IN THE TENTH COURT OF APPEALS
No. 10-15-00151-CR
ROBERT KENNETH PETERS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2014-630-C2
MEMORANDUM OPINION
In one issue, appellant, Robert Kenneth Peters, challenges his conviction for
intoxication manslaughter. See TEX. PENAL CODE ANN. § 49.08 (West 2011). Specifically,
Peters contends that his trial counsel was ineffective because she did not object or attempt
to suppress his statements, blood-alcohol results, or admissions contained within medical
records. Because we conclude that an objection or motion to suppress the items above
likely would not have been successful, we affirm. I. BACKGROUND
After consuming numerous beers on the day in question, Peters drove his
neighbor, James Eddins, to the gas station at the Brookshire Brothers on the I-35 frontage
road in Lorena, Texas. While there, Peters filled up his truck with gas, and Eddins filled
a gas can. After purchasing the gas, Peters did a “doughnut” around a light pole and
then sped out of the parking lot at a high rate of speed without coming to a complete
stop. Peters then merged onto I-35. While driving on I-35, Peters sped past a vehicle in
the right lane. When Peters came up behind another vehicle and attempted to change
lanes to the left lane, his truck started to fishtail. Peters was unable to regain control of
his truck, which fishtailed to the grass median, left of the traffic lanes. In the median,
Peters’s truck started “rolling over and over,” eventually landing upright with a caved-
in roof. Even though he was wearing his seatbelt, Eddins’s head came out of the
passenger window and was crushed by the truck. Eddins was discovered slumped in
the passenger seat, not breathing and with no pulse. Eddins was pronounced dead at the
scene of the crash. Peters was able to exit the vehicle, but he was “scratched up” and
appeared to be in shock. Peters was taken to the hospital for treatment.
Thereafter, Peters was charged by indictment with intoxication manslaughter. See
id. The indictment also included an allegation that Peters used a deadly weapon, his
truck, in the commission of the offense. At the conclusion of the evidence, the jury found
Peters guilty of the charged offense and made an affirmative finding as to the deadly-
Peters v. State Page 2 weapon allegation. After rendering judgment in accordance with the jury’s verdict, the
trial court sentenced Peters to twenty years’ confinement in the Institutional Division of
the Texas Department of Criminal Justice. The trial court also certified Peters’s right of
appeal. This appeal followed.
II. STANDARD OF REVIEW
To prevail on a claim of ineffective assistance of counsel, Peters must meet the two-
pronged test established by the United States Supreme court in Strickland that (1)
counsel’s representation fell below an objective standard of reasonableness, and (2) the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must
not find counsel’s representation to be ineffective. Lopez, 343 S.W.3d at 142. To satisfy
the first prong, Peters must prove by a preponderance of the evidence that trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
professional norms. Id. To prove prejudice, Peters must show that there is a reasonable
probability, or a probability sufficient to undermine confidence in the outcome, that the
result of the proceeding would have been different. Id.
An appellate court must make a “‘strong presumption that counsel’s performance
fell within the wide range of reasonably professional assistance.’” Id. (quoting Robertson
v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of
Peters v. State Page 3 counsel are generally not successful on direct appeal and are more appropriately urged
in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,
77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually
inadequately developed and “‘cannot adequately reflect the failings of trial counsel’” for
an appellate court “‘to fairly evaluate the merits of such a serious allegation.’” Id.
(quoting Bone, 77 S.W.3d at 833).
III. ANALYSIS
In his sole issue on appeal, Peters complains that his trial counsel was ineffective
because she did not object to or attempt to suppress his statements, blood-alcohol results,
or admissions contained within medical records. More specifically, Peters contends that
his trial counsel should have objected to or suppressed: (1) his conversation with Texas
Department of Public Safety Trooper Josh Cashion at the hospital; (2) the results of his
blood-alcohol test because he did not voluntarily consent to the test; and (3) his medical
records, which detail statements Peters made to a treating physician that he was drinking
on the day in question.
A. Peters’s Conversation With Trooper Cashion at the Hospital
Peters’s first complaint pertains to Trooper Cashion’s testimony about his initial
conversation with Peters at the hospital. The record reflects that, on the day in question,
Trooper Cashion received the following information: “He advised that there was a crash,
uh, there was a driver and a passenger. The driver, uh, may have possibly been
Peters v. State Page 4 intoxicated. The, uh, emergency personnel on the scene, first responder stated he had
odor of alcohol beverage on his breath. And he stated the passenger was deceased.” In
response to this information, Trooper Cashion traveled to Hillcrest Hospital in Waco,
Texas, where Peters was being treated.
