THERESA MARIE RUBENS, Appellant v. STATE OF TEXAS, Appellee

 
AFFIRMED and Opinion filed June 20, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01067-CR
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THERESA MARIE RUBENS, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MA-04-53555-K
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OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Moseley
        A jury convicted Theresa Marie Rubens of driving while intoxicated (DWI). The trial court assessed punishment at 365 days in jail, probated for twenty-four months, and a $2500 fine. In four points of error, Rubens appeals claiming the trial court erred in overruling her objections to the admission of seized evidence, in denying her motion to suppress, refusing her requested jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure, and overruling her objections to the jury charge for failing to include this jury instruction. For the reasons set forth below, we affirm the trial court's judgment.
 
I. Background
 
        There is evidence in the record that while driving a vehicle on May 2, 2004, Rubens hit the parked vehicle of a college student living on her street. Three students present at the time testified they heard a crash and observed that Rubens had hit the vehicle. They then observed Rubens back up and hit the student's vehicle again, pushing another student's vehicle onto the curb. Rubens backed up again and left her vehicle in the middle of the street. One of the students called the police. The students testified they spoke to Rubens after the accident, that she admitted hitting the vehicle, and that they believed her to be intoxicated. They said Rubens went into her house after speaking with them.
        Officer Mark Torres testified he arrived at the scene to investigate a 911 call about an accident involving a possible DWI. He noticed the vehicles on the street were heavily damaged, and that Rubens's car was in the middle of the street with both of its air bags deployed. He spoke with the students living on the street who told him they heard and witnessed Rubens hit their vehicles. The students said they had spoken with Rubens, and that she then went home.
        Torres went to Rubens's door and asked her for identification. Rubens let him in while she looked for it. Torres asked Rubens if the vehicle in the middle of the street was hers. She denied it. Torres asked her to accompany him outside. He testified that if Rubens had refused, he would have asked her repeatedly and used slight force to take her outside her home; however, Rubens came out willingly. Torres asked again if that was her vehicle in the middle of the street and she admitted it was. After asking Rubens about her vehicle, Torres noticed she had bloodshot eyes, her breath smelled of alcohol, and she staggered when she walked. He concluded she was intoxicated, put her in his police car, and called for a DWI expert.
        Officer Matthew Finley, a DWI expert, arrived at the scene to conduct sobriety tests. He set up his in-car camera and began his initial observations and investigation. He noticed the strong smell of alcohol coming from Rubens and that she had bloodshot eyes. Rubens admitted to Finley that she had drunk two beers. Finley then administered field sobriety tests. One of the tests indicated she was intoxicated, but she was too unsteady, and in Finley's opinion, too intoxicated to perform the other two tests. Rubens was also unable to recite portions of the alphabet or count backwards. Rubens refused to take a breath or blood test. Finley concluded that Rubens had lost the normal use of her mental and physical faculties and was therefore intoxicated. Finley then arrested her for DWI. Finley videotaped his observations, the sobriety tests, and the arrest, and this videotape was played for the jury.
        Rubens's neighbor, Desmond Kirkwood, testified that he only heard one crash, did not see Rubens talk to the students, told the students who Rubens was and where she lived, and that he did not think Rubens was intoxicated. Kirkwood said his wife helped Rubens into her house. Kirkwood testified that Torres went directly to Rubens's house and did not speak with the students until after he had talked to Rubens.
        At trial, Rubens objected to the admissibility of the evidence obtained after she left her home with Torres and moved to suppress because the evidence was obtained during an unlawful detention. After a hearing outside the jury's presence, the trial court overruled the objections and denied the motion.
        Rubens also requested a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure, arguing there was a factual dispute regarding the legality of Rubens's detention due to the inconsistent testimony of the students and Torres on one hand, and Kirkwood on the other. The trial court denied the request. Rubens later objected to the jury charge for failing to include this jury instruction. The trial court overruled the objection.
II. Admissibility of Seized Evidence
 
        In her first and second points of error, Rubens contends that the trial court erred in overruling her objections to the admissibility of the evidence obtained after she left her home, and in denying her motion to suppress because the evidence was obtained during an unlawful detention.
A. Standard of Review and Applicable Law
        We apply a bifurcated standard of review to a ruling on a motion to suppress, giving almost total deference to the trial court's determination of the facts, particularly when the finding involves an evaluation of a witness's credibility and demeanor. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where a trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's rulings and assume that the trial court made implicit findings of fact supported by the record. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Guzman, 955 S.W.2d at 89. Whether a specific search or seizure was reasonable is a mixed question of law and fact that is reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).
        A police officer is permitted to approach a citizen without probable cause or reasonable suspicion to ask questions, ask to examine identification, or even ask for consent to search. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). A person who voluntarily accompanies investigating police officers to a certain location-knowing that he is a suspect-has not been “seized” for Fourth Amendment purposes. Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996) (citing Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987)). If the circumstances show the transportee is acting only upon the invitation, request, or even urging of the police, and there are no threats, express or implied, that he will be taken forcibly, the accompaniment is voluntary, and such person is not in custody. Anderson, 932 S.W.2d at 505. An officer's uncommunicated intent to use force to bring a suspect to a location if he refuses the officer's request does not constitute an express or implied threat that the suspect will be taken forcibly. See id.
        Furthermore, a police officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by articulable facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Information from an informant that exhibits sufficient indicia of reliability may provide the reasonable suspicion necessary to justify an investigatory detention. Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002) (citing Alabama v. White, 496 U.S. 325, 326-27 (1990)). If the informant describes in detail the criminal activity, along with a statement that the event was observed firsthand, the information exhibits sufficient indicia of reliability. Brother v. State, 166 S.W.3d 255, 257-59 (Tex. Crim. App. 2005).
B. Discussion
        At the conclusion of the hearing, Rubens's attorney stated that she
 
