Opinion
No. 08-19-00053-CR
07-29-2020
Erica Zacarias FUNES, Appellant, v. The STATE of Texas, Appellee.
Jaime E. Esparza, El Paso, for Appellee. Damian Rasmussen, Matthew Dekoatz, for Appellant.
Jaime E. Esparza, El Paso, for Appellee.
Damian Rasmussen, Matthew Dekoatz, for Appellant.
Before Alley, C.J., Rodriguez, and Palafox, JJ.
OPINION
JEFF ALLEY, Chief Justice
Appellant Erica Zacarias Funes was convicted by a jury of one count of driving while intoxicated. The trial court sentenced her to a 180-day jail term, and thereafter placed her on community supervision for 15 months. Appellant was initially stopped by two Border Patrol agents pursuant to the Texas "Citizen's Arrest" statute after they observed her driving erratically. Appellant contends that the citizen's arrest was the equivalent of full custody formal arrest for purposes of both Miranda and the Texas Exclusionary Rule, and that the El Paso Police officers who arrived at the scene shortly thereafter were required to immediately administer Miranda warnings before speaking with her. She further contends that the officers' failure to do so required the trial court to exclude all evidence obtained thereafter, and that the trial court therefore erred in denying her motion to suppress said evidence. Disagreeing with Appellant in several respects, we affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Initial Stop
At approximately 3:10 a.m. on June 7, 2018, Border Patrol Agent Carlos Guerrero, Sr. and his partner were traveling in an unmarked vehicle equipped with emergency lights and sirens when they observed Appellant driving a car down the wrong side of the road approaching their vehicle. Guerrero's partner, who was driving the Border Patrol vehicle, flashed his lights and honked his horn to warn Appellant in an attempt to avoid a collision, but when Appellant failed to respond, he was forced to put their vehicle into reverse to avoid being struck. Thereafter, Guerrero's partner turned his vehicle around and activated its lights and sirens, and began following Appellant's car in an attempt to stop her, or at the least, to alert her to the dangers that her driving was posing. The agents observed Appellant almost collide with another car before she eventually pulled over into a restaurant parking lot.
Guerrero testified that he and his partner made the decision to stop Appellant's car for safety reasons because they did not want Appellant or anybody else to get hurt. Guerrero further testified that, as Border Patrol agents, they had no authority to enforce traffic regulations and had no training to determine whether Appellant was able to continue driving safely; accordingly, they called for assistance from the El Paso Police Department to allow them to make that determination.
Guerrero recalled that as he approached her car, Appellant attempted to get out, almost falling over as she did, so he cautioned her to stay in the car for her own safety. Guerrero testified that while speaking with Appellant, he observed that her eyes were "red and glossy." Guerrero, who acknowledged that he did not read Appellant her Miranda rights, recalled that when he asked Appellant if she needed any help, and whether she was intoxicated, Appellant's only response was that she was trying to pick up her boyfriend. Shortly thereafter, Appellant's boyfriend appeared on the scene on foot, and told the agents that they had recently been at Adrian's Bar, where an altercation had taken place. At that same approximate time, Appellant attempted to "explain" to the agents what had happened earlier that morning, but Guerrero advised both of them to "hold" their comments until the police arrived, as he was not there to "investigate" any crime, and was only there for Appellant's safety. Guerrero testified that during his encounter with Appellant, he did not physically restrain her, did not try to prevent her from leaving, and did not tell her that she was being detained or that her freedom was being restricted.
B. Law Enforcement Officers Arrive on the Scene
At approximately 3:19 a.m., a patrol officer arrived on the scene, and spoke with the Border Patrol agents to ascertain what they had observed. Appellant remained in her car all the while. Approximately twenty minutes later, Officers Steven Alvarez and Willem Wilkinson from the police department's DWI Task Force arrived, and their entire encounter with Appellant was captured on a dashcam recording that was played for the jury. Both officers believed that Appellant was not under arrest when they arrived, and that she was merely being detained at the scene, and as such, they did not read Appellant her Miranda rights before speaking with her.
