Opinion issued July 31, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00956-CR NO. 01-12-00958-CR NO. 01-12-00964-CR NO. 01-12-00965-CR ——————————— KIMBERLEY LOUISE SHANO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas Trial Court Case Nos. 10CR2028, 10CR2358, 10CR2359, and 10CR23611
MEMORANDUM OPINION
1 Appellate cause number 01-12-00956-CR; trial court case number 10CR2359. Appellate cause number 01-12-00958-CR; trial court case number 10CR2028. Appellate cause number 01-12-00964-CR; trial court cause number 10CR2358. Appellate cause number 01-12-00965-CR; trial court cause number 10CR2361. A jury found appellant, Kimberly Shano, guilty of intoxication
manslaughter,2 two separate offenses of accident involving personal injury or
death,3 and aggravated assault with a deadly weapon.4 The jury assessed her
punishment at confinement for twenty years for intoxication manslaughter, ten
years for each offense of accident involving personal injury or death, and fifteen
years for aggravated assault with a deadly weapon. In three issues, appellant
contends that the evidence is legally insufficient to support her convictions and the
trial court erred in denying her motions to suppress her statements and for a new
trial.
We affirm.
Background
The surviving complainant testified that on July 7, 2010, she, who was
twelve years old, and her brother, who was fifteen years old, went to their
grandmother’s home to help her clean her house and take care of her dogs. They
left their grandmother’s home to walk to a friend’s house, which was five blocks
away. She explained that they did not make it there, and she had only a “foggy”
memory of a police officer later asking her for her address before awaking in a
2 See TEX. PENAL CODE ANN. § 49.08(a) (Vernon 2011). 3 See TEX. TRANSP. CODE ANN. § 550.021 (Vernon Supp. 2013), § 550.023 (Vernon 2011). 4 See TEX. PENAL CODE ANN. § 22.01 (Vernon Supp. 2013), § 22.02 (Vernon 2011).
2 hospital. When she awoke, she found that her brother had been killed after a car
had hit them while they were walking. She learned that she had sustained a
concussion and injuries to her right arm, right hand, forehead, and the back of her
left leg. And she noted that her eyesight is not as good as it was before the
collision.
James Klenk testified that on July 7, 2010, while talking on his cellular
telephone outside the store where he worked on Bayshore Drive, he saw the
surviving complainant and her brother walking on the other side of the street, along
the shoulder “in the grass.” He noted that they started running, and then he heard
“squealing” tires and saw a gold car hit the children. The car went halfway into
“the ditch” before swerving back onto the road without stopping. Klenk explained
that the passenger side of the car struck the surviving complainant, throwing her
into the air, while the front end hit her brother, who “went up over the car,” hitting
the windshield. Klenk telephoned for emergency assistance, and he ran across the
street to help. The surviving complainant was awake, but “having trouble,” and
her brother was unconscious, lying face down in the ditch. Klenk held the boy’s
face up out of the water in the ditch. Although Klenk saw that there were two
people in the car, he did not see who was driving.
Francesca Villarreal testified that on July 7, 2010, when she and her husband
were driving home on Bayshore Drive, they saw the gold compact car that was
3 driving in front of them veer off the road to the right, hit something, and then
swerve back onto the road without braking or stopping. When the Villarreals
pulled up to where the car had left the road, they saw two bodies lying in the ditch,
and they stopped and jumped out of their truck to assist. Villarreal did not see who
was driving the gold car or how many people were in it.
Jaime Palco testified that on July 7, 2010, he, his wife, Mary Beth Palco, and
their children were driving home and had to detour around an accident on
Bayshore Drive. A few blocks away, Palco noticed the smashed windshield of a
car that was “moving really fast” and stopped “suddenly” when it and Palco’s car
stopped at a stop sign. As the other car continued on, he noted that the car swerved
into another lane and almost hit a fire hydrant. At some point, the other car
stopped, and Palco got out of his car to ask the people in the other car if they
needed help. He explained that the driver of the car had straight, black hair and the
passenger had dark brown, wavy hair. The driver of the other car then sped away,
and the Palcos drove around to try to find the car. When the Palcos saw the same
car parked in a driveway by a trailer home, Mary Beth called for emergency
assistance and reported the address of the trailer home where they found the car,
which, she testified, was a gold Toyota Camry. During a subsequent interview
with a police officer, Palco noted that the driver of the gold car was wearing a
black shirt, and he later identified appellant as the driver.
