Nicholas Arthur Dozet v. State

Opinion

ACCEPTED 01-18-00097-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 5/24/2018 11:21 AM CHRISTOPHER PRINE CLERK

No. 01-18-00097-CR FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/24/2018 11:21:54 AM In the First Court of Appeals CHRISTOPHER A. PRINE Houston, Texas Clerk

Nicholas Arthur Dozet,

Appellant,

Vs.

State of Texas,

Appellee.

Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 81296-CR

Brief for the State of Texas

Trey D. Picard Assistant Criminal District Attorney Jeri Yenne – Brazoria County State Bar No. 24027742 Criminal District Attorney 111 East Locust St., Suite 408A Angleton, Texas 77515 (979) 864-1233 (979) 864-1712 Fax treyp@brazoria-county.com

Oral argument is not requested. Attorney for Appellee Identity of Parties and Counsel

Appellant: Nicholas Arthur Dozet

Appellee: State of Texas

Attorney for appellant Joseph Kyle Verret on appeal: State Bar No. 24042932 Nguyen Jazrawi & Chen, LLP 3000 Wilcrest Dr., Suite 230 Houston, Texas 77042 (281) 764-7071 (281) 764-7071 Fax kyle@verretlaw.com

Attorney for appellant Ronald Helson at trial: State Bar No. 09405350 Attorney at Law 124 W. Myrtle St. Angleton, Texas 77515 (713) 666-6961

Attorney for the appellee Trey D. Picard on appeal: State Bar No. 24027742 Assistant Criminal District Attorney 111 East Locust St., Suite 408A Angleton, Texas 77515 (979) 864-1233 (979) 864-1712 Fax treyp@brazoria-county.com

ii Attorneys for the Appellee Rick Martin at Trial: State Bar No. 24073267 Assistant Criminal District Attorney Robin Griffith State Bar No. 240122738 Assistant Criminal District Attorney 111 East Locust St., Suite 408A Angleton, Texas 77515 (979) 864-1233 (979) 864-1712 Fax

iii Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iv

Index of Authorities ...................................................................................................v

Abbreviations for Record References .................................................................... viii

Statement of the Case.................................................................................................2

Issues Presented .........................................................................................................2

Statement of Facts ......................................................................................................3

Summary of the Argument.........................................................................................6

Statement on Oral Argument .....................................................................................7

Argument....................................................................................................................8

1) There was reasonable suspicion to detain the appellant ................................ 9

2) Because appellant was temporarily detained in the course of an investigation, and not in custody, no Miranda warnings were required before appellant was asked why he was at the scene ..................... 12

Prayer .......................................................................................................................20

Certificate of Service ...............................................................................................21

Certificate of Rule 9.4 Compliance .........................................................................22

Appendix ..................................................................................................................23

iv Index of Authorities Cases

Armendariz v. State, 123 S.W.3d 401 (Tex.Crim.App.2003) .................................................9

Arthur v. State, 216 S.W.3d 50 (Tex.App.—Fort Worth 2007, no pet.) ......................13

Balentine v. State, 71 S.W.3d 763 (Tex.Crim.App.2002) ...................................................8

Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984) .................................................13

Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App.2000) .................................................10

Cotton v. State, 480 S.W.3d 754 (Tex.App.—Houston [1st Dist.] 2015, no pet.) ........11

Crain v. State, 315 S.W.3d 43 (Tex.Crim.App.2010) .................................................15

Davis v. State, 783 S.W.2d 313 (Tex.App.—Corpus Christi 1990, pet. ref'd, untimely filed) .....................................................................11

Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App.1996) ........................................ 13, 16

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005) .............................................8, 9

Francis v. State, 896 S.W.2d 406 (Tex.App.—Houston [1st Dist.] 1995), pet. dism’d, 922 S.W.2d 176 (Tex.Crim.App.1996) ...........................16

v Francis v. State, 922 S.W.2d 176 (Tex.Crim.App.1996) ...............................................10

Galloway v. State, 778 S.W.2d 110 (Tex.App.—Houston [14th Dist.] 1989, no pet.) ......13