Officer Alvarez first approached Appellant as she was sitting on the driver's side of her vehicle and detected the odor of alcohol, and also observed that she had bloodshot eyes and slurred speech, which he described as signs of intoxication. Officer Alvarez initially identified himself to Appellant and then asked her what had happened, and Appellant replied that she had been in a fight with her boyfriend. When asked where she had been coming from, Appellant replied "Adrian's." And upon being asked how much she had to drink, Appellant initially stated "not much," but then admitted to having "some drinks" at the bar. Officer Alvarez advised Appellant that he intended to conduct a field sobriety test and assured her that if she passed the test, he would let her go. However, after determining that Appellant failed all three aspects of the field sobriety test, Officer Alvarez concluded that he had sufficient evidence to arrest Appellant for driving while intoxicated. Officer Alvarez thereafter placed Appellant in handcuffs and read Appellant her Miranda rights.
Officer Alvarez administered the horizontal gaze nystagmus test, which checks for "bouncing" in the eyes; the "walk-and-turn test," and the "one-leg stand test." The tests were recorded on the officers' dashcam, and the recording was played for the jury.
Officer Wilkinson, a certified intoxilyzer operator, testified that he thereafter made three attempts to obtain a breath sample from Appellant, but she was unable to follow his instructions and he could not obtain a sufficient sample from her. He and Officer Alvarez therefore then obtained a warrant for a blood sample. The lab results showed that approximately three hours after being initially stopped by the Border Patrol agents, Appellant's blood had "0.149 grams of alcohol per 100 milliliters of blood." Appellant was thereafter charged by information with one count of driving while intoxicated.
Although the State did not introduce an expert to explain how the lab results should be interpreted, the trial court instructed the jury that Appellant could be considered intoxicated if she had an alcohol concentration of 0.08 or more, and that the term "alcohol concentration ... means the number of grams of alcohol per 100 milliliters of blood."
C. The Motion to Suppress and Appellant's Trial Objections
At trial, Appellant argued that the Border Patrol agents had placed her under a "citizen's arrest" when they stopped her, and that this was the equivalent of full custody for purposes of Miranda and the Texas Exclusionary Rule, and that Officer Alvarez was therefore required to immediately administer Miranda warnings before speaking with her. Appellant argued that because of his failure to do so, any statements she made to the officers, as well as all physical evidence they obtained thereafter, including the results of her field sobriety tests and the lab results depicting her blood-alcohol level, were the "fruit of the poisonous tree," which were subject to exclusion under both Miranda and Article 38.22 of the Texas Code of Criminal Procedure. The State, on the other hand, argued that the Border Patrol agents did not arrest Appellant or place her in custody, and that instead, they only temporarily detained her for safety reasons; accordingly, the State argued that the protections of Miranda or Article 38.22 were not triggered until Officer Alvarez formally placed Appellant under arrest. The trial court agreed with the State, concluding that Appellant's initial detention by the Border Patrol agents was akin to a " Terry -type stop" detention, rather than a formal arrest, and ruled that all of the objected-to evidence was therefore admissible at trial.
Prior to trial, Appellant filed a written motion to suppress "any and all statements" that she made to the arresting officers, as well as the results of the field sobriety tests and any "blood/intoxilyzer/breathalyzer tests," on the ground that she was detained "without probable cause or reasonable suspicion" and that her Fourth Amendment and due process rights were therefore violated. At the start of trial, Appellant renewed her motion, and made a running objection to the admission of all evidence that was obtained post-detention, citing to both the Fourth Amendment and Article 38.22 of the Texas Code of Criminal Procedure. Appellant does not raise any Fourth Amendment arguments on appeal.
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (police officer acted reasonably in approaching defendant and asking for identification which led to a pat down search where illegal gun was discovered on the defendant's person).
D. The Jury's Verdict and Sentencing Following trial, the jury convicted Appellant of one count of driving while intoxicated, and the trial court sentenced her to 180 days in jail, which was probated to 15 months of community service. After Appellant's motion for new trial was overruled by operation of law, this appeal followed.