4 Galveston County Sheriff’s Office (“GCSO”) Sergeant G. Hayes testified
that on July 7, 2010, he was asked to act as the reconstructionist of the auto-
pedestrian collision that occurred on Bayshore Drive. A dispatcher then notified
Hayes that witnesses had reported driving behind a car that might have been
involved in the collision. When Hayes arrived at the trailer home, he saw the
reported gold Toyota Camry parked in the driveway, saw damage to the car, and
noticed hair embedded in its windshield. When he went to the door of the trailer
home, he found Jason and Tabitha Ross, the owners, who both told Hayes,
“without hesitation,” that the driver of the Camry was in the back of the home.
Hayes found appellant in the bathroom, “bent over,” and facing the opposite
direction. Appellant did not respond to Hayes until he put his hands on her back,
and she then appeared “dazed” and “confused.” Hayes instructed appellant to turn
around, and he put handcuffs on her to take her back to the collision scene, where a
criminal investigation was still ongoing. Hayes explained that he had to support
appellant as they walked through the trailer home because she appeared to be
impaired and stumbled and almost fell. Hayes noted that although he did not say
anything to appellant, as they walked out the front door of the home, she asked
Hayes, “[H]ow the people were”?
After Sergeant Hayes placed appellant into his patrol car, he told her that he
was detaining her because she had been operating a car that was suspected of
5 having been involved in a hit-and-run collision. After appellant told Hayes that
she was not the driver of the car at the time of the collision and Tabitha Ross was
the driver, Hayes told Ross that she would also be detained. Hayes noted that later
in the evening, when Hayes interviewed Ross, she appeared “very much” to be
intoxicated or impaired. From his investigation and all of the information that he
received, Hayes opined that appellant was the driver of the car at the time it
collided with the surviving complainant and her brother. He further noted that no
other person was at the trailer home or outside the home while he was there.
GCSO Deputy J. Manuel testified that on July 7, 2010, he was dispatched to
the collision scene on Bayshore Drive. When Sergeant Hayes came to the scene
with appellant, he told Manuel that he “possibly” had the driver of the car and
suspected that she was intoxicated, but not with alcohol. Manuel went to Hayes’s
patrol car, removed appellant’s handcuffs, and took her to the area near his patrol
car, where he asked her if she had consumed any alcohol that day. After appellant
told him that she had previously taken two Xanax tablets for anxiety, he explained
that he would administer field sobriety tests to her. During the field sobriety tests,
appellant asked Manuel, “Are the kids okay?” After administering the tests,
Manuel asked appellant additional questions about when she had taken the Xanax
tablets, whether she had taken any other drugs, and where she and Tabitha Ross
had been before the collision. Appellant explained that after she and Ross had
6 gone to a store, they “switched” positions in the car because Ross could not drive.
After Manuel asked appellant who was the driver of the car at the time of the
collision, she responded that she was the driver. Appellant also told Manuel that
she had not consumed any alcohol or other intoxicant in the time between the
collision and the time that Hayes detained her at the Rosses’ trailer home.
After administering the field sobriety tests to appellant, Deputy Manuel
concluded that she was intoxicated, and he placed her under arrest. Manuel
explained that he then took appellant to a hospital to have her blood tested, and, on
the way, she again asked about the two children and stated that the children
“weren’t in the grass. They were on the road. That’s why I jerked.” The blood
test results revealed that appellant had the drugs Alprazolam, Clonazepam,
Hydrocodone, Carisoprodol, and Meprobamate in her system.
Tabitha Ross testified about her prior felony convictions and that although
she had criminal charges pending against her, the State did not offer her any
“deals” in exchange for her testimony against appellant. Ross explained that in
July 2010, appellant stayed with the Rosses at their trailer home for several days.