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997) ...................................................8

Herrera v. State, 241 S.W.3d 520 (Tex.Crim.App.2007) ...............................................13

Koch v. State, 484 S.W.3d 482 (Tex.App.—Houston [1st Dist.] 2016, no pet.) .................................................................... 13, 14, 16, 18

Mays v. State, 726 S.W.2d 937 (Tex.Crim.App.1986) ...............................................11

McCulley v. State, 352 S.W.3d 107 (Tex.App.—Fort Worth 2011, pet. ref’d) ................16

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ...........................1

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612 ........................................................12

Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App.2006) .................................................8

Rhodes v. State, 945 S.W.2d 115 (Tex.Crim.App.1997), cert. denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997) .........................9

Spillers v. State, No. 01-15-00935-CR, 2017 WL 1738095 (Tex.App.—Houston [1st Dist.], May 4, 2017, pet. ref’d) (mem. opinion, not designated for publication) ..................................14

vi St. George v. State, 237 S.W.3d 720 (Tex.Crim.App.2007) .................................................8

Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526 (1994) .................................................13

State v. Saenz, 411 S.W.3d 488 (Tex.Crim.App.2013) ...............................................14

State v. Sheppard, 271 S.W.3d 281 (Tex.Crim.App.2008) .................................................9

State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App.1997) (en banc) ...............................17

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) .............................10

Woods v. State, 970 S.W.2d 770 (Tex.App.—Austin 1998, pet. ref’d)........................10

Zayas v. State, 972 S.W.2d 779 (Tex.App.—Corpus Christi 1998, pet. ref’d) .............9

Statutes

TEX. CODE CRIM. PROC. ANN. art. 15.22 (Vernon 2015) ...........................................9

TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2018) .........................................12

TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2011) ..............................................1

TEX. PENAL CODE ANN. § 30.05(a)(1) (Vernon 2011) ...........................................11

vii Abbreviations for Record References

Abbreviation Record

1 RR 2:532 Reporter’s Record, vol. 2, page 532.

2 CR 0000045 Clerk’s Record, page 45.

3 Ant. Br. 5 Appellant’s Brief, page 5.

4 Apx. Ex. 1 State’s Appendix, Exhibit 1.

5 RR 5: Sx. 1 Reporter’s Record, vol. 5, State’s Exhibit 1.

viii Statement of the Case

Appellant was indicted for burglary of a building (CR 000006). See

TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2011). A jury found him guilty of

the lesser included offense of criminal trespass (CR 000079, 000082, 000106). The

trial court sentenced him to six months’ confinement in the county jail (CR

000106). Trial occurred in the 149th District Court for Brazoria County, Texas. In a

single issue, appellant argues the trial court abused its discretion by overruling his

motion to suppress certain statements under Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966).

1 Issues Presented

At issue is whether appellant was reasonably detained, and not under

arrest, when he was asked who he was and why he was at the scene of an alleged

burglary by a responding officer.

2 Statement of Facts

Appellant is a homeless person who was living in one or more of the

concession stands located at the athletic fields for Angleton Independent School

District. On the evening of February 14, 2017, appellant was discovered inside a

concession stand for the school district baseball field by the parent of a student,

Lynda Thomas (RR 3:93, 3:110). Ms. Thomas is the parent of a student, and was

volunteering for an athletic booster club at a different concession stand nearby for

a high school soccer game (RR 3:105-06, 3:109). Ms. Thomas was asked to go

pick up additional supplies, during which she stopped by the concession stand at

the baseball field (RR 3:111).

There was no school activity at that time and the concession stand was

closed (RR 3:99, 3:115). Upon entering a locked storage room at the location, Ms.

Thomas was startled to find appellant standing inside (RR 3:113-14). Appellant

quickly left the scene (RR 3:114). Patrol officers were called from a nearby school

district basketball game. Ms. Thomas gave the officers a description of the

appellant. She also later observed that some of the food supplies for the concession

stand appeared to have been eaten (RR3:116). After about a 20-minute search for

the appellant that evening, however, the officers were unable to locate him (RR

3:95-96, 3:114).