II. DISCUSSION
Appellant does not contest the legality of the Border Patrol's initial detention of her and acknowledges that they were permitted to conduct a "citizen's arrest" under Article 14.01 of the Texas Code of Criminal Procedure. Article 14.01 provides that "[a] peace officer or any other person , may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace." TEX.CODE CRIM.PROC.ANN. art. 14.01(a) (emphasis added); see also Miles v. State , 241 S.W.3d 28, 41-42 (Tex.Crim.App. 2007) (discussing citizen's arrests under the Code). And as Appellant acknowledges, driving while intoxicated is considered a "breach of the peace" for purposes of the citizen's arrest statute. See Miles , 241 S.W.3d at 41-42 (holding that a citizen arrest for misdemeanor DWI is permitted); see also Sanchez v. State , 582 S.W.2d 813, 814-15 (Tex.Crim.App. [Panel Op.] 1979) (holding Border Patrol agents acted lawfully under the citizen's arrest statute when they detained a suspect found on the side of the road who smelled of alcohol and displayed signs of intoxication); Robertson v. State , No. 08-17-00109-CR, 2019 WL 2442878, at *4 (Tex.App.--El Paso June 12, 2019, no pet.) (not designated for publication) (recognizing right of citizen to make a citizen's arrest where defendant was observed to be driving erratically and where citizen had probable cause to believe defendant was driving while intoxicated, which constituted a breach of the peace).
Appellant also appears to acknowledge that because the Border Patrol agents were acting in their capacity as private citizens, rather than as law enforcement personnel, they were not required to read Appellant her Miranda rights before speaking with her. See Macias v. State , 733 S.W.2d 192, 195 (Tex.Crim.App. 1987) (en banc) (recognizing that the "safeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice."); Escamilla v. State , 143 S.W.3d 814, 824-25 (Tex.Crim.App. 2004) (statements made to private citizens, rather than law enforcement personnel or their agents, do not trigger the protections of Miranda or Article 38.22 ); see generally Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("Custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody ....").
What Appellant does argue, however, is that the Border Patrol agents had placed her in full custody for purposes of both Miranda and Article 38.22 of the Code when they stopped her, and that this custody in essence transferred to the officers who arrived at the scene, thereby requiring them to immediately read Appellant her Miranda rights before speaking with her. She further contends that all the statements that she made to the police officers, as well as all physical evidence that was obtained thereafter, should have been suppressed as the "fruit of the poisonous tree." The State counters that even if the officers were required to immediately Mirandize Appellant, her only remedy was suppression of the statements that she made to the officers, and that the remaining evidence presented at trial, which was properly admitted, was more than sufficient to support the jury's verdict, thereby making any error in admitting the statements harmless. We agree with the State.
A. Standard of Review
We review a trial court's suppression ruling under a bifurcated standard, deferring to the trial court's findings of fact, while reviewing de novo purely legal issues and the application of the law to the facts. See State v. Woodard , 341 S.W.3d 404, 410 (Tex.Crim.App. 2011). Our deferential review of the trial court's factual determinations also applies to the trial court's conclusions regarding mixed questions of law and fact that turn on credibility or demeanor of the witnesses. See State v. Ortiz , 382 S.W.3d 367, 372 (Tex.Crim.App. 2012). However, we review mixed questions of law and fact that do not turn on credibility and demeanor de novo. Woodard , 341 S.W.3d at 410. We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran , 396 S.W.3d 563, 571 (Tex.Crim.App. 2013). If the trial court's decision falls within the zone of reasonable disagreement, is reasonably supported by the record, and is correct under any theory of law applicable to the case, it will be upheld. See State v. Dixon , 206 S.W.3d 587, 590 (Tex.Crim.App. 2006) ; see also State v. Story , 445 S.W.3d 729, 732 (Tex.Crim.App. 2014).
B. The Requirements of Miranda and Article 38.22
In Miranda v. Arizona , the United States Supreme Court held that an individual's Fifth Amendment right to be free from self-incrimination extends to statements elicited in a custodial interrogation. 384 U.S. at 461, 86 S.Ct. 1602. Thus, Miranda imposes an obligation on the police, prior to a custodial interrogation, to apprise the suspect of (1) the State's intention to use any statements to secure a conviction, (2) the right to remain silent, and (3) the right to counsel, either retained or appointed. Id. at 445, 86 S.Ct. 1602. If the warnings are not given in a timely manner prior to custodial interrogation, any statements given to law enforcement in response to such interrogation are inadmissible at trial. Id. at 476-79, 86 S.Ct. 1602 ; see also Wilkerson v. State , 173 S.W.3d 521, 526 (Tex.Crim.App. 2005) (recognizing that under the holding in Miranda , "the State may not use any statements stemming from ‘custodial interrogation of the defendant’ " absent the safeguards required by Miranda ). Texas codifies the Miranda requirements in Article 38.22 of the Texas Code of Criminal Procedure, by listing the required warnings in Section 2(a), and then providing that:
No oral ... statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless ... prior to the statement but during the recording the accused is given the warning in Subsection a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.
