Opinion issued May 4, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00935-CR ——————————— DARCIE LOUISE SPILLERS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 13CR3471
MEMORANDUM OPINION
Darcie Louise Spillers was charged with intoxication manslaughter with a
vehicle after the passenger in the vehicle she was driving died. A jury found Spillers
guilty and sentenced her to 20 years’ confinement. On appeal, Spillers complains
that (1) the evidence was insufficient to support her conviction; (2) the trial court erroneously denied her motion to suppress the results of a warrantless blood draw;
and (3) the trial court erred by failing to submit an article 38.23 instruction.
We affirm.
Background
In August 2013, Spillers was involved in a one-car accident around 10:00 p.m.
When emergency vehicles arrived at the scene, they found the car in a ditch and
Brion Vaughn lodged under the car, but Spillers was not there. Deputy J. Manuel
had been dispatched to a nearby home, where he encountered Spillers and learned
she had been involved in the car accident. Deputy Manuel took Spillers back to the
accident scene, where she waited in the back seat of his patrol car. After some
preliminary investigation, Deputy Manuel asked Spillers if she would consent to a
blood draw. She orally agreed, and he drove her to the hospital, where she consented
to the blood draw in writing, had blood drawn, and then was arrested for public
intoxication. Vaughn died five days later, and Spillers was charged with intoxication
manslaughter with a vehicle.
Before trial, Spillers moved to suppress the results of the blood draw, which
showed 0.23 grams of alcohol per 100 milliliters of blood, on the basis that Spillers
did not freely and voluntarily consent. At the hearing on that motion, Deputy
Manuel testified that he first encountered Spillers at the home of the couple who
reported the accident. He smelled alcohol on Spillers and noticed that she was
2 impaired and bloody, with a cut on her forehead. According to Deputy Manuel,
Spillers explained that she had been in an accident nearby, but denied having been
the driver. In fact, she claimed that three other people had been the driver.
Deputy Manuel testified that he drove Spillers to the accident scene where
firefighters were pulling Vaughn out from under the car. Spillers sat in the backseat
of Manuel’s car while he spoke to the other officers and a special prosecutor who
had arrived on the scene. Deputy Manuel testified that, while she waited in the patrol
car, Spillers asked to use the restroom, but he told her that she could not because
there was no female officer to escort her.
Deputy Manuel testified he investigated to determine Spillers’s role in the
incident and eventually asked Spillers, who was not handcuffed, if she would
consent to a blood draw. Spillers orally consented, and the State presented a patrol
car video recording of this conversation. Deputy Manuel testified that he did not
coerce, threaten, or try to convince Spillers to give her consent. Rather he confirmed
with Spillers that her agreement to have her blood drawn was consensual “at least
three times.” Deputy Manuel testified that Spillers was not under arrest or in
handcuffs at the time she consented to the blood draw. He also testified that Spillers
was “detained for an investigation” rather than “in custody” and was therefore not
Mirandized.
3 Deputy Manuel then drove Spillers to Mainland Medical Hospital. On the
way there, Deputy Manuel reminded Spillers where they were going and re-
confirmed her consent to the blood draw. At the hospital, Spillers signed a consent
form acknowledging that she “voluntarily consent[s] to have sample(s) taken.”
Deputy Manuel testified that he arrested Spillers for public intoxication after the
blood draw. The trial court denied Spillers’s motion to suppress.
At trial, the State presented testimony from numerous witnesses including the
neighbors who called the police—Michaela Blair and Justin Foxley. Blair and
Foxley testified that Spillers asked them not to call the police and admitted to them
that she had been driving, repeatedly stating that she had wrecked her truck. Blair
testified that Spillers smelled “very much” of alcohol, as if it had been “poured on
her.”
Deputy Manuel reiterated his testimony regarding the night of the accident.
