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DWI LAW

1. STOP, ARREST AND PRE-STATIONHOUSE STATEMENTS

1. STOP AND ARREST -BURDEN OF PROOF

   The initial burden is on the defense to defeat the presumption that the police conduct was proper. The burden shifts when the defense shows

   1. that there was a search or seizure and

   2. there was no warrant. 

      Russell v. State, 717 S. W. 2d 7 (Tex. Cr. App. 1986). Several DWI cases have held for the state on the presumption alone where the defense did not establish that the stop or arrest were warrantless. See Johnson v. State, 834 S. W. 2d 121 (Tex. App.-Houston [1st Dist] 1992, pet. ref'd), a DWI case holding testimony that no other charges were pending, and that none of the officers involved know of the defendant prior to arresting him fell short of sufficient circumstantial evidence of no warrant. On this basis the appellate court upheld the trial court's denial of the motion to suppress. Accord White v. State, ____ S. W. 2d ____ (Tex. App.-Houston [14th Dist.] No. B14-92-00503-CR, February 3, 1994). State v. Brabson, 899 S. W. 2d 741 (Tex. App.-El Paso 1995). The 14 Court now holds that "the absence of a th warrant cannot be "demonstrated by circumstantial testimony." Badgett v. State, 7 SW 3 645 rd (Tex. App.-Houston [14 Dist.] 1999). th 

      NOTE: The court can elect to render its decision on the motions themselves. See State v. Brunner, ____ S. W. 2d ____ (Tex. App. No. 04-95-0489-CR, February 14, 1996) upholding the judge's decision, after denying the state's motion for continuance, to suppress based solely on the allegations contained in defendant's motion. 

2. DWI STOP -REQUIRES REASONABLE SUSPICION ONLY 

   The standard of proof required for an officer to make a vehicle stop for suspicion of DWI is that required for a temporary investigative detention, to wit: "a reasonable suspicion based upon articulable facts that 

   1. Some activity out of the ordinary is or has occurred, 

   2. Some suggestion to connect the detainee with the unusual activity, and 

   3. Some indication that the activity is related to crime." 

      Stone v. State, 703 S. W. 2d 652 (Tex. Cr. App. 1986). Probable cause is not required for the stop. Pringle v. State 732 S. W. 2d 363 (Tex. App.-Dallas 1987, pet. ref'd). A DWI case involving the question of the correct burden for jury submission on the issue of the right to stop the vehicle. However, probable cause is required for the arrest itself. Pringle v. State, supra. 

3. STOP FOR TRAFFIC VIOLATION ONLY

   1. Requires Probable Cause -U. S. Supreme Court.  According to the United States Supreme Court if the stop is based on a traffic violation or violations the correct standard is probable cause. Whren v. United States, ____ U. S. ____, 116 S. Ct. 1769, 1776-77 (1996). 

      Citing Whren the San Antonio Court of Appeals recently addressed this issue in a different but analogous context in State v. Rivenburgh, 933 S. W. 2d 698 (Tex. App.-San Antonio 1996). There, defendant was arrested for driving while intoxicated after being stopped for disorderly conduct (making "a vulgar gesture with her middle finger" to traffic honking behind her). The court granted defendant's motion to suppress and the state appealed. The prosecution argued that the question was whether the officer had reasonable suspicion to stop appellant and investigate. The Appellate Court responded as follows: 

      The State argues that the instant case presented the issue of whether the officer had reasonable suspicion to stop Rivenburgh to investigate. We disagree. Officer Morales testified that he stopped Rivenburgh for the offense of disorderly conduct. At the time she was stopped, there was no further investigation to be undertaken. Either Rivenburgh had committed the offense prior to being stopped by the officer, or she had not. Therefore, the issue confronted by the trial court was whether Officer Morales had probable cause to arrest Rivenburgh without a warrant. See Whren v. United States, ____ U. S. ____, 116 S. Ct. 1769, 1776-77 (1996) (issue where stop followed observed traffic violation was whether probable cause existed).

      The Court upheld suppression by concluding that "the trial court could have found the gesture, at the time and place given did not tend to incite a breach of the peace..."

      NOTE: In order to show probable cause to make an arrest without a warrant based on an ordinance or code violation, the officer's testimony regarding the ordinance is sufficient, without the need for the prosecution to introduce a copy or for the court to judicially notice it. DeDonato v. State, 819 S. W. 2d 164, 166 (Tex. Cr. App. 1991) followed in Howard v. State, 932 S. W. 2d 216 (Tex. App.-Texarkana 1996, pet. ref'd).

   2. Insufficient Evidence of Violation

      If there is insufficient evidence of a traffic violation, all evidence obtained thereafter is suppresible.  Willett v. State, 454 S.W.2d 398 (Tex.Cr.App. 1970), Hall v State, 488 S.W.2d 799 (Tex.Cr.App 1973), Pruitt v State, 389 S.W.2d 475 (Tex.Cr.App. 1965), all cited with approval in Vicknair v State, 751 S.W.2d 180 (Tex.Cr.App. 1986).  See also Whren v United States, ______ U.S. ______ 116 S.Ct. 1769, 1776-77 (1996), Hernandez v State, 13 S.W.2d 492 (Amarillo 2000) (holding "driving with lights on bright" without more, to be insufficient) and State v Rivenburgh, 933 S.W.2d 698 (Tex.App.-San Antonio No. 04-96-00246-CR, October 9, 1996 [Opinion Service 10-16-96].
      

   3. Insufficiency Re Weaving

      "Weaving" is not a violation nor is "Failure to drive in a single lane."  The pertinent statue, Section 545.060 of the Transportation Code states:  An operator on a roadway divided into two or more clearly marked lanes for traffic: 

      1. shall drive as nearly as practical entirely within a single lane and shall not move from the lane unless that movement can be made safely..." 

      Thus, moving into another lane is illegal only where "such movement is not made safely." Hernandez v State, 983 S.W.2d 867 (Tex.App.-Austin 1998, pet. ref'd) insufficiency where the vehicle drifted partially across a lane marker a single time without signaling.

      Also see State v Tarvin, 972 S.W.2d 910 (Tex.Ann.-Waco 1998, pet.ref'd) (concluding that three occasions of drifting across the right lane of a two lane road was insufficient for a traffic stop -no concern expressed by officer re DWI) and State v Arriaga, 5 S.W.3d 804 (Tex.App.-San Antonio 1999) where crossing lane of traffic in same direction between tow and seven times in over one and a half miles without more... amounted to an unreasonable search and seizure" and United States v Smith, 799 F2d 204 (11th Cir. 1986), where the Florid single lane statute, identical to that of Texas', was held not have been violated where there was "one 6-inch deviation from the road and slight 'weaving' within a single lane." at 709.

      However where the driving raises a reasonable suspicion of driving while intoxicated, then the stop is valid though falling short of requirements for a traffic violation. [Weaving across three lanes in a bar area at 2 AM, Townsend v State, 813 S.W.2d 181 (Tex.App.-Houston [14th Dist] 1997)

      Accord:  LeCard v State, 1999 WL 1018162 (Tex.App.-Houston [1st Dist.] November 10, 1999) where the opinion categorized crossing the lane two times in four blocks as "erratic" driving.

