Hildebrand v. State

Full title: ROBERT WARREN HILDEBRAND, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Oct 18, 2007

No. 14-06-00531-CR (Tex. App. Oct. 18, 2007)

Opinion

No. 14-06-00531-CR

Filed: October 18, 2007. DO NOT PUBLISH. C Tex. R. App. P. 47.2(b).

On Appeal from the County Criminal Court at Law No. 5 Harris County, Texas Trial Court Cause No. 1305725.

Panel consists of Justices Anderson, Frost, and Mirabal.^_

_ Senior Justice Margaret G. Mirabal sitting by assignment.

MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

Challenging his conviction for the misdemeanor offense of driving while intoxicated, appellant Robert Warren Hildebrand asserts that the trial court erred in denying his motion to suppress. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Around 2:00 a.m. on May 27, 2005, Marci Massengalle was pulling into her subdivision in Baytown when a red truck sped down the road, hit the curb, and ran into a parked Suburban. The truck fled the scene. Massengalle called 9-1-1 and followed the truck until the police arrived. Baytown Police Officer Russell Krutsinger responded and immediately went to the scene to locate the red truck. He spotted a red Chevy pick-up truck which matched the description given over the dispatch. After noticing the truck swerving in its own lane of traffic, Officer Krutsinger activated his video camera and emergency lights and initiated a traffic stop. He requested the individual (appellant) to exit the vehicle. Officer Krutsinger noticed that when appellant exited the vehicle, he used the truck for support, which gave the officer an indication that appellant may have been drinking. Officer Myron Hellman arrived at the scene around the same time. Officer Hellman, however, did not get involved with the investigation of appellant at this time, but stayed back to interview Massengalle regarding the hit-and-run and to determine whether there was any damage to the Suburban. Officer Krutsinger asked appellant if he had been drinking, and appellant replied that he had consumed approximately three, twenty-ounce beers. According to standard procedure for officer safety, Officer Krutsinger patted appellant down. He felt an object in appellant's pocket. He asked appellant what it was, and appellant replied that it could be a lighter. After reaching into appellant's pocket, Officer Krutsinger confirmed this fact. Appellant thereafter willingly performed several field sobriety tests, which were captured on videotape. At the conclusion of the tests, Officer Krutsinger handcuffed and placed appellant in the backseat of the patrol car in order to wait for a tow truck to come for appellant's vehicle. Officer Hellman went back to the police station. After the tow truck arrived, Officer Krutsinger brought appellant to the Baytown jail for further investigation. Upon arriving at the station, appellant was read statutory warnings and asked if he wished to give a breath specimen. Appellant refused to answer as to whether he would give a specimen and became very belligerent. Officer Krutsinger, noticing a strong odor of alcohol on appellant's breath, walked him to the Avideo room" where appellant was asked to perform another series tests, which also were captured on videotape. Appellant, although antagonistic, completed all of the tests. Appellant, however, refused to answer some questions, while answering others. Near the conclusion of the station video, appellant was read his rights, asked if he understood these rights, and whether he wished to waive them. Appellant responded in the negative, and the officers ceased questioning. Appellant was charged with the misdemeanor offense of driving while intoxicated (ADWI"). Appellant pleaded Anot guilty." The jury found appellant guilty as charged, and the trial court sentenced appellant to one-hundred eighty days' confinement in the Harris County Jail, suspended his sentence by placing him on community supervision for one year, and assessed a fine of $600. Prior to trial, appellant filed a motion to suppress all oral statements he made on the videos at the scene and at the police station, contending that he was arrested without being given his Miranda warnings, and that he had invoked his right to be silent at the station by refusing to answer some questions. The trial court conducted a hearing on this motion during two portions of the trial, and made the following conclusions:

• The traffic stop of appellant's vehicle was supported by reasonable suspicion based on dispatch information regarding a red truck (similar to the one driven by appellant) hitting a Suburban and fleeing the scene.

• Appellant was legally detained based on reasonable suspicion.

• The search of appellant's pocket did not escalate appellant's legal detention to an illegal arrest without a warrant or probable cause, but the product of the searchCthe lighterCwould be suppressed.

• The parties could not offer any testimony in regard to interpretation of the field sobriety tests performed by appellant on the scene video (State's Exhibit 2) and on the station video (State's Exhibit 3).

• Appellant did not invoke his right to remain silent at the station by refusing to answer some questions, because Ain order to invoke the right to remain silent, a person must do more than just remain silent," and appellant did not invoke his right to remain silent until the end of the station video whenCafter being read his rightsCappellant responded that he did not wish to waive any of his rights.