He again testified that Spillers consented to the blood draw at least three times. He
also testified as an accident reconstruction specialist that, based on the circumstances
of the accident, he concluded that Spillers did not stop at the stop sign at the
intersection and was driving between 30 to 35 miles per hour when she drove into
the ditch. He mentioned that while Spillers initially named three different drivers,
she eventually settled on a version of her account in which she claimed that Thomas
Brian Thompson was driving at the time of the accident. Manuel noted that Spillers
4 was unsteady on her feet, and had glassy eyes and slurred speech. According to
Deputy Manuel, he believed that Spillers was driving while intoxicated, did not
perceive the stop sign in time, failed to stop, and drove into the ditch. He also
testified that he believed Spillers’s driving while intoxicated caused Vaughn’s death.
Detective G. Hayes, also a certified accident reconstructionist, testified that
he investigated the accident and concluded that Spillers was driving and failed to
stop at the stop sign before driving into the ditch. Hayes also opined that Spillers’s
driving while intoxicated caused Vaughn’s death.
Peneica Driver, a friend of Vaughn and Spillers, also testified. According to
Driver, Spillers called her after the accident and asked her to pick Spillers and
Vaughn up from the hospital. Driver testified that, in that conversation, Spillers told
Driver that Thomas Brian had been driving the car. Spillers later admitted to Driver
that she had been driving the car at the time of the accident. Spillers also told Driver
that she had tried to pull Vaughn out of the car and he fell out of the car and onto
her.
Cory Myers, a volunteer firefighter who was dispatched to the accident scene,
also testified at trial. According to Myers, he and Scott Lyons, the assistant fire
chief, pulled Vaughn out from under the car and secured him to a backboard. Myers
testified that Vaughn did not initially have a pulse, but a faint pulse returned once
someone administered CPR.
5 Forensic pathologist Nobby Mambo of the Galveston County Medical
Examiner’s Office also testified. He conducted an autopsy and opined that Vaughn’s
death was caused by spinal cord and brain injury which resulted from extreme force
from an impact. He testified that either of these injuries could have killed Vaughn
and added that it was highly unlikely that a short fall from the car into the ditch
caused Vaughn’s injuries.
The jury found Spillers guilty of intoxication manslaughter and sentenced her
to 20 years’ confinement. Spillers appealed.
Sufficiency of the Evidence
In her first and second issues, Spillers argues that the evidence is insufficient
to support the jury’s guilty verdict because the evidence showed that five factors
other than her intoxicated driving could have caused Vaughn’s death.
A. Standard of Review
We review the sufficiency of the evidence in the light most favorable to the
verdict and then determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Acosta v. State, 429
S.W.3d 621, 624–25 (Tex. Crim. App. 2014) (first citing Jackson v. Virginia, 443
U.S. 307, 318–19, 99 S. Ct. 2781, 2789 (1979); then citing Adames v. State, 353
S.W.3d 854, 860 (Tex. Crim. App. 2011); then citing Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010)). This standard of review allows a jury to resolve
6 fact issues and to draw reasonable inferences from the evidence. Thomas v. State,
444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789). With respect to testimony of witnesses, the jury is the sole judge of the
credibility and weight to be attached thereto, and when the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the
verdict, and we defer to that determination. Id. (citing Jackson, 443 U.S. at 319, 99
S. Ct. at 2789).
In a sufficiency inquiry, direct evidence and circumstantial evidence are
equally probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing
Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013)). Not every fact
presented must directly indicate the defendant is guilty, so long as the cumulative
force of the evidence is sufficient to support a finding of guilt. Nowlin v. State, 473
S.W.3d 312, 317 (Tex. Crim. App. 2015) (citing Beardsley v. State, 738 S.W.2d 681,
685 (Tex. Crim. App. 1987) (en banc)).
B. Applicable Law
A person commits the second degree felony of “intoxication manslaughter” if
the person: (1) operates a motor vehicle in a public place . . . and (2) is intoxicated
and by reason of that intoxication causes the death of another by accident or mistake.
TEX. PENAL CODE. § 49.08. Section 6.04 of the Texas Penal Code provides, “A
person is criminally responsible if the result would not have occurred but for his
7 conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of the
actor clearly insufficient.” TEX. PENAL CODE § 6.04(a).
