Rafael Javier Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: April 7, 2006
• Docket: 13-02-00607-CR
• Status: Published

Opinion

                              NUMBER 13-02-607-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

RAFAEL JAVIER RODRIGUEZ,                                                     Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                  Appellee.

      On appeal from the 92nd District Court of Hidalgo County, Texas.

                                          O P I N I O N

                                        Before the Court En Banc

                                        Opinion by Justice Yañez             

A jury found appellant, Rafael Javier Rodriguez, guilty of intoxication assault^[1] and sentenced him to six years of imprisonment and a $10,000.00 fine.  By eleven issues, appellant challenges (1) the legal and factual sufficiency of the evidence to support his conviction (issues one and two); (2) the trial court=s denial of his motion to suppress on grounds (a) he was unlawfully arrested (issue three) and/or (b) he was unlawfully detained (issue four); (3) admission of the videotape in violation of articles 38.22 and 38.23 of the code of criminal procedure (issue five); (4) admission of his refusal to take a breath test at his residence on grounds that (a) his continued detention was unlawful (issue six) and (b) he was not given the statutory warnings required to take a breath sample if he was under arrest, and if he was not under arrest (as the State argues), the request for a breath sample was improper (issue seven); (5) the exclusion of two photographs from evidence (issue eight); and (6) the denial of his motion for new trial on grounds that (a) the State failed to disclose evidence favorable to his defense (issue nine), (b) the newly-discovered favorable evidence likely would have changed the outcome of the trial (issue ten), and (c) his trial counsel was ineffective for failing to discover the favorable evidence (issue eleven).  We affirm.

                                                                I.  Background^[2]

At approximately 9:30 p.m. on the evening of November 8, 2001, appellant, then a municipal judge in Elsa, Texas, was driving a van on FM 88 near his residence in Elsa.  The van struck a motorcycle driven by Linda Perez.  At trial, Officer Jaime Cano testified that he was the first police officer to arrive at the scene of the accident. Cano testified that  when he arrived, he observed the motorcycle, missing its front wheel and driver, on the side of the road, approximately seventy-five feet from the van.  Onlookers gathered at the scene reported that Perez was pinned underneath the van.  EMS and fire department personnel removed Perez from under the van.  Cano testified that Perez had suffered severe injuries and that she was airlifted from the scene for emergency treatment. 

  After one of the onlookers identified appellant as the driver of the van, Officer Cano approached appellant and asked him what had occurred.  Appellant said he thought he had hit a dog.  Cano directed appellant to sit in Cano=s police car.  Officer Ricardo De Hoyos arrived and directed Officer Flavio Garcia to transport appellant to the police station in order to conduct a field sobriety test on appellant.  Garcia testified that he drove appellant to the police station in Cano=s police car; he was unaware that a video camera inside the car recorded his conversation with appellant during the drive.  De Hoyos testified that at the station, he conducted three field sobriety tests on appellant, which appellant passed.  Elsa Police Chief, Primitivo Rodriguez, testified that he observed only one of the field sobriety tests at the station and that appellant passed the test.  Shortly thereafter, appellant was released and was driven home by a friend, the Honorable Espiridion (ASpeedy@) Jackson, a justice of the peace for Hidalgo County at that time. 

Officer J. P. Rodriguez testified that at the time, he was the only Elsa police officer certified to conduct field sobriety tests.  According to Officer Rodriguez, when he arrived at the police station, appellant had been released.  After Officer Rodriguez advised the Chief that Officer De Hoyos was not certified to conduct field sobriety tests, the Chief ordered Officer Rodriguez to go to appellant=s house to conduct another field sobriety test and obtain a blood or breath specimen from appellant.  Officer Rodriguez testified that approximately an hour and forty minutes after the accident, he arrived at appellant=s residence and performed three additional field sobriety tests, which appellant passed.  Officer Rodriguez testified that he attempted to read appellant the required statutory warnings, but he was unable to do so because appellant kept interrupting.  Officer Rodriguez testified that he requested that appellant provide either a breath or blood sample, but appellant refused.  

                                                II.  Legal and Factual Sufficiency

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction.

                                                         A.  Standard of Review

In a legal sufficiency review, we view all 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.^[3]  This standard gives Afull play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@^[4]

We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case.^[5]  ASuch a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.@^[6]

The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence.^[7]  As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony.^[8]  The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony.^[9]

In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.^[10]  We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses.^[11]  Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.^[12]

Here, appellant was convicted of intoxication assault.  Thus, a hypothetically correct jury charge would ask the jury if (1) appellant (2) operated a motor vehicle (3) while intoxicated, and (4) by reason of that intoxication, (5) caused serious bodily injury to another.^[13]

                                                                   B.  Analysis

                                                            1.  Legal Sufficiency

In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction.  Specifically, he contends the evidence is legally insufficient to support the elements of either (1) intoxication or (2) causation (that the accident was caused by reason of that intoxication).^[14]  The State contends the evidence is legally sufficient to support appellant=s conviction.

Officer Cano testified that when he approached appellant at the scene of the accident and escorted him to his police car, he observed that appellant was staggering badly and smelled strongly of alcohol.  According to Cano, appellant was staggering so badly that he had to hold on to Cano=s shoulder to keep from falling down.  He also testified that when he looked inside appellant=s van, he observed an open twenty-four-ounce can of beer on the driver=s side of the front console.  He also observed three unopened cans of beer on the floorboard behind the driver=s seat.  Cano testified that he prepared an accident report based on all the information he obtained investigating the accident.  According to the report, appellant was traveling southbound on FM 88, attempted to turn left, and failed to yield the  right-of-way to the motorcycle, causing the accident. 

Officer De Hoyos testified that when he first encountered appellant at the scene, appellant was sitting in Cano=s police car and smelled strongly of alcohol.  At the trial, De Hoyos initially testified that he did not request a breath sample from appellant at the station, but after being reminded of his grand jury testimony, he testified that he did ask appellant twice to submit to a breathalyzer test, but that appellant refused.   

Officer Garcia testified that during the ride to the police station, appellant said that the motorcycle did not have its lights on and that he thought he had hit a dog.  When they arrived at the station, appellant asked Garcia if he smelled like beer.  Garcia testified that at the station, he observed the second round of sobriety tests administered to appellant and, in his opinion, appellant did not Apass@ the tests because he was leaning on a filing cabinet.  Garcia testified that, in his opinion, appellant did not have the normal use of his physical or mental faculties at the time the tests were administered. 

Officer J. P. Rodriguez testified he did not encounter appellant at the scene because appellant had already been taken to the station.  He did observe, however, that the interior of the van smelled strongly of alcohol, the open can of beer in the driver=s front console,  and the unopened cans behind the driver=s seat.  He also testified that the open can of beer appeared to be full because he observed condensation on the outside of the can.  Rodriguez testified that appellant later told him that he had consumed two to four beers prior to the accident. 

Appellant testified that he did not see the motorcycle, but Afelt something hit the van@ when he turned.  Appellant testified that he later said the motorcycle=s lights were out and that he thought he had hit a dog.    

