Margarito Perez Carmona v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00018-CR
MARGARITO PEREZ CARMONA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court 1
Tarrant County, Texas
Trial Court No. 1435647D, Honorable Elizabeth H. Beach, Presiding
August 7, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Margarito Perez Carmona was convicted by a Tarrant County jury of the
second-degree felony offense of intoxication manslaughter with a vehicle 1 and sentenced
to a fifteen-year term of imprisonment.2 Through this appeal, he challenges the trial
court’s denial of his motion to suppress. We will affirm the trial court’s judgment.
1 TEX. PENAL CODE ANN. § 49.08(b) (West 2018).
2TEX. PENAL CODE ANN. § 12.33 (West 2018). A second-degree felony is
punishable by imprisonment for any term of not more than twenty years or less than two
years and a fine not to exceed $10,000.
Background
Appellant filed a motion to suppress statements he made before officers read him
the Miranda warnings. The trial court carried the motion into trial and denied it during the
testimony of the officer who questioned appellant.
The prosecution stemmed from a crash on Interstate 35 north of downtown Fort
Worth. The crash occurred about 2:30 a.m. on November 15, 2015, on an overpass. By
the time the court ruled on the suppression motion, witnesses had described how traffic
had come to a stop in the southbound lanes,3 when appellant, driving his Ford F-150
pickup, rear-ended a Nissan sedan. The collision embedded the front of appellant’s
vehicle into the destroyed trunk area of the Nissan. The Nissan’s driver was killed and its
passenger injured. The collision forced the Nissan into the rear of a Lexus sedan. The
Lexus hit the rear of a semi-trailer truck.
Officer Macha testified he arrived at the scene and briefly spoke with appellant,
who was standing near the “wall” at the edge of the overpass. After Macha assisted with
the efforts to direct traffic off the interstate highway, he returned his attention to appellant.
Being aware the crash had caused a fatality, and having seen a beer bottle in the cup
holder of appellant’s vehicle, Macha escorted appellant to a patrol car, holding him by the
arm. He patted appellant down and placed him in the car’s back seat. The patrol car’s
back doors do not open from the inside and a metal cage separates the back seat from
the front. Appellant was not handcuffed, and Macha agreed appellant was informed “that
3A responding police officer said at that hour the southbound lanes were partially
“shut down” south of the overpass for highway construction.
2
he’s not under arrest and just being detained.” Macha also agreed with the prosecutor
that drivers are not detained in the back of patrol cars every time there is a wreck but
when officers suspect “this is a crime and not an accident.”
Macha estimated he placed appellant in the patrol car at about 3:20 a.m. Detective
Martin testified he arrived about five minutes later to begin his accident investigation. At
a point, he opened the door of the cruiser to speak with appellant and was met with the
odor of alcohol. He then requested the DWI unit be dispatched. Because appellant
indicated he did not speak English, Martin also requested an interpreter. Martin did not
speak further with appellant.
A member of the DWI unit, Officer Hernandez, arrived at the crash scene at 4:18
a.m.4 He testified he is the only Spanish-speaking officer in the Fort Worth police DWI
unit. Within a few minutes of his arrival, after speaking with officers on the scene
Hernandez removed appellant from the patrol car.
After hearing additional testimony from Hernandez outside the jury’s presence, the
trial court heard argument on the motion to suppress and denied it.5 In its ruling, the court
voiced the conclusions that appellant was temporarily detained and not in custody when
he was questioned by Hernandez, and Miranda warnings thus were not required.
After the ruling, Hernandez testified to appellant’s responses to his questions,
providing evidence that enabled a later State witness to perform a retrograde
extrapolation analysis and estimate appellant’s blood alcohol level at the time of the
4Hernandez testified he was delayed in his dispatch to this wreck because he
was on another call.
5 Appellant did not give testimony in support of his motion to suppress.
3
collision was .17. After Hernandez conducted standardized field sobriety tests,6 he
arrested appellant for driving while intoxicated.
Analysis
By his sole appellate issue, appellant argues the trial court should have granted
his suppression motion because he was in custody at the time he made the incriminating
statements to Hernandez. See Miranda v. Ariz., 384 U.S. 436, 467 (1966); TEX. CODE
CRIM. PROC. ANN. art. 38.22. We disagree.
We review a ruling on a motion to suppress evidence for abuse of discretion.
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citation omitted). In
doing so, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000). Under this standard, we give almost total deference to a trial
court’s determination of historical facts but review de novo the trial court’s application of
the law to those facts. Id.
A trial judge’s ultimate “custody” determination presents a mixed question of law
and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Roberts v. State,
Nos. 07-15-00282-CR, 07-15-00283-CR, 2017 Tex. App. LEXIS 6019, at *11-12 (Tex.