Upon arriving at Hillcrest Hospital, Trooper Cashion was informed that Peters
was “being worked on right now.” Rather than barging in, Trooper Cashion waited for
the nurses to tell him it was okay to visit with Peters. While waiting, Trooper Cashion
noticed that Peters was wheeled down the hall for a CT scan and that Peters smelled of
alcohol. Trooper Cashion recalled that he was six or seven feet away when Peters was
wheeled down the hall and that he could still smell the alcohol on Peters’s person from
that distance.
After doctors completed the CT scan and returned Peters to his room, Trooper
Cashion was informed that he could now visit with Peters. Trooper Cashion confirmed
Peters’s identity and asked him what happened. Peters told Trooper Cashion the
following:
Uh, he told me that he went to a Brookshire’s in Lorena to get gas and that, uh, they were getting gas for his truck and they had a gas can, too, for the deceased vehicle, and said they were heading home. He said he blew a tire, and, uh, lost control of the vehicle, wasn’t able to gain control and rolled it over.
While talking with Peters, Trooper Cashion observed that Peters smelled of
alcohol on his person and on his breath and that his eyes were glassy and bloodshot.
Peters v. State Page 5 Because Peters exhibited signs of intoxication, Trooper Cashion asked Peters if he had
been drinking that day. Peters stated that:
[H]e had four or five beers. Um, you know, typically ask—after that, you know once they tell us they’ve had beers, we ask what size. He said they were 12 ounce. And after that I ask him what type. You know, it matters between whether you’re drinking a really light beer or you’re drinking—I mean, there’s beers out there with, you know, 15 percent alcohol in them. So it matters what type of beer you had. I asked him and he said it was a light beer. But he doesn’t know which one it was. He wasn’t sure which light beer he was drinking.
Trooper Cashion testified that he could not do standardized field-sobriety tests because,
there was way too much going on in the room. He had the little finger monitor. Uh, he had, uh—they had a blood pressure cuff on him that wasn’t hooked up. They had other sensors. He had an IV, um—you know, they had—at one point while I was in the room they put the catheter in. He had all this stuff on him. At one point the nurses told me they were worried about possible paralysis. So at that point, um, there’s no—I can’t do standardized field sobriety tests. I really can’t do anything. I mean, his hands are—his whole body’s busy. Uh, even if I would have tried to do the horizontal gaze nystagmus and look at his eyes, it would be too hard to do with the hospital bed because it was pretty high up at that time because they were working on him.
At the time of the interview, Trooper Cashion did not read Peters statutory
warnings, did not place Peters in handcuffs, did not tell Peters he was under arrest, and
later left Peters in the hospital without restraints or any law enforcement watching him.
Nevertheless, it is this exchange that forms the basis of Peters’s initial complaint about
trial counsel’s performance. Specifically, Peters argues that trial counsel should have
objected or filed a motion to suppress these statements because they were not recorded
and, thus, were inadmissible under article 38.22 of the Code of Criminal Procedure. See Peters v. State Page 6 TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2014). Essentially, this complaint
centers on whether Peters was under arrest and subject to custodial interrogation at the
time of the interview with Trooper Cashion.
Oral statements made by an accused as a result of custodial interrogation are not
admissible unless made in compliance with the provisions of article 38.22 of the Code of
Criminal Procedure. See id. But, statutory warnings are required only when the
statement stems from custodial interrogation. Id.; see Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007).
At trial, the defendant bears the initial burden of proving that a statement was the
product of custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App.
2009). A person is in “custody” only if, under the circumstances, a reasonable person
would believe that his freedom of movement was restrained by law enforcement to the
degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.
App. 1996) (citing Stansbury v. California, 511 U.S. 318, 324-25, 114 S. Ct. 1526, 128 L. Ed.
2d 293 (1994)). The determination of “custody” must be made on an ad hoc basis, after
considering all of the objective circumstances. Dowthitt, 931 S.W.2d at 255.
The Court of Criminal Appeals has described four general situations that may
constitute “custody” for the purposes of article 38.22: (1) the suspect is physically
deprived of his freedom of action in any significant way; (2) a law enforcement officer
tells the suspect that he cannot leave; (3) law enforcement officers create a situation that
Peters v. State Page 7 would lead a reasonable person to believe that his freedom of movement has been
significantly restricted; and (4) there is probable cause to arrest and law enforcement
officers do not tell the suspect that he is free to leave. Gardner, 306 S.W.3d at 294. In all
four circumstances, the initial determination of “custody” depends on the objective
circumstances of the interrogation, not on the subjective views of the interrogating officer
or the person being questioned. Dowthitt, 931 S.W.2d at 255. In the first three
circumstances, the restriction upon freedom of movement must amount to the degree
associated with an arrest as opposed to an investigative detention. Id. With regard to the
fourth circumstance, the officers’ knowledge of probable cause must be communicated
to the suspect to constitute “custody.” Id.