Perez, the victim, testified that she is a motorcycle safety instructor and that the headlight and two driving lights on her motorcycle come on automatically.  Perez testified that when the collision occurred, appellant=s van was traveling south on FM 88, but was in the northbound lane.   

 Viewing this evidence in a light most favorable to the verdict, we hold a jury could rationally conclude that appellant was intoxicated and that the accident was caused by that intoxication.  We overrule appellant=s first issue.

                                                          2.  Factual Sufficiency

By his second issue, appellant contends the evidence is factually insufficient to support the elements of (1) intoxication and (2) causation (that the accident was caused by reason of that intoxication). 

In addition to the evidence cited above, we note the following evidence relied upon by appellant.

Officer De Hoyos testified that at the police station, he performed three field sobriety tests on appellant and that appellant passed all three tests.  De Hoyos testified that he conducted a second field sobriety test in the presence of Chief Rodriguez.  After appellant passed the second test, Chief Rodriguez ordered that appellant be released.  Similarly, Chief Rodriguez testified that he was present when appellant took one of the field sobriety tests and that appellant passed the test.  Officer J. P. Rodriguez testified that approximately an hour and forty minutes after the accident, he conducted an additional three field sobriety tests at appellant=s residence, and appellant passed the tests.  Appellant testified that he had only consumed one beer the night of the accident and that he was not intoxicated.  According to appellant, the beer that was found in the driver=s front console was not his, but belonged to his friend, Speedy Jackson.  Jackson testified that he and appellant were together at a barbecue earlier in the evening and that he had consumed several beers; however, he did not recall whether he saw appellant drinking.  Appellant denied that he was in the wrong lane when the accident occurred.   

In conducting a factual sufficiency review, an appellate court must avoid substituting its judgment for that of the fact-finder and must not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to witness testimony.^[15]  We hold that a neutral review of the evidence demonstrates that the evidence is factually sufficient to support the jury=s verdict.  We overrule appellant=s second issue.

                                                         III.  Motion to Suppress

In his third issue, appellant contends the trial court erred in denying his motion to suppress because he was arrested without probable cause.  Appellant argues the trial court should have suppressed Athe fruits of everything derived from [his] unlawful arrest,@ including the videotape in the police car, the events at the police station, and any refusals to submit to a breath test at the police station or later at appellant=s residence.  Appellant argues the evidence should have been excluded pursuant to the Fourth Amendment to the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure.^[16]

Similarly, in his fourth issue, appellant contends that the trial court erred in denying his motion to suppress because his detention was unlawful.  Appellant argues that pursuant to the Fourth Amendment and article 38.23 of the code of criminal procedure, the trial court should have excluded the Afruits of everything derived from [his] unlawful detention,@ including the videotape in the police car, the events at the police station, and any refusals to submit to a breath test at the police station or later at appellant=s residence.

                                      A.  Standard of Review and Applicable Law

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion.^[17]  In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.^[18]  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.^[19]  We afford the same amount of deference to the trial court's ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.^[20]  However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.^[21]

 We uphold a trial court=s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.^[22]

                                                                   B.  Custody

                                                 1.  Applicable Law

As a general rule, a person is not in custody under Miranda^[23] during a routine traffic stop.^[24]  Detention and questioning by police officers during a DWI investigation, without more, is not custody.^[25]  A motorist is not in custody under Miranda Aduring a routine traffic stop for suspicion of DWI because the circumstances do not place the driver completely at the mercy of police.@^[26]  A[T]he prophylactic warnings required by Miranda do not attach until the officer has objectively created a custodial environment and has communicated to the accused his intention to effectuate custody to the accused himself.@^[27]

In determining whether an individual was in custody, the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.^[28]  The determination depends on the objective circumstances, not on the subjective views of either the interrogating officers or the person being questioned. ^[29] Moreover, the determination is made on an ad hoc basis.^[30]  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.^[31]  An Aarrest@ occurs Awhen a person=s liberty of movement is successfully restricted or restrained, whether this is achieved by an officer=s physical force or the suspect=s submission to the officer=s authority.@^[32]  An arrest is complete only if Aa reasonable person in the suspect=s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with a formal arrest.@^[33]  The subjective intent of either the police officer or the defendant is irrelevant.^[34]

The court of criminal appeals has outlined some general situations that may constitute custody, including the following:  (1) when the suspect is physically deprived of his or her freedom of action in any significant way, (2) when a law enforcement officer tells the suspect he or she cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe his or her 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 he or she is free to leave.^[35]  In the first, second, and third situations, the restrictions upon freedom of movement must rise to the degree associated with an arrest as opposed to an investigative detention.^[36]  With regard to the fourth scenario, the officers= knowledge of probable cause must be manifested to the subject.^[37]    The fact that an appellant becomes the focus of a DWI investigation does not automatically convert an investigatory detention into an arrest and custodial interrogation.^[38]  An officer=s knowledge of probable cause to arrest for a DWI does not automatically establish custody.^[39]  Numerous cases hold that the mere handcuffing of a suspect does not automatically transform an investigative stop into a full-blown arrest.^[40]

When a person is transported to a law enforcement facility by an officer in the course of an investigation, if the person was acting upon the invitation, request, or even the urging of an officer, and there were no threats that he would be taken in a forcible manner, and the accompaniment is voluntary, then the individual is not in custody.^[41]  Station-house questioning alone does not constitute custody.^[42]  However, police conduct during the encounter may cause a consensual inquiry to escalate into a custodial interrogation.^[43]

The Texas Court of Criminal Appeals stressed in Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997), that an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, and the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.^[44]  AThe propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly.@^[45]  Thus, the constitutional considerations for post‑stop investigations are whether the detention was too long in duration, whether police officers diligently pursued means of investigation that were likely to confirm or dispel their suspicions quickly, and whether police officers were unreasonable in recognizing less intrusive alternative means by which their objectives might have been accomplished.^[46]  A[A]n investigative detention implies that the obtrusive act is for the purpose of actually investigating.  Thus, where no investigation is undertaken[,] the detention cannot be considered investigatory and rises to the level of an arrest.@^[47]

                                                                  2.  Testimony

Here, Officer Cano testified that he was the first police officer to arrive at the scene of the accident.  After Officer Cano assisted emergency personnel in removing the victim from underneath the van, Cano approached appellant and asked him what happened.  Cano testified that appellant said he thought he had hit a dog.  Cano further testified that he directed appellant toward his police car and while walking to the car, he noticed  appellant smelled strongly of alcohol.  Cano also testified that appellant was staggering so badly that he had to hold on to Cano=s shoulder to keep from falling down.  Cano testified he did not conduct field sobriety tests at the scene of the accident because he was not certified to do so.  He also testified he did not call an outside law enforcement entity (such as DPS) to assist in conducting such tests because his boss, Chief Rodriguez, told him not to do so.^[48]  Cano testified that because he was concerned for appellant=s Asafety,@ he directed appellant to sit in his police car.  Cano testified that he did not consider appellant under arrest when he told him to sit in the police car.