On the morning of July 7, 2010, Ross and appellant smoked a marijuana cigarette
and took a drug called “Somas.” At lunchtime, Ross took Klonopin, Vicodin, and
more Somas. That afternoon, she and appellant drove the gold Camry to pick up
her husband, Jason Ross, from work. Afterward, the Rosses drove appellant to
7 meet someone, and they later picked her up and went to the Rosses’ home, where
Ross took “a few more” Somas and two Xanax tablets that appellant had given her.
After discussing what to have for dinner, Ross drove appellant to a convenience
store, where Ross bought a cup of soup. Appellant wanted food from a Jack-In-
The-Box restaurant, but Ross stated that she could not drive because of the effect
of the drugs she had taken. Appellant then drove the car. As appellant drove the
car down Bayshore Drive, Ross bent down to look for her cellular telephone in her
purse that was on the floor. She then felt the car hit something. Ross looked up,
but could not see anything through her side of the windshield because it was badly
damaged. Ross said, “Oh, my God. What did you hit?” Appellant then said
something like, “No one saw us. It was mailboxes. And I just went in the grass. It
was mailboxes.” Ross asked appellant to stop the car, but appellant kept driving.
Ross then told appellant to take her home to her husband because he would know
what to do. Ross explained that she remembered that a white car was trying to
follow them and appellant almost hit it. When they returned to the Rosses’ trailer
home, Ross told her husband that appellant had hit something with the car, but she
did not know what they had hit because she did not see it. Appellant said that she
would pay for the damage. Appellant went inside the home and into the bathroom,
where she took some pills. When Sergeant Hayes arrived at the trailer home and
asked for the driver of the car, Ross told him that appellant was inside in the
8 bathroom. Hayes took Ross in handcuffs back to the collision scene and to a
GCSO station to be interviewed. Ross explained that appellant had not driven the
car before the day of the collision.
Jason Ross testified that he is married to Tabitha Ross, but they were
separated at the time of trial. He explained that he had prior felony convictions
and although a charge of child abandonment was then pending against him in
Galveston County, the State had not offered him anything in exchange for his
testimony and he did not expect any leniency for his testimony. Ross stated that on
July 7, 2010, Tabitha Ross drove the gold Camry to pick him up from work and
appellant was with her. After they arrived, he drove them back to the trailer home.
His wife and appellant then left to go to a store. When the two women returned,
Ross could see that the car, which had been in perfect condition before, was
“wrecked.” He saw hair and blood on the car’s hood and stuck in the windshield.
He stated that appellant was in the driver’s seat and his wife was in the passenger’s
seat. As appellant ran inside the home, Tabitha told him that while she was eating
her soup in the car, she realized that appellant had hit something, but she did not
know what appellant had hit, although she thought appellant had hit some
mailboxes. Immediately afterward, Sergeant Hayes arrived and asked for the driver
of the car, and Ross told him that she was inside the trailer home. Ross could tell
9 that both women were “tripping on something” and “under the influence,” and he
noted that his wife has a “drug problem” and “eats a lot of pills.”
Dr. Sean Wenngroff testified that he is an obstetrician and on July 28, 2010,
a few weeks after the collision, he saw appellant for a routine prenatal visit.
Wenngroff explained that, during the visit, appellant told him that she was the
driver of a car that had hit two children by a road and she was not wearing a
seatbelt at the time. Appellant also told Wenngroff that “the kids fell in a ditch”
and she “kept going.”