moves the Court to suppress any information obtained by this officer [Torres] or his fellow officer who has yet to testify in this case as a result of the unlawful detention of Ms. Rubens from her home without a warrant . . .. And any evidence that the officers may have gained as a result of this, including any oral statements, police observations of the alleged intoxicated condition of the defendant, the videotape that will follow this officers's testimony, any evidence gained as a result of this officer detaining Ms. Rubens from the interior of her residence without a warrant, we ask the Court to suppress that from evidence in this case.
 
        In her brief, Rubens states her first and second issues as: (1) “[w]hether Appellant's objections to evidence seized as a result of a warrantless arrest of Appellant, inside her residence, should have been sustained . . .?” and (2) “[w]hether the trial court erred in denying Appellant's Motion to Suppress Illegally Seized Evidence . . .?” She summarizes her argument under these issues as follows:
 
Appellant argues that she was arrested, without a warrant, inside her residence when officer Torres requested Ms. Rubens to go outside with him. The initial arrest continued for approximately 15-20 minutes while Ms. Rubens was inside Torres' [sic] squad car waiting for the DWI expert. The trial court should have suppressed all evidence gained as a result of this unlawful, warrantless arrest.
 
Thus, Rubens contends she was detained unlawfully when Torres asked her to accompany him outside of her home and all evidence obtained after she left her house, including her oral statements, police observations of her intoxicated condition, and the videotape from Finley's in-car camera, should have been suppressed. Viewing the evidence in the light most favorable to the trial court's ruling, we reject this argument. See Ford, 158 S.W.3d at 493.
        At the time Rubens accompanied Torres outside her home, Rubens was not detained because Torres was permitted to approach her for questioning and identification without probable cause or reasonable suspicion. See Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104. Moreover, Rubens accompanied Torres outside willingly, under no express or implied threat of force, and Torres never communicated his intention to use force if she refused. See Anderson, 932 S.W.2d at 505. Thus the trial court did not err in overruling Rubens's motion to suppress with respect to the evidence Torres obtained after Rubens left her house and before she entered Torres's police car.
        Torres testified he detained Rubens when he placed her into his police car. This detention was not unlawful, however, because, under the totality of the circumstances, including the 911 call, Torres's observations of the conditions of the vehicles and of Rubens, Rubens's initial denial and later admission that the vehicle in the middle of the street was hers, and the students' first-hand account of the accident, Torres had reasonable suspicion to detain Rubens for further investigation. See Woods, 956 S.W.2d at 35; see also Brother, 166 S.W.3d at 259-60; Roy, 90 S.W.3d at 723. Thus the trial court did not err in overruling Rubens's motion to suppress with respect to the evidence Torres obtained after he put her in the squad car, or the evidence Finley obtained prior to placing her under arrest. We overrule Rubens's first two points of error.
III. Instruction Under Article 38.23 of the Texas Code of Criminal Procedure
 
        In her third and fourth points of error, Rubens contends the trial court erred in refusing her requested jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure and in overruling her objections to the jury charge for failing to include this jury instruction because there was a factual dispute over the legality of her detention.
A. Standard of Review and Applicable Law
        Article 38.23(a) of the Texas Code of Criminal Procedure states that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). In any case where the evidence raises an issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of article 38.23, the jury shall disregard any such evidence so obtained. Id.
        There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). There must be a genuine dispute about a material fact. Id. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Id. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. Id. The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct. Id. at 511.
B. Discussion
        Rubens contends the trial court erred in failing to submit an instruction under art.38.23(a). She asserts that Torres detained her in her residence when he asked her to exit the house; that there is disputed evidence as to whether Torres heard the students' account of the accident before or after he detained Rubens; and that there is thus a factual dispute relating to whether Torres had reasonable suspicion to detain Rubens when they exited the house, and thus a factual dispute relating to the legality of Rubens's detention. We reject this argument because this disputed fact is not material to the ultimate admissibility of the evidence. See Madden, 242 S.W.3d at 510.
        As discussed above, Rubens was not detained when Torres came to her house, entered upon Rubens's invitation, and requested she accompany him outside, with which she willingly complied. See Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104; see also Anderson, 932 S.W.2d at 505. Instead, Rubens was detained when Torres put her in his police car and called for the DWI expert. Whether or not Torres spoke with the students before coming to Rubens's door was not an essential fact in deciding the lawfulness of this detention because there were other facts, not in dispute, sufficient to support the lawfulness of her detention. See Madden, 242 S.W.3d at 510-11. Thus, Rubens was not entitled to submission of an article 38.23 instruction to the jury. See id. We overrule Rubens's third and fourth points of error.
IV. Conclusion
 
        Having overruled Rubens's four points of error, we affirm the trial court's judgment.
        
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051067F.U05