Officer De Hoyos was the second police officer to arrive at the scene of the accident.  De Hoyos testified that he encountered appellant when appellant was escorted to Cano=s police car.  De Hoyos testified that he smelled alcohol on appellant=s breath.  De Hoyos ordered Officer Garcia to transport appellant to the police station so that a field sobriety test could be conducted on appellant.^[49]  De Hoyos testified he did not want to conduct the field sobriety tests at the scene because there were Aa lot of people@ there and his Amain concern was safety.@  De Hoyos testified that even though the accident occurred in front of appellant=s home, he would not have allowed appellant to go home or otherwise leave the scene of the accident.  De Hoyos testified he did not arrest appellant at the scene and did not tell appellant he was under arrest.  De Hoyos testified that he called DPS, even though Chief Rodriguez had told him not to do so.  A DPS trooper eventually arrived at the police station, but did not perform any sobriety tests on appellant because he had already been released. 

Officer Garcia testified that he transported appellant to the police station as ordered by Officer De Hoyos.  Garcia testified he was told to take appellant to the station before any DPS troopers arrived.  Garcia testified he was simply following orders and did not know why appellant was being taken to the station.  Garcia testified that if appellant had asked to be released on the way to the station, he would have called De Hoyos and asked for instruction.  Garcia testified he did not tell appellant he was under arrest and did not tell him he was free to leave.  Garcia testified that at the station, appellant was taken to the booking room, which is normally used for suspects that have been placed under arrest.  Garcia testified that he did not observe the first round of field sobriety tests that De Hoyos administered to appellant at the station, but observed the second round of tests.  Garcia testified that, in his opinion, appellant did not Apass@ the second round of tests because he  was leaning on a filing cabinet during the tests.  Garcia testified that in his opinion, appellant did not have the normal use of his physical or mental faculties at the time the tests were administered.

Appellant testified that Officer Cano put him in a police car at the scene and told him he (Cano) Awould have to take [appellant].@  Appellant testified that the officer told appellant=s wife that Ahe would have to take me in.@  Appellant testified that in walking to the police car, he stumbled over a cable.  According to appellant, Anobody asked [him] anything@ at the scene.  Officer Garcia told appellant that he was going to take appellant to the police station.  Appellant testified he did not feel free to leave.  Appellant was at the station for approximately twenty minutes and was not told that he could leave.  Appellant thought he was under arrest.  Appellant testified he did not refuse to submit to a breath test at the station because he was not asked to submit to such a test.  Appellant testified he was told that a DPS trooper was en route to the station and that he was going to submit to a breathalyzer test when the trooper arrived, but that Chief Rodriguez released him before the trooper arrived.

                                                                   3.  Analysis

Officers Cano and De Hoyos both testified that they smelled alcohol on appellant=s breath.  An open can of beer was found in the driver=s side front console.^[50]  The officers investigating the accident knew that the victim, Perez, had suffered serious injuries.^[51]  On these facts, the issue requiring investigation was whether appellant was intoxicated.  The record reflects, however, that the officers did not actually attempt to investigate this issue at the scene.  The investigating officer did not question appellant as to whether he had been drinking and, if so, how much alcohol he had consumed.  The Aleast intrusive means@ available to determine if appellant was intoxicated was to conduct a field sobriety test at the scene of the accident.  Although Officer Cano testified that he did not do so because he was not certified to conduct such tests, he also testified that he called Officer J. P. Rodriguez, the only City of Elsa police officer certified to conduct such tests, to the scene.  Officer Rodriguez testified that he arrived at the scene approximately five to eight minutes after he was called, but that appellant had already been taken to the police station.  When Officer De Hoyos was asked why he did not conduct a field sobriety test at the scene of the accident, he said there were Aa lot of people@ and his Amain concern was safety.@  However, there is no evidence in the record that conducting a field sobriety test at the scene would have presented a significant safety risk.  There were four officers present at the accident scene:  Officers Cano, De Hoyos, Garcia, and Chief Rodriguez.  In addition, Officer J. P. Rodriguez arrived at the scene a few minutes after he was called.  On these facts, we conclude that the officers failed to investigate whether appellant was intoxicated at the scene and failed to employ the Aleast intrusive means reasonably available to verify or dispel [their] suspicion in a short period of time.@^[52]  Because the investigative questioning (conducting field sobriety tests) did not occur until after appellant was transported to the police station, we conclude that the investigative detention of appellant at the scene escalated into custody when he was taken to the station.^[53]

                                                            C.  Probable Cause

Having determined that appellant was taken into custody when he was taken to the police station, we turn to whether the officers had probable cause to arrest or take appellant into custody for (1) driving while intoxicated or (2) any other offense.

Law enforcement officers have the authority to investigate a car accident.^[54]  During the investigation, an officer must develop additional facts constituting probable cause to arrest an individual for driving while intoxicated.^[55]  In order to make a full custodial arrest, an officer must have probable cause to believe the person he is arresting has committed or is committing an offense.^[56]  Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense.^[57]

                                                                   2.  Analysis

Here, Officer Cano testified that (1) appellant acknowledged he was the driver of the vehicle and that he thought he had hit a dog, (2) appellant smelled strongly of alcohol, (3) appellant was staggering so badly he had to hold onto the officer for support, and (4) there was an open 24-ounce can of beer on the driver=s side of the front console.  Officer De Hoyos testified that he smelled alcohol on appellant=s breath.  Appellant argues that this type of evidence constitutes only reasonable suspicion to justify further investigation, but is insufficient, without additional evidence, to constitute probable cause to arrest for driving while intoxicated.  Appellant cites Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.BFort Worth 2001, no pet.), and Maxcey v. State, 990 S.W.2d 900, 903-04 (Tex. App.BHouston [14th Dist.] 1999, no pet.), in support of his position that a suspect must fail field sobriety tests in order for an officer to have probable cause to arrest for driving while intoxicated.  The State argues that based on the officers= observations at the scene, the officers had probable cause to arrest appellant for intoxication assault or driving while intoxicated.  Moreover, the State argues that even if the officers lacked probable cause to arrest appellant for driving while intoxicated, there clearly was probable cause to arrest him for public intoxication.^[58]  We conclude it is unnecessary to decide if there was probable cause to arrest appellant for driving while intoxicated because there was probable cause to arrest him for public intoxication.