3 On the early evening of March 2, 2017, appellant was seen at the

loitering at the school baseball field by Brian Lostracco, an Angleton ISD baseball

coach who was there watering the baseball field (RR 3:131-33). At that time, there

was no game or other activity at that location, and the concession stand was closed.

Knowing about the earlier break-in at the concession stand, Coach Lostracco called

the school district police chief who dispatched uniformed patrol officers to that

location (RR 3:136, 3:168-69).

Upon arrival of ISD police officers, Coach Lostracco entered the

concession stand with one of the officers and saw appellant crouching down inside,

wearing one of the baseball shirts that were sold at the stand (RR 3:139-40, 3:142).

The coach also testified that appellant likely gained access to the interior of the

building from a family restroom (which was not usually locked after hours and

shared a common wall) through a crawl space in the ceiling (RR 3:139-40).

Appellant ran out of a separate entrance to the concession stand when the coach

and patrol officer entered (RR 3:137, 3:140). As he exited the building, appellant

was intercepted by Angleton ISD Officer Ronnie Falks who had walked around the

outside of the building to the second entrance (RR 3:140, 3:170-71).

Officer Falks later testified that, at the time of the initial

confrontation, he and the other responding officer were simply trying to get

appellant out of the building. Officer Falks knew that appellant “was somewhere

4 where he wasn’t supposed to be,” and believed that appellant was “criminally

trespassing” (RR 3:172). Furthermore, the February break-in at the same location

was widely known at the ISD police department, and the officers were actively

looking for a suspect (RR 3:178-79). Appellant matched the description of that

suspect (RR 3:179).

Officer Falks testified that appellant was not handcuffed and was not

placed under arrest immediately (RR 3:172). Instead, appellant was initially

detained in the course of the investigation. (RR 3:172-74). Officer Falks asked

appellant “what his name was and what he was doing” at (RR 3:172). No Miranda

warning was given to the appellant before the officer asked the question. During

trial, when the prosecutor later asked Officer Falks (over the defense counsel’s

objection) if appellant provided a “valid reason for being in the concession stand,”

the officer replied, “No. I think he said he was sleeping there. He had no place to

go” (RR 3:175).

5 Summary of the Argument

Appellant was properly detained in the course of an investigation by

officers who were called to the scene of an alleged burglary on school district

property. Because he was briefly detained at the scene as part of an investigation

(and not under arrest) no Miranda warning was required before Officer Falks

asked appellant what he was doing at the concession stand. Therefore, the trial

court properly overruled appellant’s objection to the officer’s testimony regarding

what appellant told him.

6 Statement on Oral Argument

Pursuant to Rule 39.1(c) of the Texas Rules of Appellate Procedure,

oral argument is not necessary because the facts and legal arguments are

adequately presented in the briefs and record.

7 Argument

A trial court’s ruling on a motion to suppress is reviewed for abuse of

discretion. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). In

reviewing a trial court’s determination of the reasonableness of a temporary

investigative detention, appellate courts use a bifurcated standard of review. See

Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). Almost total deference

is given to a trial court’s determination of the historical facts that the record

supports especially when the trial court’s fact findings are based on an evaluation

of credibility and demeanor. See St. George v. State, 237 S.W.3d 720, 725

(Tex.Crim.App.2007).

The same level of deference is also afforded to a trial court’s ruling on

application of law to fact questions or mixed questions of law and fact if the

resolution of those questions also turn on an evaluation of credibility and

demeanor. See Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.Crim.App.2006).

However, if mixed questions of law and fact do not fall within these categories,

appellate courts may conduct a de novo review of the trial court’s ruling. See

Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997).

