit the vehicle and he Intoxication 3. Public (2) strongly smelled dog, appellant A commits the offense person alcohol, so staggering appears if in a public intoxication badly he had to hold onto the officer for degree intoxicated to the public place while open 24- support, and there was or another.59 may endanger himself that he can of on the driver’s side of ounce beer cause exists probable for whether The test Hoyos De testi the front console. Officer arrest is whether public for a intoxication appellant’s fied that he smelled alcohol on knowledge at the time the officer’s argues type that this Appellant breath. prudent person arrest would warrant only suspi constitutes reasonable intoxicated, suspect, that a albeit believing justify investigation,
cion to further but is danger to himself or any way evidence, insufficient, without additional essential ele person.60 One of the another probable cause to arrest constitute public intoxication ments to the offense driving Appellant intoxicated. cites while may “to the extent that he (Tex. Rubeck v. intoxication fact another.”61 The endanger himself or and Max App.-Fort pet.), Worth no (Tex. involved in a car that an accused has been cey v. 903-04 *17 probable cause to be 1999, accident is sufficient pet.), App.-Houston no [14th Dist.] danger to himself poses that he suspect that a lieve support position of his probable had If the officers in order for others.62 must fail field tests Safety Rodriguez, Dep't v. 59. See id. 55. See Tex. Pub. 1997, 362, (Tex.App.-Austin 953 S.W.2d 364 State, 685, pet.). no 578 687 See v. 60. Britton 1978). (Tex.Crim.App. 407, State, v. 816 S.W.2d 56. See Amores 1991). (Tex.Crim.App. 61. Id. State, 120, Id. at 413. 57. v. 62. See Carrasco 1986) (holding probable cause (Tex.Crim.App. 49.02(a) (Vernon in a one-car driver involved § existed believe 58. See TEX PEN.CODE ANN. danger for posed to herself or others accident any for offense his lawful arrest was not the fruit of an appellant cause to arrest illegal then a arrest.66 presence, committed their war- unnecessary rant was and the arrest was
proper.63 Admissibility D. of Post- arrest Evidence
Here,
testified that when
Officer Cano
scene,
at the
approached appellant
he first
Although we have concluded that
by the truck
appellant
“standing right
was
lawful,
appellant’s arrest was
we turn to
just south of the van” involved in the acci-
argument
resulting
his
that evidence
from
testified that when he
Appellant
dent.
arrest,
including
videotape,
his
events
the van and
impact,
parked
station,
heard the
any
refusal
at the
Cano,
According
station,
exited the vehicle.
to a
test at
submit
breath
appellant “right away
up
came
and told me
suppressed
have been
because he
should
Thus,
thought
dog.”
that he
he had hit a
given
post-arrest warnings
was not
Miranda.67
appellant
public place.64
was in a
Based
required by
Appellant
con
appellant
pursuant
on the officers’ observations
tends that the evidence obtained
staggering,
smelled of alcohol and was
we
to his “unlawful” arrest “should have been
poisonous
probable
conclude there
cause to ar-
excluded as fruits of the
tree”68
was
Amendment
appellant
public
pursuant
rest
for
intoxication.65
to the Fourth
Accordingly,
appellant’s ar-
States Constitution69 and article
we conclude
United
Proced
public
rest on the basis of
intoxication was
38.23 of the Texas Code of Criminal
lawful,
of ure.70
and evidence obtained as
result
122;
intoxication,
Carrasco,
Segura,
purposes
public
65. See
712 S.W.2d at
of arrest
for
symptoms
where officers observed
of intoxi-
63. See Tex.Code Crim. Proc.
2005)
(Vernon
may
(peace
arrest of-
officer
give
undisputed
warrant for
offense com-
It is
that the
did
fender without
view).
presence
post-arrest warnings required
or within his
appellant
mitted
his
Miranda,
See
384 U.S.
Miranda.
standing
64. Because
outside
447 issue, part this definition focuses appellant In the The latter of his fifth contends videotape upon perceptions court of the sus- admitting primarily trial erred the the police.76 with Officer Garcia71 intent of the pect, of rather than the conversation appellant transported po- while police post-arrest ques Not all lice station. interrogation.77 as tioning can be classified voluntarily given freely and Statements Applicable
1.
Law
In distin
admissible in evidence.78
are
Miranda holds that when a criminal
sus-
which
safe
guishing
require
situations
custody,
pect
placed
is
law enforcement
protect
privilege against
the
guards
comply
proce-
with certain
personnel must
not,
those that do
self-incrimination from
the
safeguards
protect
in order to
dural
Miranda court
and
pointed
isolation
the
suspect’s
against
self-
privilege
compulsory
key aspects
as
of an interro
intimidation
Amend-
incrimination under
the Fifth
gation that undermine an individual’s abili
ment.72 Miranda
and its
hold
progeny
ac
ty
speak voluntarily.79
When an
statements
incriminating
inadmissible
in custody spontaneously
cused
volunteers
made
accused if
authorities
the
response
not in
to ear
information that is
given
and
requisite warnings
have not
authorities,
interrogation by
state
lier
rights.73
the accused has not waived these
not re
though
ment is admissible even
However,
Miranda’s
safe
of
product
corded because it is not
only
placed
guards apply
suspect
when
interrogation.80
custodial
custody
interrogated by
police.74
of
Article
of
interrogation
purposes
Custodial
of
Texas Code
38.22
Miranda
Mi
express
codifies
question
includes both
Criminal Procedure
both
that,
randa’s
ing,
given
system
suspect
protecting
also words
actions
knowledge
the officers’
sus
and its
special
against self-incrimination
distinc
ceptibilities
suspect,
voluntary
officer
tion between
statements
reasonably
pro
compelled
knows or
should know are like
Article 38.22
confessions.81
ly to “have ...
oral
question
the force of a
the admission of written or
hibits
accused,”
reasonably
and therefore
as
result
custodial
are
statement made
likely to
in a criminal
incriminating response.75 interrogation by
elicit an
an accused
Muniz,
582, 601,
videotape
Pennsylvania
jury
71. The
shown to the
involves
75.
v.
496 U.S.
(cita-
2638,
only
ap-
the recorded conversation between
S.Ct.
73. See Rhode Island 1984). Crim.App. 302, 1682, (1980). S.Ct. L.Ed.2d 1682; §§ art. 38.22 74. Id. at 100 S.Ct. Jones TEX.CODECRIM. PROC.ANN. (Vernon 2005); Waldrop, (Tex.Crim.App. 174-75 State (Tex.App.-Austin pet.). no *19 proceeding warnings required without the However, Miranda.82 section five happened A That at the be- [Garcia]: article nothing 38.22 states ginning. basically heading were to- We precludes article the admission of a state arriving wards at the—when we were (1) gestae
ment that is either res of the department, he [appellant] offense, arrest or statement does alcohol, asked me if he smelled like interrogation, not stem from custodial replied which I not to me. statement, voluntary or not whether Q asking you than [State]: And other interrogation.83 the result of custodial If beer, if his breath smelled like a mention not made statements are as result dog having not about and about interrogation, requirements custodial on, lights you do recall if there were app of Miranda and article 38.22 do not other statements defendant made to Thus, ly.84 appellant’s if statements were you? interrogation, not the result of custodial No, sir, basically A: that’s it from the they are admissible.85 beginning way department. all the mind, principles With these we turn containing videotape appel- whether the Q it [appel- Isn’t true he [State]: lant’s conversation with Officer Garcia was said, I thought dog it was a lant] admissible under Miranda and article dog? that it was a 38.22.86 (Spanish spoken). thought.
A: I Analysis 2. translates, Q: I thought Which it was a dog? hearing, At Offi suppression
cer Garcia testified as follows: Exactly, yes. A: unit, got
A
I
in the
[Garcia]: When
said,
I
Is the
backing up,
when was
Q:
you
But
appellant ques-
did [ask
said,
lady okay?
I
And then
she’s fine.
tions]?
Everything
going
to be fine. Don’t
A: Not that I recall.
I didn’t ask him
worry.
Spanish
And then he said in
just
questions.
asking
He was
me and I
dog.
that the—that
it was a
Then he
replying.
was
said,
lights
so he didn’t have the
on.
Well,
true,
it, that,
Q:
you
it’s
isn’t
him,
just
And I
Don’t
telling
worry.
was
know,
there,
him in
you did tell
worry
just
Don’t
I
him
taking
when was
instance,
know,
well, you
people
there’s
there,
basically
over
and that’s
all that
on?
saying
fights
that the
were
just
every-
he said and I
told him that
thing
going to
A: Yes.
be fine.
Waldrop,
§§
82. TEX.CODECRIM.PROC.ANN. art. 38.22 See (Vernon 2005). jury videotape played 86. The for the (Vernon 2005); Galloway, § 83. Id. Although au- Court has reviewed it. this S.W.2d at 112. portion tape difficult to under- dio stand, appellant challenge that the does not 839; Waldrop, Gruber v. accurately videotape reflects his conversation (Tex.App.-Corpus Christi ref'd) with Garcia. pet. (holding which is statement product and not the of custodial volunteered admissible). interrogation is *20 “Do I smell interprets to him which I believe Okay. ques- ask a Q: you So did alcohol, beer,” not Your Honor. like question? tion at least one that, Honor. rephrase Your I’ll [State]: question. No. He—that wasn’t A: me, they that He asked he said right. All [Court]: the — said, And I lights have on. didn’t you to Q saying than Other [State]: Well, saying that the people there are lights it have the something about didn’t on. lights were on, dog, hit and does that he thought you? Q: And he answered sir, beer, like were my smell breath can you that there other statements any if he answered I don’t remember A: making? recall the Defendant me, though way happened. it that’s the ones, I sir. A: recall other can’t trial, similarly regard- At Garcia testified appellant. conversation with ing the jury]. played for the videotape was [The
Q approximately And how [State]: long you transport did it take you the De- Q Did hear what [State]: of acci- Defendant from the scene tape, portion in that fendant said sir, more department, dent to the sir?
or less? que vi A ‘Yo no venia.” [Garcia]: half, and a I A A minute [Garcia]: Q: me? ‘Yo”—excuse guess. que A: no vi venia.” ‘Yo there in the Q: you And while were Q: Spanish? In Defendant, sir, did police unit with the “I didn’t A: That’s that saying Yes. say anything you? Defendant ever coming.” it see yes. couple things, A: He said a (Portion videotape played) say Q: exactly What did the Defendant you hear was said Did what [Court]: you, sir? right there? saying told it A: He me—he was con luces pinche ‘Yenia las [Garcia]: on, he fights didn’t then apagadas.” thought dog. it he had hit a said had —he mean, Q And what does [State]: also, And, getting when we were sir? department, if he stated he—in coming with its A: it He was—that was said, he if Spanish, bironga,” “No welo fights off. I like smell like—he smelled alcohol (Portion videotape played) beer. right Q: hear what said you Did your Q: And inter- that’s what—that’s there? in English? that means pretation what “Eh, buey, bironga.” A: no welo a Yes, A: sir. mean, Q: does that sir? And what than Q: say And did he it didn’t —other like beer. A: If he smells on, hit a fights thought have the he Spanish if his dog, asking you alcohol, was there
breath smelt like [sic] state- Q Are there other [State]: you can recall? any other statement that recall Defendant you ments that ap- Honor, any, if other than what making, I’m go- Your [Defense counsel]: been videotape and what’s peared I on the object interpretation. ing to said, testified to? bironga,” “No welo believe *21 No,
A:
sir.
police
to a breath test at the
station should
suppressed.
have been
facts,
On these
we conclude that al-
Muniz,
In
failing
satisfactorily
after
to
though appellant made these statements
tests,
perform
sobriety
on a series of
in custody,
while
the statements did not
request
defendant refused the officer’s
to
for
interrogation
pur-
result from custodial
breathalyzer
submit to a
test.90 The Mun-
poses of Miranda and article 38.22. The
iz court noted:
record shows that
made the
challenge
Muniz does not and cannot
voluntarily
statements
and that the state-
into evidence of
introduction
his refusal
ments are therefore admissible.87 We
breathalyzer
to
In
submit
test.
appellant’s
overrule
fifth issue.