                                                          3.  Public Intoxication

A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another.^[59]  The test for whether probable cause exists for a public intoxication arrest is whether the officer=s knowledge at the time of the arrest would warrant a prudent person in believing that a suspect, albeit intoxicated, was in any way a danger to himself or another person.^[60]  One of the essential elements to the offense of public intoxication is intoxication Ato the extent that he may endanger himself or another.@^[61]  The fact that an accused has been involved in a car accident is sufficient probable cause to believe that he poses a danger to himself or others.^[62]  If the officers had probable cause to arrest appellant for any offense committed in their presence, then a warrant was unnecessary and the arrest was proper.^[63]

Here, Officer Cano testified that when he first approached appellant at the scene, appellant was Astanding right by the truck just south of the van@ involved in the accident.  Appellant testified that when he heard the impact, he parked the van and exited the vehicle.  According to Cano, appellant Aright away came up and told me that he thought he had hit a dog.@  Thus, appellant was in a public place.^[64]  Based on the officers= observations that appellant smelled of alcohol and was staggering, we conclude there was probable cause to arrest appellant for public intoxication.^[65]  Accordingly, we conclude appellant=s arrest on the basis of public intoxication was lawful, and evidence obtained as a result of his lawful arrest was not the fruit of an illegal arrest.^[66]

                                        D.  Admissibility of Post-arrest Evidence 

Although we have concluded that appellant=s arrest was lawful, we turn to his argument that evidence resulting from his arrest, including the videotape, events at the police station, and any refusal to submit to a breath test at the station, should have been suppressed because he was not given the post-arrest warnings required by Miranda.^[67]  Appellant contends that the evidence obtained pursuant to his Aunlawful@ arrest Ashould have been excluded as fruits of the poisonous tree@^[68] pursuant to the Fourth Amendment to the United States Constitution^[69] and article 38.23 of the Texas Code of Criminal Procedure.^[70]

In his fifth issue, appellant contends the trial court erred in admitting the videotape of his conversation with Officer Garcia^[71] while appellant was transported to the police station. 

Miranda holds that when a criminal suspect is placed in custody, law enforcement personnel must comply with certain procedural safeguards in order to protect the suspect's privilege against compulsory self‑incrimination under the Fifth Amendment.^[72]  Miranda and its progeny hold inadmissible incriminating statements made by the accused if the authorities have not given the requisite warnings and the accused has not waived these rights.^[73]

However, Miranda=s safeguards apply only when a suspect is placed in custody and interrogated by police.^[74]  Custodial interrogation for purposes of Miranda includes both express questioning, and also words or actions that, given the officers= knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to Ahave . . . the force of a question on the accused,@ and therefore are reasonably likely to elicit an incriminating response.^[75]  The latter part of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.^[76] 

Not all post-arrest police questioning can be classified as interrogation.^[77]  Statements given freely and voluntarily are admissible in evidence.^[78]  In distinguishing situations which require safeguards to protect the privilege against self-incrimination from those that do not, the Miranda court pointed to isolation and intimidation as key aspects of an interrogation that undermine an individual=s ability to speak voluntarily.^[79]  When an accused in custody spontaneously volunteers information that is not in response to earlier interrogation by authorities, the statement is admissible even though not recorded because it is not the product of custodial interrogation.^[80]

Article 38.22 of the Texas Code of Criminal Procedure codifies both Miranda=s system of protecting a suspect against self-incrimination and its distinction between voluntary statements and compelled confessions.^[81]  Article 38.22 prohibits the admission of a written or oral statement made as a result of custodial interrogation by an accused in a criminal proceeding without the warnings required by Miranda.^[82]  However, section five of article 38.22 states that nothing in the article precludes the admission of a statement that is either (1) res gestae of the arrest or offense, (2) a statement that does not stem from custodial interrogation, or (3) a voluntary statement, whether or not the result of custodial interrogation.^[83]  If statements are not made as a result of custodial interrogation, the requirements of Miranda and article 38.22 do not apply.^[84]  Thus, if appellant=s statements were not the result of custodial interrogation, they are admissible.^[85] 

With these principles in mind, we turn to whether the videotape containing appellant=s conversation with Officer Garcia was admissible under Miranda and article 38.22.^[86]

At the suppression hearing, Officer Garcia testified as follows:

A [Garcia]:  When I got in the unit, when I was backing up, he said, Is the lady okay?  And then I said, she=s fine.  Everything is going to be fine.  Don=t worry.  And then he said in Spanish that theB that it was a dog.  Then he said, so he didn=t have the lights on.  And I was just telling him, Don=t worry.  Don=t worry when I was just taking him over there, and that=s basically all that he said and I just told him that everything was going to be fine.

. . . .

A [Garcia]:  That happened at the beginning.  We were basically heading towards theB when we were arriving at the police department, he [appellant] asked me if he smelled like alcohol, which I replied not to me.

Q [State]:  And other than asking you if his breath smelled like beer, a mention of about a dog and about not having the lights on, do you recall if there were any other statements the defendant made to you?

A:  No, sir, that=s basically it from the beginning all the way to the department.

Q [State]:  Isn=t it true that he [appellant] said, I thought it was a dog not that it was a dog?

A:  (Spanish spoken).  I thought.

Q:  Which translates, I thought it was a dog?

A:  Exactly, yes.

Q:  But you did [ask appellant questions]?

A:  Not that I recall.  I didn=t ask him questions.  He was just asking me and I was replying.

Q:  Well, it=s true, isn=t it, that, you know, you did tell him in there, for instance, well, you know, there=s people saying that the lights were on?

A:  Yes.

Q:  Okay.  So you did ask him a question at least one question?

A:  No.  HeB that wasn=t a question.  He asked me, he said that theB they didn=t have the lights on.  And I said, Well, there are people saying that the lights were on.

Q:  And he answered you?

A:  I don=t remember if he answered me, though that=s the way it happened.

At trial, Garcia testified similarly regarding the conversation with appellant.

Q [State]:  And approximately how long did it take for you to transport the Defendant from the scene of the accident to the police department, sir, more or less?

A [Garcia]:  A minute and a half, I guess.

Q:  And while you were there in the police unit with the Defendant, sir, did the Defendant ever say anything to you?

A:  He said a couple of things, yes.

Q:  What exactly did the Defendant say to you, sir?

A:  He told meB he was saying that it didn=t have the lights on, and then he said it hadB he thought he had hit a dog.  And, also, when we were getting to the police department, he stated if heB in Spanish, he said, ANo welo a bironga,@ if I smell likeB he smelled like alcohol or beer.

Q:  And that=s whatB that=s your interpretation of what that means in English?

A:  Yes, sir.

Q:  And did he sayB other than it didn=t have the lights on, thought that he hit a dog, and asking you in Spanish if his breath smelt [sic] like alcohol, was there any other statement that you can recall?

[Defense counsel]:  Your Honor, I=m going to object to the interpretation.  I believe he said, ANo welo a bironga,@ which I believe interprets to ADo I smell like beer,@ not alcohol, Your Honor.

[State]:  I=ll rephrase that, Your Honor.

[Court]:  All right.

Q [State]:  Other than saying to you something about it didn=t have the lights on, thought that he hit a dog, and does my breath smell like beer, sir, were there any other statements that you can recall the Defendant making?

A:  I can=t recall the other ones, sir.

. . . .

[The videotape was played for the jury].

Q [State]:  Did you hear what the Defendant said in that portion of the tape, sir?

A [Garcia]:  AYo no vi que venia.@

Q:  AYo@B excuse me?

A:  AYo no vi que venia.@

Q:  In Spanish?