C. Analysis
Spillers argues that the evidence was insufficient to permit the jury to
conclude that her driving while intoxicated caused Vaughn’s death. She asserts that
five other factors could have caused Vaughn’s death: (1) the “dangerous character
of the intersection,” (2) Vaughn’s failure to wear a seat belt, (3) the air bags’ failure
to deploy, (4) Vaughn’s fall from the car into the ditch, and (5) the manner in which
the EMTs handled Vaughn. The State responds that the evidence is sufficient
because it shows that none of these factors—alone—could have caused Vaughn’s
death. On the contrary, the State argues that the evidence establishes that Vaughn
would not have died but for Spillers’s driving while intoxicated.
At trial, the State presented evidence regarding the circumstances surrounding
the collision and the nature of Vaughn’s injuries. Deputy Manuel and Detective
Hayes, both accident reconstructionists, and Nobby Mambo, the forensic pathologist
who conducted Vaughn’s autopsy, all testified that Spillers’s driving while
intoxicated caused Vaughn’s death. And Mambo testified that extreme force was
necessary to cause Vaughn’s injuries, adding that it was highly unlikely that
Vaughn’s short fall from the car to the ditch after the accident caused his death.
8 While the jury also heard evidence that other factors may have contributed to
Vaughn’s injuries, a rational jury could conclude that none of these concurrent
causes was sufficient to produce Vaughn’s death. See TEX. PENAL CODE § 6.04(a)
(person is criminally responsible if death would not have occurred but for her
conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was sufficient to produce the result and the conduct of the actor
clearly insufficient).
Based on the evidence presented, we conclude that a rational jury could have
found beyond a reasonable doubt that Vaughn’s death would not have occurred but
for Spillers’s driving while intoxicated, operating either alone or concurrently with
another cause, and that none of the concurrent causes was sufficient to produce
Vaughn’s death. Thus, we conclude that the evidence was sufficient to support the
jury’s finding that Spillers’s driving a motor vehicle in a public place while
intoxicated caused Vaughn’s death. See Wooten v. State, 267 S.W.3d 289, 296 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d) (holding where intoxicated driver
alleged other road conditions caused the accident, “even if other factors contributed
in some way to the accident, these factors were not clearly sufficient to cause the
fatalities in the case”); Martinez v. State, 66 S.W.3d 467, 469–70 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d) (holding sufficient evidence supported
9 conclusion that truck driver’s intoxication caused death of victims despite alleged
improper loading and safety violations of truck).
We overrule Spillers’s first and second issues.
Motion to Suppress
In her third issue, Spillers contends that the trial court erred in denying her
motion to suppress the results of her blood test. She argues that (1) her consent was
invalid because she was intoxicated, had hit her head, was subjected to coercive
pressures, and was not given Miranda warnings before she consented; and (2) the
police lacked probable cause to arrest her for public intoxication and the results of
the blood draw should be excluded as fruit of the unlawful arrest.
A. Standard of Review
We review a trial court’s decision to deny a motion to suppress under a
bifurcated standard of review, giving almost total deference to the trial court’s
determination of historical facts that depend on credibility, and reviewing de novo
the trial court’s application of the law to those facts. Tucker v. State, 369 S.W.3d
179, 184 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997)). We view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial
court is the sole trier of fact and judge of the weight and credibility of the witnesses
and the weight to be given their testimony. Id. at 24–25. We will sustain the trial
10 court’s ruling if it is “reasonably supported by the record and correct on any theory
of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim.
App. 2003) (en banc) (citing Wilover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
2002)).
B. Does the record support the trial court’s implicit finding that Spillers was not in custody, and Miranda had not been triggered, when she consented to the blood draw?
1. Applicable Law
A person is in “custody” only if, under the circumstances, a reasonable person
would believe that his freedom of movement was restrained to the degree associated
with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)
(citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528–30
(1994)). Persons temporarily detained for the purposes of an investigation are not
“in custody” for Miranda purposes, and the right to Miranda warnings is not
triggered during an investigative detention. See Berkemer v. McCarty, 468 U.S. 420,
438–40, 104 S. Ct. 3138, 3149–51 (1984). A temporary detention, in which the
person is not free to leave, while the police officer investigates whether a crime has
been committed is constitutionally permissible. Koch v. State, 484 S.W.3d 482, 489
(Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing State v. Sheppard, 271
S.W.3d 281, 289 (Tex. Crim. App. 2008)). And officers may use such force as is
11 reasonably necessary to effect the goal of the detention: investigation, maintenance
of the status quo, or officer safety. Id.