Neville,
553,
v.
South Dakota
U.S.
Appellant
argues
also
that admission of
916,
(1983),
1.
Law
Appeals
The Texas Court of Criminal
appellant passed
that after
We conclude
language
from Florida v.
interprets
sobriety
police sta-
tests at the
field
investigative
“an
detention must
Royer,94
tion,
investigative
of the
de-
“purpose
longer
no
temporary
be
and last
than
and the investi-
tention was effectuated”99
necessary
purpose
effectuate
Accordingly,
gation should
concluded.
mean
reason
stop,” to
that once the
in admit-
trial court erred
we hold that the
satisfied, police may
has been
not
stop
appellant’s alleged refusal
ting
“fish” for evidence of other unrelated crim
test
his residence.
to submit to a breath
at
Davis,96
In
activity.95
original stop
inal
However,
ad
the erroneous
but
investigation,
was for DWI
after
mission
is non-constitutional
of evidence
satisfied
that the driv
officers
themselves
disregard
must
non-constitu
intoxicated,
error.100 We
they
not
detained the
er was
if,
examining
after
the record
dog
tional error
passenger
drug
driver and
until
whole,
fair
pur
to sniff
car.97
as a
we have
assurance
“[T]he
could arrive
Appellant
See
241.
93.
denied that he was asked to sub-
97.
id. at
to a breath
at
residence.
mit
test
98. Mat245.
491, 500,
Royer,
103
94. Florida v.
460 U.S.
1319,
(1983).
75
229
S.Ct.
L.Ed.2d
See
id.
568,
State,
n. 3
95. Hartman
573
2004,
Davis,
266,
(Tex.App.-Austin
pet.) (citing
no
271
King v.
100. See
243);
Thirty
State v.
see also
(Tex.Crim.App.1997); Gigliobianco v.
Dollars,
Sixty
Thousand Six Hundred
(Tex.App.-San Antonio
S.W.3d
(Tex.App.-Corpus Christi
pet.); Schaum
no
denied) (holding
suspect
pet.
that after
pet.)
(Tex.App.-Dallas
no
test,
original
passed
field
officer's
(proper
analysis if trial court
to use harm
suspicion
suspect
was intoxicated was
breath or
of refusal to submit
admits evidence
dispelled
purpose
investigative
and the
warning
though
specimen, even
written
blood
fulfilled).
detention
given).
required by
statute
Davis,
including testimony, physical
Alleged Transportation
F.
instructions,
jury
the State’s theories and
Code Violations
theories,
closing arguments,
defensive
dire,
applicable.103
and voir
if
Important
issue,
In his seventh
appellant contends
*23
factors include the
sup-
nature of evidence
that evidence of his refusal to submit to a
verdict,
porting the
the character of the
“second” breath test at his residence
error,
alleged
might
and how it
be consid-
suppressed
should have been
because the
ered in connection with other evidence in
argues
arrest,
State
that he was not under
the case.104 We should also consider
and section
transportation
724.012 of the
error,
whether the
emphasized
State
only applies
code108
persons
ar-
under
erroneously
whether
admitted evi-
Appellant
rest.
argues
also
the evidence
cumulative,
dence was
and whether it was
of his refusal
suppressed
should be
be-
elicited
expert.105
from an
cause
not provided
statutorily-
he was
required warnings
of section 724.015of the
disputed issue concerned whether
transportation
appellant
code.109 Because we have
was intoxicated at the time
of
already determined that
the trial
accident. The evidence
court
regarding
elicited
erred in admitting
appellant’s
officer
evidence of
Rodriguez’s questioning
appel-
of
that,
refusal to submit to a
lant at
breath test at his
approxi-
his residence was
residence on
mately
forty
grounds,
an hour
different
but that
minutes after the
harmless,
accident,
such error was
we need not
appellant
passed three addi-
appellant’s
address
seventh issue.110
tional field
tests and
refused
jury
submit to a breath test. The
also
Admissibility
IV.
of Evidence
testimony
heard
appellant
had refused
issue,
eighth
appellant
submit to
breath test at the
In his
con
station before he
con-
excluding
was released. We
tends the trial court erred in
two
clude,
examining
after
the record as a photographs that he offered into evidence.
whole,
appellant’s
Appellant,
running
mayor
that the evidence of
re-
who was
for
during
period,
fusal to submit to a breath test at his Elsa
the relevant time
of
jury
photographs showing
residence did not influence the
or had
fered two
that on
Solomon,
44.2(b);
101. See
TexR.App.
Solomon v.
106. See
103. Id. Motilla v. Supp.2005). non (Tex.Crim.App.2002)). 355-56 (Vernon Supp.2005). § See id. 724.015 109. Id. Tex.R.App. Id. 110. See P. 47.1. in the by appellant’s opponent tactics day, appellant’s political opponent used election irrele- were Harley mayoral Davidson Elsa run-off election a wheelchair and placed guilt. We place appellant’s to remind vant to motorcycle polling the issue its court not abuse of the accident. conclude the trial did voters excluding photographs. discretion ruling a trial court’s We review appellant’s eighth We overrule issue. of evidence under an admissibility standard.111 The test abuse of discretion for Trial New V. Motion its discre whether trial court abused arbitrary action was tion is whether the tenth, issues, ninth, In his eleventh appellate An court must unreasonable.112 erred contends trial court ruling a trial court’s unless not reverse denying motion for new trial. ruling falls the zone reason outside disagreement.113
able
denying
court’s
ruling
A trial
for new trial
is re
defendant’s motion
Rule
evidence is
Under
an abuse
discretion stand
viewed under
a fact
if it makes the existence of
relevant
standard,
this
we must
ard.118 Under
*24
consequence
of
to the determination
that is
trial
“afford
total deference” to the
almost
action
than it would
probable
of the
more
of
facts
court’s determination
the historical
If
the trial
evidence.114
be without
that
of
of
and fact
questions
and mixed
law
is irrele
court determines the evidence
credibility
of
and
upon
turn
an evaluation
vant,
absolutely
the evidence is
inadmissi
law,
of
questions
review
demeanor.119 We
trial
no
to
and the
court has
discretion
ble
fact
questions
and
as well as mixed
of law
Questions
it.115
of relevance should
admit
of
upon
that do not
turn
an evaluation
trial court and will
largely
left
be
demeanor,
novo.120
credibility and
de
an abuse of
reversed absent
discret
not be
in the expansive
To be included
ion.116
occurs
An abuse
discretion
evidence, proffered
of relevant
definition
arbitrary
trial court’s decision is
when the
must
influence over a conse
evidence
have
A trial
decision
or
court’s
unreasonable.121
fact.117
quential
be
deny
trial will
a motion
new
theory of
Here,
if it is correct on
sustained
the issue was whether
the case.122
applicable
law
of intoxication assault. The
guilty
was
State,
372,
117. See id.
Montgomery v.
810 S.W.2d
111. See
(Tex.Crim.App.1990).
391
State,
141,
(Tex.
148
38 S.W.3d
118.
v.
Salazar
435,
Mechler,
State v.
439
112.
Crim.App.2001).
(Tex.Crim.App.2005).
89;
Guzman,
Jennings v.
S.W.2d at
119.
955
608,
State,
(Tex.
v.
113. Burden
615
(Tex.App.-San
S.W.3d
89-90
107
Crim.App.2001).
pet.).
no
Antonio
401;
Moses
114.
Tex.R. Evid.
(citing
Jennings,
A.Alleged Brady gathered from Officer Decanini that would Violation123 helped have the defense the case. issue, In appellant ar Ms ninth attorney stated that the fact Appellant’s gues denying the trial court erred in typed Hoyos’s original De that Decamni motion for new trial because the State Garcia, signed by was Flavio report, which failed to disclose favorable to his destroyed would report that the Specifically, appellant complains defense. it hearing, At the helpful. have been testimony by State failed to disclose established, however, that the State did Officer Patricia that Rodri Decanini J.P. “destroyed” “missing” or re- not have guez up Hoyos’s tore Officer De original Moreover, Hoyos. ap- De port Officer report, signed by which was Officer Gar that pellant’s counsel admitted he knew cia, stating appellant passed the field “missing” prior to the com- report Appellant tests. argues mencement of trial. At the conclusion of probability “there is a reasonable that had trial, hearing on the motion for new disclosed, the evidence been the outcome trial, the trial court noted that at the issue trial would have been different since end, was “exhausted to no almost to the defense counsel could have nullified the point having regarding missing nausea swearing Sergeant match between De Ho- report.” yos against officers J.P. testimony Decanini’s We conclude that According appellant, Flavio Garcia.” simply impeached would tes- Garcia’s defense could have made the “[t]he show timony seeing that he did not recall ing agreed that Flavio Garcia had fact signing Hoyos’s report. De We conclude [appellant] passed all the exams and appellant has failed establish that he that J.P. of that fact knew guilty would have been found not if Decan- *25 suppressing testimony was it.” Decanini’s ini ap- had testified at trial. We overrule Rodriguez was that Officer J.P. had dis pellant’s ninth issue. carded a report by Hoyos, written De Garcia, signed by stating Officer that ap B.“Newly-Discovered” Evidence pellant had passed the field tests. issue, appellant In his tenth contends also that She testified J.P. said denying the trial court erred his motion fuck “going appellant. he was over” “newly-discov for trial of the new because Decanini testified she was never contacted testimony. ered” evidence of Decanini’s by the and was State never listed as a that already determined Decani We witness. Decanim testified that she was testimony ni’s was that J.P. de by go advised that she appellant should stroyed Hoyos’s original report. De We and talk to appellant’s attorney. Decanini already have also decided that this testi testified that no one from the district at mony changed would not have the outcome
torney’s
questioned
regard
office ever
her
appellant’s
of the trial. We overrule
tenth
had; rather,
ing the information she
she
issue.
by
was
appellant
appel
“advised”
to see
attorney.
lant’s
C.Ineffective Assistance
issue,
hearing
At the
on the motion for new
appellant
In his eleventh
trial,
attorney
appellant’s
was asked
counsel was ineffective
contends his trial
any
testimony.
for
Decanini’s
failing
whether
there was
information he
discover
83, 87,
possession
Brady Maryland,
exculpatory
in its
avail-
123. See
v.