A:  Yes.  That=s saying that AI didn=t see it coming.@

(Portion of videotape played)

[Court]:  Did you hear what was said right there?

[Garcia]:  AVenia con las pinche luces apagadas.@

Q [State]:  And what does that mean, sir?

A:  He wasB that it was coming with its lights off.

Q:  Did you hear what was said right there?

A:  AEh, buey, no welo a bironga.@

Q:  And what does that mean, sir?

A:  If he smells like beer.

Q [State]:  Are there any other statements that you recall the Defendant making, if any, other than what appeared on the videotape and what=s been testified to?

A:  No, sir.

On these facts, we conclude that although appellant made these statements while in custody, the statements did not result from custodial interrogation for purposes of Miranda and article 38.22.  The record shows that appellant made the statements voluntarily and that the statements are therefore admissible.^[87]  We overrule appellant=s fifth issue. 

Appellant also argues that admission of the videotape was harmful because in closing arguments, the State emphasized that appellant=s speech on the videotape was Aslurred.@  This argument is without merit.  In Pennsylvania v. Muniz, 496 U.S. 582, 584 (1990), a case with facts similar to those in the present case, the United States Supreme Court considered whether various incriminating statements of a drunk-driving suspect, made while performing a series of sobriety tests, constituted testimonial responses to custodial interrogation for purposes of the Fifth Amendment=s protection against self-incrimination.^[88]   The court held that the slurring of speech and other evidence of lack of muscular coordination constituted nontestimonial components of the defendant=s responses to questions and therefore were not Atestimonial@ responses for purposes of the privilege against self-incrimination.^[89]

We next address appellant=s argument that evidence of his refusal to submit to a breath test at the police station should have been suppressed. 

In Muniz, after failing to satisfactorily perform on a series of sobriety tests, the defendant refused the officer=s request to submit to a breathalyzer test.^[90]  The Muniz court noted:

Muniz does not and cannot challenge the introduction into evidence of his refusal to submit to the breathalyzer test.  In South Dakota v. Neville, 459 U.S. 553 (1983), we held that since submission to a blood test could itself be compelled, see Schmerber v. California, 384 U.S. 757 (1966), a State's decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not Acompel@ the suspect to incriminate himself and hence did not violate the privilege.  Neville, supra, at 562‑564.  We see no reason to distinguish between chemical blood tests and breathalyzer tests for these purposes.  Cf. Schmerber, supra, at 765‑766, n. 9.^[91]

Thus, we conclude that the trial court did not err in admitting evidence of appellant=s refusal to submit to a breathalyzer test at the police station.^[92]

The trial court did not err in denying appellant=s motion to suppress evidence resulting from the arrest, including the videotape, the events at the police station, and any refusal to submit to a breath test at the police station.  We overrule appellant=s third and fourth issues.

                                                      E.  Post-release Detention     

In his sixth issue, appellant contends that evidence of his refusal to take a Asecond@ breath test^[93] at his residence should have been suppressed because his continued detention at his residence, after he had been released pursuant to a determination that he was not intoxicated, was unlawful.  We agree that the trial court erred in admitting evidence of appellant=s alleged refusal to submit to a breath test at his residence, but find that the error was harmless. 

The Texas Court of Criminal Appeals interprets the language from Florida v. Royer,^[94] Aan investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop,@ to mean that once the reason for a stop has been satisfied, police may not Afish@ for evidence of other unrelated criminal activity.^[95]  In Davis,^[96] the original stop was for a DWI investigation, but after the officers satisfied themselves that the driver was not intoxicated, they detained the driver and passenger until a drug dog could arrive to sniff the car.^[97]  A[T]he purpose of the investigative detention was effectuated when the officers determined appellant was not intoxicated.@^[98]

Here, the evidence shows that appellant passed three field sobriety tests at the police station and was released.  Nonetheless, approximately an hour and forty minutes after the accident, Officer Rodriguez went to appellant=s house and obtained appellant=s consent to submit to three additional field sobriety tests.  Appellant passed all three tests.  Thereafter, Officer Rodriguez requested that appellant provide a breath specimen; appellant refused.

We conclude that after appellant passed the field sobriety tests at the police station, the Apurpose of the investigative detention was effectuated@^[99] and the investigation should have concluded.  Accordingly, we hold that the trial court erred in admitting evidence of appellant=s alleged refusal to submit to a breath test at his residence. 

However, the erroneous admission of evidence is non-constitutional error.^[100]  We must disregard non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect.^[101]  In making this determination, the question is not simply whether there was sufficient evidence to support the verdict.^[102]  Instead, the reviewing court should consider the entire record, including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire, if applicable.^[103]  Important factors include the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case.^[104]  We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert.^[105]

The disputed issue concerned whether appellant was intoxicated at the time of the accident.  The evidence elicited regarding officer Rodriguez=s questioning of appellant at his residence was that, approximately an hour and forty minutes after the accident, appellant (1) passed three additional field sobriety tests and (2) refused to submit to a breath test.  The jury also heard testimony that appellant had refused to submit to a breath  test at the police station before he was released.  We conclude, after examining the record as a whole, that the evidence of appellant=s refusal to submit to a breath test at his residence did not influence the jury or had but a slight effect.^[106]  Accordingly, we hold that error in admitting evidence of appellant=s refusal to submit to a breath test at his residence was harmless and must, therefore, be disregarded.^[107]  We overrule appellant=s sixth issue.

                                      F.  Alleged Transportation Code Violations

In his seventh issue, appellant contends that evidence of his refusal to submit to a Asecond@ breath test at his residence should have been suppressed because the State argues that he was not under arrest, and section 724.012 of the transportation code^[108] only applies to persons under arrest.  Appellant also argues the evidence of his refusal should be suppressed because he was not provided the statutorily-required warnings of section 724.015 of the transportation code.^[109]  Because we have already determined that the trial court erred in admitting evidence of appellant=s refusal to submit to a breath test at his residence on different grounds, but that such error was harmless, we need not address appellant=s seventh issue.^[110]

                                                   IV.  Admissibility of Evidence  

In his eighth issue, appellant contends the trial court erred in excluding two photographs that he offered into evidence.  Appellant, who was running for mayor of Elsa during the relevant time period, offered two photographs showing that on election day, appellant=s political opponent placed a wheelchair and a Harley Davidson motorcycle at the polling place to remind voters of the accident. 

We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard.^[111]  The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable.^[112]  An appellate court must not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement.^[113] 

Under Rule 401, evidence is relevant if it makes the existence of a fact that is of consequence to the determination of the action more probable than it would be without the evidence.^[114] If the trial court determines the evidence is irrelevant, the evidence is absolutely inadmissible and the trial court has no discretion to admit it.^[115]  Questions of relevance should be left largely to the trial court and will not be reversed absent an abuse of discretion.^[116]  To be included in the expansive definition of relevant evidence, proffered evidence must have influence over a consequential fact.^[117]

Here, the issue was whether appellant was guilty of intoxication assault.  The tactics used by appellant=s opponent in the Elsa mayoral run-off election were irrelevant to the issue of appellant=s guilt.  We conclude the trial court did not abuse its discretion in excluding the photographs.  We overrule appellant=s eighth issue. 