Section 2 lists the warnings required by Miranda , including a warning that the individual has the right to remain silent and that any statement may be used against him in court; that he has the right to counsel, and that he has the right to terminate the interrogation at any time. Tex.Code Crim.Proc.Ann. art . 38.22 § 2(a).
TEX.CODE CRIM.PROC.ANN. ART. 38.22 §§ 2(a), 3(a)(2) ; see also Herrera v. State , 241 S.W.3d 520, 525-526 (Tex.Crim.App. 2007) (recognizing that statements that are the product of custodial interrogation are not admissible under either Miranda or Article 38.22 in the absence of proper warnings).
C. The Remedy for Miranda and Article 38.22 Violations
Nonetheless, the remedy for violations of both Miranda and Article 38.22 of the Code are not as broad as Appellant believes. As set forth above, Appellant contends that the officers' alleged failure to Mirandize her in a timely manner required the trial court to not only suppress the statements that she made to the officers, but all physical evidence the officers obtained thereafter, under the "fruit of the poisonous tree" doctrine. However, this doctrine has no application to Appellant's case. The "fruit of the poisonous tree" doctrine, as set forth in the United States' Supreme Court's opinion in Wong Sun , generally "precludes the use of evidence, both direct and indirect, obtained following an illegal arrest." Monge v. State , 315 S.W.3d 35, 40 (Tex.Crim.App. 2010), citing Wong Sun v. United States , 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; see also State v. Iduarte , 268 S.W.3d 544, 550 (Tex.Crim.App. 2008). Numerous courts, however, have held that other than for the limited category of coerced statements, the doctrine does not apply when the only issue is whether the defendant was timely given his or her Miranda warnings. See, e.g., Baker v. State , 956 S.W.2d 19, 22, 24 (Tex.Crim.App. 1997) (en banc), citing Michigan v. Tucker , 417 U.S. 433, 452, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) ; Oregon v. Elstad , 470 U.S. 298, 314, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (recognizing that the "fruit of the poisonous tree" doctrine espoused in Wong Sun does not apply to mere violations of the prophylactic requirements in Miranda ); see also United States v. Patane , 542 U.S. 630, 639, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (holding the accidental failure to give suspect Miranda warnings did not require suppression of physical fruits of suspect's unwarned but voluntary statement). To the contrary, both Miranda and Article 38.22 of the Code only require the suppression of statements taken in response to custodial interrogation without timely Miranda warnings, but other evidence subsequently obtained--even when obtained as the result of that statement (i.e., the "fruit" of the statement) need not be suppressed. See In re J.T.M. , 441 S.W.3d 455, 463-64 (Tex.App.--El Paso 2014, no pet.), citing Baker v. State , 956 S.W.2d at 22 ; see also In re H.V. , 252 S.W.3d 319, 327-28 (Tex. 2008) (recognizing that the State exclusionary rule set forth in Article 38.22 does not require suppression of evidence obtained as a result of a statement taken in violation of the prophylactic requirements of Miranda ).
In instances where a statement was obtained as the result of actual coercion, the "fruit of the poisonous tree" doctrine does apply, and evidence obtained as the result of the coerced statement may be suppressed. See In re J.T.M. , 441 S.W.3d 455, 464 (Tex.App.--El Paso 2014, no pet.), citing Baker v. State , 956 S.W.2d 19, 22 (Tex.Crim.App. 1997) (en banc); Michigan v. Tucker , 417 U.S. 433, 448-49, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). In the present case, Appellant does not contend that there was any coercion, and none appears in the record.
D. Any Error in Denying the Motion to Suppress was Harmless
The limited nature of the remedy for violations of Miranda and Article 38.22 of the Code guides our decision in this case and convinces us that even assuming the trial court erred in denying Appellant's motion to suppress (the merits of which we do not reach), any error was harmless to her case.