App.—Amarillo June 28, 2017, no pet.) (mem. op., not designated for publication). No
findings of fact were requested. When a trial judge denies a motion to suppress and does
not enter findings of fact, we view the evidence in the light most favorable to the trial
court’s ruling and we assume that the court made implicit findings of fact that support its
6 Hernandez also testified to the clues of intoxication he observed during the field
sobriety tests. Appellant agreed to a breath alcohol test. That test, administered some
three hours after the collision, yielded results of an alcohol level of .131 and .137.
4
ruling as long as those findings are supported by the record. Id. (citing Herrera, 241
S.W.3d at 526-27) (internal quotations and citations omitted).
It was appellant’s initial burden at trial to clearly establish that the challenged
statements were the product of custodial interrogation. Herrera, 241 S.W.3d at 526
(citation omitted). For this purpose, “[a] person is in ‘custody’ only if, under the
circumstances, a reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d
244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318 (1994) (per
curiam)); see also Howes v. Fields, 565 U.S. 499, 508-09 (2012) (under Miranda case
law, “‘custody’ is a term of art that specifies circumstances that are thought generally to
present a serious danger of coercion”). “The ‘reasonable person’ standard presupposes
an innocent person.” Id. (citations omitted). We apply the standard on an ad hoc, case-
by-case basis, looking only to the objective factors surrounding the person’s detention.
State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We do not consider the
subjective beliefs of a detaining officer in our evaluation of custody unless the officer
manifests to the detainee a belief he is a suspect. Id. at 372-73.
Although a traffic stop “significantly curtails the ‘freedom of action’” of a vehicle’s
driver, individuals temporarily detained pursuant to a traffic stop are not “in custody” for
Miranda purposes. Berkemer v. McCarty, 468 U.S. 420, 436, 440 (1984) (citations
omitted); see Ortiz, 382 S.W.3d at 376 (first three of four situations described in Dowthitt,
931 S.W.2d at 255, that may constitute custody require a restriction on the detainee’s
freedom of movement that is more than just “significant”—it must be “to the degree
associated with an arrest”) (internal quotation marks omitted). The requirements imposed
5
by Miranda become applicable, however, as soon as a suspect’s freedom of action is
curtailed to a degree associated with a formal arrest. Id. at 440 (internal quotation
omitted). Thus, events subsequent to the detention may cause the escalation of a
noncustodial encounter with police into custodial interrogation. State v. Stevenson, 958
S.W.2d 824, 828 (Tex. Crim. App. 1997) (applying Berkemer analysis to investigative
detention after traffic accident); Dowthitt, 931 S.W.2d at 257 (concluding defendant
interrogated over several-hour period was in custody from the point he made a critical
admission).
Asserting he was in custody at the time Hernandez questioned him, appellant
relies primarily on his unhandcuffed confinement in the back of the patrol car. We do not
agree that a reasonable person in appellant’s circumstances would consider Macha’s
placement of him in the patrol car as indicating he was restrained to the degree associated
with an arrest. See State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (officer
does not necessarily manifest to suspect probable cause to arrest merely by silently
placing him in back of patrol car); Keaton v. State, 755 S.W.2d 209, 210 (Tex. App.—
Houston [1st Dist.] 1988, pet. ref’d) (placement of traffic-stop suspect into back of patrol
car to ask for license and registration was not custodial interrogation under Miranda).
Appellant argues Macha’s statement that appellant was informed he was not under
arrest but was merely detained has “little meaning” because appellant understood only
Spanish. We agree with the State’s contention the trial court could have concluded
otherwise. Macha’s testimony contains no indication that appellant could not understand
him, and the trial court had engaged in exchanges in English with appellant earlier in the
proceedings. Viewed in the light most favorable to the trial court’s ruling, the record
6
supports a conclusion that Macha effectively communicated to appellant that he was not
under arrest.
Appellant further points to the period of time he remained confined in the patrol
car. As noted, Macha estimated he placed appellant there at about 3:20 a.m., close to
an hour after the collision. Some minutes later, detective Martin opened the door of the
patrol car and attempted to talk with appellant. He was not able to do so because of
appellant’s response that he did not speak English. Hernandez arrived on the scene at
4:18 and did not remove appellant from the vehicle until several minutes later.