Dr. Victor Scarano, a psychiatrist, testified that he performed a mental-
competency evaluation on appellant. He noted that the first time that he met with
appellant, she did not remember what happened on July 7, 2010, but told him that
she had taken Xanax, Klonopin, Vicodin, and Soma before the collision. Scarano
diagnosed appellant with poly-substance abuse and dependence, and he opined that
her mental-health issues developed after and because of her drug abuse. Although
appellant’s medical records revealed that she previously had been diagnosed with
schizophrenia, having delusions, and bipolar disorder, her substance-abuse disorder
pre-dated the psychiatric diagnoses. Scarano explained that drug abusers can
exhibit symptoms of schizophrenia or bipolar disorder, but not actually have such
disorders. And he opined that appellant’s drug abuse and voluntary intoxication
were related to the collision and any diagnosis of schizophrenia or bipolar disorder
10 was unrelated. Scarano further explained that some individuals with schizophrenia
or bipolar disorder are susceptible to suggestions that something happened that
may not have actually happened, and, at the time of the collision, appellant had
some risk factors that would be present in someone who could confess under a
delusion. Although it was possible that appellant falsely confessed, Scarano’s
opinion, to a reasonable degree of medical certainty, was that the factors that go
into making a false confession were not present in her case.
Maria Shehu testified that she lives in a house next door to the Rosses’
trailer home and, sometime during the summer of 2010, she was sitting on her
porch when she saw a gold Toyota Camry speeding as it made the turn into the
Rosses’ driveway. Shehu explained that she saw Tabitha Ross get out from
driver’s side of the car, and she heard her say excitedly, “Oh, God. I don’t do
nothing wrong, but the police is going to take me. And who is going to take care
of my babies?” And twenty or thirty minutes later, she saw a police officer arrive
at the Rosses’ home.
April Jones testified that on July 7, 2010, she was babysitting at the Rosses’
trailer home while Tabitha Ross went to pick up her husband from work. Later,
Ross and appellant left again to get food and “score some pills,” so Jones stayed to
watch the children. Jones later heard the Rosses’ car pull into the driveway, and
she stepped outside. Jones then saw appellant get out of the passenger side of the
11 car and Ross jump out of the driver’s side of the car and run into the house. She
was acting “hysterical” and “crazy,” saying, “Oh, my God. I think we hit
mailboxes.” And, “I can’t go to jail. No one is going to take care of my kids.”
Sufficiency of the Evidence
In her third issue, appellant argues that the evidence is legally insufficient to
support her conviction because “the evidence conclusively establishes a reasonable
doubt.” Appellant asserts that the “[e]vidence tending to show [appellant] was the
driver [of the Camry at the time of the collision] is unreliable, based on witnesses’
poor memory, and biased.” She asserts, by contrast, the evidence showing that she
“was the passenger was corroborated by multiple witnesses.”
We review the legal sufficiency of the evidence by considering all of the
evidence “in the light most favorable to the prosecution” to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,
2788–89 (1979). Our role is that of a due process safeguard, ensuring only the
rationality of the trier of fact’s finding of the essential elements of the offense
beyond a reasonable doubt. See Moreno v. State, 755 S. W.2d 866, 867 (Tex.
Crim. App. 1988). We give deference to the responsibility of the fact finder to
fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable
inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
12 App. 2007). However, our duty requires us to “ensure that the evidence presented
actually supports a conclusion that the defendant committed” the criminal offense
of which he is accused. Id.
Jurors are the exclusive judges of the facts, the credibility of the witnesses,
and the weight to be given the witness’s testimony. Jaggers v. State, 125 S.W.3d
661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). And they may choose
to believe or disbelieve any part of a witness’s testimony. See Davis v. State, 177
S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “Likewise,
reconciliation of conflicts in the evidence is within the exclusive province of the
jury.” Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
A person commits the offense of intoxication manslaughter if the person:
(1) “operates a motor vehicle in a public place”; (2) “is intoxicated”; and (3) “by
reason of that intoxication causes the death of another by accident or mistake.”
TEX. PENAL CODE ANN. § 49.08(a) (Vernon 2011).
A person commits the offense of accident involving personal injury or death
if she fails to comply with the requirements that she stop and render assistance if
she is (1) a driver of a vehicle, (2) involved in an accident, (3) resulting in personal
injury or death of any person, and (4) intentionally and knowingly, (5) fails to stop
and render reasonable assistance. TEX. TRANSP. CODE ANN. § 550.021 (Vernon
Supp. 2013), § 550.023 (Vernon 2011); Goar v. State, 68 S.W.3d 269, 272 (Tex.
13 App.—Houston [14th Dist.] 2002, pet. ref’d). Circumstantial evidence is sufficient
evidence to prosecute for failure to stop and render assistance. See Clausen v.