In determining whether a defendant was “in custody” for the purpose of
applying Miranda, an appellate court “conducts a factual review in examining the
circumstances surrounding the interrogation” and “makes an ultimate legal
determination whether a reasonable person would not have felt at liberty to leave.”
State v. Saenz, 411 S.W.3d 488, 493 (Tex. Crim. App. 2013); Koch, 484 S.W.3d at
488. Whether a detention is an investigative detention or an arrest depends
upon factors such as the amount of force displayed, the duration of a detention, the
efficiency of the investigative process and whether it was conducted at the original
location or she was transported to another location, and the police’s expressed intent.
Sheppard, 271 S.W.3d at 291.
2. Analysis
Spillers argues that the trial court erred in denying her motion to suppress
because she was in custody but not given Miranda warnings before she consented
to the blood draw. The State responds that Spillers was not “in custody” but rather
subject to an investigative detention. Thus, Miranda warnings were not required.
Deputy Manuel testified that he was dispatched to a home because there was
an intoxicated person on the front lawn. After he arrived and learned that Spillers
had been involved in an accident nearby, he drove her in the back seat of his patrol
12 car, un-handcuffed, to find the accident scene. Deputy Manuel testified that Spillers
was not under arrest and that he did not tell her that she was.
Once they arrived at the scene of the accident, Spillers waited in the patrol
car, still un-handcuffed, while Deputy Manuel investigated. The video recording
reflects that Spillers waited in the patrol car for slightly more than an hour while
Deputy Manuel assessed the scene and spoke to other responders and the special
prosecutor who had arrived. There is no evidence or claim that the duration of the
detention was longer than necessary for an investigation involving a serious accident
with resulting serious injuries. See, e.g., Alvarado v. State, 468 S.W.3d 211, 217–
19 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding approximately one-and-
a-half hour investigative detention was reasonable where alleged delay was for
legitimate law enforcement purpose while officers investigated accident); Josey v.
State, 981 S.W.2d 831, 844–45 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d)
(concluding 90-minute detention was reasonable in light of officers’ efforts to dispel
or confirm their suspicions and investigate incident). Nor is there evidence that
Manuel used force or threats against Spillers.
Spillers asserts that she was in custody because Deputy Manuel refused to let
her leave to use a restroom or relieve herself on the side of the road. But “one is not
free to leave both when arrested and when temporarily detained for an
investigation.” Francis v. State, 896 S.W.2d 406, 410 (Tex. App.—Houston [1st
13 Dist.] 1995), pet. dism’d, 922 S.W.2d 176 (Tex. Crim. App. 1996). Thus, the fact
that Manuel did not permit Spillers to leave the scene during the ongoing
investigation of a serious accident, alone, does not elevate the temporary detention
to an arrest. Koch, 484 S.W.3d at 489 (officers may use such force as is reasonably
necessary to effect goal of detention: investigation, maintenance of status quo, or
officer safety).
Spillers also argues that Miranda was triggered because Deputy Manuel and
the special prosecutor decided to arrest her for public intoxication before Manuel
asked for consent. But the subjective intent of the officer is relevant only to the
extent that it is manifested to the defendant through words and actions of law
enforcement officials. See Dowthitt, 931 S.W.2d at 254–55; see also Koch, 484
S.W.3d at 489 (“We do not consider the subjective beliefs of the detaining officer
when determining whether a suspect is in custody” unless “the officer manifests his
belief to the detainee that he is a suspect.”). Here, it is undisputed that Manuel did
not inform Spillers that she was a suspect or under arrest until after she consented to
the blood draw.
In sum, considering all of the circumstances in the light most favorable to the
trial court’s ruling, we conclude that the trial court did not err in concluding that
Miranda was not triggered because, at the time she consented to the blood draw,
Spillers had not been in custody but, rather, was merely subject to a reasonable
14 investigative detention. See State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim.
