Pittman, Darryl Keith v. The State of Texas--Appeal from 184th District Court of Harris County

 Affirmed and Memorandum Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01296-CR

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DARRYL KEITH PITTMAN, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 933,733

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M E M O R A N D U M O P I N I O N

Darryl Keith Pittman appeals a conviction for endangering a child[1] on the grounds that: (1) evidence was erroneously admitted; and (2) the evidence was legally and factually insufficient to support the conviction. We affirm.

Appellant, a school bus driver, drove a bus carrying students into a ditch. His first issue challenges the trial court=s admitting into evidence a police officer=s testimony regarding statements appellant made at the scene about drinking beer earlier in the day of the accident. Appellant contends that the statements were not admissible because they were made in response to a custodial interrogation for which he was not given his Miranda warnings. Appellant argues that his investigative detention had by then escalated into custody because: (1) witnesses at the scene told the investigating officer appellant had been drinking; (2) the officer believed appellant was driving drunk before placing him in the patrol car and questioning him; and (3) the officer admitted that appellant was not free to leave.

A determination of custody depends on whether a reasonable person in the suspect=s position would have understood that there was either a formal arrest or the degree of restraint associated with a formal arrest. See Stansbury v. California, 511 U.S. 318, 322-24 (1994). It is thus based on all of the objective circumstances of the interrogation, not the subjective views of the detainee or any unexpressed intentions of the police officer. Id. at 322-23.

In this case, when the investigating officer was talking to appellant at the accident scene, he could observe that appellant had bloodshot eyes and an odor of alcohol. Because appellant was unsteady on his feet, the officer placed him, unhandcuffed, in the backseat of his patrol car, where the officer continued to question him. Because appellant has cited no further facts indicating that this investigative detention progressed to a degree of restraint associated with a formal arrest the time he made the challenged statements to the officer, his first point of error fails to demonstrate that his statement was inadmissible for failure to provide Miranda warnings. Accordingly, it is overruled.

Appellant=s second point of error challenges the legal and factual sufficiency of the evidence to prove the element of imminent danger. See Tex. Pen. Code Ann. ' 22.041(c) (Vernon 2003). Appellant contends that the evidence instead showed, at most, only a potential danger to the children on the bus.[2]

Appellant was driving a school bus filled with young children while intoxicated. He was impaired to the point of appearing to be falling asleep while driving and being unable to keep the bus in a single lane, eventually failing to negotiate a turn, then overcompensating and driving the bus into a ditch. He thereafter tried to back the bus out of the ditch while students were exiting through the emergency exit. The danger into which appellant placed the students on the bus was as imminent as a danger could be. Everything necessary for a tragic mishap was present and in motion, and a mishap actually resulted that might easily have killed or seriously injured students on the bus. The fact that the students escaped serious injury does not diminish either the imminent nature of the danger or its severity. Therefore, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 17, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty and assessed punishment of eighteen months confinement.

[2] Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S., 307, 319 (1979); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Evidence is factually insufficient if, viewed in a neutral light, it is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004).