• The videos were admissible, except for the audio portion during the part in which appellant was read his rights and refused to waive such rights.

II. STANDARD OF REVIEW

We review the trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App. 1991). If supported by the record, a trial court's ruling on a motion to suppress will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex.App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

III. ISSUE AND ANALYSIS

In a single issue, appellant contends that, because he was under arrest and was not given his Miranda and Texas Criminal Code of Procedure Article 38.22 warnings, all oral statements should have been suppressed. Appellant appeals the trial court's denial of his motion to suppress stating that:

• Any arrest was illegal because the officers did not have reasonable suspicion or probable cause to stop him.

• He was arrested at the time of the initial stop because Officer Krutsinger did not have the authority to issue a citation for the hit-and-run accident or release him. Appellant states that under section 543.002 and 543.003 of Texas Transportation Code, an officer lacks discretion to issue a citation in a case involving a person who leaves the scene where there is property damage. Therefore, when the law requires an arrest, and the officer holds no discretion not to arrest, an objective person would believe he was under arrest.

• When Officer Krutsinger reached into appellant's pocket at the scene without a warrant or probable cause, appellant was placed under arrest, and he should have been read his Miranda warnings. Because he was under arrest at this point, and not read his warnings, everything following this moment (at the scene and in station videos), including statements, acts, or refusals to cooperate, should have been suppressed.

• He invoked his right to be silent at the station by refusing to answer some questions on the video, thus all oral statements and refusals to cooperate on the station video should have been suppressed.

A. Was appellant legally detained or unlawfully arrested?

Appellant contends that he was under arrest either at the time of the initial stop for leaving the scene, or, in the alternative, at the time of the search. He states that because he was under arrest and not given his warnings, all oral statements and refusals to cooperate on the videos made at the scene and at the stationCafter the time of the allegedly illegal arrestC should have been suppressed. Interactions between police and civilians are divided into three categories: (1) encounters, (2) investigative detentions, and (3) arrests. See State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex.Crim.App. 2000). AA person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." TEX. CODE CRIM. PROC. ANN. art. 15.22 (Vernon 2005). However, this Arestraint of liberty" standard is not adequate when distinguishing between an arrest and a detention because it is a characteristic common to both. Dang v. State, 99 S.W.3d 172, 180 (Tex.App.CHouston [14th Dist.] 2003), rev'd on other grounds, 154 S.W.3d 616 (Tex.Crim.App. 2005); Green v. State, No. 14-03-00213-CR, 2004 WL 1381021, at *4 (Tex.App.CHouston [14th Dist.] Jun. 22, 2004, pet. ref'd) (not designated for publication). Whether a person is under arrest or subject to a temporary investigative detention is a matter of degree and depends upon the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation. See Woods v. State, 970 S.W.2d 770, 775 (Tex.App.CAustin 1998, pet. ref'd). Likewise, whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. See Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App. 1997).

1. Was appellant under arrest at the time of the initial stop for fleeing the scene of the hit-and-run?

Appellant first contends that he was under arrest for Fourth Amendment purposes at the initial stop for fleeing the scene of a hit-and-run accident involving an unattended vehicle. Appellant relies on sections 543.002 and 543.003 of the Texas Transportation Code to assert that, because Officer Krutsinger lacked the authority to issue a citation and release him, an arrest was mandatory. See TEX. TRANSP. CODE ANN." 543.002, 543.003 (Vernon Supp. 2006). Appellant argues that, because an arrest was mandatory and he was not read his rights, the videos and his oral statements should have been suppressed. Appellant was stopped and pulled over because Officer Krutsinger, at the very least, had reasonable suspicion to believe that appellant's red truck had been involved in a hit-and-run accident with a Suburban. See id. ' 550.024. Section 550.024 states as follows: (a) The operator of a vehicle that collides with and damages an unattended vehicle shall immediately stop and:

(1) locate the operator or owner of the unattended vehicle and give that person the name and address of the operator and the owner of the vehicle that struck the unattended vehicle; or

(2) leave in a conspicuous place in, or securely attach in a plainly visible way to, the unattended vehicle a written notice giving the name and address of the operator and the owner of the vehicle that struck the unattended vehicle and a statement of the circumstances of the collision.

(b) A person commits an offense if the person violates Subsection (a). An offense under this section is:

(1) a Class C misdemeanor, if the damage to all vehicles involved is less than $200; or

(2) a Class B misdemeanor, if the damage to all vehicles involved is $200 or more.