   4. Exiting the freeway does not require turn signal absent lane change

      A "turn", the opinion states, contemplates a 90-degree turn.  Trahan v State 16 S.W. 3d146 (Tex.App. - Beaumont 2000)

4. CITIZEN'S STOP REQUIRES PROBABLE CAUSE

   United States v. Garcia, infra, interprets Texas law to the effect that a peace officer acting outside of the scope of his authority is nonetheless authorized to make a private citizens arrest under C. C. P art. 14.01a, supra. The "private citizen" status would, according to Garner v. State, 779 S. W. 2d 498 (Tex. App.-Fort Worth 1989, pet. ref'd), defeat the right to make a temporary detention stop and would require, instead, the higher burden of probable cause for the pullover or detention.

   NOTE: A private citizen may not see an offense and then later pursue the guilty party in order to apprehend him for the police. Young v. State, 10S. W. 2d 705 (Tex. App.-Texarkana 1997). 
   

5. CCA REJECTS "AS CONSISTENT WITH INNOCENT ACTIVITY..." TEST

   In Woods v State, 956 S.W.2d 33 (Tex.Cr.App. 1997), the Court of Criminal Appeals, finding the U.S. Supreme Court cases of U.S. v Cortez, 449 U.S.411,101 S.CT.690, ______L.Ed.2d (1981) and U.S. v Sokolow, 490 U.S.1,109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) "well reasoned and persuasive," abandoned the "as consistent with innocent activity" test negating reasonable suspicion and ruled instead that:

   [T]he reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.

6. APPLICABILITY OF HEARSAY RULE TO SUPPRESSION HEARING

   McVickers v State, 874 S.W.2d 662 (Tex.Cr.App. 1993), holds that "in the context of Tex. R. Crim. Evid. 1101(d)(4) the rules of evidence regarding hearsay apply to suppression hearings."

   The controlling statute is 1101(d)(4) which provides in pertinent part:

   In the following proceedings, these rules apply to the extent matters of evidence are not provided for in the statutes which govern procedure therein or in another court rule prescribed by statutory authority:

   4. Motions to suppress confessions, or to suppress illegally obtained evidence under Texas Code of Criminal Procedure Article 38.23.

   They interpret C.C.P art. 28.01 1(6) authorizing the court to render its decision in a motion to suppress hearing "on the motions themselves, or upon opposing affadavits or upon oral testimony" to only grant the trial judge "discretion in choosing the format in which the evidence is presented."  "The court" they continue "is not given discretion to admit hearsay testimony which is inadmissible under the rules of evidence."  TEX.R.CRIM.EVID.104(a), which states:

   Preliminary questions concerning the admissibility of evidence shall be determined by the court... In making its determination, it is not bound by the rules of evidence except those with respect to priviledge is interpreted to be a general rule "to which 1101(d)(4) provides specific application for hearings or motions to suppress evidence."

7. HEARING ON MOTIONS ALONE WITHOUT EVIDENCE

   In State v Brunner, 917 S.W.2d 103 (Tex.App.-San Antonio 1996) the defense answered ready for pre-trial suppression hearing.  The court denied the state's second motion for continuance and granted the defense motion to suppress the blood test without taking evidence.

   The opinion observed that the literal text of Article 28.01 § 1(6)C.C.P. allows a decision on the motions themselves without evidence, citing Rodriguez v State, 844 S.W.2d 744 (Tex.Cr.App. 1992).  Because the state offered nothing in the record except the motion for continuance, all the judge had was the defense motion alleging an improper arrest and seizure of blood.  The defense "fulfilled his burden by announcing ready on his filed motion.  The burden then shifted to the state."  The state having failed to meet its burden, motion to suppress was properly granted.
   

8. STOP - TESTIFYING TO FELLOW OFFICER'S DECISION

   McVickers implications: Of strategic significance are the diametrically different admissibility results between the following situations;

   1. The detaining/arresting officer's testimony as to statements he heard that constituted his reason for detaining or arresting, versus

   2. A second officer's testimony as to statements the stopping/detaining officer made to him regarding his reason for stopping/detaining.

      According to the McVickers analysis, the first quoted statement, testified to by the detaining/arresting officer as to why he acted, would be admissible since the officer does not offer it for the truth of the facts asserted by the statement but rather for the fact that he heard and relied upon it. By contrast the second officer's testimony is offered for the truth as to why the quoted officer made the stop decision and thus became inadmissible hearsay. This scenario was the identical fact situation that was held to be inadmissible hearsay in McVickers. 

9. STOP - FELLOW OFFICER'S DIRECT COMMUNICATION

   1. Credibility - If the informant is a named officer, no further proof of credibility is needed. Gish v. State. 606 S.W.2d 883 (Tex.Cr.App. 1980); U.S. v. Ventresca. 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684(1965).

   2. Conclusory - The information from a named officer is also subject to the infirmity of being conclusory. to Miller v. State. 736 S.W.2d 643 (Tex.Cr.App. 1987), the arrest warrant affidavit provided only the affiant-officer's statement that he believed the defendant committed the offense. This was merely conclusory, defeating probable cause. 
      

10. STOP - BROADCAST THRU DISPATCHER FROM OFFICER

    A parallel situation is presented by Colston v. State. 511 S.W.2d 10 (Tex.Cr.App. 1974) differing only in that it involved a teletype dispatch from a fellow officer rather than dispatch by radio. 
    
    The teletype, from federal narcotics in San Antonio, gave a vehicle description including the license number and the names of two subjects inside it believed to be carrying narcotics. Seeing the vehicle make and matching plates in Waco, officers conducted a stop and frisk, leading to contraband.
    
    The court reversed, holding that "where the record fails to reflect that the issuing officer had [probable cause to investigate], the investigative stop is not insulated from challenge..."
    

11. STOP - UNNAMED INFORMANT'S COMPLAINT THRU DISPATCHER
    

    1. U.S. Supreme Court Reasonable suspicion requires that a tip be reliable in its assertion of illegality, not just in details that would identify a particular person. Florida v. J.L __U.S. __No. 98-1993, March 28, 2000.

    2. Insufficient Corroboration In Glass v. State. 681 S.W.2d 599 (Tex.Cr.App. 1984), a caller, who did not identify himself, reported to dispatcher that occupants of two vehicles—one a brown over beige El Camino-were shooting at each other  at or near the intersection of Parker and Oltori Streets in Austin, to response, officers immediately went to that intersection but observed no unusual activity. In three or four minutes, a brown over beige El Camino was observed traveling south on Parker Lane. The officers stopped the vehicle and after noticing that the passenger was nervous when asked for identification, searched the car finding two pistols and methamphetamine. PDR was granted on the question of whether sufficient facts were established to authorize an investigatory stop short of a warrantless arrest.  The Court declared the controlling law to be as follows:

       "Probable cause to investigate" exists only where the circumstances reasonably indicate that the particular person either has committed or is preparing to commit a crime. However, the inarticulate hunch, suspicion, or good faith of the investigating officer is never sufficient to justify a police officer to order a subject to stop his motor vehicle or to order a subject from his automobile. Otherwise, "[i]f subjective [belief] alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, places, and effects,' only in the discretion of the police." Beck v. Ohio. 379 U.S. 89, 97, 85 S.CT. 223, 229, 13 L.Ed.2d 142 (1964); Brown, supra. 