373 U.S.
(1963) (holding
accused).
83 S.Ct.
in that it fell below an Here, already determined we have Second, of the defen reasonableness.127 testimony there was Decanini’s is a reasonable prove dant must there not have altered the original report would probability that but for counsel’s deficient Accordingly, appel- trial. outcome of the of the performance, proceeding result to establish the second lant has failed been different.128 A reason would have appel- of overrule prong Strickland. We probability probability able is a sufficient lant’s eleventh issue. to undermine confidence the outcome.129 Dissenting Opinion VI. regarding The determination whether of defendant received effective assistance arguments raised We next turn according to counsel must be made dissenting opinion. appellate An court of case.130 facts each Although agrees that there the dissent totality representation of the
looks
appellant
to arrest
probable cause
was
particular
and the
circumstances
that he
arrested at
scene of
case in
counsel’s
evaluating
effective-
accident,
he
argues
it
that because was
ness.131
warnings, his arrest was
read Miranda136
“unlawful” and all evidence related to
bears the bur
(including
“unlawful” arrest
statements
den of
proving
preponderance
refusals to take
made to
evidence that counsel
ineffective.132
test)
have been
strong presumption
a breath
“should
excluded
There is a
that coun
sup
tree.” In
range
poisonous
sel’s conduct fell within the
as fruits of the
wide
To
the dissent cites Sos
professional
port
position,
reasonable
assistance.133
this
(Tex.
presumption
pro
defeat the
of reasonable
samon
v.State,
assistance,
Crim.App.1991),
“any allegation
inef
Corbin
fessional
*26
383,
2002, pet.
firmly
(Tex.App.-Texarkana
must be
in the
385
fectiveness
founded
record,
denied),
of
affirmatively
must
article
code
record
and
38.23
alleged
procedure.137
criminal
We conclude
demonstrate
ineffective-
668,
Washington,
Id. at
124. Strickland v.
466 U.S.
132.
813.
687,
2052,
(1984).
104 S.Ct.
129. Id. exclusionary state Article 38.23 137. 130. Id. PROC. ANN. art. rule. See TEX.CODE CRIM. 2005) 38.23(a) (Vernon (evidence obtained in Id. the dissent’s reliance on these authorities Baker v. ap- the court of criminal misplaced. peals has held that “mere violations of Miranda rule are not covered by the state Sossamon, In had obtained an exclusionary rule contained article involuntary confession and the identity of a 143 Thus, 38.23.” article 38.23 does not bar witness from the defendant making appellant’s the admission of en statements promises immunity.138 false of The court route to the or at the station station. found an valid in-court otherwise identifi- of cation the defendant inadmissible be- Supreme The United States identifying cause the witness was located recently Court has held that of the “fruit solely through the defendant’s involuntary poisonous ap tree” doctrine does not Thus, confession.139 the court held that ply to a provide mere failure to Miranda presence courtroom, the witness’s in the warnings suspect to a before in custodial which led to the identification of the defen- terrogation suspect when the vol makes a dant, suppressed pursu- should have been untary Miranda re “Though statement.144 Fifth ant the defendant’s Amendment quires that the unwarned admission must against self-incrimination.140 right be suppressed, admissibility of Corbin, Likewise, ... subsequent the court statement should turn found the voluntarily solely on it is knowingly defendant’s written statement whether (admitting cocaine) possession presumption, of ”145 or inadmissible as made. “taint,” poisonous “fruit of the tree” that an unwarned because it was confession drugs involuntary taken after the not attach to pur- subsequent were discovered does illegal cases, suant to an In statements after a stop.141 suspect both obtained volun tarily knowingly evidence was held inadmissible because it waives his or her Miranda was obtained as a of illegal police rights.146 result conduct. The Texas of Court Criminal Appeals
The dissent
argues
also
that the
similarly
admis- has
held that
the “fruit
appellant’s
poisonous
sion
statements while being
tree” doctrine does not
apply
transported to the station and at
mere
prophylactic
the sta-
violations of the
re
However,
tion violated
in Miranda.147 The doctrine
quirements
article 38.23.142
give
violation of state or
suspect
warnings
federal constitutions
failure to
did
Miranda
accused).
against
laws is inadmissible
require suppression
physical
fruits
statement).
suspect’s
voluntary
unwarned but
138. Sossamon v.
(Tex.Crim.App.1991).
Elstad,
298, 309,
Oregon
470 U.S.
(1985).
S.Ct.
84 L.Ed.2d
139. Id.
*27
Id.;
140.
See U.S.
amend. V.
Const,
Seibert,
146. Id. We note that in
the U.S. Su-
preme
"question
the
Court invalidated
first”
State,
383,
(Tex.
141. Corbin v.
91 S.W.3d
385
interrogation,
technique
po-
of
in which the
2002,
denied).
App.-Texarkana
pet.
intentionally interrogate suspects
lice
without
38.23(a)
See
142.
art.
confessions,
then,
warnings, obtain
and
after
Tex.Code
Proc. Ann.
Crim.
(Vernon 2005).
providing
required
warnings,
the
Miranda
in-
terrogate
again
suspects
the
sec-
to obtain a
State,
19,
(Tex.
Baker v.
24
143.
956
Seibert,
ond
use in
confession for
court. See
Crim.App.1997).
616,
457 (2) intoxication, that the accident of a defen “requires suppressing the fruits that intoxication. by reason of caused statement only when the dant’s statement 148 sufficient- that the evidence State counters through actual coercion.” was obtained (1) and intoxicated ly while establishes reasons, with the disagree For we these (2) intoxication, Rodri- of that by reason dissenting opin- in the reached conclusions collide with the guez his vehicle to caused ion. and the victim sus- motorcycle, victim’s bodily injury. tained serious CONCLUSION judgment. We AFFIRM the trial court’s of A. Standard Review calls us sufficiency challenge A legal opinion by Concurring Justice light in the the relevant evidence review CASTILLO. the to determine most favorable to verdict Dissenting opinion by Chief Justice trier of fact could whether a rational joined by Justice RODRIGUEZ. VALDEZ of the crime found the essential elements v. Jackson beyond a reasonable doubt. Opinion by Concurring Justice Virginia, 99 S.Ct. U.S. CASTILLO. State, v. (1979); Escamilla L.Ed.2d follow, Respectfully, for the reasons that (Tex.Crim.App.2004). Appellant I concur with result. Rafael sufficiency In factual determining the Rodriguez’s Javier vehicle struck motor- offense, we view all the elements cycle public roadway. jury on a A found neutrally, through prism evidence assault,1 guilty him of intoxication assessed prosecu favorable to the light “the most at six Texas years a sentence De- State, Zuniga v. tion.” partment of Criminal Justice —Institution- However, (Tex.Crim.App.2004). 484-85 Division, $10,000 imposed al and fíne.2 factual-sufficiency we review approach a Rodriguez presents eleven for re- issues deference, to avoid sub appropriate with seriatum, view.3 I address these and af- fact judgment our for that stituting firm. 1, 7 v. finder. Johnson (en banc).
(Tex.Crim.App.2000) The suffi I. SUFFICIENCY OF against is measured ciency of THE EVIDENCE by a of the offense as defined elements issues, charge for the hypothetically jury In correct his first second See Malik argues legally case. evidence is Adi (Tex.Crim.App.1997); factually prove either insufficient ar- suppress based on an unlawful motion to Id. fifth, By his and unlawful detention. rest (Vernon 49.07(a)(1) § 1. See Tex. Pen.Code Ann. issues, sixth, argues the trial and seventh he videotape suppressing the court erred in not issue, By eighth the breath test. during the State its case After rested by excluding rele- argues the trial court erred phase, granted culpability trial Rod- court issues, By his ninth and tenth vant evidence. riguez's acquittal one motion for as to count argues de- the trial court erred aggravated assault. *28 Brady nying new trial based on his motion for issues, By his first and second By newly evidence. and discovered violations argues insufficiency legal and the factual of issue, that trial he asserts his his eleventh issues, By and evidence. his third fourth was ineffective. counsel denying the trial court erred his asserts in 124, 131 (Tex.App.-Corpus ridion in Christi Jackson followed him a separate ref'd). 2002, pet. Meanwhile, The conviction will Perez, be vehicle. Linda a mo- upheld if the evidence is sufficient to sup instructor, torcycle-safety drove her mo- port a finding guilt of under one of the torcycle on FM 88 the Magnolia toward theories submitted. CRIM. TEX.CODE PROC. Street Traveling approxi- intersection.4 1(a) (Vernon 37.07, § ANN. Supp.2004- art. mately per hour, 35 miles she saw two 05) (verdict must general); be Kitchens v. headlights traveling in her lane toward (Tex.Crim.App. her. Perez reduced her to 25 speed miles 1991) (en banc). per hour, assuming that the driver was in wrong negotiate the lane to a turn some- B. The Elements of Intoxication where in front of her. The vehicle contin- Assault wrong ued its in approach the lane. She hypothetically jury The charge correct motorcycle maneuvered her to the far left in jury this would if case ask the Rodri- of her lane and saw set of another head- (1) (2) mistake, guez: by accident or while lights directly approaching behind the van (3) vehicle, motor operating a a public her, also in the wrong lane. With little (5) place, intoxicated, by while reason spare time to that aware the first intoxication, of that caused serious bod- going vehicle not out to move of her ily injury to another. See Tex. Pen.Code lane, but concerned that the second vehicle 49.07(a)(1) (Vernon 2003). § “Intoxi- Ann. lane, might proper to its move Perez de- having cated” means not normal the use of ditch, cided to “go the curb instead by mental or physical faculties reason of of to lane of the other because the vehicle alcohol, the having introduction of or instant, At behind the van.” the van alcohol of or concentration 0.08 more. See was upon her. The driver made no at- (B) (Ver- 49.01(2)(A), § Tex. Ann. Pen.Code tempt to The van avoid collision. did non person criminally respon- A stop the impact, before which occurred if result sible would not have occurred in her lane. Perez recalled she was conduct, but for operating either alone ground pinned van, on the underneath the concurrently cause, with another unless consciousness, pain. out of and in clearly concurrent cause was sufficient produce the result and the conduct of scene, officer The first on the Jaime clearly the actor insufficient. Tex. Pen. Cano, motorcycle testified landed 6.04(a) (Vernon 2003). § Code Ann. ten to feet from point impact. fifteen eighty The van stopped approximately feet Rodriguez’s argument appeal on focuses motorcycle. Photographs from on the elements intoxication and causa- van damage admitted show tion I reason intoxication. turn to side, the front of the van on the driver’s the record evidence. impact. consistent awith head-on Inside Analysis Legal Sufficiency C. view, plain open van in Cano saw an 24-ounce container of beer on the left side At approximately p.m. 9:30 on Novem- open 8, 2001, front-seat console. con- ber his van drove appeared tainer condensation and Magnolia showed Street where the street inter- Through public open sects with FM a road with be full. side door of one van, view, going Espi- plain lane of travel either direction. also in saw three Cano ing way family, motorcycles 4. Perez she had so was a of life for her testified driven years, approximately thirty-seven hobby, and a stress reliever. do- *29 Rodriguez7 testified that Juan of on the Officer unopened 24-ounce cans beer seventy- approximately the Per- the behind driver’s seat.5 van traveled floorboard to Rodri- A impact. at the directed Cano the of- point sons scene feet from nine of van. told guez as the driver the Cano ema- beverage odor of alcoholic strong to him unit Rodriguez police follow first time from van. The nated inside the unit, walking toward the to While talk. Rodriguez he was at a residence contacted strong the odor of alcohol” Cano “smelled twenty minutes after about an hour Rodriguez spoke. Rodriguez when told he Rodriguez the told the officer accident. thought dog. he hit noticed him he Cano four beers.” The officer drank “three to we Rodriguez staggering “was as were slurred. Rodriguez’s speech noticed was the point to unit ... to where walking the he Rodriguez testified was ordered Officer shoulder] to to he had to hold on [Cano’s Rodriguez. not to arrest falling Rodriguez also keep from down.” Rodriguez that he testified Appellant “the off.” Be- lights told him that were evening less than one beer that drank Rodriguez trembling, staggering was cause of an stomach. He was with upset because alcohol, smell told and Cano could Cano drank E. and two other men who Jackson him on front of to sit down the seat the in various amounts. He denied that beer Rodriguez’s personal safety. unit for Rod- the Meanwhile, he intoxicated at the time of colli- riguez complied. was a video cam- in the sion. He stated that the beer front personally era that Cano installed the Jackson, belonged unit E. exited operating.6 was Cano returned seat to who impact his the scene continue investi- the his vehicle to Rodri- van drive own gation of the scene. guez’s testified that the Rodriguez house. the bag in a the back of van beers supervisor