Because Appellant raises both statutory and constitutional errors, we assess harm using the standard set forth in Texas Rule of Appellate Procedure 44.2(a) for constitutional errors. See Campbell v. State , 325 S.W.3d 223, 239 (Tex.App.--Fort Worth 2010, no pet.) (where Appellant alleged error under both Miranda and Article 38.22, court analyzed harm under the more rigorous Rule 42(a) for constitutional error). Under this standard, we must reverse a judgment of conviction unless we determine beyond a reasonable doubt that the trial court's constitutional error did not contribute to the conviction. TEX.R.APP.P. 44.2(a). Constitutional error does not contribute to the conviction if the verdict "would have been the same absent the error." Clay v. State , 240 S.W.3d 895, 904 (Tex.Crim.App. 2007), quoting Neder v. United States , 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). As a reviewing court, we must "calculate, as nearly as possible, the probable impact of the error on the jury in light of the record as a whole." Wall v. State , 184 S.W.3d 730, 746 (Tex.Crim.App. 2006). In making this calculation, we consider such factors as the nature of the error, whether the error was emphasized by the State, the probable implications of the error, and the weight the jury likely would have assigned to the error in the course of its deliberations. See Snowden v. State , 353 S.W.3d 815, 822 (Tex.Crim.App. 2011). Because the error in this case relates to the improper admission of evidence, we must consider whether the record contains other properly admitted evidence that supports the material fact to which the inadmissible evidence was directed. See Wall , 184 S.W.3d at 746.
A violation of only Article 38.22 amounts to non-constitutional error. See Woods v. State , 152 S.W.3d 105, 118 (Tex.Crim.App. 2004) (en banc). However, because Appellant also contends that her constitutional rights under Miranda were violated, we address harm under the standard for constitutional error.
Reduced to its essence, the question here is whether absent of the statements that Appellant made to the police officers at the scene, was there sufficient evidence of Appellant's guilt such that the jury's verdict would have been the same. The answer to that question is a clear-cut yes. Although Appellant does not specify which statements she wished to have suppressed, the record reflects that Appellant only made two potentially incriminating statements in response to Officer Alvarez's questions: that she had been at Adrian's bar earlier that morning and that she had "some drinks" while there. Even if those two statements had been suppressed, however, the record contains other significant and properly-admitted evidence to establish that Appellant was guilty of the offense of driving while intoxicated under the Texas Penal Code.
In the trial court, Appellant only identified one statement that she wished to have suppressed, i.e., that she had been at Adrian's Bar prior to being stopped by the Border Patrol agents.
Section 49.01 of the Code provides two alternative methods for establishing guilt for driving while intoxicated. First, a person may commit the offense by operating a motor vehicle in a public place without having the normal use of mental or physical faculties by reason of introduction of alcohol or drugs into the body. Second, a person may commit the offense by having a blood-alcohol-concentration level of 0.08 or more. See TEX.PENAL CODE ANN. § 49.01. At trial, the jury was instructed on both theories and there was ample evidence to support a finding of guilt on each.
As set forth above, Agent Guerrero testified that he observed Appellant driving down the wrong side of the road, and that she was slow to react to his siren and flashing lights. As well, both Agent Guerrero and Officer Alvarez testified that Appellant displayed several signs of intoxication at the scene, and the record reflects that Appellant failed all three of the field sobriety tests. This evidence was sufficient to support a conviction under the first theory of guilt in the statute because it demonstrated that Appellant did not have the normal use of her faculties due to the ingestion of alcohol while operating her vehicle. See, e.g., Campbell v. State , 325 S.W.3d at 238-39, (failure to suppress un-Mirandized statement of defendant that he had been drinking with friends was harmless where evidence showed that defendant had been driving recklessly, smelled of alcohol, and failed a field sobriety test). Moreover, as set forth above, the State introduced evidence that Appellant's blood-alcohol level was 0.149, well over the legal limit of 0.08, which was sufficient to support a conviction under the second theory of guilt in the statute. See Denkowski v. State , No. 14-16-00273-CR, 2017 WL 3568760, at *7 (Tex.App.--Houston [14th Dist.] Aug. 17, 2017, no pet.) (mem. op., not designated for publication) (where defendant's blood alcohol content was 0.126, that evidence alone provided sufficient objective proof that defendant was intoxicated).
And finally, we find it significant that the prosecutor did not emphasize the un-Mirandized statements Appellant made to Officer Alvarez in either his opening or closing statements, mentioning the statements only once, and instead primarily relied on the other evidence of Appellant's guilt. Accordingly, we are confident beyond a reasonable doubt that Appellant would have been convicted of the offense even in the absence of the un-Mirandized statements. We therefore conclude that any error in admitting the statements at trial was harmless beyond a reasonable doubt.
Appellant's sole issue on appeal is overruled.
III. CONCLUSION
The trial court's judgment is affirmed.