       Applying the law to the facts, the court observed that there was no evidence as to "when the alleged incident occurred or when the anonymous report was received, and therefore does not show any proximity of time of the stop to the events held by the court of appeals to justify the stop of the vehicle appellant had been driving." 

       Given the absence of the proximity in time, the  match of color and make of the car were held insufficient to justify the vehicle stop.

       In Davis v. State. 989 S.W.2d 859 (Tex.App. -Austin 1999) the dispatch indicated:

       having received information from a caller on a "cell phone" about a full-sized black Chevy Blazer with dealer's tags 5D1180 in the area of mile post 259 on 1-25 driving in a northbound direction; that the vehicle was occupied by three white males; that the vehicle was being driven recklessly - "that the vehicle has passed the caller on the shoulder of the roadway back in Round Rock;" and that the occupants were "possibly smoking marijuana."

       The dispatch "referred only to a female caller. No name, age or location of the caller was given.
       
       The vehicle was initially observed by the first officer near mile post 260 within one or two minutes after receiving the dispatch. The stop officer who observed the vehicle between mile posts 261 and 262 on 1-35 [made the] stop of the vehicle at mile post 263 on 1-35. 
       
       The Appellate Court in reversing for insufficient indicia of reliability observed as follows:
       
       Giving the anonymous tip a common sense reading and considering it in the most favorable light, we do not find any corroboration of details linking appellant and his companions to the criminal activity alleged. Officer Stengle stated that his stop of the Blazer and its occupants was based solely upon the anonymous tip. At the time of the stop, he observed no traffic offense being committed nor any violation of law. There was nothing to link the occupants to the criminal activity reported.
       
       An inadequate anonymous tip may be supported by the officer's prior knowledge and experience. Officer Stengle was an experienced officer, but he did not state that he was familiar with appellant, his companions, or the vehicle. Stengle did not testify that he was aware of any criminal records, concerning the occupants of the Blazer, or that the location was a high crime area, or where narcotics users are frequently found, or where drivers usually engaged in reckless driving. Nothing in Officer Stengle's or Officer Pitcher's experience and knowledge aided the corroboration of the anonymous tip. 
       
       In State v. Simmang. 945 S.W.2d 219 (Tex.App.-San Antonio 1997) the officer received an anonymous tip that a white male was masturbating in a gold colored four-door car located in a parking lot on a specific intersection. Proceeding immediately to the intersection he blocked the exit path of the only gold-colored car in the area. It was occupied by a white male. Approaching he noted that defendant's hands were not in view, but he was dressed and his clothing was intact. He smelled the odor of marijuana when frisking defendant. The San Antonio Appellate Court held the facts were insufficient to justify blocking the car and detaining the defendant. Accord: Garcia v. State. 3 S.W.3d 227, 234 (TexApp.-Houston [14'" Dist.] 1999). 
       

    3. Sufficient Corroboration In State v. Adkins 829 S.W.2d 900 (Tex. App. Fort Worth 1992) an unnamed citizen pointed to a car telling the officer that the driver "appeared to be extremely intoxicated." Citing Alabama v. White. 496 US 325 (1990) for the proposition that "an anonymous tip corroborated by independent police work, exhibited sufficient indicia of reliability to make an investigatory stop" the Court found that the officer's observation that the vehicle was driving on a  badly damaged flat tire "sufficiently corroborated the anonymous tip to furnish reasonable suspicion."
       

12. STOP - INFORMANT WHOSE IDENTITY IS OBTAINED

    Where the informant offers identification and gives a precise description which is confirmed, corroboration may be sufficient.

    See Flores v. State. 895 S.W.2d 435 (Tex.App.-San Antonio 1995, no pet.) and Gaines v. State. 888 S.W.2d 504 (Tex.App.-El Paso 1994, no pet.) and Rodriguez v. State. 975 S.W.2d 667 (Tex.App.-Texarkana 1998), Hime v. State. 998 S.W.2d 893 (TexApp.-Houston [14th Dist.] 1999).

    1. Informants Availability For Identification Strengthens Reliability In Glover v. State. 870 S.W.2d 198 (Tex.App.-Fort Worth 1994), the broadcast stated it was based on an EMS ambulance unit report of "weaving all over the road," giving the time of the EMS report, and shortly thereafter the officer saw the vehicle of that description with that license number being followed by an ambulance. Also see State v.
       Stolte. 991 S.W.2d 336 (TexApp.-Fort Worth 1999) where, on instruction from the dispatcher, the informant pulled in behind the patrol car to be available for identification.

    NOTE: Statements reported to dispatcher cannot come in for the truth of the matter as a business records exception where no person engaged in police activity has personal knowledge of the information reported by the citizen. Stapleton v. State. 868 S.W.2d 781 (Tex.Cr.App. 1993).

13. STOP - COMMUNITY CARETAKING FUNCTION ADOPTED

    "As part of his duty to serve and protect a police officer may stop and assist an individual whom a reasonable person -given the totality of the circumstances—would believe is in need of help." "The following factors [FN5] are relevant to said determination [whether officer acted reasonably]:

    1. The nature and level of the distress exhibited by the individual;

    2. the location of the individual;

    3. whether or not the individual was alone and/or had access to assistance independent of that offered by the officer;

    4. to what extent the individual—if not assisted—presented a danger to himself or others."

    5. "In certain instances, other factors may also be relevant in the determining whether the officer acted reasonably." Wrivht v. State. 7 S.W.Sd 148 (Tex.Cr.App. 1999). No distinction is drawn between the welfare of passengers as opposed to drivers. (Here the stop was made because the officer observed a passenger leaning out of an open rear window vomiting.)

14. STOP - CHECKPOINTS/ROADBLOCKS
    

    1. DWI Check Points - 
       The United States Supreme Court In Holt v. State. 887 S.W.2d 16 (Tex.Cr.App. 1994) the Court of Criminal Appeals rejected an Arlington DWI roadblock set up pursuant to written guidelines established in 1988 by a Committee of Arlington Police Supervisors. They interpreted Michigan v. State. 496 U.S. 444 to hold that for any DWI Checkpoint program to be constitutional it must at a minimum be authorized by a statewide policy emanating from a politically accountable governing body. No such statewide authorization has yet been authorized in Texas. 
       