State, 682 S.W.2d 328, 332 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d).
A person commits aggravated assault with a deadly weapon if she (1)
“intentionally, knowingly, or recklessly causes bodily injury to another” and (2)
“uses or exhibits a deadly weapon during the commission of the assault.” TEX.
PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp. 2013), § 22.02(a)(2) (Vernon
2011). “‘Bodily injury’ means physical pain, illness, or any impairment of
physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2013). A
“deadly weapon” is “(A) a firearm or anything manifestly designed, made, or
adapted for the purpose of inflicting death or serious bodily injury; or (B) anything
that in the manner of its use or intended use is capable of causing death or serious
bodily injury.” Id. at § 1.07(a)(17).
The jury heard evidence that appellant was the driver of the car that hit and
injured the surviving complainant and hit and killed her brother. Jason Ross
testified that when Tabitha Ross and appellant returned from driving to the
convenience store, appellant got out of the Camry from the driver’s seat and his
wife got out of Camry from the passenger seat. Tabitha testified that when she and
appellant left the convenience store, appellant drove the car because Tabitha was
14 too “intoxicated” to drive. She explained that appellant was driving the car when
appellant caused the car to hit the surviving complainant and her brother.
Jaime Palco testified that he was able to see the driver of the gold Toyota
Camry when the Camry stopped on the street, only a few blocks from the collision,
and Palco exited his car to see if anyone in the Camry needed help. He identified
the driver as appellant. Further, Palco and his wife both testified that the driver of
the Camry had straight, dark hair, which matched appellant, and the passenger had
wavy hair, which matched Tabitha Ross.
The jury also heard Dr. Wenngroff testify that during a routine prenatal
examination only a few weeks after the collision, appellant told him that she had
been driving a car that hit two children and she was not wearing her seatbelt at the
time. Wenngroff also testified that appellant told him that “the kids fell in a ditch”
Moreover, appellant told Deputy Manuel that she was the driver of the car at
the time of the collision because she and Tabitha Ross had “switched” at the
convenience store, as Ross could not drive. In the patrol car after she had been
placed under arrest, appellant told Manuel that the children “weren’t in the grass.
They were on the road. That’s why I jerked.” Appellant asserts that her own
“incriminating” statements that she was the driver of the Camry must be “put in the
context of her mental illness.” However, the State offered the testimony of Dr.
15 Scarano, who opined that the correct diagnosis for appellant was poly-substance
abuse, which pre-dated and caused any symptoms of mental illness that appellant
exhibited. The jury also heard Scarano opine that the “factors that go into the
making of false confessions were not present in this case.”
The State’s evidence that appellant was the driver of the Camry at the time
of the collision was contradicted only by the testimony of April Jones and Maria
Shehu. They each testified that, when the Camry pull into the Rosses’ trailer home
driveway, they saw Tabitha Ross get out of the driver’s side and heard her exclaim
excitedly that she could not go to jail because no one would take care of her
children. However, Sergeant Hayes testified that he did not see anyone other than
the Rosses or appellant inside or outside the Rosses’ trailer home while he was
there.
Viewing the evidence in the light most favorable to the jury’s verdict, as we
must, we conclude that a rational trier of fact could have reasonably found that
appellant committed the offenses of intoxication manslaughter, accident involving
serious personal injury or death, and aggravated assault with a deadly weapon.
Accordingly, we hold that the evidence is legally sufficient to support appellant’s
convictions of these offenses.
We overrule appellant’s third issue.
16 Motion to Suppress Statements
In her second issue, appellant argues that the trial court erred in denying her
motion to suppress the statements that she made to Deputy Manuel because her
detention was not temporary, but an arrest to which “her privilege against self-
incrimination applies.” The State asserts that appellant was temporarily detained
for an investigation and the detention did not become a custodial interrogation.
We review a ruling on a motion to suppress a defendant’s statement for an
abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.
2008). We give almost total deference to a trial court’s determination of historical
facts, especially if those determinations turn on witness credibility or demeanor,
and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.