Id. Sections 543.002 and 543.003 set up the procedure that an officer must follow should he arrest someone for committing an offense under Section 550.024, or another violation of this subtitle. More specifically, section 543.002(a) provides as follows: A person arrested for a violation of this subtitle punishable as a misdemeanor shall be immediately taken before a magistrate if:

(1) the person is arrested on a charge of failure to stop in the event of an accident causing damage to property; or

(2) the person demands an immediate appearance before a magistrate or refuses to make a written promise to appear in court as provided by this subchapter.

Id. ' 543.002 (emphasis added). Section 543.003 provides as follows:

An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person's vehicle.

Id. ' 543.003 (emphasis added). Appellant contends that under these statutes, it was mandatory to arrest him, and because he was arrested for purposes of Miranda and Article 38.22, all of his statements should have been suppressed. We disagree with appellant's interpretation of these statutes. When discerning the meaning of a statute, the reviewing court should begin its analysis by looking at the plain language of the statute in question. Ex Parte Whiteside, 12 S.W.3d 819, 821 (Tex.Crim.App. 2000). If the statute is clear and unambiguous, the plain meaning of its words should be applied. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). If, however, the plain language of a statute would lead to absurd results that the legislature could not possibly have intended or if the language is not plain but rather ambiguous, a court may consider extratextual factors. Id. at 785B86. Under the unambiguous language of these statutes, an officer is not required to arrest a person who violates section 550.024. Sections 543.002 and 543.003 set forth the procedure that officers must follow if they arrest an individual for committing an offense under section 550.024. Section 543.002 states that a person who is arrested should be taken immediately before a magistrate under certain circumstances. Under section 543.003, if an officer arrests a person and does not take that person before a magistrate, the officer shall issue a written notice showing the time and place the person is to appear in court. See TEX. TRANSP. CODE ANN. '' 543.002, 543.003. These statutes do not make it mandatory for an officer to arrest someone for colliding with a vehicle and failing to stop; rather, they state that such an offense is a misdemeanor, and that an officer who decides to arrest an individual based on this offense must follow certain procedures.¹ See Berrett v. State, 152 S.W.3d 600, 606, 607 (Tex.App.CHouston [1st Dist.] 2004, no pet.) (concluding that under section 543.003, a peace officer, in lieu of a custodial arrest may issue a citation or a written notice to appear before a magistrate to a defendant who commits a Class C misdemeanor). We conclude that an arrest was not mandatory, and appellant was not under arrest at the time of initial stop for leaving the scene of the alleged offense. Id. At most, appellant was under investigation for the possibility of committing a misdemeanorCfailure to stop and leave information for the owner of the unattended Suburban that he allegedly hit.² At the time of the stop, Officer Krutsinger was conducting an investigation based on reasonable suspicion that appellant may have committed a traffic offense based on a detailed dispatch he had received. Officer Krutsinger had information that a red pick-up truck had hit a parked Suburban and fled the scene. After receiving this dispatch, he was justified and had reasonable suspicion to stop appellant, who was driving a red truck in the area of the offense. See McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993) (finding that if an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop); Mann v. State, 525 S.W.2d 174, 176 (Tex.Crim.App. 1975) (concluding that officers, upon receiving an anonymous call, were justified in initiating an investigation by proceeding to hunt for a car and occupants fitting the description given over the phone); Louis v. State, 825 S.W.2d 752, 754B55 (Tex.App.CHouston [14th Dist.] 1992, no pet.) (concluding that evidence supported trial court's finding that police officer's initial stop of a light tan Cadillac was legal when it was the only car on the street where a robbery had occurred and it was reported that the robbery suspects were driving a white Oldsmobile). Because appellant was not under arrest, but only under investigative detention at the time of the stop, his rights under Miranda and Article 38.22 had not been implicated. Thus, we conclude that the trial court did not abuse its discretion in impliedly finding that appellant was not arrested at the time of the initial stop.