    2. Non DWI Checkpoints -
       Drivers License checkpoint 

       1. Authorized by TEX. REV. CIV. STAT. ANN. art. 6687(b), § 13.

       2. In State v. Sanchez. 856 S.W.2d 166 (Tex.Cr.App. 1993), the court observed that license roadblock searches fall into the "suspicionless search" category for which Brown v. Texas. 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) requires balancing the magnitude of the problem sought to be prevented against the intrusion on the motorist. They held that: 

          In the absence of evidence of authoritatively standardized procedures followed in operating die subject roadblock in order to serve its stated purpose and minimize the officers' discretion, and in the absence of testimony or empirical evidence demonstrating the effectiveness of the roadblock, we hold the court of appeals erred in concluding that the roadblock was reasonable under the Fourth Amendment.
          

       3. Dictum in Murphy v. State. 864 S.W.2d 70 (Tex.App.-Tyler 1992, pet. refd) states "although the Supreme Court of the United States has not yet upheld the constitutionality of roadblock stops for the purpose of checking licenses and registrations, the dictum in State of Delaware v. Prouse. 440 U.S.  648, 663 (1979) suggests that such stops could be constitutionally structured. However, Webb. supra, appears to have survived King. supra, to prevent use of a drivers license checkpoint as a subterfuge for DWI purposes. See State v. Hubacek. 840 S.W.2d 751, (Tex.App.-Fort Worth 1992, pet. refd). 
          

    3. Multi-purpose checkpoint To the extent that Meeks v. State. 692 S.W.2d 504 (Tex.Cr.App. 1985), has survived, it prohibits arrest for additional purposes other than drivers license check, because unauthorized by statute. See analysis in dictum of Murphy v. State. 864 S.W.2d 7C (Tex.App.-Tyler 1992, pet. refd). However, State v. Hubacek. supra, concludes that the license check can include inquiry regarding proof of insurance. 
       

15. DETENTION - LIMITS ON  LENGTH AND PURPOSE APPLY TO FST'S

    The United States Supreme Court warns:

    This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. It is the State's burden to demonstrate that the seizure it  seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

    Florida v. Rover. 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (citations omitted).

    This concept was applied by the Austin Court in the ALR case of Texas Department of Public Safety v. Rodriguez. 953 S.W.2d 362 (Tex.App.-Austin 1997). There the affidavit simply reflected that Rodriguez was stopped for sixty-four m.p.h. in a fifty-five m.p.h. zone and that the officer subsequently had him perform the three standardized field sobriety tests, hi addition to referencing Florida v. Rover, above, the opinion also quoted Texas law as follows:

    To determine whether an officer was justified in making such an intrusion upon the freedom of the person detained, the court must find that the officer, in light of his experience and general knowledge, "had specific and arriculable facts which taken together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the person stopped for further investigation."

    Townsend v. State. 813 S.W.2d 181, 185 (Tex.App.-Houston [14th Dist.] 1991, pet. refd) (quoting Hemandez v. State. 523 S.W.2d 410, 411 (Tex.Cr.App. 1975)).  

    Applying the law, the court declared:
    The evidence in the record is completely silent on any causal connection between the initial stop and the subsequent field sobriety tests. Thus, while the first stop was justified because Rodriguez was speeding, the second "stop" (detaining Rodriguez to perform the field sobriety tests) was not.
    
    Once the officer's initial reason for the stop  is accomplished, further detention can be justified only by additional reasonable suspicion. See, e.g., Commonwealth v. Parker. 619 A.2d 735 (Pa.Sup.Ct. 1993) (after ticket was written, extended detention to request permission to search exceeded the purpose of the traffic stop); Collier v. State. 843 S.W.2d 176 (Tex.App.-Houston [14th Dist.] 1992) (20-minute wait for female search officer made detention illegal); Autry v. State. 2000 W L 675661 (Tex. App. - Houston [Ist Dist] May 25, 2000) where continued detention/or ten minutes to assist drug detection dog was unjustified. Johnson v. State. 658 S.W.2d 623 (Tex.Cr.App. 1983) (once initial suspicion of having stolen furniture in the pick-up bed was dispelled, continued detention for questioning was illegal).

    PRACTICE COMMENT: Passage of time awaiting arrival of another officer (for example, a S.T.E.P. officer) to conduct tests could become so long that the Collier holding would apply. 

    During a traffic stop, however, the officer is authorized to check for a driver's license and evidence  of financial responsibility. Article 6687b-13 (driver's license) and Article 670 Ih (financial responsibility). Further, ordering the traffic-stop driver to get out of the car is permissible. Pennsylvania v. Mimms. 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Donald Lee McCalin v. State. 984 S.W.2d 700 (Tex.App.-Texarkana 1999 ). A period of three to five minutes of additional detention while checking for any arrest warrants has been held not to be unreasonable. Petty v. State. 696 S.W.2d 635 (Tex.App.-Fort Worth 1985). 
    
    NOTE: The Petty court, in declaring that an investigatory stop could last so long as to become unreasonable, cited People v. McGaughran. 25 CaUrd 577, 601 P.2d 207. 159 Cal.Rptr. 191 (1979), where extending a traffic stop ten minutes after issuing a citation, solely to allow a warrant check, constituted unreasonable detention.
    

16. DETENTION - NON-MOVING VIOLATION & ALCOHOL ODOR

    Since it is not illegal to drive after drinking, that fact, coupled with a non-moving traffic violation that is not reflective of impairment, gives no indication of the third prong of the Stone test above—"some indication that the activity is related to crime."

    Therefore, without additional facts, detention for field sobriety tests is likely illegal. See: Jackson v. State. 681 S.W.2d 910 (Tex.App.-Fort Worth 1984). There the officer's basis was that the driver was holding a beer bottle. Invoking the "as consistent with innocent behavior" test, the court held that "since Texas does not have an ' Open Container Law' [since changed by legislation], the act of drinking while driving is not an offense so long as the driver is not intoxicated. By presuming that appellant was intoxicated, the officer was acting on a hunch. The beer which appellant was drinking could have been his first beer or his sixth. The sole fact of holding a beer bottle was no less consistent with the former than with the latter." (bracketed comment added). 
    

17. DETENTION - DRINKING WHILE DRIVING AS SOLE BASIS

    See P. above.
    

18. DETENTION - SPEEDING AND ODOR OF ALCOHOL

    TEX. REV. CIV. STAT. ANN. art. 670 Id, § 148 states, in pertinent part that the offense of speeding and the offense denned in § 107E (consumption of alcoholic beverages while driving, a Class "C" offense) shall be the only offenses making mandatory the issuance of a written notice to appear in court, and only then if the arrested person gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer; and provided further, that it shall not be mandatory for an officer to give a written notice to appear in court to any person arrested for the offense of speeding or the offense defined in § 107E when such person is operating a vehicle licensed in a state or country other than the State of Texas or who is a resident of a state or country other than the State of Texas, except as provided by the Nonresident Violator Compact of 1977.
    

19. ARREST - WHAT CONSTITUTES UNDER TEXAS LAW

    Current opinions distinguishing arrest from investigative detention lack consistency. This is partly because of a change in federal standards and in large part because our statute defining arrest speaks in terms of restraint - a status common to both arrest and detention.

    1. Arrest Statute Article 15.22 C.C.P., 
       entitled "When a  Person is Arrested" states: "A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing an arrest or by an officer or person arresting without a warrant.

