No. 05-05-00942-CR
Opinion Issued November 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court of Appeals, Dallas County, Texas, Trial Court Cause No. MB04-50317-D. Affirmed.
Before Chief Justice THOMAS and Justices RICHTER and MALONEY.
Opinion By Justice MALONEY.[fn1] [fn1] The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
The trial court found Todd Wayne Lewallen guilty of driving while intoxicated and assessed a 120-day confinement in the Dallas County Jail and a $1000 fine, suspended his sentence, placed him on community supervision for twenty-four months, and certified appellant's right to appeal the denial of his motion to suppress. In one issue, appellant argues the trial court incorrectly denied his written motion to suppress his oral statements. We affirm the trial court's judgment.
Background
Mile Bryan, a Dallas Police Officer, stopped appellant for driving while intoxicated, gave him field sobriety tests, arrested him, and transported him to jail. Appellant moved to suppress any oral statements he made while being transported to jail. The trial court held a pretrial hearing on appellant's motion. Both appellant and Bryan testified at the hearing. After the State and appellant rested, the trial court, with the consent of both parties, watched the videotape taken at the jail. The trial court denied appellant's motion to suppress. Appellant then entered a plea of guilty to the charge and the trial court granted appellant permission to appeal its denial of his motion to suppress. SHOULD THE TRIAL COURT HAVE DENIED THE MOTION TO SUPPRESS EVIDENCE?
In a single point of error, appellant contends his conviction should be set aside because he was in custody and his statements were in response to the arresting officer's questions. Additionally, he argues that the officer did not advised him of his rights under 38.22 of the Texas Code of Criminal Procedure. Specifically, he maintains that his statements were not reduced to writing, signed by appellant, or videotaped-he "merely acquiesced in the interrogation." Additionally, appellant contends that because the officer never notified him of his right to counsel, "and [appellant] did not intelligently, understandably, or knowingly waive his right to counsel," the admission of his statements against him would violate his Fifth, Sixth, and Fourteenth amendments to the United States Constitution, and Article 1, sections 10 and 19 of the Texas Constitution, and articles 1.04, 1.05, 1.051(a), 38.22, and 38.23 of the Texas Code of Criminal Procedure. Appellant also argues that his statements were not "res gestae" of the offense. The State responds that appellant failed to use or apply the appropriate standard of review, but merely assumes the complained-of statements were involuntary. The State requests that this court defer to the trial court's "implicit finding that [a]ppellant made his oral statements spontaneously and voluntarily, and not in response to any questioning by Officer Bryan" and that they were admissible under 38.22, section 5. 1. Standard of Review
We conduct a de novo review of a trial court's ruling on a motion to suppress that does not turn on evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We defer to a trial court's determining the historical facts that the record supports, particularly on credibility and demeanor. See id.; see also Leach v. State, 35 S.W.3d 232, 234-35 (Tex.App.-Austin 2000, no pet.). We will uphold a trial court's evidentiary ruling if any valid theory exists to support that ruling whether the State argued that theory at trial or on appeal. See Graham v. State, 893 S.W.2d 4, 7 (Tex.App.-Dallas 1994, no pet.). When the trial court does not make an explicit finding of historical fact, we review the evidence in the light most favorable to the trial court's ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). 2. Applicable Law
An accused's oral statement that results from custodial interrogation is inadmissible against an accused unless electronically recorded. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005). Article 38.22 and Miranda apply only to custodial interrogation. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). A voluntary oral statement may be admissible if it does not "stem for custodial interrogation." See Tex. Code Crim. Proc. Ann. art. 38.22, § 5. Custody alone does not show that a statement stems from custodial interrogation. See Camarillo v. State, 82 S.W.3d 529, 536 (Tex.App.-Austin 2002, no pet.). The Fifth Amendment does not bar volunteered statements. See Miranda v. Arizona, 384 U.S. 436, 478 (1966). 3. The Evidence a. Mike Bryan
Bryan testified that he did not question appellant while transporting him. Rather, appellant voluntarily stated, "I don't think I'm drunk, but I should not have been driving." While smiling, appellant repeatedly said, "I'm screwed, you've got me," and "[my] fraternity brothers are attorneys and they told me not to do anything." On cross-examination, Bryan testified that he made no statements to appellant while transporting him. Bryan also confirmed that his vehicle did not have an "in-car camera." b. Appellant
Appellant testified that while he was handcuffed and in the back seat of the patrol car, he was never informed of his right to remain silent. Bryan, however, asked appellant in a friendly manner about "what part of town [he] he lived in or what kind of business [he was] in." Bryan then asked appellant if he thought he should have been driving, he thought he was drunk, and he had considered taking a cab. In response to this question, appellant answered that he was not drunk, "but maybe I shouldn't have been driving, maybe it would have been better to take a cab, I don't know." Bryan also responded by referring to the breathalyzer test. After appellant told Bryan that he was not going to take the test, the friendly conversation changed and they "almost completely quit talking at that point." Appellant denied that he repeatedly said, "I'm screwed, you've got me," while smiling. Appellant did admit he said, "I don't think I'm drunk, but I should not have been driving." He also acknowledged he told Bryan that his fraternity brothers told him not to do anything. It was not until after his arrest that he came to learn that " Miranda rights meant he had the right to remain silent." At the time, he thought he had to answer Bryan's questions. c. Bryan — Rebuttal
After appellant testified, the State recalled Bryan to rebut appellant's testimony. Bryan denied he ever asked appellant if he was drunk. While transporting someone he had arrested to the station, Bryan would never ask them if they were drunk. By the time he decided to take a suspect to the jail, Bryan had already given the field sobriety tests and saw no need to ask a question to which he already had the answer. Bryan also denied he had ever asked someone he had arrested if they thought they should be drinking and driving or should have taken a cab unless he had given them 38.22 warning. At the conclusion of the hearing, the State offered the videotape taken at the station. Appellant did not object to the trial court admitting the videotape. The trial court then asked the State and appellant if either side objected to the trial court's looking the tape, neither side objected. After the judge reviewed the videotape, she denied appellant's motion to suppress. 4. Application of Facts to Law
Here, it is uncontested that appellant was in custody. Appellant complains that the only statements he made were in response to Bryan's questions of whether he was drunk and if he should have taken a cab. Appellant denied that he ever smiled and repeatedly said, "I'm screwed, you've got me." Although appellant's testimony conflicted with Bryan's testimony, the trial court denied the motion to suppress, implicitly finding Bryan's testimony credible. Such was the trial court's prerogative as the sole judge of the credibility of the witnesses at the suppression hearing. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We, therefore, take Bryan's testimony as true. See Walter, 28 S.W.3d at 540. The trial court weighed the testimony of appellant and Bryan, as well as the videotape, and determined the complained-of statements were not made in response to interrogation, but were volunteered. The record supports the trial court's ruling. Consequently, the trial court did not err in denying appellant's motion to suppress. We resolve appellant's issue against him. We affirm the trial court's judgment.