Officer Garcia testified his construc- belonged employee to an of his Rodriguez instructed him to transport he company. Rodriguez tion admitted the was police department. Garcia not officer he transporting whether asked videotape operating aware that explained like He after smelled beer. Rodriguez in transported while he Cano’s police department, exiting the unit way, Rodriguez unit. On the told Garcia spilled he the officer that he had beer told motorcycle lights did not have its on Rodriguez on denied that right his sleeve. thought dog. he hit he Admitted he his slurred. He denied speech was evidence, videotape Rodriguez reflects that, walking staggered, explaining while if asked Garcia he smelled like beer. Gar- Cano, unit with he toward cia he did responded anything. not smell pain in his over a cable and felt stated, stepped videotape reflects “I not back. He he did know wheth- coming it testified coming didn’t see ... It was because, “I on er had alcohol his breath light with ... I its off Do smell like beer?” that, Finally, Rodriguez denied opinion, didn’t smell it.” Garcia testified in his Rodri- videotape guez speech normal that his did not use slurred. physical mental and faculties at time. with the in the front 7. Evidence showed that witnesses Cano testified brand beer the van differed from the brand beer are related. last name of located in the rear. explained
6. Cano that he installed his own person- camera on the unit dashboard for his safety training purposes. al and for *30 460 collision, (10)
Regarding Rodriguez upon impact; the testi- officer Garcia’s home, on way nearby fied that the to his opinion Rodriguez that did not have the stopped stop sign Magnolia he at the on normal use of his physical mental and fac- pass. Street and waited for a vehicle to I a of ulties.8 conclude that rational trier proceeded through He then the intersec- reasonably fact beyond could find a rea- tion, making a “left turn and felt some- Rodriguez sonable doubt that not did hard,” thing hit the hit van.” “The was he physical the normal of mental of use his motorcycle stated. He did not the see by faculties of reason introduction impact. cross-examination, During before alcohol. See Tex. Ann. PeN.Code Rodriguez thought dog testified he he hit a 49.01(A) (Vernon 2003). § “It because didn’t seem like an accident light in the most Viewed favorable to the ... It impact, big didn’t seem like an a verdict, evidence that the accident was impact. I any lights.” didn’t see He ad- by caused reason of intoxication includes dog mitted he did see a on the road- support the same to evidence he was intox way impact. Immediately before the after (1) icated and: the accident occurred with collision, Rodriguez the his walked to resi- walking in Rodriguez’s distance of resi jack look a dence to stand so that he dence, jury from it which the could infer Perez, could lift the van and remove but he (2) him; occurred on roadway familiar to did not find the tool. beginning p.m. approximately 6:00 until Perez, victim, the testified turning that accident, Rodriguez the time of the was ignition motorcycle the on her automatical- in with three individuals who drank beer ly on headlights. turns the She testified they together; various amounts while were lights on driving two mounted (3) admitted in photographs evi engine guard motorcycle of her also turn damage directly dence showed van Her automatically. lights were on as (as of front the driver compared with she on FM 88. traveled Rodriguez’s testimony that he never saw light motorcycle). jury Viewed most favorable could reason verdict, ably of Rodriguez driving evidence the “loss of faculties” conclude that was definition of in- personal intoxication in the record van on a familiar road. The (1) (2) that, jury reasonably cludes: infer Rodriguez’s speech; slurred could reason staggering intoxication, point holding on to an caused serious (3) shoulder; bodily injury officer’s the smell of alcohol to Perez after head-on colli (4) breath; on his sion in which his statement an errant beers; on a officer that he drank “three to four” driver familiar road. See Tex. Pen. (Vernon (5) 2003); driving public § see wrong lane of a 6.04 also Ann. Code (Tex. (6) State, 818, road; lack 119 821 of awareness that a vehicle Sanders S.W.3d (7) (a head-on; approaching Crim.App.2003) jury after head- rational could have fact); an motorcycle, traveling on collision with a inferred ultimate Evans v. seventy-nine dragging (Tex.App.-San additional Antonio feet while (en underneath; banc) person admitting pet.) (finding no he factually prove headlights; admitting legally never sufficient to loss saw definition). motorcycle never even of faculties saw the ref'd) (citing testimony person pet. 8. The an officer that a Christi Annis provides (Tex.Crim.App.1979) intoxicated sufficient evidence to es- and Whisenant v. tablish the element State, intoxication. Gruber v. (Tex.App.-Corpus (Tex.Crim.App.1977)). *31 diet, to that resolution. must defer light in most and Viewing the the evidence State, 941 verdict, v. I the Matchett conclude favorable the (en banc). With (Tex.Crim.App.1996) legally sufficient to sustain the evidence mind, turn to the in I principles by and causation these of intoxication elements evidence. and to overrule Rodri- agree intoxication
guez’s first issue. the finding the of ele- against Evidence testimony includes of intoxication ment Sufficiency Analysis Factual D. sobriety three field Rodriguez passed that issue, Rodriguez In chal- his second at Hoyos the by officer De tests conducted lenges the elements of intoxication same The tests were witnessed police station.9 causation, additionally that ev- arguing and Garcia, Rodriguez to transported who by elements, if any, the is too weak idence of De was “book- Hoyos the While station. contrary by or evi- greatly outweighed Primitivo ing” Rodriguez, police the chief Rodriguez testimony points dence. arrived, if Rodriguez asked Rodriguez from law enforcement officers he tests, requested then that a passed the passed three tests and from field in his This performed presence. test be laymen that he did not drink. The State done, Rodriguez passed the one- was sufficiently contro- counters evidence police leg According test. balance Rodriguez’s theory that defensive verted chief, Rodriguez lifted his foot and did not he not intoxicated. was chief then ordered stagger. police because, based on his Rodriguez released evidence,
Our neutral review of all the he “not intoxicated.” experience, challenged both against for and the ele that, However, in officer testified Garcia ments, proof looks to of determine whether actually Rodriguez did not opinion, his guilt obviously is so weak as to undermine nearby file he used a pass the test because jury’s determination, in confidence the contrary to normal support, cabinet proof guilt, although adequate whether testing procedure. alone, if greatly outweighed by taken contrary proof. Zuniga, See at Rodriguez officer arrived When Juan 484-85; at see also Zuliani v. station, the he learned Rodri- police (Tex.Crim.App.2003). 593-94 Rodri- guez had been released. Officer We jury’s remain mindful role to in guez the sole officer testified he was in testimony. Mosley resolve conflicts See perform field department certified to so- (Tex.Crim. questioned he that the briety tests. When (en banc) App.1998) (questions concerning per- uncertified performed were tests credibility the weight witnesses and to contact sonnel, chief told him given testimony their are to re Approximate- be be Rodriguez and re-test him. fact); by the also forty fifty solved trier of see Es minutes” ly hour and “one (Tex. quivel collision, Rodriguez ad- after officer sobriety tests on Crim.App.1974). We must assume that three field ministered conflicts, Rodriguez at including Rodriguez fact finder resolved a residence.10 inferences, passed all conflicting favor of ver- three. gaze Rodriguez Both Rodri- nys- and Jackson. The tests included horizontal with balance, that, leg tagmus, one and heel-to-toe tests. guez testified when officer and Jackson arrived, they about the asked him why report 10. When asked showed victim’s condition. minutes,” twenty officer an "hour Rodri- guez explained engaged discussions that, collision,
Evidence reflected various times was too remote time to be (the p.m. between 6:00 p.m. Finally, and 9:30 time jury reliable. could have rea- collision), Rodriguez was in the com- sonably concluded that of Rodri- Jackson, pany of E. intoxication, An- guez’s together Jackson’s brother taken with ev- dres, and Javier Guerrero. ad- operation idence of his a motor vehicle beer, mitted to drinking only one wrong which he lane familiar roadway on a obtained at Andres’s residence. Andres an oncoming motorcycle toward that he *32 earlier, had begun drinking saw, and continued outweighed never evidence that he to drink while in the van. The four trav- the field passed sobriety tests. See Tex. barbecue, 49.07(a)(1) where, 49.01(A), eled to a according §§ Ann. Pen.Code (Vernon Evans, Rodriguez, 2003); host the and the two host’s see also S.W.3d friends were intoxicated. Both allowed the the Jack- at 823. The same evidence that, son they reasonably by brothers testified that not of jury did see infer reason Rodriguez intoxication, drink that evening that he caused Perez and was not intoxicated. bodily injury. When asked clari- serious See Tex. Pen.Code 2003).11 fy grand 6.04, 49.07(b) (Vernon jury testimony that §§ he saw Rodri- Ann. guez van, consume alcohol in E. the Jack- jury we must that the Because assume son explained, not I “[I]t’s what meant to conflicts, in- including conflicting resolved say.... I see him didn’t alcohol.” consume ferences, verdict, in I favor of the defer to Jackson also testified that the beer the Mosley, that resolution. at S.W.2d front seat of the van to him. belonged Thus, viewing the evidence in a neu-
Based on its resolution of historical facts
I
light,
sup-
tral
conclude that evidence
determinations,
and credibility
jury im-
the
porting
elements of intoxication and
plicitly rejected evidence
to Rod-
favorable
by
not
causation
intoxication is
too weak to
riguez, including evidence that
did not
jury’s finding beyond
a rea-
support
intoxicating
doubt;
consume an
and
beverage
weight
nor
sonable
is the
fact-finder,
not
jury,
intoxicated. The
as
enough that
contrary
strong
could have disbelieved all the witnesses or
its
could not have met
burden
State
them,
reject
and was free to
their
at
Zuniga, 144
484-85.
proof.