Crim. App. 2008). At a suppression hearing, the trial court is the sole and
exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, the trial court may choose
to believe or to disbelieve all or any part of a witness’s testimony. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When the trial court makes findings
of fact with its ruling on a motion to suppress, an appellate court does not engage
in its own factual review, but determines only whether the record supports the trial
court’s fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
17 1990). Unless the trial court abuses its discretion in making a finding not
supported by the record, we will defer to the trial court’s fact findings and not
disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim.
App. 1991).
The State may not use statements that have been obtained through “custodial
interrogation” of an individual unless it has used procedural safeguards to secure
the Fifth Amendment privilege against self-incrimination. Miranda v. Arizona,
384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). And the Texas Code of Criminal
Procedure precludes the State’s use of statements from custodial interrogation
without compliance with these and additional procedural safeguards. TEX. CODE
CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2013).
The appropriate inquiry as to whether a person is “in custody,” for purposes
of their right to receive legal warnings is “whether there is a ‘formal arrest or
restraint on freedom of movement’ of the degree associated with a formal arrest.”
California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)); see also
Gardner v. State, 306 S.W.3d 274, 293–94 (Tex. Crim. App. 2009). A “custodial
interrogation” is questioning that is initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of her freedom in any
significant way. See Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App.
18 2007). If the individual is not yet in custody and the investigation is not yet at the
custodial stage, the individual’s Fifth Amendment rights have not yet come into
play. Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990); White v.
State, 395 S.W.3d 828, 834 (Tex. App.—Fort Worth 2013, no pet.).
The court of criminal appeals has discussed four general situations that may
constitute custody for purposes of Miranda and article 38.22: (1) the person is
physically deprived of her freedom of action in any significant way; (2) a police
officer tells the person she is not free to leave; (3) police officers create a situation
that would lead a reasonable person to believe that her freedom of movement has
been significantly restricted; and (4) there is probable cause to arrest the person,
and police officers do not tell the person that she is free to leave. Dowthitt v. State,
931 S.W.2d 244, 255 (Tex. Crim. App. 1996). In the first through third situations,
the restriction upon freedom of movement must amount to the degree associated
with an arrest rather than an investigative detention. Id. Under the fourth
situation, the law enforcement officer’s knowledge of probable cause must be
manifested to the suspect. Id. This manifestation could occur if information
substantiating probable cause is related by the officers to the suspect or by the
suspect to the officers. Id. Because probable cause is merely a factor, the
occurrence of situation four does not automatically establish custody. Id. Custody
will only then be established if the manifestation of probable cause, combined with
19 other circumstances, would lead a reasonable person to believe that she is under
restraint to the degree associated with an arrest. Id. Simply because an
interrogation begins as “noncustodial” does not preclude custody from arising later
if police conduct causes “a consensual inquiry to escalate into [a] custodial
interrogation.” Id. The defendant bears the burden at trial of proving that her
statements were the product of a custodial interrogation. Herrera, 241 S.W.3d at
526.
Non-Custodial Investigative Detention
Under the first and third situations discussed in Dowthitt, an investigative
detention can evolve into custody if police officers physically deprive a person of
significant freedom of movement, or create a situation in which a reasonable
person would believe that she is deprived of significant freedom of movement.
Dowthitt, 931 S.W.2d at 255. To constitute custody in such a situation, the
restriction upon the individual’s freedom of movement must be to the degree
associated with an arrest as opposed to an investigative detention. Although both
an investigative detention and an arrest involve a “restraint of liberty,” a non-
custodial investigative detention does not implicate a person’s Fifth Amendment
rights against self-incrimination. See Melton, 790 S.W.2d at 326; Mount v. State,
217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
20 Whether a person is under arrest or merely subject to a temporary
investigative detention is a matter of degree and depends upon the length of the
detention; the amount of force employed by officers; whether the officers actually
conduct an investigation and whether it is conducted at the original location or
whether the individual is transported to another location; the officer’s expressed
intent and whether he told the person that she was under arrest or being detained
for a temporary investigation; and other relevant factors. State v. Sheppard, 271
S.W.3d 281, 291 (Tex. Crim. App. 2008). Appellant argues that because she was
handcuffed, placed in the back of a patrol car, and taken to the scene of the
collision, the deprivation of her freedom of movement was significant and a
reasonable person would so believe.