App. 1997) (en banc) (holding detention and questioning by police officer during an
accident and DWI investigation, without more, was not custody); Koch, 484 S.W.3d
at 489–90 (temporary detention in handcuffs in back of patrol car during DWI
investigation did not amount to arrest so as to trigger Miranda rights); Hauer v. State,
466 S.W.3d 886, 891–92 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding
handcuffing visibly intoxicated defendant and placing him in back of patrol car after
accident was consistent with investigative detention and did not rise to level of
arrest).
C. Does the record support the trial court’s determination that Spillers freely and voluntarily consented to the blood draw?
1. Applicable Law
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. CONST. amend. IV; State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App.
2015). The taking of a blood specimen is a search and seizure under the Fourth
Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826,
1834 (1966); Villarreal, S.W.3d at 796–97. In general, to comply with the Fourth
Amendment, a search of a person pursuant to a criminal investigation (1) requires a
search warrant or a recognized exception to the warrant requirement, and (2) must
be reasonable under the totality of the circumstances. Villarreal, S.W.3d at 795.
15 Voluntary consent to search is among the recognized exceptions to the warrant
requirement. Id. at 799–808 (discussing consent, automobile, search incident to
arrest, and special-needs exceptions); see McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003). A driver’s consent to a blood test must be free and
voluntary, and it must not be the result of physical or psychological pressures
brought to bear by law enforcement. Fienen v State, 390 S.W.3d 328, 333 (Tex.
Crim. App. 2012) (citing Meekins v. State, 340 S.W.3d 454, 458–59 (Tex. Crim.
App. 2011)); Hutchins v. State, 475 S.W.3d 496, 498 (Tex. App.—Houston [1st
Dist.] 2015, pet. ref’d).
The ultimate question is whether the person’s ‘will has been overborne and
his capacity for self-determination critically impaired’ such that his consent to search
must have been involuntary. Fienen, 390 S.W.3d at 333 (first citing Schneckloth v.
Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973); then citing Meekins,
340 S.W.3d at 460). In conducting this inquiry, courts consider the following
factors: (1) the defendant’s age, education and intelligence; (2) the length of the
detention; (3) any constitutional advice given to the defendant; (4) the repetitiveness
of the questioning; (5) the use of physical punishment; (6) whether the defendant
was arrested, handcuffed, or in custody; (7) whether Miranda warnings were given;
and (8) whether the defendant had the option to refuse to consent. Cisneros v. State,
16 290 S.W.3d 457, 464 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d) (citing
Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000)).
We review the totality of the circumstances of a particular police-citizen
interaction from the point of view of the objectively reasonable person. Fienen, 390
S.W.3d at 333 (quoting Meekins, 340 S.W.3d at 459). The validity of an alleged
consent is a question of fact, and the State must prove voluntary consent by “clear
and convincing” evidence. Id.; Hutchins, 475 S.W.3d at 498. “Because issues of
consent are necessarily fact intensive, a trial court’s finding of voluntariness must
be accepted on appeal unless it is clearly erroneous.” Meekins 340 S.W.3d at 460.
2. Analysis
Spillers contends that the trial court should have suppressed the results of her
warrantless blood draw because she did not freely and voluntarily consent. The State
responds that the trial court’s finding that Spillers freely and voluntarily consented
is supported by the record and not clearly erroneous.
Deputy Manuel testified that he first encountered Spillers at a home at night,
and learned that there had been an accident nearby. He drove his patrol car, with
Spillers un-handcuffed and in the back seat, to the scene of the accident. Manuel
had Spillers wait in the patrol car while he investigated, and she cooperated. Manuel
testified that he returned to the car and asked Spillers whether she would consent to
17 a blood draw and that she orally consented. He also testified that he did not threaten
Spillers or otherwise coerce her consent.
Deputy Manuel’s in-car video recording corroborates his testimony. It shows
that the exchange between Spillers and Deputy Manuel was pleasant throughout.