S.W.3d
254;
testimony. Mosley, 983
at
Thus,
factually
S.W.2d
sufficient to
the evidence is
Esquivel,
Additionally,
because of
that Rodriguez used
II. MOTION TO SUPPRESS
support. Similarly,
file
cabinet for
issues,
jury
seventh
reasonably
By
through
could
inferred that
his third
test,
court
Rodriguez argues
the final
the trial
erred
field
conducted
suppress12
least an
his motion
based
twenty
denying
hour and
minutes after the
requested
grounds,
the trial
does not contest the serious
12. As
motion
bodily injury
penal
de-
suppress
element. The
code
"all evidence seized as
court to
bodily injury”
“injury
fines “serious
as an
and the
result of the arrest of Defendant
or that
creates
substantial risk of death
statements,
of Defendant as well as all
search
permanent disfigurement
causes serious
oral,
written or
made after such ar-
either
protracted
impairment of the function
loss or
rest.”
any bodily
organ.”
member or
Pen.
Tex.
49.07(b) (Vernon 2003).
§
Code Ann.
(b)
appli
facts and
(third issue),
of historical
(a)
determination
unlawful arrest
upon
on
(3)
questions that turn
(fourth issue),
non-
cation-of-law-to-fact
unlawful detention
Perales
credibility
demeanor.
in arti-
statutory warnings
with
compliance
(Tex.App.-Cor
(fifth issue),13
deten-
unlawful
cle 38.22
2003, no
pet.); Morrison
Christi
(sixth
pus
issue),
noncompliance
tion
(Tex.App.-Cor
(seventh
is-
transportation code
with the
pet.).
no
review de
We
pus Christi
sue).
that,
article
Rodriguez asserts
under
questions
application-of-law-to-fact
novo
38.23,
suppress
trial court must
credibility
on
and demean-
that do
turn
The State counters that
evidence.14
Morrison,
In the
either a breath or blood Article 38.23 and that, E. Jackson testified after Rodri- issues, Rodriguez In his third fourth and guez was and by released driven Jackson residence, asserts his under Fourth rights to his Rodriguez former officer 38.23, claiming arrived to perform field test. Amendment and article E. Jackson read arrest detention.21 In his sixth illegal denied the officer and However, automatically suspended officer Garcia that Rod- cle will be for not testified and, riguez freely walked around when De days. 90 See Tex. fewer than Transp. Code Ann. arrived, Hoyos Rodriguez Hoyos 724.015(3) (Vernon met De with Supp.2004-05). per- § A Hoyos’ and the in De chief office. specific son must also be warned two consequences from a to will result refusal trial, contrast, By Rodriguez at testified he person’s to a test: driv- submit breath Jackson, then released and asked who suspended automatically er’s license will be son, Rodriguez’s with a ride outside days; and for not fewer than 180 evidence home. against person refusal of the is admissible 724.015(1), § in court. Tex. Transp. Code Ann. Transportation provides 20. The Texas Code (2) (Vernon Supp.2004-05). person that a arrested for DWI must be in- that, person age years formed or if the 21 provides: 21.The Fourth Amendment older, taking specimen, submits right people to be in their secure specimen person had shows that the effects, houses, persons, papers, against specified an alcohol concentration of a level seizures, Code, Chapter shall Texas then unreasonable searches 49 of the Penal violated, person's operate is- vehi- not be and no Warrants shall license a motor 466
issue,
argues
ful,
the trial court should
any evidence seized subsequent to such
have suppressed
alleged
breath-test
detention is inadmissible. Gurrola v.
State,
refusal because of the illegal
300,
arrest and
302 (Tex.Crim.App.
1994) (en banc).
detention. The State counters that Rodri-
The ultimate standard
guez was
unlawfully
set forth in
detained or ar-
the Fourth Amendment
and, thus,
Dombrowski,
rested
Cady
the trial court did
reasonableness.
not err
433, 439,
in denying
U.S.
suppress.
the motion to
93 S.Ct.
37 L.Ed.2d
(1973).
D. Detention Claim
case,
In this
officer Cano arrived at the
scene of a motor
involving
vehicle accident
An accused seeking
suppress
Rodriguez
driver,
as the
with the victim
on the
illegal police
basis of
conduct bears
trapped
Rodriguez’s
underneath
van. He
the burden
proof
to rebut a presumption
observed the
dragged
vehicle had
the vic-
of proper police
State,
conduct. Moreno v.
tim a considerable
stop-
distance before
S.W.3d
344 (Tex.App.-Corpus
ping. Cano smelled the strong odor of
Christi
no pet.) (citing McGee v.
breath,
alcohol
Rodriguez’s
and he ob-
613 (Tex.Crim.App.
served
stagger such that he
2003)). A law
may
enforcement officer
held on to
point.
Cano at one
Similarly,
conduct a
investigative detention,
brief
sergeant
Hoyos
De
smelled alcohol on
“Terry stop,” when he has a reasonable
Rodriguez’s
breath. Officer
ob-
suspicion to believe that an individual is
plain
served in
open
view an
beer contain-
involved
activity. Terry
criminal
er on the driver’s side
console
the car
Ohio,
1, 30-31,
392 U.S.
88 S.Ct.
and three closed beer containers behind
(1968);
L.Ed.2d 889
Balentine v.
the driver’s seat. Officer Rodriguez also
(Tex.Crim.App.2002);
strong
smelled a
odor of alcohol emanating
Carmouche,
U.S.
Const,
amend.
see also Tex.Code.Crim.
(Vernon 2005).
Proc. Ann. art. 38.23
49.07(b) (Vernon
§
23. See Tex. Pen.Code Ann.
issue, Rodriguez
In
asserts
his third
lating to
violation of a criminal stat-
denying
court
in
his
trial
erred
Cady, 413
at
S.Ct.
ute.” See
U.S.
(“These
to unlawful arrest.
suppress
area
motion to
due
officers in a rural
were
deprived
freedom
of an acci- He asserts he
simply reacting to the effect
and, thus,
way
was arrested
significant
recurring practical
dent —one of the
situa-
for an
operation
probable
of without a warrant
cause
tions that results from the
conclude,
I
local
as matter of
police
motor vehicles
with which
arrest. Because
law,
in this
every day.”); Maxcey
police
officers
deal
that the
conduct
case
must
pur-
for
(Tex.App.-
consistent with
lawful detention
investigation, I do not reach Rod-
pet.).
poses
Houston
no
Dist.]
While
[14th
claiming
issue
unlawful ar-
engaged
community caretaking
riguez’s
in a
func-
third
Tex.R.App.
so,
tion,
P. 47.1. Even
signs sympto-
rest.
the officers observed
See
offense,
ar-
is inconsistent with an
including police
matic of an intoxication
conduct
State, 931
Rodriguez’s
open
and the
rest.
Dowthitt v.
own condition
See
See,
(Tex.Crim.App.1996).
Each
e.g.,
beer container.
254-55
Tex.
Pen.Code
(b) (Vernon 2003) (a
49.031(a)(1),
Rodriguez
§
officer in contact with
denied
Ann.
By
ruling,
him.
court
person
knowing
if
arrested
its
trial
commits
offense
“open
rejected Rodriguez’s subjective
possession
implicitly
of an
container” of an
vehicle).
Perales,
beverage
alcoholic
a motor
I
belief that he was
See
arrested.
presented
Giving proper
conclude the officers
at 437.
specific
defer-
facts
question
articulable
sufficient to
ence
trial court on a
of law
support
witnesses,
suspicion
I
Rodriguez
credibility
reasonable
to detain
turns on
investigation.
Perales,
uphold
ruling.
further
See
117 would
the trial court’s
Id.
I
Rodriguez’s
S.W.3d at 439.
overrule
third issue.
would
issue,
In
Rodriguez argues that
his sixth
De Hoyos
sobriety
testified that field
subsequent
at the residence
detention
performed
tests
were not
at
scene
department
police
to his
from the
release
Rodriguez’s
because of
public position and
and, thus, the
was unlawful
second refusal
at the
Rodriguez
crowd
scene. Once
should
take the breath test
have been
station,
passed
the tests while at the
suppressed. The
counters that no
State
he left.
I
with
agree
the State that “the
residence, and,
detention occurred at the
sequence
of events
consistent with an
did,
even
rea-
if it
officer
had
investigative
person
detention of a
reason-
Rodriguez.
suspicion
sonable
detain
ably suspected
activity
of criminal
to main-
quo
obtaining
tain the
refusal occurred after the
status
while
more
second
Terry,
20-21,
Rodriguez’s
information.”
chief ordered
release.
U.S.
Thus, I
S.Ct. 1868.
conclude the
Evidence
that the sole basis for the
detention
shows
for investigative
justi-
purposes
encounter was
confirm
I
Accordingly,
uphold
passed
fied.
test administered
would
the trial
a field
*37
in
ruling
suppression
by
procedure,
court’s
on the
the
motion
officer certified
Rodriguez
ruling
reasonably
Rodriguez.
because
officer
tes-
supported
the
Officer
the
at the
by
theory
by
the
and is
on the
tified that
time he arrived
record
correct
scene, Rodriguez
longer
was no
investigative pur-
of lawful detention for
accident
Villarreal,
138;
by
Rod-
poses.
Similarly,
there.
the time officer
See
935 S.W.2d at
Perales,
department,
riguez
police
I
agree
at 438.
with
arrived
the
Thus, he
con-
majority
gone.
was
first
Rodriguez’s Rodriguez
overrule
Rodriguez
fourth
at the residence where
issue.
tacted
perform
he went to
field
test
admissible under
law. TEX.CODE CRIM.
38.22(3)(a)(5) (Vernon
only
Rodriguez
officer
was certified to
PROC. ANN. art.
2005).
that,
Thus,
administer.
I conclude
if either
under the
the “custodial” or
“interrogation”
met,
totality
predicates
are not
leading
circumstances
encounter,
detention,
then article
not
any,
apply.
if
38.22 does
Villar
was in
investigative
furtherance of the
real
680 (Tex.App.
detention
and,
thus,
Corpus
ref'd).
Perales,
not
pet.
unlawful.
Christi
Interro
gation
S.W.3d at
I
justifica-
speech
includes
by
conclude that
or conduct
police
tion
which
supported by
specific and
should
articula-
know is
reasonably likely to
in
elicit an incriminating
ble facts
the record. Because I con-
response from
suspect.
(citing
Id.
lawful,
clude that the detention was
I also
Innis,
291, 308,
Rhode Island v.
446 U.S.
conclude that the trial court properly de-
(1980)).