Here, Sergeant Hayes found appellant at a location away from the collision
scene because she did not stop after hitting the surviving complainant and her
brother. Hayes went to the Rosses’ trailer home after witnesses had reported
seeing a damaged car suspected of having been involved in the collision and had
located it at the Rosses’ home. Hayes found appellant in the bathroom of the
Rosses’ home, and he placed her in handcuffs to transport her back to the collision
scene, where the investigation was ongoing. After Hayes placed appellant into his
patrol car, he told her that she was being detained because she had been operating a
car that was suspected of having been involved in a hit-and-run accident. When
21 appellant told Hayes that she was not the driver of the car, but Tabitha Ross was
the driver, Hayes asked another officer to transport Ross back to the collision scene
as well.
Deputy Manuel testified that when Sergeant Hayes brought appellant to him
at the collision scene, Hayes told him that he “possibly” had the driver. Manuel
then removed the handcuffs from appellant, and he allowed to her carry her purse
over to an area by his patrol car. Manuel explained that appellant was not in
custody during the time that he administered field sobriety tests to her and he did
not have probable cause to arrest her until after she had failed the tests. Moreover,
Hayes testified that James Klenk made the initial telephone call for emergency
assistance after the collision at 7:27 p.m., and the Palcos call, informing officers of
the location of the car suspected of being involved in the collision, was made ten
minutes later at 7:37 p.m. Manuel arrested appellant at 9:09 p.m., making her
detention less than an hour and a half from the time she was transported from the
Rosses’ trailer home to the time she was arrested.
Appellant asserts that the use of handcuffs on her did not serve the goals of
the investigation or maintenance of the status quo, and they were unnecessary for
officer safety. However, Sergeant Hayes’s use of handcuffs on appellant did not
automatically convert the temporary detention into a formal arrest. See Sheppard,
271 S.W.3d at 289. Hayes testified that because he was the only officer at the
22 Rosses’ trailer home, he was concerned about “seeking control” and “officer
safety.” And a videotape from Deputy Manuel’s patrol car shows that the
handcuffs had been removed and appellant was allowed to carry her purse from
Hayes’s patrol car to an area near Manuel’s patrol car before he administered the
field sobriety tests to her.
Given the totality of the circumstances, “a reasonable person would believe
the seizure was . . . sufficiently nonintrusive as to be only an investigatory
detention.” Id. at 291. Based on these facts, Sergeant Hayes’s and Deputy
Manuel’s restrictions on appellant’s freedom were consistent with an investigative
detention and did not rise to the degree associated with an arrest. The trial court
could have reasonably concluded that appellant was not in custody under the first
or third situations discussed in Dowthitt.
Probable Cause
Appellant further argues that the trial court erred in denying her motion to
suppress her statements to Deputy Manuel because “the trial court had already
been made aware” that she “was so impaired she could not walk.” And because
Sergeant Hayes and Manuel had probable cause to arrest her and did not inform
her that she was free to leave, the fourth situation discussed in Dowthitt,
implicating, custody applies. Appellant does not assert that Hayes or Manuel told
her that they had probable cause to arrest her.
23 Sergeant Hayes testified that because he had received additional information
from GCSO dispatch relating to the identity of the driver of the car involved in the
collision, he suspected that appellant was the driver. He told Deputy Manuel that
he “possibly” had the driver and suspected that she was intoxicated, although not
with alcohol. However, Manuel testified that before arresting appellant, he needed
to investigate further. He explained that as he conducted his investigation and
administered the field sobriety tests to appellant, he asked her standard questions
so that he could determine whether she was the driver of the car since it would
only be important to conduct the tests on the actual driver of the car. The
administration of the field sobriety tests was a logical part of Manuel’s
investigation. Even if Manuel had probable cause to arrest appellant before
administering the field sobriety tests, he did not convey that to appellant. And
while the manifestation of probable cause may trigger a finding of custody in
“certain unusual situations,” those conditions are not present in this case. See State
v. Stevenson, 958 S.W.2d 824, 829 n. 7 (Tex. Crim. App. 1997); see also Dowthitt,
931 S.W.2d at 255–57 (holding probable cause triggered finding of custody after
very long interrogation where suspect was never unaccompanied and officers
ignored requests to see his wife). Moreover, probable cause concerns only one of
the situations discussed in Dowthitt, and its existence alone does not establish
custody.