First, we note that it is not clear on this record whether or not the complained-of
conversation was recorded. Therefore, Peters cannot carry his burden in demonstrating
that the trial court would have erred in admitting the evidence over a proper objection
under article 38.22, section 3 of the Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 38.22, § 3. However, even assuming that the conversation was not
recorded, we cannot say that the trial court would have sustained an objection made by
Peters’s trial counsel. None of the four circumstances outlined in Gardner are applicable
in this matter. Law enforcement did nothing to deprive Peters of his freedom of
movement. Rather, Peter’s freedom of movement was restricted due to the medical
treatment he was receiving because of the accident he caused. Furthermore, Trooper
Peters v. State Page 8 Cashion did not tell Peters that he was under arrest or not free to leave prior to Peters
confessing that he had been drinking on the day in question. Additionally, at the
commencement of the interview, Trooper Cashion only knew that Peters was the driver
in a single-vehicle crash and that a first responder had stated that Peters had an odor of
alcohol on his breath. As such, it cannot be said that Trooper Cashion had probable cause
to arrest Peters when the interview began. And even if he did, Trooper Cashion had not
expressed it to Peters in any way. All of Trooper Cashion’s actions to this point indicated
that he was merely conducting an investigation and had not made an arrest decision.
Therefore, considering all of the objective circumstances, we cannot say that Peters was
under arrest and subject to a custodial interrogation when he first spoke with Trooper
Cashion. See Gardner, 306 S.W.3d at 294; see also Dowthitt, 931 S.W.2d at 255. And because
Peters was not under arrest at this point, the recording provision stated in article 38.22,
section 3 of the Code of Criminal Procedure was not applicable. See TEX. CODE CRIM.
PROC. ANN. art. 38.22, § 3.
To the extent that Peters contends that he believed he was under arrest when he
spoke with Trooper Cashion, we once again note that the initial determination of
“custody” depends on the objective circumstances of the interrogation, not on the
subjective views of the interrogating officer or the person being questioned. See Dowthitt,
Peters v. State Page 9 931 S.W.2d at 255. Therefore, any objection by trial counsel on this issue likely would not
have been successful.1
B. The Blood-Alcohol Test
Next, Peters complains about the blood-alcohol tests that revealed that he had a
blood-alcohol level of 0.2—more than twice the legal limit for driving. In particular,
Peters contends that his consent to the blood draw was not voluntary because he
mistakenly believed that he was under arrest at the time the DIC-24 warnings were
provided, Trooper Cashion made a baseless threat that he would get a warrant if Peters
refused the blood test, and because Peters was impaired physically.
With regard to consent, the Court of Criminal Appeals has stated the following:
A driver’s consent to a blood or breath test must be free and voluntary, and it must not be the result of physical or psychological pressures brought to bear by law enforcement. The ultimate question is whether the person’s will has been overborne and his capacity for self-determination critically impaired such that his consent to search must have been involuntary. We review the totality of the circumstances of a particular police-citizen interaction from the point of view of the objectively reasonable person. The validity of an alleged consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence.
1 Though we are usually loath to speculate about trial counsel’s strategy, it is worth noting that trial counsel may not have objected to the statements made by Peters to Trooper Cashion because it allowed Peters to offer his version of the facts with regard to the accident without having to testify himself. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (noting that when the record is silent regarding the reasons for counsel’s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court). Indeed, Trooper Cashion recounted that Peters told him that the cause of the accident was a tire blowout—a fact that trial counsel relied upon in her closing argument. Had this testimony been objected to and excluded from the record, it would have eliminated Peters’s primary causation argument made during guilt-innocence.
Peters v. State Page 10 Critical to the consent analysis is that the fact finder must consider the totality of the circumstances in order to determine whether consent was given voluntarily. The trial judge must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent to search was voluntary or coerced. Accordingly, it follows that, because the fact finder must consider all of the evidence presented, no one statement or action should automatically amount to coercion such that consent is involuntary—it must be considered in the totality.
Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) (internal citations & quotations
omitted).
With regard to the blood sample, Trooper Cashion stated: “Since there was a
strong odor of alcoholic beverage, had other signs of intoxication, he admitted that he
had consumed alcohol, uh, I decided it was time to ask him—to talk about taking a blood
sample. So, uh, I had the paperwork and everything with me. . . .” At this point, Trooper
Cashion read the DIC-24 warnings to Peters and requested a blood sample. Peters
consented to and ultimately provided a blood sample. There is no indication in the record
that Peters hesitated, contemplated, or wavered in giving consent to the blood test.
Additionally, the record does not reflect that Peters’s physical or mental condition was
so impaired that he could not voluntarily consent. In fact, Peters provided Trooper
Cashion with a coherent explanation of his version of the facts involved in this case just
prior to Trooper Cashion’s request for the blood sample.