In addition, when as here no findings of fact were requested nor filed,

the court of appeals views the evidence in the light most favorable to the trial

court’s ruling and assume the trial court made implicit findings of fact supported

8 by the record. See Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). If the

trial court’s decision is correct on any theory of the law applicable to the case, it

will be sustained. See Armendariz v. State, 123 S.W.3d 401, 404

(Tex.Crim.App.2003). Further, the legal question of whether the totality of the

circumstances is sufficient to support an officer’s reasonable suspicion underlying

an investigatory detention is reviewed de novo. See State v. Sheppard, 271 S.W.3d

281, 286–87 (Tex.Crim.App.2008).

1) There was reasonable suspicion to detain the appellant.

The Fourth Amendment does not forbid all seizures, just unreasonable

seizures; see Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997), cert.

denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997), and, for purposes of

constitutional analysis, both investigative detentions and arrests are seizures of a

citizen by law enforcement officers. See Zayas v. State, 972 S.W.2d 779, 789

(Tex.App.—Corpus Christi 1998, pet. ref’d). The differences between the two are

the degrees of intrusion involved and the different legal justifications required of

each. See id. at 788–89. By definition, “[a] person is arrested when he has been

actually placed under restraint or taken into custody by an officer or person

executing a warrant of arrest, or by an officer or person arresting without a

warrant.” See TEX. CODE CRIM. PROC. ANN. art. 15.22 (Vernon 2015).

9 This “restraint of liberty” standard, however, is not adequate when

distinguishing between an arrest and a detention because it is a characteristic

common to both. See Francis v. State, 922 S.W.2d 176, 179 (Tex.Crim.App.1996)

(J. Baird, concurring and dissenting). Whether a person is under arrest or subject to

a temporary investigative detention is a matter of degree and depends on the length

of the detention, the amount of force employed, and whether the officer actually

conducts an investigation. See Woods v. State, 970 S.W.2d 770, 775 (Tex.App.—

Austin 1998, pet. ref’d). A detention, as opposed to an arrest, may be justified on

less than probable cause if a person is reasonably suspected of criminal activity

based on specific, articulable facts. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct.

1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328

(Tex.Crim.App.2000).

An officer conducts a lawful temporary detention when he or she has

reasonable suspicion to believe that an individual is violating the law. See Ford,

158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that when combined with

rational inferences from those facts, would lead him to reasonably conclude that a

particular person is, has been, or soon will be engaged in criminal activity. See id.

at 492. In this case, the officer testified he believed appellant had committed the

offense of criminal trespass (RR 3:172).

10 In this case, Officer Falks believed the appellant had committed (at

the very least) criminal trespass (RR 3:172). A person commits the crime of

criminal trespass if he “... enters or remains on or in property of another, including

residential land, agricultural land, a recreational vehicle park, a building, or an

aircraft or other vehicle, without effective consent and the person ... had notice that

the entry was forbidden....” See TEX. PENAL CODE ANN. § 30.05(a)(1) (Vernon

2011). Given the factual circumstances in which the officers detained the appellant

(i.e., the time of night, the fact that the concession stand was closed and locked, the

absence of school activities in that area, the prior complaints about an individual

trespassing in the concession stand, and the attempted rapid departure of appellant

from the scene as the officers approached) a reasonable officer witnessing the

circumstances had, at the very least, reasonable suspicion to believe a criminal

trespass was afoot. E.g., Cotton v. State, 480 S.W.3d 754, 759 (Tex.App.—

Houston [1st Dist.] 2015, no pet.).1

1 For another example, in Mays v. State, 726 S.W.2d 937 (Tex.Crim.App.1986), a police officer received a radio call regarding a burglary at a particular apartment. See id. at 943. When the officer arrived at the apartment, he saw one man standing at the apartment's front door and a second man sitting on the steps leading up to the apartment. See id. After the men confirmed they were together, the officer ordered them to come to him. The two men complied and were then detained. See id. The Court of Criminal Appeals determined the officer was justified in detaining the men since he reasonably believed they might have been involved in the recent burglary. See id. at 944; see also Davis v. State, 783 S.W.2d 313, 315–16 (Tex.App.—Corpus Christi 1990, pet. ref'd, untimely filed) (while responding to burglary alarm late at night, police officer who saw man riding bicycle two blocks from crime scene was justified in maintaining status quo momentarily while obtaining more information).