24 Considering the totality of the circumstances and giving due deference to the
trial court’s determination of historical facts, the trial court could have reasonably
concluded that Sergeant Hayes’s and Deputy Manuel’s actions under these
circumstances did not constitute a manifestation of probable cause and appellant
was not “in custody” under the fourth situation discussed in Dowthitt. See
Dowthitt, 931 S.W.2d at 255. The trial court could have reasonably concluded that
a reasonable person in appellant’s position would not think she was under arrest.
Therefore, appellant’s statements were not the product of a custodial interrogation
and her legal rights under Miranda and article 38.22 were not triggered. See
Melton, 790 S.W.2d at 326; White, 395 S.W.3d at 834. Accordingly, we hold that
the trial court did not err in denying appellant’s motion to suppress her statements
to Deputy Manuel on the ground that she was in custody and not informed of her
legal rights.
We overrule appellant’s second issue.
Motion for New Trial
In her first issue, appellant argues that the trial court erred in denying her
motion for new trial because there was “newly discovered evidence concerning a
deal between the Rosses and the prosecutors” and, without having this
impeachment evidence, she was denied a fair trial.
25 A trial court has discretion in deciding whether to grant a new trial based
upon the discovery of new evidence, and its ruling is reviewed for an abuse of
discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). The trial
court determines the credibility of the witnesses and whether the new evidence is
probably true. Id. The court of criminal appeals has described the “probably true”
requirement as “the whole record presents no good cause to doubt the credibility of
the witness whose testimony constitutes the new evidence, either by reason of the
facts proven at the trial or by the controverting affidavits on the motion, or
otherwise.” Id. at 38.
In a criminal case in Texas, “[a] new trial shall be granted an accused where
material evidence favorable to the accused has been discovered since trial.” TEX.
CODE CRIM. PROC. ANN. art. 40.001 (Vernon 2006). The court of criminal appeals
has developed a four-part test for courts to use in deciding motions for new trial
under article 40.001: whether (1) the newly discovered evidence was unknown or
unavailable to the movant at the time of her trial; (2) the movant’s failure to
discover or obtain the evidence was not due to a lack of diligence; (3) the new
evidence is admissible and is not merely cumulative, corroborative, collateral, or
impeaching; and (4) the new evidence is probably true and will probably bring
about a different result on another trial. Wallace v. State, 106 S.W.3d 103, 108
(Tex. Crim. App. 2003).
26 The State argues that appellant’s motion for new trial was fatally defective
because she did not attach a sworn verification of the allegations in the motion or
affidavits from witnesses who could testify concerning the newly discovered
evidence. Appellant argues that certified copies of criminal charges brought
against the Rosses and orders subsequently dismissing those charges “should have
been considered sufficient averment of fact or verification so as to not make her
Motion for a New Trial a general indefinite motion.”
Even if we could properly consider appellant’s arguments or the attachments
to her motion for new trial, her evidence does not show that she established her
right to a new trial. Appellant’s argument that she is entitled to a new trial is based
on her assertion that she would have used this evidence to impeach the Rosses. On
its face, her argument does not meet the Wallace test entitling her to a new trial.
106 S.W.3d at 108; see also TEX. CODE CRIM. PROC. ANN. art. 40.001. Although
the evidence that appellant attached to her motion, purporting to show that the
criminal charges against Jason and Tabitha Ross were dismissed, raises suspicions,
it does not establish that she was entitled to a new trial. Accordingly, we hold that
the trial court did not err in denying appellant’s motion for new trial.
We overrule appellant’s first issue.
27 Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).