Robert Herrera v. The State of Texas--Appeal from of County

No. 04-99-00091-CR
Robert HERRERA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 1, Bexar County, Texas
Trial Court No.650342
Honorable Al Alonso, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: November 10, 1999

AFFIRMED Robert Herrera appeals his conviction for driving while intoxicated (DWI). In a single issue, Herrera complains that the trial court erred by not granting his motion to suppress his oral statement. Herrera contends that his motion should have been granted because his statement did not comply with article 38.22, Section 3(a) of the Texas Code of Criminal Procedure. Because we find that this provision does not apply to Herrera's statement, we affirm the trial court's judgment.

FACTUAL BACKGROUND

Around 1:30 a.m. on November 23, 1996, San Antonio Police Officer Roy Vasquez observed Herrera standing next to his car on the shoulder of Highway 90 arguing with his girlfriend. Officer Vasquez approached the two, stopped behind them, and activated the lights of his patrol car. In answer to Vasquez's query about what was going on, Herrera staggered to and steadied himself on his vehicle and stated that he and his girlfriend were arguing. Noticing a strong odor of alcohol and that Herrera's eyes were bloodshot, Officer Vasquez asked Herrera who was driving. Herrera answered, "I was," to which Vasquez responded, "Okay. Well, just stay there." Officer Vasquez next questioned the girlfriend who confirmed that Herrera had been driving the car. As a result, Officer Vasquez initiated the standardized field sobriety tests, determined that Herrera was intoxicated, placed him in the patrol car, and transported him to the Magistrate's Office, where Herrera was read the statutory warnings. Herrera was subsequently charged with DWI.

Herrera filed a motion to suppress, contending that his response to Vasquez, that he had been driving the car, was a product of custodial investigation and that the statement should be suppressed, because the requirements for the admission of oral statements under article 38.22, section 3(a) were not satisfied. A hearing was conducted on Herrera's motion, and at the conclusion of the hearing, the trial court denied the motion. The trial court also entered findings of fact and conclusions of law to the effect that article 38.22 did not apply to Herrera's statement because it was not the product of custodial interrogation.

DISCUSSION

Article 38.22, section 3(a) provides that [n]o oral . . . statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless an electronic recording is made of the statement, and prior to the statement, but during the recording, the accused is given the Miranda warning, and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning. Tex. Code Crim. Proc. art. 38.22, 3(a) (Vernon Supp. 1999). Here, Herrera contends that the trial court erred by denying his motion because his statement did not comply with this provision. In reviewing a trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts, but we decide de novo whether the trial court erred in misapplying the law to the facts. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997). Because article 38.22 only applies to custodial statements, we must determine whether Herrera was in custody at the time he told Vasquez that he had been driving the car. The United States Supreme Court's decisions in Berkemer v. McCarty, 468 U.S. 420 (1984); Pennsylvania v. Bruder, 488 U.S. 9 (1988) are determinative of this issue.

In Berkemer v. McCarty, the Supreme Court determined that the non-coercive aspect of ordinary traffic stops does not constitute "custody" for the purposes of Miranda. The facts of Berkemer are similar to the facts of the instant case: a state highway trooper followed a weaving car on the interstate for about two miles before forcing the motorist to stop and get out of the car. The motorist's speech was slurred and his ability to stand was impaired. The trooper asked about intoxicants without reciting the Miranda warnings and the driver responded with statements he later sought to suppress. The Court determined that because the driver was not in custody at the time he answered the officer's questions, the statements were admissible.

The Court considered similar facts in Pennsylvania v. Bruder. There, a police officer stopped a motorist for erratic driving and running a red light and found that the motorist smelled of alcohol and stumbled. The officer administered field sobriety tests and inquired about alcohol. As in Berkemer, the defendant in Bruder answered the officer with statements he later sought to suppress. The Court reiterated that ordinary traffic stops do not involve custody for the purposes of the requirement to give Miranda warnings. See Bruder, 488 U.S. at 10. Likewise this court found no coercive atmosphere of custodial interrogation as contemplated by Miranda and its progeny in Abernathy v. State, where a motorist was stopped for a routine traffic violation, found to be intoxicated, and questioned about his drinking without Miranda warnings. See Abernathy v. State,963 S.W.2d at 825.

The facts of these cases are virtually indistinguishable from the instant case: a single police officer asked the motorist a reasonable number of questions and requested the motorist to perform a simple balancing test at a location visible to passing motorists. See Berkemer, 468 U.S. at 423-24; Bruder, 488 U.S. at 10; Abernathy, 963 S.W.2d at 825. In each case, the reviewing court held that ordinary traffic stops do not involve custody for the purposes of the requirement to give Miranda warnings before beginning custodial interrogation. Such encounters or detentions are not so inherently coercive as to require the warning provided for in Miranda or the protection of article 38.22, even if the officer already suspects that the motorist is intoxicated or has already decided to arrest the motorist. See Berkemer, 468 U.S. at 440; Bruder, 488 U.S. at 10; Abernathy, 963 S.W.2d at 825. Even assuming that Herrera was in some way detained when he made his statement, such detention was a reasonable temporary investigative detention necessary to ascertain whether a traffic law against parking on the shoulder was violated, or to inquire into the safety and well being of the quarreling pair on the roadside. See id.

Because he was detained only briefly and asked a number of reasonable questions in a non-threatening public location, the encounter between Herrera and Vasquez had not yet risen to the level of custodial interrogation. As a result, article 38.22 does not apply to his statement. Consequently, the trial court correctly denied Herrera's motion to suppress. Herrera's sole point of error is overruled and the judgment of the trial court is affirmed.

Alma L. L pez, Justice

 

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