When Manuel first asked Spillers whether she would consent to a blood draw, she
unequivocally responded: “Sure.” He repeated the question, for the stated purpose
of clarity, and Spillers responded “Of course.” Nothing in the video or the record
suggests that any physical or psychological pressures were brought to bear to secure
Spillers’s consent. In particular, there is no evidence of an officer’s display of a
weapon, threats, promises, deception, physical touching, or a demanding tone of
voice or language. See Meekins, 340 S.W.3d at 464. Nor does Deputy Manuel’s
decision to reiterate his request for consent suggest coercion. Id. In short, none of
the evidence about their exchange suggests coercive pressure, i.e., that Spillers’s will
was overborne or her capacity for self-determination critically impaired such that
her consent must have been involuntary. Fienen, 390 S.W.3d at 333.
The record does contain some evidence weighing in Spillers’s favor. For
example, when Spillers, seated in the back seat of the patrol car, asked Manuel, “Can
I pee?,” Manuel responded that she could not, because no female escort was present
and he could not let her relieve herself on the side of the road. Likewise, Spillers
was not Mirandized before consenting. But we have already determined that it was
18 reasonable for Manuel to require Spillers to remain on the scene during the ongoing
investigation, and Miranda warnings, while a factor, are not required or essential.
Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985) (en banc) (warning is
of evidentiary value in determining whether consent valid, but not required); see
Hutchins, 475 S.W.3d at 500–01. On the other hand, evidence relevant to other
factors favors the State: Spillers was in her forties at the time (neither inexperienced
nor frail from old age), she was not handcuffed in the patrol car, and she was able to
communicate intelligently.
Based on the totality of the circumstances, we conclude that the trial court’s
determination that Spillers voluntarily consented to the blood draw is supported by
the record and is not clearly erroneous. See Meekins, 340 S.W.3d at 461–65
(concluding defendant’s response of “Yes” or “I guess” to officer’s request to search
car constituted valid consent); Harrison v. State, 205 S.W.3d 549, 552–53 (Tex.
Crim. App. 2006) (holding defendant’s consent to urine sample was voluntary
despite police not telling her that she could refuse).
D. Did the trial court err in concluding Deputy Manuel had probable cause to arrest Spillers for public intoxication?
1. Applicable Law
A person commits the offense of public intoxication if the person appears in
a public place while intoxicated to the degree that the person may endanger the
person or another. TEX. PENAL CODE § 49.02. “The danger need not be immediate.”
19 Reynolds v. State, 902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet.
ref’d) (quoting Gallagher v. State, 778 S.W.2d 153, 154 (Tex. App.—Houston [1st
Dist.] 1989, no pet.)). It is sufficient if the accused renders himself or others “subject
to potential danger.” Id. (quoting Gallagher, 778 S.W.2d at 154).
In determining whether the officers had probable cause to arrest a person for
public intoxication, the reviewing court must determine whether the officers’
knowledge at the time and under the circumstances would warrant a prudent person’s
belief that appellant had committed or was committing the offense. Bell v. State,
866 S.W.2d 284, 287 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Whenever an
intoxicated person is in an officer’s presence and there is probable cause to arrest
him for public intoxication, the officer may do so without a warrant, even though a
warrantless arrest of that person for the offense of driving while intoxicated would
be unlawful. Mathieu v. State, 992 S.W.2d 725, 728 (Tex. App.—Houston [1st
Dist.] 1999, no pet.).
2. Analysis
Spillers argues that her arrest for public intoxication was not supported by
probable cause and that the results of her blood draw are inadmissible because they
are the fruit of the unlawful arrest. The State argues that the police had probable
cause to arrest Spillers for public intoxication because Deputy Manuel perceived
Spillers to be intoxicated, slurring, and unsteady on her feet.
20 Deputy Manuel testified that when he arrived at the home of Blair and Foxley,
they reported that Spillers smelled of alcohol, had asked them not to call the police,
and had admitted driving. Spillers told Manuel that she was involved in a one-car
accident and denied driving but told conflicting stories about what happened,
claiming at different times that three different people had been driving. Deputy
Manuel testified that Spillers was bloody, with a laceration on her forehead, and that
he perceived Spillers to be intoxicated because she was slurring, unsteady on her
feet, and had glassy eyes.