11 Appellant was susceptible to being lawfully detained for further

investigation by the officers when they responded to Coach Lostracco’s call that an

unknown individual was loitering around the school baseball fields after hours.

Based on the totality of the circumstances, there was a reasonable basis for the

responding officers’ suspicion that appellant may have been involved in a burglary,

or was trespassing at that time (RR 3:174-75). Upon locating appellant inside the

closed baseball concession stand, Officer Falks temporarily detained appellant,

who was attempting to leave the scene, in order to determine the appellant’s

identity and obtain more information—specifically, if there was a valid reason for

appellant being on ISD property. Although appellant was not free to leave, the

totality of the circumstances does not support the conclusion appellant was under

arrest at that time.

2) Because appellant was temporarily detained in the course of an investigation, and not in custody, no Miranda warnings were required before appellant was asked why he was at the scene.

The need for Miranda warnings arises when a person has been

subjected to a custodial interrogation. See Miranda, 384 U.S. at 444, 86 S.Ct. at

1612. Article 38.22 of the code of criminal procedure generally precludes the use

of statements that result from custodial interrogation absent compliance with its

procedural safeguards. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2018).

If a statement is not the result of a custodial interrogation, however, neither

12 Miranda nor article 38.22 requires its suppression. See Miranda, 384 U.S. at 444,

86 S.Ct. at 1612; Galloway v. State, 778 S.W.2d 110, 112 (Tex.App.—Houston

[14th Dist.] 1989, no pet.); Arthur v. State, 216 S.W.3d 50, 54–55 (Tex.App.—Fort

Worth 2007, no pet.). The defendant also bears the burden of proving that a

statement was the product of a custodial interrogation. See Herrera v. State, 241

S.W.3d 520, 526 (Tex.Crim.App.2007).

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. See 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. See Koch v. State, 484 S.W.3d 482, 489 (Tex.App.—

Houston [1st Dist.] 2016, no pet.) (citing Sheppard, 271 S.W.3d at 289). Officers

may use such force as is reasonably necessary to effect the goal of the detention—

investigation, maintenance of the status quo, or officer safety. See id.; see also

13 Spillers v. State, No. 01-15-00935-CR, 2017 WL 1738095, at *4 (Tex.App.—

Houston [1st Dist.], May 4, 2017, pet. ref’d) (mem. opinion, not designated for

publication) (the fact that officer did not permit defendant to leave the scene during

the ongoing investigation of a serious accident, alone, did not elevate the

temporary detention to an arrest).

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.”

See 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. See Sheppard, 271 S.W.3d at 291. When asked why he detained the

appellant, one of the officers explained:

STATE: For what purpose was [appellant] being detained at that point?

OFFICER: For questioning, why he was in there.

STATE: So, you hadn’t detained him to put him under arrest at that point, had you?

14 OFFICER: No.

STATE: Was this during -- he was being detained during the course of the investigation?

OFFICER: Yes, that’s exactly what it was, yeah.

STATE: So, what did he say to you at that point?

DEFENSE: Judge, I’m going to renew my objection.2

COURT: Overruled.

...

STATE: Did he have any, in your opinion, valid reason for being in the concession stand?

OFFICER: No. I think he said he was sleeping there. He had no place to go.

(RR 3:174-75).

An investigative detention “occurs when a person yields to the police

officer's show of authority under a reasonable belief that he is not free to leave.”

See Crain v. State, 315 S.W.3d 43, 49 (Tex.Crim.App.2010). Appellant complains

that the trial court erred in denying his motion to suppress because he was in

custody but not given Miranda warnings before he was asked why he was inside

2 Defense counsel previously objected on the grounds of hearsay and because appellant was detained and was not Mirandized before questioning (RR 3:171-72).