       No clarification is in the immediate offing. Having granted petition for review from Nargi v. State. 895 S.W.2d 820 (TexApp. -Houston [14th Dist.] 1995), the Court of Criminal Appeals, on May 15, 1996, dismissed as improvidently granted. In Nargi it was held that handcuffing defendant "to gain control" while investigating did not accelerate the detention to an arrest. Francis held that placing defendant in the patrol car and returning him to the scene of a burglary fell short of an arrest. 

       A like case, Rhodes v. State. 913 S.W.2d 242 (Tex.App.-Fort Worth 1995) has petition pending. Similar to  Nargi. it held that handcuffing a suspect and leading him to the patrol car did not constitute an arrest. The officer had explained "I was obtaining [sic] him to investigate what was going on."

       See also Garcia v. State. 967 S.W.2d 902 (TexApp.-Austin 1998) also holding, under its facts, that handcuffing did not constitute arrest.

       But, see the Court of Criminal Appeals cases of Amores v. State. 816 S.W.2d 407 (Tex.Cr.App. 1991) and Burkes v. State. *830 S.W.2d 922 (Tex.Cr.App. 1991), both reversing lower court decisions and holding that handcuffing a defendant after he'd been placed face-down on the ground, constituted an arrest.

       For now the only proposed standard from the Court of Criminal Appeals is Judge Baud's in his dissent to dismissal of PDR in Francis: 

       [To] distinguish between an investigative detention an arrest, the standard should be whether, given the totality of the circumstances, a reasonable person would believe me seizure was to be brief. 

       On page 6 of the Opinion Service report of Baird's dissent is his list of significant indicators which serves as a good compilation and review of recent decisions.

       ****Burkes began with an anonymous report of the sighting, in an area of Longview known as "The Front," of a pit-bulldog with drugs taped to its belly. The opinion gives no indication that the pit-bull was ever subjected to pat down or detention or that the contraband was ever seized.

20. ARREST - MISDEMEANOR LIMITATIONS

    Where there is no warrant, C.C.P. Chapter 14 permits a peace officer within his jurisdiction to arrest only under the following circumstances:

    1. When any offense is committed in his presence, or within his view, C.C.P. art. 14.01 (b); or, if not

    2. "persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten or are about to commit offenses against the laws; C.C.P. art. 14.03(a)(l); amended by Senate Bill 1067, effective September 1, 1994, to read "persons found in  suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9. Chapter 42. Penal Code [or] breach of the peace, or offense under Section 49.02. Penal Code. or threaten or are about to commit some offense against the laws; (49.02 covers public intoxication only, no longer a part of Title 9 as of September 1, 1994).  
       PRACTICE COMMENT: The fact that the DWI offenses [49.04-49.08] are not listed gives strength to the proposition that DWI is, by specific omission, excluded from by 14.03.

    3. "Where it is shown by satisfactory proof to a peace officer upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant..." C.C.P. art. 14.04, or

    4. When a felony or breach of the peace has been committed in the presence or within the view of a magistrate. NOTE: Additional arrest authorization exists under C.C.P. Chapter 14, but for specific non-DWI offenses.

21. DWI IMPLICATIONS OF ABOVE - DRIVING NOT OBSERVED BY OFFICER

    Where the officer or a magistrate does not observe the defendant operating the vehicle, the offense is not committed in his presence or within his view. Barring its occurrence under circumstances that meet both the "suspicious places" and "circumstances" requirements of C.C.P. art. 14.03(a)(l) above, under Chapter 14, arrest for misdemeanor DWI is illegal. Collins v. State. 795 S.W.2d 777 (TexApp.-Austin 1990), Warrick v. State. 634 S.W.2d 707 (Tex.Cr.App.-1982); Segura v. State. 826 S.W.2d 178 (Tex.App.-Dallas 1992), holding that an accident scene is not per se a "suspicious place." Lowerv v. State. 499 S.W.2d 160 (Tex.Cr.App. 1973) which under C.C.P. art. 14.03(a)(l) rejects an apartment building as a "suspicious place." See  Cooper v. State. 961 S.W.2d 229 (Tex.App.-Houston [1st Dist] 1997) where, in a "highly fact-specific" decision, the court ruled the trial court's finding that "a parking lot in front of a bar in the wee hours of the morning with intoxicated, bleeding people walking around wrecked cars constituted 'suspicious place,' could have been a reasonable deduction." (This assumes DWI is  encompassed by 14.03 without discussion of the September 1, 1994 amendment.) Also see State v. Parson. 988 S.W.2d 264 (Tex.App.-San Antonio 1998). In Looez v. State. 936 S.W.2d 332 (Tex.App.-San Antonio 1996) the court simply ignores the "suspicious places" requirement in order to affirm. 
    The arrest could yet be upheld if sufficient probable cause for a public intoxication charge exists, as was the case in Segura. Also see Reynolds v. State. 902 S.W.2d 558 (Tex.App.-Houston [1st Dist.] 1995), Peddicord v. State. 942 S.W.2d 100 (Tex.App.-Amarillo 1997) (" appellant, having already endangered both himself and others (a rear-end collision) could have, absent proof otherwise, attempted to drive the Honda from the scene in an intoxicated condition..."), Carrasco v. State. 712 S.W.2d 120 (Tex.Cr.App. 1986) (officers observed symptoms of intoxication in driver in one-car accident.)
    NOTE: The officer in whose presence the offense occurred need not be the officer who arrests where the observing officers) who observed were an integral part of the arrest team. Henderson v. State. 864 S.W.2d 227 (Tex.App.-Waco 1993).
    

22. CONCLUSORY= INSUFFICIENT

    1. Insufficient Underlying Data:

       In State v. Hopper. 842 S.W.2d 817 (Tex.App.-El Paso 1992), at pre-trial the first officer testified to stopping defendant after observing a hazardous turn at a high rate of speed, speeding, and an illegal U-turn. The record showed only that this officer administered some unspecified sobriety tests and believed defendant was intoxicated, and that the back-up officer administered additional unspecified sobriety tests and arrested defendant for DWI.

       The court of appeals affirmed the trial court's grant of motion to suppress, observing that "[o]ther than the implied conclusion that Appellee failed the tests, there is nothing specific in the record which provides any basis upon which the trial court could reasonably determine that the officers had probable cause to effect the arrest." 
       
       However where the conclusory statements are contained in a pre-trial stipulation of evidence authored by the defense, complaining on appeal that those statements are flawed because conclusory, an appellate court may labor to let the prosecution out of the trap which was stepped open-eyed into. 

       See for example the 1st Courts decisions in Mathieu v. State. 992 S.W.2d 725 (TexApp.-Houston [1st Dist.] 1999), O'Keefe v. State. 981 S.W.2d 872 (TexApp.-Houston [1st Dist.] 1998) and Rowland v. State. 983 S.W.2d 58 (TexApp.-Houston [1st Dist.] 1998). 