Based on the totality of the circumstances, we conclude that the trial court did
not err in finding that there was probable cause to make an arrest for public
intoxication, because a reasonable officer would have been warranted in believing
that Spillers was intoxicated to the degree that she could endanger herself or another.
See Reynolds, 902 S.W.2d at 560 (holding probable cause supported public
intoxication arrest where defendant was visibly intoxicated and involved in a two-
car accident though police did not see him driving); Bell, 866 S.W.2d at 287
(concluding there was probable cause to support public intoxication arrest where
appellant slurred his speech and appeared abusive and combative).
We overrule Spillers’s third issue.
21 Jury Instruction
Spillers argues that the trial court erred by refusing to include in its charge a
1.5-page article 38.23 jury instruction setting forth the law on when a person is
deemed to be in custody, and when consent is deemed free and voluntary. She argues
that the charge given failed to provide the jury with a reliable basis on which to
decide whether Spillers’s blood was illegally obtained. In response, the State argues
the trial judge correctly refused the proposed instruction because there was no
disputed issue of material fact that would give rise to a need for the proposed
instruction.
A. Standard of Review and Applicable Law
In analyzing a jury-charge issue, we first determine whether error exists. See
Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc);
Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet
ref’d). Only if we find error do we consider harm. See Tottenham, 285 S.W.3d at
30.
Under article 38.23, the trial court must exclude any evidence that it finds, as
a matter of law, was obtained in violation of the Constitution or the laws of the
United States or of the State of Texas. TEX. CODE. CRIM. PROC. art.
38.23(a); Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).
However, a defendant’s right to the submission of jury instructions under article
22 38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation. Madden v. State, 242 S.W.3d 504, 509–10
(Tex. Crim. App. 2007). To obtain the instruction, a defendant must show: (1) the
evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is
affirmatively contested; and (3) that contested factual issue is material to the
lawfulness of the challenged conduct in obtaining the evidence. Id.
If there is no disputed factual issue, the legality of the conduct is determined
by the trial judge alone, as a question of law. Id. And if other facts, not in dispute,
are sufficient to support the lawfulness of the challenged conduct, then the disputed
fact issue is not submitted to the jury because it is not material to the ultimate
admissibility of the evidence. Id. The disputed fact must be an essential one in
deciding the lawfulness of the challenged conduct. Id. at 511.
B. Analysis
In her fourth issue, Spillers contends that the trial court erred in refusing to
include an instruction in the jury charge regarding when a person is considered to be
“in custody” and an instruction that if the jury finds that Spillers was “in custody”
and “was questioned by Deputy Manuel in a manner likely to result in an
incriminating answer,” “was not given warnings, or did not waive her rights, or
both,” then they must disregard any evidence obtained by such custodial
interrogation. Spillers further contends that the trial court erred in denying her
23 request for an instruction regarding when consent to a blood draw is valid and that
if Spillers did not voluntarily consent to the extraction of a sample of her blood, then
the jury must disregard any evidence obtained by that extraction.
We conclude that the trial court did not err in refusing the requested
instruction because Spillers failed to raise a factual issue material to the lawfulness
of the challenged police conduct in obtaining the blood draw. The evidence relevant
to custody and consent is undisputed. In particular, Spillers presented no evidence
to controvert the in-car video recording or Deputy Manuel’s testimony regarding the
circumstances under which she consented to the blood draw and was detained in the
back of Deputy Manuel’s patrol car. Rather, she argues that the undisputed facts
support a conclusion that she did not validly consent to the blood draw and was “in
custody” and entitled to Miranda warnings.
Because Spillers does not identify, and the record does not reveal, conflicting
evidence raising a fact issue that would entitle her to an article 38.23 instruction, we
hold that the trial court did not err when it refused to submit her proposed jury
instruction. See Hauer, 466 S.W.3d at 894 (holding appellant was not entitled to
jury instruction on issue of custody where no conflicting facts were presented
regarding the circumstances under which appellant was detained); McRae v. State,
152 S.W.3d 739, 748 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding no
jury instruction was required because there were no facts in dispute).
24 We overrule Spillers’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Justices Keyes, Bland, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).