2. Did appellant's detention rise to an illegal arrest when the police officer conducted a pat-down?

Appellant further contends that even if the arrest was not mandatory, a reasonable person would have believed he was under arrest when Officer Krutsinger conducted his pat-down. A police officer may lawfully stop and detain a person for a traffic violation. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). During the detention, the officer may request information concerning the driver's license, ownership of the vehicle, the driver's insurance information, the driver's destination, and the purpose of the trip. Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.CFort Worth 1998, pet. ref'd). An officer also may conduct a warrant check to determine whether the driver has any outstanding warrants, conduct a pat down search of the driver for weapons, and request the driver's consent to search his vehicle. Smith v. State, 840 S.W.2d 689, 692 (Tex.App.CFort Worth 1992, pet. ref'd). A person held for investigative detention is not in custody. If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, then prolonged or continued detention is justified. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). The determination of whether one is in custody is based entirely upon objective circumstances, not subjective belief. State v. Stevenson, 958 S.W.2d 824, 829 (Tex.Crim.App. 1997). Police requests for performing sobriety tests, directions on how to perform tests, and queries concerning a suspect's understanding of his rights do not constitute interrogation. Smith v. State, 105 S.W.3d 203, 207 (Tex.App.CHouston [14th Dist.] 2003, pet. ref'd). Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and the reaction of the suspect. State v. Moore, 25 S.W.3d 383, 386 (Tex.App.CAustin 2000, no pet.). Another important factor is whether the officers actually conducted an investigation after seizing the suspect. Id. Officer Krutsinger's investigation was not intrusive. From the time of the stop, Officer Krutsinger was conducting an ongoing investigation. At the suppression hearing, Officer Krutsinger testified that he received a call from dispatch in regard to a hit-and-run accident involving a red pick-up truck. He drove to the location and observed a red Chevy pick-up truck swerving in its own lane of traffic. He instituted a traffic stop, and appellant exited his vehicle. The accident investigation later became a DWI investigation after appellant admitted to consuming three, tall beers. See Berkemer v. McCarty, 468 U.S. 420, 423, 104 S.Ct. 3128, 3141, 82 L. Ed. 2d 317 (1984) (stating that at most, the accident investigation may have escalated from a consensual encounter to an investigative detention, but the mere focus upon the defendant did not convert the investigation into an arrest). When Officer Krutsinger was patting down appellant, he felt an object, and asked appellant what it was. Officer Krutsinger then reached into the pocket and removed a lighter.³ Officer Krutsinger testified that he typically pats down a suspect for his own safety concerns.⁴ Even assuming that Officer Krutsinger possessed probable cause to arrest, the existence of probable cause does not establish custody. See Stevenson, 958 S.W.2d at 829 n. 7. An officer's knowledge of probable cause must be manifested to the suspect. Id. Moreover, detention for investigatory purposes does not establish custody. Id. at 829 (the mere fact a defendant becomes the focus of a criminal investigation does not convert the investigation into an arrest). Furthermore, there is no evidence in the record that Officer Krutsinger manifested to appellant any intent to arrest until appellant was formally arrested. See Stevenson, 958 S.W.2d at 829 (stating that detention for investigatory purposes does not establish custody). An objective analysis of the totality of the circumstances demonstrates that Officer Krutsinger's search and seizure of appellant was a temporary investigative detention. Officer Krutsinger had specific articulable facts which warranted a temporary detention. The initial seizure in this case is a classic example of a valid temporary investigative detention. Therefore, we conclude that, under the totality of the circumstances, the pat-down was part of this investigation and did not exceed the permissible scope of Terry. See Lemons v. State, 135 S.W.3d 878, 884 (Tex.App.CHouston [1st Dist.] 2004, no pet.) (finding that Terry stop and pat-down was proper when officer stated that, among other things, he conducts pat-downs to check for weapons for safety concerns, particularly in situations involving narcotics); Ivery v. State, No. 14B2-00337-CR, 2003 WL 21191134, at *3 (Tex.App.CHouston [14th Dist.] May 22, 2003, pet. ref'd) (not designated for publication) (holding that until the defendant was placed under arrest, the pat-down search was merely an investigative detentionCa search for weaponsCjustified by the officer's concern for his safety); see also Keaton v. State, 755 S.W.2d 209, 210 (Tex.App.CHouston [1st Dist.] 1988, pet. ref'd) (concluding that placing a motorist in a patrol car did not amount to a custodial arrest so as to require Miranda warnings, despite the officer's testimony that the motorist was not free to leave during the traffic stop). We further conclude that the trial court did not abuse its discretion in impliedly determining that, under the circumstances reflected by this record, the traffic stop amounted only to a temporary investigative detention. See Spight v. State, 76 S.W.3d 761, 769-70 (Tex.App.CHouston [1st Dist.] 2002, no pet.) (concluding that because the officer felt a heightened concern for his personal safety, handcuffing the defendant did not amount to arrest and was reasonable as a temporary investigative detention); Nargi v. State, 895 S.W.2d 820, 822 (Tex.App.CHouston [14th Dist.] 1995, pet. dism'd, improvidently granted) (holding that ordering a suspect to the ground does not necessarily convert an investigatory detention into an arrest).

