Glen Porter Brock III v. The State of Texas--Appeal from Co Crim Ct at Law No 3 of Harris County

Affirmed and Memorandum Opinion filed August 21, 2007

Affirmed and Memorandum Opinion filed August 21, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00128-CR

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GLEN PORTER BROCK, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1267259

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

Appellant, Glen Porter Brock, III, pleaded guilty to the offense of driving while intoxicated and was sentenced to 180 days confinement, probated for one year, and a $100 fine. In two issues, appellant challenges the trial court=s denial of his motion to suppress oral statements. We affirm.

Factual and Procedural Background

At approximately 1:50 a.m. on October 31, 2004, HPD Officer Charles Allen observed appellant driving a motor vehicle with two flat tires on South Shepherd Street in Houston. Appellant drove through a major intersection and pulled into a gas station parking lot. Officer Allen pulled in behind appellant=s vehicle and activated the emergency lights on his patrol car. Officer Allen approached appellant=s vehicle and engaged appellant in conversation. Upon speaking with appellant, Officer Allen immediately detected a strong odor of alcohol, and observed appellant had red, bloodshot eyes and slurred speech. After exiting his vehicle, appellant began swaying back and forth and had difficulty maintaining his balance. Suspecting appellant was under the influence of alcohol, Officer Allen administered field sobriety tests. Based on his observations of appellant and the results of the field sobriety tests, which appellant could not perform, Officer Allen arrested appellant for driving while intoxicated. Appellant was charged by information with driving while intoxicated.

Appellant entered a plea of not guilty and filed a motion to suppress his oral statements to Officer Allen on the night of his arrest. The trial court denied appellant=s motion and, pursuant to a plea agreement, appellant changed his plea to guilty. In two issues, appellant contends the trial court erred in denying his motion to suppress because appellant=s oral statements were the product of an illegal seizure and improper custodial interrogation.

Standard of Review

A bifurcated standard of review is applied to a trial court=s ruling on a motion to suppress evidence. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court affords almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Id. The appellate court affords the same amount of deference to a trial court=s ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. The court reviews de novo those questions not turning on credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Mason v. State, 116 S.W.3d 248, 256 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). If the trial judge=s decision is correct under any theory of law applicable to the case, the decision will be sustained. State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000).

Discussion

I. Was Appellant Illegally Seized?

In his first issue, appellant claims the trial court erred in denying his motion to suppress his oral statements to Officer Allen because his statements were the product of an illegal seizure. Appellant contends Officer Allen detained appellant, without reasonable suspicion, Athe moment Allen activated his [emergency] lights and pulled in behind@ appellant=s vehicle. The State contends, inter alia, appellant was not seized when Officer Allen pulled in behind appellant=s vehicle parked in a public place, walked up to appellant=s vehicle, and engaged appellant in conversation.[1] We agree.

A seizure or detention occurs if, in light of all the circumstances surrounding an encounter between a police officer and an individual, the officer=s conduct would communicate to a reasonable person that he is not free to go, or not free to refuse the officer=s requests. Reyes v. State, 899 S.W.2d 319, 323 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d). A person is seized if, from his or her perspective, there has been such a display of official authority that a reasonable person would not have felt that he was free to leave. Shelby v. State, 888 S.W.2d 231, 233 (Tex. App.CHouston [1st Dist.] 1994 pet. ref=d). However, a person has not been seized until he has yielded to a law enforcement officer=s show of authority or when officers physically limit his movement. Johnson v. State, 912 S.W.2d 227, 234 (Tex. Crim. App. 1995).

The relevant facts in this case are established by Officer Allen=s uncontroverted testimony at the suppression hearing. Officer Allen testified appellant pulled into the Stop and Go parking lot and parked his vehicle on his own, and not in response to any command or request by Officer Allen. Officer Allen testified, AHe crossed over Richmond and he pulled over in the Stop and Go parking lot. . . . He did it on his own and when I saw him pulling into the parking lot, I then pulled out and got behind him.@ Officer Allen testified he drove his patrol car into the parking lot, parked behind appellant=s vehicle, and activated the patrol car=s emergency lights. Officer Allen testified appellant=s vehicle was not blocked, and appellant could have driven away if he chose to. Officer Allen testified, AHe could have actually if he had wanted to drive away, he could have turned the wheels to the left and drove [sic] out of the parking lot. He didn=t park straight up against the building. . . .@ Officer Allen walked up to appellant=s vehicle and engaged appellant in conversation. Officer Allen testified that upon speaking with appellant, he Aimmediately@ detected a strong odor of alcohol, and observed appellant had red, bloodshot eyes and slurred speech.