100 S.Ct.
er, their actions are consistent with no E. Article 38.22 Claim Although arrest. officer Garcia did not Rodriguez warn while the video camera issue, In his fifth Rodriguez argues that recorded his statements en route to the the trial court should suppressed station, Garcia testified (1) videotape because unlawfully was not under arrest and the statements (2) arrested, given he was not by were equipment recorded that officer statutory in admonishments article 38.22. Garcia did not know operating. By See Tex.Code.Crim. Proo. AnN. art. 38.22 motion, Rodriguez sought suppress (Vernon 2005). The State counters that videotape. Rodriguez was in custody neither nor in-
terrogated. I have videotape. viewed the Officer question Rodriguez Garcia did not or en- provides Article 38.22 that no oral state gage reasonably likely conduct to elicit ment of an accused made as the result of an incriminating response from the sus- custodial interrogation shall be admissible Rather, pect. Id. Rodriguez spoke, un- against the accused proceed criminal by prompted the officer. I conclude that ing unless properly he is warned. See Rodriguez’s statements were not made in art. TEX.CODE CRIM. PROC. ANN. response any interrogation. See id. 38.22(3)(a)(2) (Vernon 2005); see also Mi Rodriguez’s Since statements were not the Arizona, 436, 479, randa v. 384 U.S. product of interrogation, custodial the ad- 1602,16 (1966). S.Ct. L.Ed.2d 694 Howev mission of the statements evidence is er, article 38.22 not preclude does admis 38.22(5). precluded by article See Tex. sion of a statement ac made 38.22(5)(Vernon Proc. Ann. art. Code Crim. cused that does not stem from custodial interrogation, or voluntary of a state (whether ment I not the result of custodi further conclude that the trial court’s al interrogation) that un- bearing upon implicit ruling has a was not *38 the credibility witness, of the a supported by accused as der arrest is the record and or of may other statement videotaped that be that his statements were not suppress hearing, to At the motion interrogation. Accordingly, spot.” result of the that to “interrogation” argued nor counsel the refusal neither the “custodial” defense Thus, suppressed, met. article 38.22 should be predicates are take the breath test Villarreal, apply. does not See Pub. Dep’t. Safety under Tex. Wat of reasons, For over- at 680. these I would son, 262, 266 (Tex.App.-Hous Rodriguez’s rule fifth issue. writ). 1997, no ton Watson [1st Dist.] states, provisions the stat part, that of Transportation
F. Code appeal, Id. apply “postarrest.” ute On Claim Violation argument grounds Rodriguez his bases issue, argues Rodriguez In his seventh warnings required statutory the are that suppressed that the trial court should have is person “if a arrested.” at refusal the residence the breath-test was not Rodriguez I have concluded that him Rodriguez give officer did not because con- Rodriguez under arrest when officer by 724.015 warnings the mandated section Rodriguez him. Rod- tacted Officer asked Transportation See of Texas Code. times” to to a riguez “three or four submit (Vernon § ANN. 724.015 TEX. TRANSP. CODE he Rodri- breathalyzer refused. test The State Supp.2004-05).24 counters sign also to the relevant guez refused under Rodriguez was not arrest when Rodriguez forms. Officer testified required by as section refusal occurred Rodriguez attempted when interrupted 724.015, and refusal admissible was warnings. statutory to read the the transportation under section 724.061 of § 724.061 code.25 TEX. TRANSP.CODEANN. totality Considering of circum (Vernon 1999). stances, court’s I conclude that trial transportation code ruling implicit purpose 724.015 is behind section violated, theory not on the that Rodri was person “to ensure that a who refuses arrest, by guez supported was under a give requested specimen does so with Further, the trial could the record. court understanding consequences.” full that, by virtue (Tex. reasonably have concluded Nebes v. professional experience, of his admitted App.-Houston pet.). no Dist.] [1st conse judicial had notice of the he was of arrest testified aware thus, and, refusal statutory quences the test procedures warnings, See stated, this, purpose of section 724.015 was met. point, you one cases “On like Nebes, Similarly, the person breathaly at 730. arrest if he refuses a zer, you right reasonably on the trial court could have conclud arrest them there stance, drug, drug, dangerous sub- Transportation Code 724.011 or other Texas section stance. states: (Vernon § 724.011 Transp. Tex. Ann. Code arising person for If is arrested an offense 1999). alleged out of to have been committed acts person operating while the a motor 25. Section 724.061 states: watercraft, public place, vehicle in a or a request person's intoxicated, A refusal of a an officer sec- while or offense under taking of Code, specimen submit 106.41, Beverage tion Alcoholic blood, consented, breath or whether the refusal person sub- deemed to express of an intentional fail- or the result ject taking chapter, to submit this give may be intro- specimen, ure to person’s specimens one or more person’s into at the trial. analysis duced to determine breath blood (Vernon § presence 724.061 the alcohol concentration or the Transp. Tex. Ann. Code person’s body of a sub- in the controlled *39 Rodriguez that substantially ed officer A.Standard of Review complied by with 724.015 asking section A trial court’s or admission exclusion Rodriguez four “three or times” to test evidence is reviewed under an abuse of Rodriguez refused, expressly on State, discretion standard. Torres v. grounds by that Rodriguez, virtue of his (Tex.Crim.App.2002); Sa experience, admitted was aware of the con State, (Tex. lazar v. 38 S.W.3d 153-54 sequences Finally, of his refusal. the trial A Crim.App.2001).27 judge trial given is reasonably court could have admissibility concluded that wide deciding discretion when State, of photographs. Sonnier v. the test refusal relevant evidence ad (en (Tex.Crim.App.1995) missible under rule 402 Texas Rules banc). If of a photograph elements are 724.061 Evidence or section of the trans genuinely helpful jury making its portation code. See TEX. TRANSP. CODE decision, photograph is inadmissible (Vernon 1999); 402; § 724.061 TEX.R. EVID. only if prejudicial aspects its emotional and Montgomery v. substantially outweigh helpful its aspects. (en banc) (Tex.Crim.App.1990) (appellate Erazo v. 491-92 court should not reverse trial court’s (Tex.Crim.App.2004). evidentiary ruling that is “within the zone of reasonable disagreement”). B.The Evidence I
Accordingly,
uphold
would
the trial
presence,
Outside
jury’s
ruling
reasonably
court’s
it is
sup-
because
mayoral
testified that
in-
he defeated
ported by
and is
the record
correct on cumbent
proceeded
to a run-off elec-
applicable
various theories of
to
law
tion. He
two
photographs
took the
on
Villarreal,
case.
wheelchair and a at a polling place.26 The State counters the tac- “any A photograph is relevant if it has political opponent tics used Rodriguez’s tendency to make the existence of fact not relevant the determination of were consequence the determination probable proba the action more or less guilt. ples. Montgomery v. theory was that 26. The defense reasons, words, charged political (Tex.Crim.App.1990). not because In other guilty, advantage he was took "someone only abuse of occurs when the trial discretion tragic politicize and tried to event.” wrong court’s so as to lie outside decision is persons that zone within which reasonable 27. An abuse of discretion occurs when the might disagree. Id. arbitrarily unreasonably, trial court acts guiding princi- without reference to rules or
471
1,
State,
(Tex.Crim.App.1995)
7
than it
be without the evidence.”
ble
would
banc).
(en
401;
not
our
may
We
substitute
TEX.R. EVID
see also TEX.R.
EVID.
court,
trial
402,
I
for that of the
Cantu
judgment
that
photographs
conclude
the
(Tex.Crim.
667,
State,
682
helpful
v.
contain no elements
would be
(en banc),
credibility
jury
reaching
App.1992)
its decision
for
Erazo,
primarily a determination
144
is
Rodriguez’s
culpability.
witnesses
State,
v.
Hoyos
I further
the trial court.
at 491-92.
conclude
S.W.3d
503,
Dist.]
prejudicial aspects
(Tex.App.-Houston [14th
emotional and
511
the
(Tex.Crim.
1997),
419
substantially outweigh
aff'd, 982 S.W.2d
photographs
fact,
trial
aspects.
Id. Ac
As finder of
any perceived helpful
App.1998).
reject any
all of the
cordingly,
ruling
may accept
trial court’s
to ex
or
or
court
testimony given by
or
wit
photographs
clude the
was within the zone
State
defense
State,
170,
disagreement.
Mont
v.
571
of reasonable
See
nesses. Johnson
S.W.2d
Thus,
trial
see
gomery,
(Tex.Crim.App.1978);
810
at 379.
173
also Guz
S.W.2d
man,
Thus,
Id.
I
at 89.
are
court did not abuse its discretion.
S.W.2d
we
(1)
to:
stan
Rodriguez’s eighth
apply
would overrule
issue.
authorized
deferential
trial
resolu
dard of review to the
court’s
(2)
facts;
may rely
tion of historical
TRIAL
IV. MOTION FOR NEW
sup
fact
implied findings of
that are
upon
tenth,
issues,
ninth,
In his
and eleventh
uphold
trial
by the record to
ported
trial
Rodriguez argues the
court abused
ruling,
is
even when
trial court
court’s
denying
for
by
its discretion
his motion
expressly conflicting
faced with
affida
not
(1)
new trial because
the State faded to
State, 146
testimony.
v.
vits or
Charles
witness,
disclose a
officer Patricia Decani
204,
(Tex.Crim.App.2004); Vil
S.W.3d
ni,
had
who
evidence
to the de
favorable
v.
811-12
larreal
(2)
fense;
newly
discovered evidence
'd).
(Tex.App.-Corpus
pet. ref
Christi
in a
would
resulted
different out
(3)
come; and
defense
ineffec
counsel was
Brady
B.
Claim
The
tive
to discover
Deeani
failing
officer
issue,
testimony
Rodriguez
ni’s
before
ninth
asserts
trial. The State
In his
requires
testimony
Brady
counters that Decanini’s
was
violation
a new
merely
Maryland,
or
other
v.