15 the concession stand. Appellant argues he was in custody at the time of questioning

because: (1) he was not free to leave; (2) he was not told he was free to leave; and

(3) the officer subjectively believed there was probable cause to arrest the

appellant for criminal trespass (Ant. Br. 14-15).3 But the mere fact appellant was

not free to leave at the time of questioning does not automatically mean appellant

was in custody for purposes of Miranda. E.g., Francis v. State, 896 S.W.2d 406,

410 (Tex.App.—Houston [1st Dist.] 1995), pet. dism’d, 922 S.W.2d 176

(Tex.Crim.App.1996) (“one is not free to leave both when arrested and when

temporarily detained for an investigation”). Whether he is placed in custody for a

criminal offense or detained in the course of an investigation, a person is not “free

to leave” under either scenario.

3 The Court of Criminal Appeals has set out “at least four general situations” that may constitute custody:

(1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.

See Koch, 484 S.W.3d at 488 (citing Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255)). The fourth scenario, however, “does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.” See McCulley v. State, 352 S.W.3d 107, 116 (Tex.App.—Fort Worth 2011, pet. ref’d) (emphasis added) (citing Dowthitt, 931 S.W.2d at 255).

16 Officer Falks momentarily detained appellant at the scene in order to

determine appellant’s identity and why he was on school property. This is

permissible under a lawful detention based on reasonable suspicion. Appellant

complains that his detention escalated into custody because Officer Falks believed

he had probable cause to arrest appellant for criminal trespass. But the subjective

intent as to whether the officer has probable cause for an arrest 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 (emphasis added); 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.”). Appellant was

never told he was a suspect for any criminal offense, or under arrest, before being

asked why he was on school property.

Considering all of the circumstances in the light most favorable to the

trial court's ruling, the trial court did not err in concluding that Miranda was not

triggered because, at the time appellant was questioned by Officer Falks outside of

the concession stand. Appellant was not in custody at that time; rather, he was

subjected to a reasonable investigative detention. E.g., 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

17 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). Because he was detained and not under arrest at

the time of questioning, appellant’s complaint that the requirements of Miranda

were not followed should be overruled.

18 Conclusion

Appellant was lawfully detained and questioned about his identity and

why he was inside the concession stand. Appellant was not a student or faculty

member and had no apparent authorization to be inside a closed school district

facility. Consequently, appellant was detained by officer Falks in furtherance of an

investigation of an apparent burglary. The fact the officer subjectively believed

appellant was trespassing is immaterial because that belief was never manifested to

the appellant. Accordingly, because appellant was detained and not under arrest or

in custody, no Miranda warning was required before Officer Falks asked appellant

who he was and why he was there.

19 Prayer

For these reasons, the State asks the Court of Appeals to overrule

appellant’s issues on appeal and affirm the trial court’s judgment.

Respectfully submitted,

/s/ Jeri Yenne _____________________________________ Jeri Yenne State Bar No. 04240950 Brazoria County Criminal District Attorney

/s/ Trey D. Picard _____________________________________ Trey D. Picard State Bar No. 24027742 Assistant Criminal District Attorney

111 East Locust St., Suite 408A Angleton, Texas 77515 (979) 864-1233 (979) 864-1712 Fax treyp@brazoria-county.com

ATTORNEY FOR THE APPELLEE, THE STATE OF TEXAS

20 Certificate of Service

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d),

(e), I certify that I have served this document on all other parties, which are listed

below, on May 24, 2018:

Joseph Kyle Verret By: State Bar No. 24042932  personal delivery Nguyen Jazrawi & Chen, LLP 3000 Wilcrest Dr., Suite 230  mail Houston, Texas 77042  commercial delivery service (281) 764-7071  electronic delivery / fax (281) 764-7071 Fax kyle@verretlaw.com

/s/ Trey D. Picard _____________________________ Trey D. Picard Assistant Criminal District Attorney

21 Certificate of Rule 9.4 Compliance

I certify that this electronically filed document complies with Rule 9.4

of the Texas Rules of Appellate Procedure and that the number of words is: 4,148.

/s/ Trey D. Picard _____________________________ Trey D. Picard Assistant Criminal District Attorney

22 Appendix

No documents are attached.