Citing Beasley v. State, 674 S.W.2d 762 (Tex. Crim. App. [Panel Op.] 1982), appellant argues he was seized when Officer Allen parked his patrol car behind appellant=s vehicle because appellant=s vehicle was Ablocked@ or Aobstructed@ by the presence of the patrol car. Appellant=s factual assertions are not supported by the record. Officer Allen testified appellant=s vehicle was not blocked, and appellant could have driven away. Appellant also misreads Beasley. In Beasley, the Court of Criminal Appeals held that two occupants of a disabled vehicle parked in a residential neighborhood were illegally seized by police, without reasonable suspicion. Id. at 766B67. Police officers parked two patrol cars next to the defendants= vehicle, one parking Aeye to eye@ with the defendants= vehicle, and the other parking behind. Id. The officers checked the vehicle registration and ran criminal background checks on the defendants. Id. Contrary to appellant=s contention, the Beasley court did not conclude the defendants had been seized solely on the basis of the presence of the police vehicles, and expressly stated it was Areluctant@ to do so. Id. In its seizure analysis, the Beasley court noted, Athough little is clear from this record, it does establish that at a later point appellants were in fact >detained= by the officers to the extent that they had to >ask= for cigarettes from the truck . . . .@ Id. (emphasis added). The mere presence, without more, of a police vehicle in proximity to a motorist is not a seizure under the Fourth Amendment.

Appellant next argues he was seized when Officer Allen parked his patrol car behind appellant=s vehicle because the emergency lights on the patrol car constituted a show of authority which would lead a reasonable person to believe he was not free to leave. Texas courts have held that when an officer turns on his emergency lights, the officer has made a sufficient show of authority to turn a consensual encounter into a detention or seizure. See, e.g., Garza v. State, 771 S.W.2d 549, 557 (Tex. Crim. App. 1989); Klare v. State, 76 S.W.3d 68, 73 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). However, these cases differ from the present case in a material respect. The cited cases involve traffic stops of moving vehicles, whereas here, appellant stopped his vehicle on his own accord prior to the time Officer Allen turned on his emergency lights. None of the evidence presented indicates that Officer Allen=s use of the emergency lights produced a stop or detention, or that appellant yielded to Officer Allen=s show of authority. Thus, when Officer Allen approached appellant=s vehicle, there was no seizure; there was merely an encounter. See Shelby v. State, No. 2-05-258-CR, 2006 WL 669532, at *3B4 (Tex. App.CFort Worth Mar. 16, 2006, no pet.) (mem. op., not designated for publication) (finding no seizure occurred when police officer pulled into a parking lot, activated the emergency lights on his patrol car, and approached defendant=s parked vehicle).

Finally, appellant argues he was seized when he submitted to Officer Allen=s request to roll down the window on his vehicle. Contrary to appellant=s assertion, the record contains no evidence Officer Allen requested appellant to roll down his window. The evidence in this case shows that Officer Allen approached appellant=s vehicle, engaged appellant in conversation, and Aimmediately@ detected signs of intoxication. Based on the evidence introduced at the suppression hearing, we conclude appellant was not seized when Officer Allen approached appellant=s vehicle, parked in a public place, and spoke to appellant.[2] Appellant=s first issue is overruled.

 II. Appellant=s Statements Were Not the Result of Interrogation

In his second issue, appellant claims the trial court erred in denying appellant=s motion to suppress his oral statements because they were the result of improper custodial interrogation. Appellant specifically complains about the admission of his statement, AWell, yes . . . that=s true.@ Appellant made the statement while Officer Allen was administering field sobriety tests. Our review of State=s Exhibit 1, the videotape from Officer Allen=s police vehicle, shows the following exchange took place between appellant and Officer Allen:

Allen: Do you have any questions?

Appellant: Yes.

Allen: What=s your question?

Appellant: I would like to have a lawyer present.

Allen: You are a lawyer.

Appellant: Yes. I=d like to have one who has . . . I=m a corporate lawyer. I deal with international transactions. I=d like to have a lawyer that knows these things.

Allen: Ok. Uhm . . .