373 U.S.
impeaching
Brady
collateral
trial. See
and,
thus,
87-88,
Drew v. Prosecutors are (en banc); secreting who facts witnesses Crim.App.1987) pressing see also or TEX. ac the innocence of the grant may R.APP. P. 21.2. review the establish We 2.01 Proo. ANN. art. under an denial of motion for new trial cused. Tex.Code CRiM. (Vernon in a criminal A defendant abuse of discretion standard. See Lewis granted case must be a new trial when of a fail- prosecutor’s alleged Our review tending establish defen exculpatory ure to disclose evidence re- *41 (1) intentionally dant’s innocence has been quires employ materiality us to: a stan- withheld, preventing production thus its dard rather than a constitutional harmless- Tex.R.App. 21.3(e). Brady trial. P. A vio evidence; in evaluating error standard the (1) if lation occurs the State failed to dis (2) materiality and determine the of the evidence, regardless prosecu close of the in light prop- evidence of all other evidence faith; good tion’s or bad the withheld State, erly Hampton introduced at trial. v. defendant; evidence is favorable to the 603, 86 612 (Tex.Crim.App.2002). material, is, evidence any We consider adverse effect that the there a probability reasonable that had prosecutor’s might non-disclosure disclosed, the evidence been the outcome preparation presentation had on the or of the trial would have been different.28 Thomas, the accused’s case. 841 S.W.2d Richardson, 865, parte Ex 70 S.W.3d 870 possibility at 405. We assess the that an State, (Tex.Crim.App.2002); Thomas v. might light adverse effect have occurred in 399, 404 (Tex.Crim.App.1992) 841 S.W.2d totality of the of the circumstances and banc). (en prosecution duty The has no difficulty with an awareness of the of re- in possession turn over evidence not its or in constructing post-trial proceeding a Blanco, not known to exist. State v. 953 course that the defense and the would trial 799, (Tex.App.-Corpus 802-03 have taken had the defense not been mis- 'd) 1997, pet. (citing Christi ref v. Hafdahl by prosecutor’s led failure to disclose. State, (Tex.Crim. 805 S.W.2d 399 n. 3 determination, Id. To make this exam- we (en banc)). App.1990) Although prose in alleged ine the error the context of the duty cution has no to turn over evidence Id. strength overall of the State’s case. exist, possession not its or not known to prosecution duty does have a to learn 2. The Evidence any favorable evidence known to others behalf, Rodriguez timely filed an amended mo- acting the case on the State’s Blanco, asserting, part, tion for trial new including police. 953 S.W.2d Brady newly violation and discovered evi- (citing Kyles Whitley, at 802-03 514 U.S. 419, 419, trial an L.Ed.2d 490 dence.29 The court convened evi- S.Ct. (1995)). dentiary hearing. evidence, (Tex.Crim. any
28. Favorable evidence is if dis- Little v. effectively, may closed and make App.1999). prejudice, appellant used To show acquit- the difference between conviction and probability that the must show a reasonable tal. Thomas v. proceeding would have been result of the (Tex.Crim.App. in- Favorable evidence timely disclosed the had the State different exculpatory impeachment ev- cludes both Id. at 866. the defense. evidence to Wyatt idence. Thomas, (Tex.Crim.App.2000); 841 S.W.2d at filing for new trial 29. The time for motions Exculpatory evidence is that which trial in crimi- and amended motions for new excuse, justify, or clear the accused tends presently governed Texas Rule nal cases is Impeachment guilt. Id. fault or Appellate 21.4. See P. Tex.R.App. Procedure denies, disparages, disputes, or is that which construction, ordinary statutory 21.4. Under testimony. Id. Evi- contradicts witness's plain meaning apply we of the words probability dence is material if it creates a application contained in the rule unless such confidence in the out- sufficient undermine v. Har- would lead to an absurd result. State proceeding. An come of the Id. (Tex.Crim.App.1997). dy, 963 S.W.2d must also show that the State's nondisclosure an amendment of The rule does not authorize tardy prejudiced disclosure the defense. that, generated by police reports Patricia Decanini testified none Officer trial, post her about name. She also contacted officer included her by ser- missing report, compiled which in the involved motor admitted she Garcia, geant Hoyos, signed by De officer investigation. accident vehicle Rodriguez passed showed lead at trial testified Rodriguez’s counsel report, test.30 Because she recalled motion, Brady that co-counsel filed affi- she the motion trial compiled for new granted.32 trial court which davit, which was admitted in evidence. include Decani- witness list did not State’s Hoyos gave her Decanini testified De *42 so, testified, “I ni. Even trial counsel a report handwritten and she offered I rely on their witness list. went didn’t type him to make “professional.”31 it for it my He did not out and did own work.” The had report Rodriguez indicated that report. Trial counsel learned receive the passed field Decanini sobriety test. a grand jury testimony report that from report testified that the was handwritten destroyed. Referring to a may have been Garcia, signed by indicating officer that he by and signed Hoyos both De Gar- report opinions report. concurred with the in the if cia, “asked trial counsel testified he cross-examination, On she conceded the in its that possession alleged had State report language did handwritten not have destroyed.” was He learned report that stating that Garcia concurred with re- night Decanini the before the motion about that, port, superior of his because through conversing trial hearing for new rank, it was prac- and because not common Trial coun- with current defense counsel. police department, Hoyos tice in the De Hoyos’s testimony De at trial sel recalled approv- did not need Garcia’s signature original prepared report he regarding al. typing After Decanini the re- finished He further re- signed. and officer Garcia port, gave Hoyos it to and he she De testimony Rodriguez that officer called signed gave report it. She to officer Hoyos’s origi- did De claimed he not have who made Rodriguez, derogatory a com- Hoyos compiled a report, nal so De Hoyos ment De the re- about and threw report. counsel supplemental Trial re- port away. Decanini testified that further that officer denied trial called Garcia Rodriguez “always grudge officer had a by signed report compiled that he a De against” Rodriguez. Rodriguez Officer in case, testimony, opin- Hoyos. told that he had had Decanini’s her worked the case, ion, good impeachment a When going “[expletive] was had value. asked a judge.” over the Decanini if he would have called her as witness admitted expired, everything thirty days after the later testified that affi- motion She Id..; court. even with leave of see also Drew v. davit was correct. (Tex.Crim.App. 222-23 1987) banc) rule). (en (construing former employed po- with 31. Decanini had been Judgment was June below entered on department months in November lice three Rodriguez’s motion for new amended 2001, admittedly learning departmental poli- trial, timely July filed on be- procedures during that time. Her cies and day, July thirtieth fell cause the on prepa- in the duties at the time were to assist Sunday. reports. ration of hearing, the fol- 30.At Decanini recanted attorneys represent- He testified that three lowing her trial statement in motion for new Rodriguez during trial. Different counsel ed Rodriguez Judge "I was advised affidavit: during post-trial Rodriguez pro- represented [appellant] reports about some that were nev- ceedings. brought up er had....” last trial he her, missing. an- and that it had he known about counsel The defense swered, “If the had ... I would thoroughly Hoyos, State cross-examined De offi- have, colloquy yes.” following Garcia, en- cer and officer about sured: trial, missing report. At officer report by denied he saw another De Ho- I there
[Trial counsel]:
believe
diligence
yos,
signed
some due
should have been
and officer Garcia denied
trying
original report.
to locate the
generated by
Hoyos.
De
Decanini
report
report she
typed
admitted that the
did
Right.
[Post-trial
counsel]:
defense
that officer
language
contain
Garcia con-
attorney
charge, you
And as the
were
trial,
report.
curred
At
officer
given
regarding
never
this information
with
Decanini;
officer
is that correct?
Rodriguez provided
testimony
favorable
Rodriguez passed
test.
they pos-
I don’t believe
[Trial counsel]:
it,
given
I
I
sessed
and wasn’t
it.
be-
at the motion for new trial
Evidence
it, I
they
possessed
lieve if
had
would
hearing did not establish that
the State
given
have been
it.
*43
had
knew about Decanini or
reason
cross-examination,
On
trial counsel testi-
potential
a
witness.
believe that she was
grand jury testimony
from E.
fied
(Tex.
28, 33
See Zule v.
report
“destroyed,
Jackson was that
ref'd).
1990, pet.
App.-Corpus Christi
trial,
missing.”
altered or
Before
counsel
value Decanini’s
impeachment
Whatever
(1)
original report signed
knew:
about “an
had,
testimony might have
other witnesses
Sergeant
both Mr. Flavio
Garcia
testified and were cross-examined exten
(2)
Hoyos;”
De
officer Garcia testified he
missing report and its
sively about the
signing
report;
did not remember ever
replacement report
contents and the
which
(3)
Hoyos
pre-
De
testified that he had
signature.
did not include officer Garcia’s
(4)
Hoyos
pared
original report;
De
testify
prepared
did not
that Decanini
it.
light
In
of the other evidence introduced
Finally,
regarding
if the issue
when asked
trial, I
at
conclude that
did not
to the
original report
an
was addressed
establishing
meet his burden of
the materi-
jury,
responded,
trial counsel
“The issue
ality of evidence of the destruction of De
yes.”
original report,
about an
Hoyos’s report,
for Decanini’s
basis
Hampton, 86
at
testimony. See
presided
trial court stated he
over
The
I
Similarly,
605.
also conclude
Rodri-
the testimo-
jury
trial and remembered
did not meet his burden to show a
ny.33
guez
trial court
the motion for
denied
probability that
the result of
new trial.
reasonable
have been different
proceeding
would
Analysis
3.
identity
potential
if
as a
of Decanini
witness,
testimony, had
proffered
or her
that the
failed to
Rodriguez argues
State
to the defense. See
been disclosed earlier
witness.
potential
disclose Decanini as a
Richardson,
I
at 870.
parte
Hoyos Ex
at trial showed that De
Evidence
Rodriguez’s ninth issue.
overrule
prepared
original report
he
would
testified
transcript
report.
you'll
at the
of the
During argument
new
If
look
at the motion for
Similarly,
may
judicial
we
take
no-
hearing, the trial court addressed Rodri-
trial
trial —
tice of its records
same,
"[y]ou
in the
or related
stating,
wer-
guez’s post-trial counsel
trial,
involving
nearly the
proceedings
the same or
can assure
at the time of
but I
en't here
end,
parties.
almost to the
same
you it was exhausted to no
Huffman
(Tex.Crim.App.1972).
missing
having
regarding a
point of
nausea
fur-
counsel also
Trial
missing report.
Newly
Evidence
Discovered
C.
rely
not
on the
that he did
ther testified
issue, Rodriguez argues
By
tenth
own work.
list and did his
witness
State’s
the new-
failure to disclose
that the State’s
learned about
that he
further testified
He
Decanini
relating to
ly discovered evidence
motion for
before the
night
Decanini
In
particular,
a new trial.
mandates
already
I
conclud-
hearing.
have
new trial
testimony would
Decanini’s
asserts that
value de-
impeachment
that whatever
ed
in fact
officer Garcia
shown that
prof-
Decanini
the information
rived from
all the ex-
Rodriguez “passed
agreed that
were
fered,
testified and
other witnesses
sup-
that [officer]
ams and
extensively on the same
cross-examined
that the
responds
it.” The
pressing
State
other
light
In
subject at
trial.
denied the motion.
properly
trial court
the evi-
at trial and
introduced
evidence
trial
at
motion for new
adduced
dence
1. The Law
I conclude that the evidence was
hearing,
discovered,”
instead existed
“newly
an accused
but
granted
A
trial shall be
new
trial,
Hoyos’s pre-
De
through
both
before
material evidence favorable
where
grand jury
testimony
through
trial
trial.
discovered since
accused has been
by tri-
acknowledged
testimony. This was
(Ver
ANN. art. 40.001
TEX.CODE CRIM. PROC.
Villarreal,
at
al counsel. See
Brady,
see
873 U.S.
Supp.2004-05);
non
Further,
not establish
Rodriguez did
party
1194. The
who moves
88 S.Ct.
“new” evi-
to discover the
the failure
newly-discovered
trial based on
new
diligence
to a want of
was not due
dence
satisfy
four-part
must
test:
*44
(see id;
Drew,
also
743
part
on his
see
newly
was un
discovered evidence
(2)
226); or
the “new evidence”
S.W.2d at
unavailable to the accused at the
known or
(3)
material;
merely
it was not
was
or
(2)
trial;
the accused’s failure
time of his
corroborative, collateral,
im-
cumulative,
or obtain the evidence was not
to discover
I
overrule Rodri-
Id.
would
peaching.
diligence;
to a lack of
the new
due
guez’s tenth issue.
merely
is not
evidence is admissible and
cumulative, corroborative, collateral, or im
of Counsel
D. Effective Assistance
peaching; and
the new evidence
issue,
argues
In his eleventh
bring
probably
true and will
probably
because
ineffective
that trial counsel was
a different result
in another trial.
about
prof-
Decanini and her
he did not discover
State,
31,
74
36-37
See Keeter
trial.
evidence before
fered
Drew,
at
(Tex.Crim.App.2002);
743 S.W.2d
reviewing
In
an ineffective assistance
Villarreal,
226;
press
Strickland,
Opinion by
vailing professional
Dissenting
norms.