23. ARREST - OFFICER'S JURISDICTION EXCEEDED

    1. Former Law
       Peace Officer's authority to arrest used to be statewide. Hurley v. State. 243 S.W.2d 1006, (Tex.Cr.App. 1950). Specially commissioned police officers (example - campus police, airport police) also had statewide authority. Christopher v. State. 639 S.W.2d 932 (Tex.Cr.App. 1982).

    2. Current Law
       General statewide arrest jurisdiction for police as well as specially commissioned police has now been limited in Angel v. State. 740 S.W.2d 727 (Tex.Cr.App. 1987), and Preston v. State. 700 S.W.2d 227 (Tex.Cr.App. 1985), respectively. By Articles 998 and 999, cities, towns and villages (now repealed as of 1987 and appearing revised in the TEX. LOC. GOV'T CODE ANN. §§ 341.001 - 341.022), city police, city marshals, and sheriffs officers have arrest jurisdiction coextensive to sheriffs officers, to wit: the county in which they are employed. Angel v. State, supra. (NOTE: Judge Clinton recently dissented from a refusal of petition for discretionary review on a Dallas Criminal Appeals decision, Landrum v. State. 751 S.W.2d 530 (TexApp.-Dallas 1988, pet. refd), that followed Angel. He based his dissent on the fact that the Angel decision was only a plurality opinion. Landrum v. State. 795 S.W.2d 205 (Tex.Cr.App. 1990).
       NOTE: An investigator for a district attorney - classified as a peace officer - has no jurisdiction beyond the district served by the District Attorney. Dominyuez v. State. 924 S.W.2d 950 (Tex.App.-El Paso 1996).

    3. Authority Extended by Art. 14.03(d) and new (g) C.C.P. 
       

       1. C.C.P. art. 14.03(d) specifically extends the authority of a peace officer who is outside his jurisdiction to make a warrantless arrest when... 

          1. the offense is committed within the officer's presence or view, and 

          2. the offense is a felony or a violation of Title 9, Chapter 42 Penal Code. ("Disorderly Conduct and Related Offenses," which includes obstructing a highway or olher passageway) a breach of the peace, or an offense under Section 49.02 Penal Code (public intoxication).
             

       2. Newly Expanded Authority - 14.03(g) C.C.P. The newly added § (g) of Article 14.03 [effective May 28. 1995 - H.B. 2614 § 1] gives certain designated police: (1) sheriffs and their deputies, (2) constables and deputy constables, (3) marshals or police officers of an incorporated city, town or village, and (4) rangers and officers commissioned by (he Public Safety Commission and by the Director of the Department of Public Safety, the right when outside their jurisdiction to arrest for any offense within their presence or view other than an "Article 6701d" traffic offense. However, those in category (4)  above can, when outside their jurisdiction also arrest for "Article 6701d" traffic offenses. Both Article 14.03(d) and (g) contain the additional requirement that the arrestee be promptly transferred to an officer having jurisdiction. 

          PRACTICE COMMENT: When applicable on its face. Article 14.03(g) will require re-evaluation of situations which previously limited arrest jurisdiction. The text of the specific statutory creation and authorization of the particular peace officer entity should be examined to determine if it could make 14.03(g) inapplicable. Illegality may survive, for example, where the jurisdictional arrest limit is imposed by the statute that grants jurisdictional authority. 

          NOTE: If another officer is present who does have territorial jurisdiction, the arrest is valid. Lewis v. Stale. 2000 WL 263208 (TexApp.-Texarkana, March 10, 2000).

24. ARREST - LIMITS BY CLASSIFICATION OF MUNICIPAL CHARTER

    [Pre-14.03(g) C.C.P.]
    In Reichaert v. State. 830 S.W.2d 348 (Tex.App.-San Antonio 1992, pet. refd), it was held that the Texas Local Government Code "clearly distinguishes between the powers, rights and jurisdiction of a type "A" municipality officer and those of a type "C" municipality officer and under § 341.001, only the type "A" officer has the same power and jurisdiction as the county sheriff. And since "the governing body of a type "C" municipality has no authority to grant jurisdiction to its officers beyond their own jurisdictional boundaries (here Hill Country Village, Bexar County, Texas)" they could not make a warrantless arrest for a DWI that originated and ended outside the corporate limits of the city of their employ.

    NOTE: The requisites of a type A municipality are found in TEX. LOG. GOVT CODE ANN. § 6.001 and type B in § 7.001, atype C in § 8.001 and Home Rule, § 9.001. The regulations regarding their police officers are § 341.001, type A; TEX. LOC. GOVT CODE ANN. § 341.002, type C and § 341.003 Home Rule.

     

25. ARREST - SPECIALLY COMMISSIONED POLICE AUTHORITY EXCEEDED

    [Pre-14.03(g) C.C.P.] The jurisdiction of specially commissioned police, is likewise limited by the scope granted in their respective vesting statutes.

    1. Campus Police are authorized by TEX. EDUC. CODE ANN. § 51.203 which formerly limited their general jurisdiction to those times while "on the property under the control and jurisdiction of the institution of higher education or otherwise in the performance of his duties." Thus under the former limit, the making of a traffic arrest off campus exceeded that jurisdiction. Preston v. State, supra. See State v. Carroll. 855 S.W.2d 128 (Tex.App.-Austin 1993) for recognition of amendment to 51.203 broadening campus police arrest authority. Likewise, by city ordinance, Houston Airport Police formerly were not authorized to make traffic arrest off the property controlled by me airport fPerkins v. State. 812 S.W.2d 326 (Tex.Cr.App. 1991) and are not now able to do so outside the city limits. Robinson v. State. 866 S.W.2d 649 (TexApp.-Houston [14th Dist] 1993).

    2. Metropolitan Transit Officers. In cases interpreting the Metropolitan Transit Authorities Act Tex.Rev.Civ.Stat. Art. 1118x. As amended as it applied to cities with a population of over 1.5 million (Houston) the officers had authority to enforce state laws throughout all areas where Metro provides services or collects taxes, not just on properly owned or controlled by Metro. State v. Elliot. 879 S.W.2d 381 (Tex.App.-Waco 1994, pet refd). State v. Norton. 899 S.W.2d 303 (Tex.App.-Houston [14th Dist.] 1995), Vickio v. State. 902 S.W.2d 523 (TexApp.-Houston [1st Dist.] 1994, no pet.) Lundy v. State. 891 S.W.2d 727 (TexApp.-Houston [1st Dist.] 1994, no pet.), holds that metropolitan authority not restricted to time when metre service runs. Note however that for cities populated with less than 1.5 million, jurisdiction is limited to "All real and personal property of every kind and nature whatsoever, owned, rented, leased under the control of or operated or situated on property of, or held at anytime by an authority for mass transit purposes. Tex.Rev.Stat. Art. 1118t§2(f). Accord Kaufinan v. State. No. 08-00391-(CR 1995) (Tex.App.-El Paso, April 27, 1995 [Opinion
       Service 5-10-95]).

    3. DA's Investigator, An investigator appointed by a district attorney has geographical jurisdiction co-extensive with that of the district attorney unless provided otherwise by law. Dominguez v. State of Texas. 924 S.W.2d 950 (Tex.App.-El Paso 1996).