Trooper Cashion’s actions were not coercive, and if anything, the DIC-24 warnings
provided Peters with greater information on which to base his decision. In particular, the
Peters v. State Page 11 DIC-24 warnings informed Peters that he had the right to refuse to submit to the taking
of a specimen, though the warnings also explained the possible consequences of a refusal.
Moreover, we do not believe that the warnings were inherently coercive so as to render
Peters’s consent involuntary. See id. at 335-36 (holding that extra-statutory warnings are
not inherently coercive but that any coercive effect of the warnings should be determined
by considering the totality of the circumstances in a particular case); see also Bucaro v. State,
No. 02-14-00339-CR, 2015 Tex. App. LEXIS 9075, at **7-9 (Tex. App.—Fort Worth Aug.
27, 2015, no pet.) (mem. op., not designated for publication) (“Comparing the case at bar
to Fienen, if the giving of the DIC-24 warnings plus the extra-statutory warnings present
in Fienen were not inherently coercive, then the statutory warnings standing alone could
not be inherently coercive. Applying Fienen, we hold that the giving of the DIC-24
warnings is not inherently coercive and does not violate the Fourth Amendment.”
(emphasis in original)). Therefore, based on our review of the totality of the
circumstances, we conclude that there is clear and convincing evidence that Peters made
a conscious and voluntary decision to consent to the blood draw. See Fienen, 390 S.W.3d
at 333-36.
However, despite the fact that the totality of the circumstances weighs in favor of
a finding that his consent to the blood draw was voluntary, Peters emphasizes the
language in the DIC-24 warnings that state the consequences for refusing to provide a
sample—namely, that Trooper Cashion could apply for a warrant authorizing a blood
Peters v. State Page 12 draw in the event of a refusal. The Court of Criminal Appeals has repeatedly stated that
a threat to seek or obtain a search warrant does not somehow render a consent to search
involuntary. See id. at 335-36; see also Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App.
1990) (stating that “a consent to search given in response to a threat to seek or obtain a
search warrant has been upheld as voluntary”); Beaupre v. State, 526 S.W.2d 811, 815 (Tex.
Crim. App. 1975) (“The sheriff’s statement that he was going to obtain a warrant to search
the automobile did not render Mrs. Beaupre’s subsequent consent for the search
involuntary.”). Thus, we cannot say that the language of the DIC-24 warnings that
outlines the consequences for refusing to provide a sample renders Peters’s consent to
the blood draw involuntary. See Fienen, 390 S.W.3d at 335-36; Johnson, 803 S.W.2d at 287;
Beaupre, 526 S.W.2d at 815. And because we have concluded that, under the
circumstances of this case, Peters’s consent to the blood draw was voluntary, any
objection or motion to suppress filed by trial counsel likely would not have been
successful.
C. Peters’s Medical Records
Peters’s third complaint centers on the admission of his medical records, which
contained statements he made to a treating physician about his social history and his
conduct on the day in question. The record reflects that Peters’s medical records were
agreed to by both parties and that Peters told a treating physician that he drinks “up to a
6-pack per day, usually once or 2 times a week.” Additionally, Peters told the treating
Peters v. State Page 13 physician that he had consumed “at least 4 beers” prior to the crash. On appeal, Peters
asserts that these portions of the medical records were not legally admissible because the
statements were hearsay and do not come within the purview of Texas Rules of Evidence
803(4). See TEX. R. EVID. 803(4).
Even if we were to conclude that the complained-of statements were inadmissible
hearsay, they are cumulative of the statements Peters made to Trooper Cashion while at
the hospital—namely, that Peters had consumed four or five beers on the day of the
incident. Therefore, any harm from admitting the statements contained in Peters’s
medical records was harmless because the same information was already admitted into
evidence through Trooper Cashion’s testimony. See Lane v. State, 151 S.W.3d 188, 193
(Tex. Crim. App. 2004) (“An error [if any] in the admission of evidence is cured where
the same evidence comes in elsewhere without objection.”); Brooks v. State, 990 S.W.2d
278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay
testimony was harmless in light of other properly admitted evidence proving the same
fact); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that
overruling an objection to evidence will not result in reversal when other such evidence
was received without objection, either before or after the complained-of ruling.”). Based
on the foregoing, we cannot say that an objection or motion to suppress this evidence
likely would have been successful.
Peters v. State Page 14 IV. CONCLUSION
Because we have concluded that an objection or motion to suppress likely would
not have been successful in any of the three aforementioned circumstances, we cannot
say that Peters has satisfied his burden of proving by a preponderance of the evidence
that trial counsel’s representation fell below an objective standard of reasonableness—
i.e., the first prong of Strickland. See 466 U.S. at 687, 104 S. Ct. at 2064; see also Lopez, 343
S.W.3d at 142. As such, we overrule Peters’s sole issue on appeal and affirm the judgment
of the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 12, 2015 Do not publish [CR25]
Peters v. State Page 15