B. When did appellant invoke his right to be silent?

Appellant's final argument is that he invoked his right to be silent by simply being silent and refusing to answer questions. Appellant contends that he invoked this right when he reached the station. The trial court concluded, in denying appellant's motion to suppress, that in order to invoke one's right to be silent, there had to be an unequivocal assertion of the right. We conclude that appellant, by refusing to answer some, but not all questions asked, did not invoke his right to be silent. A defendant has the right to choose between speech and silence. Miranda v. Arizona, 384 U.S. 436, 473B74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). An accused may not selectively invoke his right to be silent. See Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). An assertion of the right to remain silent must be unequivocal so that a reasonable police officer in the circumstances would understand the statement to be a request to invoke such a right. See Davis v. United States, 512 U.S. 452, 455, 114 S.Ct. 2204, 2355, 129 L.Ed.2d 362 (1994); see also Faulder v. State, 611 S.W.2d 630, 633B34 (Tex.Crim.App. 1979) (concluding that request by defendant that he be allowed a couple of days to get matters straight in his mind was an invocation of the right to remain silent and law enforcement officers' failure to honor such request rendered statement inadmissible); Ochoa v. State, 573 S.W.2d 796, 800 (Tex.Crim.App. 1978) (holding that statement by the accused that he thought he ought to talk to an attorney before answering questions or signing anything was sufficient to invoke the right to counsel even though the request was not pressed); Mayes v. State, 8 S.W.3d 354, 361 (Tex.App.CAmarillo 1999, no pet.) (finding statement by defendant that she was Anot talking" and was going to shut up, as well as, AI have to get [a lawyer] for both of us" when told she could talk to lawyer was an unambiguous invocation of the right to remain silent and to counsel). Appellant argues that the video made at the station demonstrates that, during the interview, he clearly and unequivocally exercised his right to remain silent simply by refusing to answer the officer. We disagree. After viewing the videotape, we conclude that appellant did not (1) make a clear invocation of his right to be silent during this interview or (2) express a clear desire to terminate the interview. Indeed, although appellant was belligerent and appeared to be intoxicated, he answered most, if not all, of the questions posed by the officer. For instance, when Officer HellmanCthe officer who administered the tests at the stationCasked appellant to perform a certain test, appellant would stand silent for moments at a time, but he never told the officer in unequivocal terms that he wanted to remain silent. Appellant did not invoke his right to be silent until the conclusion of the video when he was read his rights. At that point, appellant was asked if he understood his rights and if he wished to waive his rights. After a significant pause, appellant responded, ANo," and all questioning ceased. Prior to that, appellant's silence with respect to some questions while continuing to respond to others throughout the video did not constitute an unambiguous and unequivocal invocation of his right to remain silent. See Anderson v. State, No. 02-05-00169-CR, 2006 WL 744272, at *2 (Tex.App.CFort Worth, July 12, 2006, pet. dism'd) (not designated for publication) (holding that a defendant may not selectively invoke his right to remain silent and therefore the trial court did not abuse its discretion in admitting the portion of the videotape in which the defendant refused to answer specific questions while answering others); see also Figueroa v. State, 740 S.W.2d 537, 539 (Tex.App.CHouston [1st Dist.] 1987, pet. ref'd) (holding that defendant did not invoke his right to remain silent when he became emotionally upset and asked for guarantees during interrogation, in the absence of a clear statement that he did not want to talk); Rodriguez v. State, No. 02-03-00288, 2004 WL 816337, at *2B3 (Tex.App.CFort Worth, Apr. 15, 2004, no pet.) (not designated for publication) (concluding that even where defendant stated, ADon't want to answer" in direct response to the officer's question, the defendant did not unambiguously invoke his right to remain silent). Thus, we conclude that the trial court did not err in ruling that appellant did not invoke his right to be silent prior to appellant's express statement at the conclusion of the videotape.

IV. CONCLUSION

The trial court did not err in impliedly finding that: (1) the stop of appellant's vehicle was supported by reasonable suspicion based on dispatch information regarding a red truck (similar to the one driven by appellant) hitting another vehicle and fleeing the scene; (2) appellant was not under arrest at the time of the initial stop; (3) appellant was legally detained based on reasonable suspicion; (4) the search of appellant's pocket did not escalate appellant's legal detention to an illegal arrest without a warrant or probable cause; and (5) appellant did not invoke his right to remain silent at the station by refusing to answer some questions, because Ain order to invoke the right to remain silent, a person must do more than just remain silent," and appellant's invocation of his right to remain silent did not occur until the end of the station video whenCafter being read his rightsCappellant responded that he did not wish to waive any of his rights. The trial court did not abuse its discretion in denying the motion to suppress. Accordingly, appellant's sole issue on appeal is overruled and the trial court's judgment is affirmed.