     

26. ARREST - OFFICERS FUNCTIONAL AUTHORITY EXCEEDED

    [Pre-14.036 C.C.P.]
    Where the statutory provisions creating peace officers limit their jurisdiction functionally, they have Chapter 14 "peace officer" arrest powers only when acting within those functional limits. United States v. Garcia. 676 F.2d 1086 (1982), vacated on other grounds and remanded, 462 U.S. 1127, 103 S.Ct. 3105, 77 L.Ed.2d 1360 (1983), interprets Texas Law to the effect that outside the territorial limits of state parks the Texas Parks and Wildlife Code limits game wardens arrest powers as peace officers under Article 14 of the Texas Code of Criminal Procedure to violations of the gaming laws only. Thus a stop of a truck driving on a private road through a pasture with its lights off in an area where drug smuggling and vehicle theft had been reported was held to be illegal since it was in no way connected with actual or suspected gaming law violations. 

    
    

27. ARREST - IMPAIRMENT ARGUABLY DUE TO COLLISION INJURIES

    In State v. Williams. 814 S.W.2d 256 (TexApp.-Austin 1991), the only witness at the pretrial hearing was a trooper who testified that while investigating a one-car accident, he was told by a deputy that the driver of another car had stated that defendant had "passed him on a no-passing zone, lost control of his vehicle and hit a culvert." The trooper was also informed that defendant had been ambulanced to a hospital. After more than an hour of on-scene investigation, the trooper went to the hospital emergency room where he encountered defendant "had on a hospital gown, covered by a sheet and lying on a hospital bed." He inquired whether Defendant had life-threatening injuries and recalled that they were not. The Trooper related that defendant had alcohol on his breath, red and bloodshot eyes, and slurred speech. He then administered a horizontal gaze nystagmus test which he said defendant failed. The trooper then read him the warning required for taking a specimen and the defendant then agreed to and gave a blood specimen. He testified that defendant was suspected of intoxication and that he would have arrested him if he had refused to take the blood test.
    Under the circumstances, the trial court granted the Motion to Suppress, observing that "the record is devoid of any evidence relating to what influence, if any, injury or medication might have had on the results of the test." The appellate court upheld the decision; State v. Williams. 814 S.W.2d 256 (Tex.App.-Austin 1991) on PDR the Court of Criminal Appeals affirmed. 832 S.W.2d 52 (Tex.Cr.App. 1992). 
    See also Vasquez v. State. 311 S.W.2d 828 (Tex.Cr.App. 1958) (facts as consistent with injury as with intoxication constitute insufficient evidence.) 
    NOTE: In Nottingham v. State. 908 S.W.2d 585 (TexApp .-Austin 1995) the same court held that the opposite decision in a fact situation similar to Williams was not outside the "zone of reasonable disagreement", noting that unlike the Williams case, the officer was shown to be trained and experienced in administering the HGN test. 

    
    

28. ARREST - RESIDENCE ENTRY LIMITATIONS

    C.C.P. art. 14.05 forbids entering a residence to make a warrantless arrest absent consent or exigent circumstances regardless of territorial jurisdiction. Further in Welsh v. Wisconsin. 466 U.S. 740 (1984), the court held that neither preservation of evidence of alcohol concentration nor public safety (defendant had abandoned automobile) could justify the intrusion for a "minor offense" (here a DWI which, under Wisconsin law, was a nonjailable traffic offense). See also Honevcutt v. State. 499 S.W.2d 662 (Tex.Cr.App. 1973) indicating that proof that the person is about to escape is required for a warrantless residence arrest under C.C.P. art. 14.04. (In Honeycutt a citizen who had observed erratic driving and observed speech and appearance indicating intoxication led officers to the residence). But see Carter v. State. 824 S.W.2d 767 (Tex.App.-Waco, no. pet.) where arrest was upheld when DWI defendant left area of the temporary detention and was pursued into his garage and arrested while attempting to enter house. "By retreating to his garage, [a]ppellant never reached an area protected by the Fourth Amendment, since he apparently was still exposed to public view." See Winter v. State. 902 S.W.2d 571 (TexApp.-Houston [1st Dist.] 1995) which distinguished itself from Welsh because (1) there was hot pursuit (2) a jailable offense (evading) was not minor and, it too involved only the garage. They also found exigent circumstances because of (l) concern that if police left to obtain a warrant, driving might be resumed and (b) defendant's blood alcohol level would have dissipated. Also see LaHoye v. State. 1 S.W.3d 149 (Tex.App.-Texarkana 1999) allowing residence entry due to the exigent circumstance of hot pursuit for the offense of evading arrest, held to be a serious enough crime to justify hot-pursuit entry.

    NOTE: Houston's 14th Court has held that an officer's uninvited entry onto defendant's property could constitute a 38.23 trespass for which, an officer unlike a firefighter or emergency medical personnel, has no immunity under Section 30.05(c) of the Texas Penal Code. Rue v. State. 958 S.W.2d 915 (Tex.App.-Houston [14th Dist.] 1997).

    
    

29. "CUSTODIAL" ORAL STATEMENTS AT TIME OF INVESTIGATION

    1. When is setting Custodial? Clearly if formally arrested, questioning is custodial. Scott v. State. 571 S.W.2d 893 (Tex.Cr.App. 1978).

    2. Texas Adopts New Federal Standard  In Dowthitt v. State. 931 S.W.2d 244 (Tex.Cr.App. 1996) the Court of Criminal Appeals applies the U.S. Supreme Court standard of Stansburv v. California. 511 U.S. ___, 114 S.Ct. 1526, 128 L.Ed. 293 (1994). Because Dowthitt makes detailed effort to clarity "custody" at a time when it has become badly muddled, an extensive quote is helpful.  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. Stansburv v. California. 511 U.S. __, 128 L.Ed.2d 293, 298-299 (1994). The "reasonable person" standard presupposes an innocent person. Florida v. Bostick. 501 U.S. 429, 438 (1991) (emphasis in original). Moreover, the subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Stansburv v. California. 128 L.Ed.2d at 300, U.S. v. MendenhaU. 446 U.S. 544, 554 n. 6 (1980) (opinion of Stewart, J.). See also Dancy v. State. 728 S.W.2d 722, 778 (Tex.Cr.App.), cert. denied, 484 U.S. 975 (1987). 

       We have outlined at least four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when  there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Shiflet. 732 S.W.2d at 629. Concerning the first through third situations, Stansbury indicates that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Concerning the fourth situation, Stansbury dictates that the officers' knowledge of probable cause be manifested to the suspect. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Moreover, given our emphasis on probable cause as a "factor" in other cases, situation four does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. 
       

    3. Application of New Standard to DWI Interrogation

       The Fort Worth Court applied Dowthitt to a DWI setting in Jordv v. State. 969 S.W.2d 528 (TexApp.-Fort Worth 1998). There an Officer Lynn saw defendant who matched a dispatched description of a suspect, walking near the scene of the accident.