                                                        V.  Motion for New Trial

In his ninth, tenth, and eleventh issues, appellant contends the trial court erred in denying his motion for new trial. 

A trial court=s ruling denying a defendant=s motion for new trial is reviewed under an abuse of discretion standard.^[118]  Under this standard, we must Aafford almost total deference@ to the trial court's determination of the historical  facts and of mixed questions of law and fact that turn upon an evaluation of credibility and demeanor.^[119]  We review questions of law, as well as mixed questions of law and fact that do not turn upon an evaluation of credibility and demeanor, de novo.^[120]

An abuse of discretion occurs when the trial court's decision is arbitrary or unreasonable.^[121]  A trial court's decision to deny a motion for new trial will be sustained if it is correct on any theory of law applicable to the case.^[122] 

                                                   A.  Alleged Brady Violation^[123]

In his ninth issue, appellant argues the trial court erred in denying his motion for new trial because the State failed to disclose evidence favorable to his defense.  Specifically, appellant complains the State failed to disclose  testimony by Officer Patricia Decanini that J. P. Rodriguez tore up Officer De Hoyos=s original report, which was signed by Officer Garcia,  stating that appellant passed the field sobriety tests.  Appellant argues that Athere is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different since defense counsel could have nullified the swearing match between Sergeant De Hoyos against officers J. P. Rodriguez and Flavio Garcia.@  According to appellant, A[t]he defense could have made the showing that Flavio Garcia had in fact agreed that [appellant] passed all the exams and that J. P. Rodriguez knew of that fact and was suppressing it.@  Decanini=s testimony was that Officer J. P. Rodriguez had  discarded a written report by De Hoyos, and signed by Officer Garcia, stating that appellant had passed the field sobriety tests.  She also testified that J. P. Rodriguez said he was Agoing to fuck over@ appellant.  Decanini testified she was never contacted by the State and was never listed as a witness.  Decanini testified that she was advised by appellant that she should go and talk to appellant=s attorney.  Decanini testified that no one from the district attorney=s office ever questioned her regarding the information she had; rather, she was Aadvised@ by appellant to see appellant=s attorney. 

At the hearing on the motion for new trial, appellant=s attorney was asked whether there was any information he gathered from Officer Decanini that would have helped in the defense of the case.  Appellant=s attorney stated that the fact that Decanini typed De Hoyos=s original report, which was signed by Flavio Garcia, and that the report was destroyed would have been helpful.  At the hearing, it was established, however, that the State did not have the Amissing@ or Adestroyed@ report by Officer De Hoyos.  Moreover, appellant=s counsel admitted that he knew of the Amissing@ report prior to the commencement of trial.  At the conclusion of the hearing on the motion for new trial, the trial court noted that at trial, the issue was Aexhausted to no end, almost to the point of having nausea regarding a missing report.@ 

We conclude that Decanini=s testimony would simply have impeached Garcia=s testimony that he did not recall seeing or signing De Hoyos=s report.  We conclude appellant has failed to establish that he would have been found not guilty if Decanini had testified at trial.  We overrule appellant=s ninth issue.

                                               B.  ANewly-Discovered@ Evidence

In his tenth issue, appellant contends the trial court erred in denying his motion for new trial because of the Anewly-discovered@ evidence of Decanini=s testimony.  We have already determined that Decanini=s testimony was that J. P. Rodriguez destroyed De Hoyos=s original report.  We have also already decided that this testimony would not have changed the outcome of the trial.  We overrule appellant=s tenth issue.

                                                      C.  Ineffective Assistance

In his eleventh issue, appellant contends his trial counsel was ineffective for failing to discover Decanini=s testimony. 

Strickland v. Washington,^[124] sets forth the standard of review for effectiveness of counsel.^[125]  Strickland requires a two‑part inquiry.^[126]  The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness.^[127]  Second, the defendant must prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.^[128]  A reasonable probability is a probability sufficient to undermine confidence in the outcome.^[129]

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case.^[130]  An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness.^[131]

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.^[132]  There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.^[133]  To defeat the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@^[134]  Generally, the record on direct appeal will be insufficient to show that counsel=s representation was so deficient as to meet the first part of the Strickland standard.^[135]

Here, we have already determined that Decanini=s testimony that there was an original report would not have altered the outcome of the trial.  Accordingly, appellant has failed to establish the second prong of Strickland.  We overrule appellant=s eleventh issue.

                                                         VI.  Dissenting Opinion

We next turn to the arguments raised in the dissenting opinion.

Although the dissent agrees that there was probable cause to arrest appellant and that he was arrested at the scene of the accident, it argues that because he was not read Miranda^[136] warnings, his arrest was Aunlawful@ and all evidence related to the Aunlawful@ arrest (including statements he made to the police and any refusals to take a breath test) Ashould have been excluded as fruits of the poisonous tree.@  In support of this position, the dissent cites Sossamon v. State, 816 S.W.2d 340, 346 (Tex. Crim. App. 1991), Corbin v.State, 91 S.W.3d 383, 385 (Tex. App.BTexarkana 2002, pet. denied), and article 38.23 of the code of criminal procedure.^[137]  We conclude that the dissent=s reliance on these authorities is misplaced.

In Sossamon, the police had obtained an involuntary confession and the identity of a witness from the defendant by making false promises of immunity.^[138]  The court found an otherwise valid in-court identification of the defendant inadmissible because the identifying witness was located solely through the defendant=s involuntary confession.^[139]  Thus, the court held that the witness=s presence in the courtroom, which led to the identification of the defendant, should have been suppressed pursuant to the defendant=s Fifth Amendment right against self-incrimination.^[140]    

Likewise, in Corbin, the court found the defendant=s written statement (admitting possession of cocaine) inadmissible as Afruit of the poisonous tree@ because it was taken after the drugs were discovered pursuant to an illegal stop.^[141]  In both cases, evidence was held inadmissible because it was obtained as a result of illegal police conduct.  

The dissent also argues that the admission of appellant=s statements while being transported to the station and at the station violated article 38.23.^[142]  However, in Baker v. State, the court of criminal appeals has held that Amere violations of the Miranda rule are not covered by the state exclusionary rule contained in article 38.23.@^[143]  Thus, article 38.23 does not bar the admission of appellant's statements en route to the station or at the station.

The United States Supreme Court has recently held that the Afruit of the poisonous tree@ doctrine does not apply to a mere failure to provide Miranda warnings to a suspect before custodial interrogation when the suspect makes a voluntary statement.^[144]    AThough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn . . . solely on whether it is knowingly and voluntarily made.@^[145]   The presumption, or Ataint,@ that an unwarned confession was involuntary does not attach to subsequent statements obtained after a suspect voluntarily and knowingly waives his or her Miranda rights.^[146]

The Texas Court of Criminal Appeals has similarly held that the Afruit of the poisonous tree@ doctrine does not apply to mere violations of the prophylactic requirements in Miranda:^[147]  The doctrine Arequires suppressing the fruits of a defendant's statement only when the statement was obtained through actual coercion.@^[148]

For these reasons, we disagree with the conclusions reached in the dissenting opinion.