We cannot doubt that a driver like appellant, involved in a serious wreck on an
interstate highway, expects to be questioned by officers. After Martin’s attempt to talk
with him failed, a reasonable person in appellant’s circumstances might wonder why it
took so long for another officer to contact him. But we see no reason why such a person
would believe that his custodial circumstance had changed from the detention spoken by
Macha to one equivalent to arrest merely because he had told Martin he did not speak
English and then had been left alone in the car for near an hour.7 See Villalobos v. State,
No. 14-16-00593-CR, 2018 Tex. App. LEXIS 3577, at *12-13 (Tex. App.—Houston [14th
Dist.] May 22, 2018, no pet.) (mem. op., not designated for publication) (placement of
defendant in patrol car to wait for DWI officer was temporary detention for the purpose of
investigation of a DWI accident and did not render defendant in custody under Miranda).
7 Elsewhere in his testimony Martin estimated that he called for the DWI unit
around 3:35 or 3:40, after his contact with appellant. If that testimony was accurate,
appellant’s wait for Hernandez to contact him was closer to 45 minutes.
7
In addition, considering “all the factors surrounding the interrogation,” Stansbury,
511 U.S. at 325, we find a reasonable person in appellant’s shoes would have been
aware, as he observed the events after the collision, that the officers present had other
responsibilities. Despite the early-morning hour, traffic was heavy.8 Macha testified he
performed a number of tasks after he arrived, including taking photographs and helping
divert traffic off the interstate. Martin said on his arrival “[w]e had multiple units trying to
direct traffic.” Ambulances had removed the Nissan passenger and the Lexus driver, but
Martin testified the deceased Nissan driver still was in the driver’s seat when he arrived
to begin his accident investigation. Fire department units remained on the scene.
Appellant also makes a point to note he was without a cell phone in the patrol car
and thus was unable to contact his family. A Miranda analysis may include a police
refusal of a suspect’s requests to see relatives and friends. Xu v. State, 100 S.W.3d 408,
413 (Tex. App.—San Antonio 2002, pet. ref’d); see Yarborough v. Alvarado, 541 U.S.
652, 665 (2004); Dowthitt, 931 S.W.2d at 256. Macha testified he did not know if appellant
had a cell phone at the collision site. He also said he did not find a phone when he
checked appellant for weapons. In response to a later question, Macha said, “In fact, I
can’t even recall when I saw him on the side of the road, the first initial contact, if he was
talking to anybody on his phone then . . . . Or if he even had a phone to that point.” We
see no evidence that a phone had been taken from appellant or that officers were
otherwise responsible for his lack of a phone. We do not agree a reasonable person
would consider himself to be restrained as though arrested because he did not have a
phone with him unless police were responsible for its absence. See Ervin v. State, 333
8 Macha testified to the difficulty he had reaching the collision site because of
heavy traffic.
8
S.W.3d 187, 206 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (because evidence
found credible by the trial court showed defendant’s cell phone was not taken from her
by the officers, defendant could not reasonably believe she was in custody for that
reason).
A suspect may be in custody if officers have probable cause to arrest and make
the suspect aware of that fact, if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe he is under restraint to the
degree associated with an arrest. Dowthitt, 931 S.W.2d at 255. We have noted Macha’s
testimony suggesting that drivers involved in wrecks are detained in patrol cars when
officers suspect “this is a crime and not an accident.” But suspicion is not probable cause,
and an officer’s silent placement of a driver into the back of a patrol car does not
necessarily manifest probable cause to arrest. Saenz, 411 S.W.3d at 496. And, Macha’s
placement of appellant was not silent, but accompanied by the information he was not
under arrest.
Martin testified that in his mind the facts he possessed did give rise to probable
cause for appellant’s arrest for driving while intoxicated.9 The record, however, gives no
indication that Martin made appellant aware of his belief. See Ortiz, 382 S.W.3d at 373
(officer’s subjective belief relevant if manifested to detainee).
At the time of its ruling, during Hernandez’s testimony, the court made reference
to Hernandez’s statement that he did not have probable cause to make an arrest at the
9 The facts mentioned to Martin on cross examination were “So you knew a beer
in the car, you knew that somebody had died, and you had a smell of alcohol on the
defendant . . . .”
9
outset of his questioning of appellant. It is clear from its remark that the court agreed with
the officer’s statement, and we also agree with it. From our review of the record it is clear
that, until Hernandez began his DWI investigation, no officer had taken any significant
steps to evaluate appellant’s sobriety.
Appellant has failed to demonstrate that the record as a whole clearly established
the challenged statements were the product of custodial interrogation. Herrera, 241
S.W.3d at 526. Accordingly, we find the record supports the trial court’s conclusions.
Finding the trial court did not abuse its discretion by overruling appellant’s motion to
suppress his statements, we resolve appellant’s issue against him.
Conclusion
Having overruled appellant’s issue, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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