Appellant: And I=m about to get arrested. And I=d like a lawyer that . . .

Allen: You=re right. Go ahead and turn around, bring your hands behind you.

Appellant: Okay.

Allen: You=ve definitely had way too much to drink to be driving.

Appellant: Well, yes . . . that=s true.

Allen: Well, at least you=re honest.

Appellant argues his statement, AWell yes . . . that=s true,@ and all statements made by appellant thereafter should have been suppressed pursuant to Miranda v. Arizona and article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a) (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Specifically, appellant contends he was subjected to custodial interrogation after having invoked his right to counsel and without being advised of his statutory warnings.

Article 38.22 of the Code of Criminal Procedure prohibits the use of an oral statement of an accused made as a result of custodial interrogation unless an electronic recording is made of the statement, statutory warnings are given, and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a). Miranda and article 38.22 apply only to custodial interrogation. Id. ' 5; Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Section 5 of article 38.22 expressly provides that nothing in article 38.22 precludes the admission of statements which do not stem from custodial interrogation, statements which are Ares gestae of the arrest or the offense,@ and all voluntary statements, whether or not they result from custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22 ' 5.

It is undisputed that appellant was not advised of his statutory warnings prior to making the statement in question. Therefore, the admissibility of appellant=s statement rests upon whether the statement was the result of custodial interrogation. Assuming without deciding that appellant was in custody at the time he made his statement, we find that appellant=s statement was voluntary and not the product of interrogation.

AInterrogation@ is defined as any words or actions by the police that they should have known are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980). Questioning which occurs as a normal incident of arrest and custody is not interrogation. Id. Further, offhand remarks, not designed to elicit a response, do not constitute custodial interrogation. Id., 446 U.S. at 302, 100 S. Ct. at 1690; Murray v. State, 864 S.W.2d 111, 114 (Tex. App.CTexarkana 1993, pet. ref'd).

Officer Allen=s statement to appellant was not one that Officer Allen should have known was reasonably likely to elicit an incriminating response and, therefore, was not interrogation. Officer Allen told appellant, AGo ahead and turn around, bring your hands behind you. You=ve definitely had too much to drink to be driving.@ Viewed in context, Officer Allen was merely informing appellant of the reason for his arrest. Therefore, appellant=s statement, AWell, yes . . . that=s true,@ was voluntary and did not stem from custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22 ' 5.

This court addressed a similar situation in Galloway. See Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.CHouston [14th Dist.] 1989, no pet.). In Galloway, police stopped the defendant for speeding and suspicion of DWI. Id. After observing the defendant=s difficulty performing field sobriety tests, the officer informed the defendant he was under arrest. Id. The defendant immediately asked for Aa break@ and admitted making Aa mistake@ and going out Ato get-faced@ because of problems with his girlfriend. Id. This court held that the defendant was in custody, but his statements were not the product of interrogation. Id. Nothing in the record indicated that police obtained the statement by the type of coercive, focused inquiry which would have amounted to interrogation and implicated the protections of Miranda and article 38.22. Id. at 113.

Just as in Galloway, appellant=s statement was made voluntarily in response to the news of his arrest. Allen did not obtain the statement by the type of coercive, focused inquiry which would have amounted to an interrogation. Accordingly, we conclude that appellant=s statement, AWell, yes . . . that=s true,@ did not result from custodial interrogation for purposes of Miranda and article 38.22. Appellant also claims that all statements made by him thereafter should have been suppressed. Our review of the record shows that appellant made only a few, brief statements while being handcuffed and searched, all of which were made in response to questioning which occurred as a normal incident to arrest and custody. See McCambridge v. State, 712 S.W.2d 499, 505 (Tex. Crim. App. 1986) (holding questioning normally attendant to arrest and custody is not interrogation). Accordingly, appellant=s second issue is overruled.

Conclusion

Having considered and overruled each of appellant=s two issues on appeal, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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

[1] The State argues, in the alternative, that even if a seizure of appellant did occur, the temporary detention of appellant was justified based upon reasonable suspicion appellant committed traffic violations. The State further contends Officer Allen was justified in stopping appellant to inquire about his safety under the community caretaking exception to the warrant requirement. Because we find appellant was not seized when Officer Allen pulled up behind appellant=s parked vehicle and spoke to appellant, we need not address the State=s alternative arguments.

[2] Appellant does not argue that he was illegally seized after his initial encounter with Officer Allen.