                                                                 CONCLUSION

We AFFIRM the trial court=s judgment. 

LINDA REYNA YAÑEZ,

Justice

Publish. Tex. R. App. P. 47.2(b).

Dissenting opinion by

Chief Justice Valdez joined by

Justice Rodriguez.

Concurring opinion by

Justice Castillo.

Opinion delivered and

filed this the 7th day of April, 2006.

---

^[1] See Tex. Pen. Code Ann. ' 49.07(a)(1) (Vernon 2003).

^[2] Because appellant=s testimony and the testimony of others are discussed in greater detail below, we limit our discussion in this section to a brief chronology of events, taken primarily from the testimony of the police officers investigating the accident. 

^[3] Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

^[4] Jackson, 443 U.S. at 319.

^[5] See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).

^[6] Malik, 953 S.W.2d at 240.

^[7] Booker v. State, 929 S.W.2d 57, 60 (Tex. App.BBeaumont 1996, pet. ref'd).

^[8] Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

^[9] Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

^[10] Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)).

^[11] Johnson v. State, 23 S.W.3d 1, 10-12 (Tex. Crim. App. 2000).

^[12] Id. 

^[13] See Tex. Pen. Code Ann. ' 49.07(a)(1) (Vernon 2003).  

^[14] See id. 

^[15] Johnson, 23 S.W.3d at 7.

^[16] See U.S. Const. amend. IV; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

^[17] See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)).

^[18] State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

^[19] State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

^[20] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

^[21] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

^[22] Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

^[23] See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

^[24] Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

^[25] See State v. Stevenson, 958 S.W.2d 824, 828‑29 (Tex. Crim. App. 1997).

^[26] Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.BHouston [14th Dist.] 1989, no pet.).

^[27] Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.BSan Antonio 1998, pet. ref'd).

^[28] Lewis v. State, 72 S.W.3d 704, 707 (Tex. App.BFort Worth 2002, pet. ref=d) (citing Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)).

^[29] Id. 

^[30] Id. (citing Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)).

^[31] Id. 

^[32] Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000).  Article 15.22 of the code of criminal procedure provides: A[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.@  However, this is not a controlling legal definition of Aarrest.@  Id. at 773-74; see Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005).

^[33]  Medford, 13 S.W.3d at 773 (citing U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)).

^[34] Id. at 773-74.

^[35] Dowthitt, 931 S.W.2d at 255.

^[36] Id. 

^[37] Id.

^[38] Stevenson, 958 S.W.2d at 829.

^[39] See id. at 829 n.7; Lewis, 72 S.W.3d at 712.

^[40] See, e.g., Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997) (holding no bright-line rule exists providing that handcuffing is always the equivalent of arrest and that Rhodes was not under arrest when officers handcuffed him); Mays v. State, 726 S.W.2d 937, 943-44 (Tex. Crim. App. 1996) (holding officer=s handcuffing of two suspects for his own safety did not at that point, under the circumstances, constitute an arrest).

^[41] Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996).

^[42] California v. Beheler, 463 U.S. 1121, 1124-25 (1983); Dancy v. State, 728 S.W.2d 772, 778 (Tex. Crim. App. 1987).

^[43] State v. Rodriguez, 986 S.W.2d 326, 329 (Tex. App.BEl Paso 1999, pet. ref=d).

^[44] Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).

^[45] Id. (quoting Perez v. State, 818 S.W.2d 512, 517 (Tex. App.BHouston [1st Dist.] 1991, no pet.)).

^[46] Joseph v. State, 865 S.W.2d 100, 102 (Tex. App.BCorpus Christi 1993, pet. ref=d).

^[47] Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). 

^[48] Chief Rodriguez testified that he did not order any of the officers at the scene to refrain from calling DPS.  He testified that a DPS trooper eventually came to the station, approximately thirty minutes after appellant was released.  

^[49] Officer De Hoyos testified that he conducted the field sobriety tests on appellant at the station, even though he is not certified to conduct such tests.

^[50] Appellant testified that although two passengers were riding in the back seat of the van, he was alone in the front  seat. 

^[51] Cano testified that when Perez was removed from beneath the van, her left leg was over her right shoulder.  Perez testified that her upper leg was broken, her lower leg was broken in two places, her foot was almost severed, and that she suffered multiple burns on her legs.  She was hospitalized for approximately four weeks and underwent numerous surgeries and skin grafts.  At the time of trial, approximately seven months after the accident, she was able to walk only short distances with the aid of a walker.   

^[52] See Davis, 947 S.W.2d at 245. 

^[53] See id.

^[54] See Tex. Transp. Code Ann. ' 545.351(b)(2) (Vernon 1999) (operator shall control vehicle speed as needed to avoid colliding with another vehicle); Maxcey v. State, 990 S.W.2d 900, 903 (Tex. App.BHouston [14th Dist.] 1999, no pet.). 

^[55] See Tex. Dep=t of Pub. Safety v. Rodriguez, 953 S.W.2d 362, 364 (Tex. App.BAustin 1997, no pet.).

^[56]  See Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991).

^[57] Id. at 413.

^[58] See Tex. Pen. Code Ann. ' 49.02(a) (Vernon 2003).

^[59] See id.

^[60] See Britton v. State, 578 S.W.2d 685, 687 (Tex. Crim. App. 1978).

^[61] Id. 

^[62] See Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986) (holding probable cause existed to believe driver involved in a one-car accident posed danger to herself or others for purposes of arrest for public intoxication, where officers observed symptoms of intoxication in driver); Segura v. State, 826 S.W.2d 178, 184-85 (Tex. App.BDallas 1992, pet. ref=d) (holding officer=s testimony that driver of car involved in accident was unsteady, had bloodshot eyes, slurred speech, and alcohol on breath was sufficient probable cause to arrest for public intoxication).

^[63] See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) (peace officer may arrest offender without warrant for any offense committed in his presence or within his view).

^[64] Because appellant was standing outside his vehicle, we need not determine whether, under these circumstances, the vehicle was a Apublic place.@  We note that whether a vehicle on a public road or highway is a public place is a question of fact.  See Kirtley v. State, 585 S.W.2d 724, 726 (Tex. Crim. App. 1979); Gallagher v. State, 778 S.W.2d 153, 154-55 (Tex. App.BHouston [1st Dist.] 1989, no pet.) (holding there was sufficient evidence to support probable cause to arrest passenger for public intoxication where officer pulled car into parking lot near a busy boulevard after citizen complained the driver and passenger left a restaurant intoxicated). 

^[65] See Carrasco, 712 S.W.2d at 122; Segura, 826 S.W.2d at 184-85. 

^[66] See Anderson, 932 S.W.2d at 506 (holding evidence obtained pursuant to legal arrest was not fruit of illegal arrest); Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. 1982) (holding evidence found as a result of lawful arrest for public intoxication was admissible).