Chief Justice
2052;
at
McFar
U.S.
S.Ct.
VALDEZ.
(Tex.
land v.
842-43
I
from
respectfully dissent
the conclu-
Second,
Crim.App.1992).
the defendant
majority
by
sion reached
and would
Strickland,
prejudice.
must show
466 U.S.
reverse and remand this case for
new
requires
at
2052. This
S.Ct.
I
trial.
reach this conclusion based on
defendant to show that there is a reason
issue, i.e., the trial
appellant’s third
court
probability
able
that but for his counsel’s
unprofessional
pro
the result of the
denying appellant’s
errors
motions to
erred
ceeding would have been different.
Id. at
unlawful
suppress due
arrest.
A
proba
bility probability is a sufficient to under Custody mine confidence the outcome. Id. The satisfy prong failure to one of the Strick argues that the actions of the Appellant a court’s need to consid negates land test night on the of the accident consti- 697, 104 er the other. See id. at S.Ct. arrest, improper tuted an and therefore appellant 2052. An the burden of bears relating all evidence to his arrest should of the evi proving by preponderance suppressed have been as it was collected dence that his counsel was ineffective. in violation of the U.S. Constitution and Thompson v. the Texas Code of Criminal Procedure.1 (Tex.Crim.App.1999). Const, TV, V, VI; amend. See U.S. Tex. In his motion for new trial and (Vernon art. 38.23 Ann. Crim. PROC. Code hearing, Rodriguez motion for new trial 2005). Thus, in order to determine did not assert that his trial counsel was suppress motions to appellant’s whether I already ineffective. concluded denied, wrongfully this Court must were Rodriguez has not shown that the outcome un- first determine whether trial would have been different had lawfully police. arrested See Tex. been discov proffered Decanini’s Prog. (Vernon Ann. art. 15.22 Code CRiM. *45 that, I on this similarly ered. conclude 1977) un- (defining being placed arrest as that, record, Rodriguez not shown but has custody by or taken into der restraint error, complained for the the result of a with or without war- person officer or trial have been different. Ac would rant). met the first cordingly, has not Strickland, 466 prong. See
Strickland has person A of whether a determination 688, 2052; at 104 see also Jack U.S. S.Ct. custody in must be made on placed been (Tex. State, 768, 771 son v. 877 S.W.2d in of all of consideration an ad hoc basis I Rodri Crim.App.1994). would overrule of the arrest. objective circumstances issue. guez’s eleventh State, 244, 255 931 S.W.2d Dowthitt v. See State, v. 732 (Tex.Crim.App.1996); V. CONCLUSION Shiflet 622, A (Tex.Crim.App.1985). 629 S.W.2d Having Rodriguez’s overruled eleven is- if, custody” only “in under the is person sues, majority’s decision I concur with the circumstances, person a reasonable would to affirm. 1999); 103, (Tex.Crim.App. proper 106 majority opinion discusses the S.W.2d 1. The Guz- State, 85, (Tex.Crim. analyzing a applied when 89 standard of review v. 955 S.W.2d man suppress, on a motion to trial court's decision App.1997). apply. 993 which we also See Oles
477 cause, circum- with other combined movement was ble that his freedom of believe person to stances, a a reasonable with would lead degree restrained to the associated California, to the Stansbury v. is under restraint formal arrest. that he believe 318, 322, 114 128 511 U.S. S.Ct. an arrest.” Id. associated with degree (1994). determining In 293 L.Ed.2d suspect’s of a encoun- of time length custody, in consid person a is we whether officers, at see id. police ter with (i) cause to following: probable er the in a car and suspect police placement of (ii) arrest, subjective police, intent of the police to a sta- transportation subsequent (iv) (iii) sub investigation, of the focus Consaul, tion, S.W.2d see State Dow defendant. See jective belief of the dism’d, 1997), pet. (Tex.App.-El Paso thitt, (citing at 254 Meek v. granted, 982 S.W.2d improvidently (Tex.Crim.App. and the use of hand- (Tex.Crim.App.1998), 1990)). cuffs, Ramirez v. see out- appeals of criminal has The court pet.), no (Tex.App.-Austin typical- general four situations which lined may considered factors that be are all (i) custody: suspect ly when the constitute of whether making a determination when deprived of his freedom physically custody. suspect is (ii) any significant way, when action suspect law enforcement officer tells Custody Constituting Evidence (iii) leave, law en- that he cannot when disputed Here, the circumstances situation that forcement officers create a following: appellant include the detention person a reasonable to believe would lead involved of a motor vehicle was the driver has been that his freedom movement under circum- that occurred an accident (iv) restricted, significantly when there appellant indicating stances cause to arrest and law en- probable fault; called to the scene police were suspect officers do not tell the forcement cans in saw several beer the accident and Shiflet, that he is free leave. See vehicle; told appellant was appellant’s first respect at 629. With that the officer “would police officer situations, free- upon three the restriction in;” [appellant] to take dom of movement “must amount to the car and taken patrol in the placed degree op- an arrest as associated with station, station; at the posed investigative to an detention.” through taken the entrance appellant was Dowthitt, begins at 255. What to a and was escorted prisoners used for detention, however, may a noncustodial as room, subsequently he was holding where *46 a become a custodial arrest as result tests, all of sobriety multiple administered during the encounter. See police conduct that testified passed.2 Appellant which he scenario, id. In the fourth Shiflet free to he did not feel throughout this time cause must knowledge probable officers’ in involved One of the officers leave. or otherwise manifested be communicated police to the station transporting appellant Custody is then suspect. to the See id. motions to hearing on the testified at the proba- “if the manifestation of established administering years' experience in such Although tests were not nine these station-house by specially presented to certified in evidence administered officers There was no tests. administering sobriety testing, the officer in that tests were unreliable show these police testified that he tests at station special way lack of due to officer's during sobriety frequently administered tests certification. investigations suspects and had of intoxicated a motor operating not allowed” is arrested and vehicle suppress appellant that “was 724.012(b) § and, (requir- in a id. appellant public place); had police presence to leave resistance, if an ing a test for intoxication officer any signs shown he would Furthermore, chap- an offense under person once arrests a have been handcuffed. a motor involving operation of vehi- declared not to be intoxicat- ter 49 appellant was cle); (requiring § id. 724.015 officer to police chief and returned to his ed to to home, suspect warn that refusal submit police ap- officer arrived at another subsequent prose- in later, testing is admissible performed pellant’s home some time cution). tests, and re- three additional analy- to a
quested that he submit breath appeals of criminal has stated The court passed all sobri- Appellant, sis.3 who had substantially applying an earlier but when ety tests administered both at the station transportation version of the stat similar home, provide to and at his own refused requires statute that consent be ute: “The to sample, and his refusal to submit breath from those individuals under ar obtained subsequently against used analysis However the statute has been con rest. given any Appellant him at trial. was not only persons to to those un apply strued warnings Miranda at the station arrest, to apply persons it does not not der at of the accident before nor the scene State, 627 under arrest.” S.W.2d Aliff v. being to the station. He was also taken (Tex.Crim.App.1982) (emphasis statutory warnings given required not Williams, added); see also State to to a breatha- involving a refusal submit 1991), (Tex.App.-Austin at his home. lyzer when confronted aff'd, (Tex.Crim.App.1992). Nonetheless, ap officer came I this that would conclude from evidence attempted home and obtain pellant’s situations both the third and fourth Shiflet breathalyzer procedure. consent to the here; i.e., law apply to the circumstances Thus, having appellant treated a situation enforcement officers created applicable trans as an arrestee under in person that would have led reasonable statutes, legitimately portation cannot now that his free- appellant’s position believe appellant was never argue appeal on significantly re- dom of movement was to have been by police considered officers least, stricted; initially, at there was question. in night arrest on the under appel- probable manifest cause arrest not tell him that argues appeal lant and the officers did also State Shiflet, officially leave. See arrested be he was free to was never Furthermore, and was nev not handcuffed at 629. cause was However, rights. Miranda to submit to a er read his by using appellant’s refusal Ra court, dispositive, see handcuffing him in is not breathalyzer against exam mirez, the officers appellant was implicitly admitted that persons tak custody, testified court involved fact under arrest and therefore custody present do not a safe en into who only allow such as the relevant statutes automatically handcuffed. ty threat are against to be used arrestees. See 724.012(a) (Ver- of Miranda absence regard § With *47 Tex. TRANSP. Ann. Code give failure to a note that a (allowing person’s warnings, a we non Supp.2004-05) “re- rights typically if his Miranda person suspect tested breath or blood to be However, dispute appellant that no testimony there is conflicting in the record 3. There is sobriety and was consid- give passed tests appellant asked to a several as to whether was police. the chief of sample house. ered sober while still at the station breath
479
attor-
The State’s own
any
specimen.
breath
in forfeiture of the use of
state
suits
noted that
closing argument,
by ney, in his
during
interrogation
that
ment obtained
longer
a
would no
case-in-chief,”
from such
test
results
during its
prosecution
that had
the time
State,
766,
given
accurate
772 be
v.
119
see Jones
S.W.3d
initial de-
the accident and
and, therefore,
elapsed since
such
(Tex.Crim.App.2003),
“Think about how
of appellant:
tention
not be consid
a failure is not and should
hour,
Over an
elapsed....
much time
determining
a factor in
whether
ered
mean,
enough time
I
that’s almost
folks.
suspect
custody,
argument
is in
as such an
and watch
you
to be at home
purposes
in fact defeat the
would
somebody to
Plenty of time for
warnings. See Miranda v. Ari DVD....
Miranda
Plenty
1602,
gather
thoughts.
their
zona,
436, 444-45,
up,
sober
to
86 S.Ct.
384 U.S.
this,
refusal
(1966);
Despite
appellant’s
of time.”
v.
Having determined suppress appellant’s denial of motions erroneous, I further conclude would harmful and led that the evidence was error, improper- as the evidence reversible night appellant’s from the ly derived THAXTON, Appellant Brenda majority of the State’s up arrest made Tex.R.App. P. appellant. See against ease Corbin, 44.2(b); see also Texas, Appellee. The STATE closing arguments, State Throughout No. 07-05-0157-CR. emphasized appellant’s re- repeatedly also breathalyzer test when fusal to take a Texas, Appeals Court of home, at one by police at his confronted Amarillo. noting: “If the defendant
point explicitly 25, 2006. April as he claimed only had less than one beer had, he refuse to take why did derived breathalyser?” Had the evidence subsequent refusal
from the arrest