^[67]  It is undisputed that the police did not give appellant the post-arrest warnings required by Miranda.  See Miranda, 384 U.S. at 444.

^[68]   The Afruit of the poisonous tree@ doctrine holds that evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted.  See Missouri v. Siebert, 542 U.S. 600, 655 (2004).

^[69] See U.S. Const. amend. IV.

^[70] See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

^[71] The videotape shown to the jury involves only the recorded conversation between appellant and Officer Garcia while appellant was being transported to the police station.  Because the video camera was directed to the front of the vehicle, the video footage simply reflects the scenery en route to the police station.  Thus, only the Aaudio@ portion of the videotape is at issue here.

^[72] See Miranda, 384 U.S. at 444.

^[73] See Rhode Island v. Innis, 446 U.S. 291, 302 (1980).

^[74] Id. at 300; Jones v. State, 795 S.W.2d 171, 174-75 (Tex. Crim. App. 1990).

^[75] Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (citations omitted); Jones, 795 S.W.2d at 174.

^[76] Innis, 446 U.S. at 301. 

^[77] Jones, 795 S.W.2d at 174 n.3.

^[78] Miranda, 384 U.S. at 478.

^[79] Id. at 449-51.

^[80] Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984).

^[81] Tex. Code Crim. Proc. Ann. art. 38.22 '' 2, 3, 5 (Vernon 2005); State v. Waldrop, 7 S.W.3d 836, 838 (Tex. App.BAustin 1999, no pet.).

^[82] Tex. Code Crim. Proc. Ann. art. 38.22 '' 2, 3 (Vernon 2005).

^[83] Id. ' 5 (Vernon 2005); Galloway, 778 S.W.2d at 112.

^[84] Waldrop, 7 S.W.3d at 839; Gruber v. State, 812 S.W.2d 368, 371 (Tex. App.BCorpus Christi 1991, pet. ref=d) (holding statement which is volunteered and not the product of custodial interrogation is admissible).

^[85] See Waldrop, 7 S.W.3d at 839.

^[86] The videotape was played for the jury and this Court has reviewed it.  Although the audio portion of the tape is difficult to understand, appellant does not challenge that the videotape accurately reflects his conversation with Garcia.

^[87] See Waldrop, 7 S.W.3d at 839.

^[88] Muniz, 496 U.S. at 584.

^[89] Id. at 592. 

^[90] Id. at 586. 

^[91] Id. at 604 n.19. 

^[92] See id.; see also Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001) (holding admission into evidence of defendant's refusal to submit to blood-alcohol test does not offend right against self‑incrimination); Miffleton v. State, 777 S.W.2d 76, 79-80 (Tex. Crim. App. 1989) (a defendant=s verbal refusal to submit to a breath test does not fall within state privilege against self-incrimination where defendant is not physically or mentally compelled to refuse the test).

^[93] Appellant denied that he was asked to submit to a breath test at his residence. 

^[94] Florida v. Royer, 460 U.S. 491, 500 (1983).

^[95] Hartman v. State, 144 S.W.3d 568, 573 n.3 (Tex. App.BAustin 2004, no pet.) (citing Davis, 947 S.W.2d at 243); see also State v. Thirty Thousand Six Hundred Sixty Dollars, 136 S.W.3d 392, 403 (Tex. App.BCorpus Christi 2004, pet. denied) (holding that after suspect passed field sobriety test, officer=s original suspicion that suspect was intoxicated was dispelled and the purpose of the investigative detention was fulfilled). 

^[96] See Davis, 947 S.W.2d at 240.

^[97] See id. at 241. 

^[98] Id. at 245. 

^[99] See id. 

^[100] See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Gigliobianco v. State, 179 S.W.3d 136, 145 (Tex. App.BSan Antonio 2005, no pet.); Schaum v. State, 833 S.W.2d 644, 647 (Tex. App.BDallas 1992, no pet.) (proper to use harm analysis if trial court admits evidence of refusal to submit breath or blood specimen, even though written warning required by statute not given).  

^[101] See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

^[102] Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).

^[103]  Id. (citing Motilla v. State, 78 S.W.3d 352, 355‑56 (Tex. Crim. App. 2002)).

^[104] Id.

^[105] Id. 

^[106] See Solomon, 49 S.W.3d at 365. 

^[107] See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271-73 (Tex. Crim. App. 1997).

^[108] See Tex. Transp. Code Ann. ' 724.012 (Vernon Supp. 2005).

^[109] See id. ' 724.015 (Vernon Supp. 2005).

^[110] See Tex. R. App. P. 47.1.

^[111] See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

^[112] State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

^[113] Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

^[114] Tex. R. Evid. 401; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). 

^[115] See Webb v. State, 991 S.W.2d 408, 418 (Tex. App.BHouston [14th Dist.] 1999, pet. ref=d).

^[116] See id. 

^[117] See id. 

^[118] Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).

^[119] Guzman, 955 S.W.2d at  89; Jennings v. State, 107 S.W.3d 85, 89-90 (Tex. App.BSan Antonio 2003, no pet.).

^[120] Jennings, 107 S.W.3d at 90 (citing Guzman, 955 S.W.2d at 89).

^[121] State v. Read, 965 S.W.2d 74, 77 (Tex. App.BAustin 1998, no pet.).

^[122] Id.

^[123] See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the State has an affirmative duty to make exculpatory evidence in its possession available to an accused).

^[124] Strickland v. Washington, 466 U.S. 668, 687 (1984).

^[125] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

^[126] Id. 

^[127] Id.

^[128] Id.

^[129] Id.

^[130] Id.

^[131] Id.

^[132] Id. at 813.

^[133] Id.

^[134]  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

^[135] Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

^[136] See Miranda, 384 U.S. at 444. 

^[137] Article 38.23 is the state exclusionary rule.  See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005) (evidence obtained in violation of state or federal constitutions or laws is inadmissible against the accused).

^[138] Sossamon v. State, 816 S.W.2d 340, 349 (Tex. Crim. App. 1991).

^[139] Id. 

^[140] Id.; See U.S. Const. amend. V. 

^[141] Corbin v. State, 91 S.W.3d 383, 385 (Tex. App.BTexarkana 2002, pet. denied). 

^[142]  See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

^[143]   Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997).

^[144] See U.S. v. Patane, 542 U.S. 630, 673 (2004) (holding failure to give suspect Miranda warnings did not require suppression of physical fruits of suspect's unwarned but voluntary statement).

^[145] Oregon v. Elstad, 470 U.S. 298, 309 (1985).

^[146] Id.  We note that in Siebert, the U.S. Supreme Court invalidated the "question first" technique of interrogation, in which the police intentionally interrogate suspects without warnings, obtain confessions, and then, after providing the required Miranda warnings, interrogate the suspects again to obtain a second confession for use in court.  See Siebert, 542 U.S. at 658.

^[147]  Baker, 956 S.W.2d at 22.

^[148] Id.