       ...Lynn immediately saw that Appellant was unsteady on his feet, swaying from side to side when he walked. Upon approaching Appellant, Lynn noticed that he had a strong odor of alcohol on his breath and his eyes were red and glassy.
       
       Appellant did not have a driver's license with him, but verbally provided Lynn his name and date of birth. Lynn asked Appellant how much he had been drinking. Instead of answering the question. Appellant lay down on the ground and said he needed medical attention... Lynn again asked how much Appellant had been drinking, and Appellant answered, A lot."...
       
       Dowthitt analysis was conducted in the following manner: 
       As it applied to the facts of this case, the Dowthitt decisions provides that the new test will be satisfied, and custody established, when: (1) an officer has probable cause to arrest a suspect and does not tell him that he is free to leave; (2) the officer manifests this knowledge to the suspect; and (3) a reasonable person in the suspect's position would believe he is under restraint to the degree associated with an arrest. A police officer witnessing someone committing a criminal offense has probable cause to arrest. Having personally observed Appellant commit the offense of public intoxication, Lynn had probable cause to arrest him. Specifically, Lynn observed that Appellant was unsteady on his feet,  had a strong odor of alcohol on his breath, and his eyes were red and glassy.
       
       Moreover, Lynn believed that Appellant'sintoxication made him a danger to himself 01 others. Lynn did not tell Appellant he was free to leave. Lynn manifested to Appellan< knowledge of probable cause to arrest him by asking how much he had drunk and attempting to administer field sobriety tests. A reasonable person in this position would mos) certainly believe he is under restraint to the degree associated with an arrest. Consequently, we find that appellant was in custody at the time he responded to Lynn's question. It was, therefore, error for the trial court to have admitted Appellant's statement, "A lot."
       
       Also see Afford v. State. 2000 WL 423077 (Tex. App. - Ft. Worth April 20, 2000) holding that getting driver (stopped for multi-problematic erratic driving) out of vehicle and immediately putting him on ground and handcuffing him constituted custody. But see State v. Stevenson. 958 S.W.2d 824 (Tex.Cr.App. 1997), Hutto v. State. 977 S.W.2d 855 (TexApp.-Houston [14th Dist] 1998), Abernathy v. State. 963 S.W.2d 822 (Tex.App.-San Antonio 1998) and State v. Waldrop. 7 S.W.3d 836 (Tex.App.Austin 1999) and State v. Waldrop. 7 S.W.3d 836 (Tex.App.Austin 1998) where the conclusion that defendant was not yet in custody allowed the statement to come in. 

        

30. ARTICLE 38.23's - EXCLUSIONARY RULE INAPPLICABLE TO TREATIES

    Positing that "Article 38.23 is not a suitable enforcement mechanism for international treaties," a majority of the Court of Criminal Appeals concludes that "treaties do not constitute 'laws'for Article 38.23 purposes." Thus, they hold, that the violation of the Vienna Convention Treaty right oj an arrested foreign national to be informed that he has a right to contact his consulate without delay is unenforceable, thus has not effect on an otherwise admissible confession. Rocha v. State. 2000 WL 368923 (Tex.CrApp. -April 12. 2000).
    

    1. VIDEOTAPE

       1. DEFENDANT'S RIGHT TO A COPY

          1. Statutory Right Article 38.22 § 3(a)(5) C.C.P. reads as Sec. 3(a). No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless: (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

          2. Tigner - "Copy" and "The Proceeding" Interpreted Tiyner v. State. __ S.W.2d (Tex.Cr.App. No. 71,839, May 22, 1996) was an automatic appeal of a death penalty verdict. "Copy" "[C]opy of all records" meant furnishing a copy which was itself an electronic recording - and not just a transcript." "Proceeding" The opinion held that the term "proceeding," as used in Article 38.22 § 3(a)(5), includes voir dire. "A plain reading of the statute demonstrates that the literal language includes all the steps between official accusation and final judgment. Extratextual sources narrow the interpretive breadth of 'proceeding' and illustrate that voir dire is within its ambit. This conclusion will most faithfully advance the purpose and intent of the Legislature. The State's narrow interpretation of Article 38.22 § 3(a)(5) could too easily serve to promote obfuscation and ambush, such potential being unquestionably contrary to the meaning and legislative purpose of the statute."

          3. State's Compliance With "Provided" Informed access suffices. Noting that the word "provide" could mean either "(I) to make available, furnish or (2) to supply or equip, the court reasons: So long as defense counsel is informed of the existence of the recording and permitted reasonable access to a copy. the purpose of § 3(a)(5) has been met." (emphasis added).  Lane v. State. 933 S.W.2d 504 (Tex.Cr.App. 1996).

          4. Trial Court Remedy In a DWI case where the defense was not timely provided a copy of the videotape, the Tyier court held the remedy to be that the custodial interrogation segment of the video be suppressed. Branch v. State. __ S.W.2d __ (Tex.App.-Tyler No. 12-94-00066-CR, November 30, 1995).
             
             

       2. INVOCATION OF CONSTITUTIONAL RIGHTS IS INADMISSIBLE

          1. Right To Remain Silent

          Audio of invocation of right to silence is inadmissible and given the extent that DWI facts were contested, harm was presumed. Gathright v. State. 698 S.W.2d 260 (Tex-App.-Fort Worth 1985, no pet); Cooper v. State. 961 S.W.2d 222 (TexApp.-Houston [1st Dist.] 1997 , also reversed); Dovie v. Ohio. 426 U.S. 610 (1976). 

          Where sound was played to jury so as to include warnings and inquiry as to whether Defendant wished to waiver rights and answer questions and then the sound was turned off, this was held to lead the jury to "inescapable conclusions that (defendant) exercised his constitutional privilege to remain silent" and therefore was error. Harm could not be ruled out and the case was reversed. Dumas v. State. 812 S.W.2d 611 (TexApp. -Dallas 1991, pet. refd).

          2. Right to counsel

          Audio of invocation of right to counsel likewise  inadmissible and harm of admission can require reversal. Hardie v. State. 807 S.W.2d 319 (Tex.Cr.App. 1991). This, according to Hardie. is (rue even though the right was erroneously extended. (The Court observed in note 7 that such evidence "may be admissible when offered by the defendant to rebut an inference of guilt, as demonstrating sobriety by virtue of defendant having the presence of mind to request an attorney in such a situation.")
          
          

       3. INTERROGATION ANSWER OBTAINED IN VIOLATION OF ASSERTED RIGHTS TO COUNSEL

          After asserting his right to counsel defendant, in response to questions, admitted driving, denied drinking, stated the origin and destination points of his driving, declared that he was not ill, had not been injured, was not under a doctors care, did not have epilepsy or diabetes and had not had any injections or pills lately. Erroneous admission was found to meet the applicable harm test and the conviction was reversed. Stanton v. State. 953 S.W.2d 832 (Tex.App.-Amarillo 1997). 
          
          

       4. THE EDWARDS "INITIATION BY ACCUSED" ISSUE

          1. Edwards v. Arizona. 451 U.S. 477 (1981), holds that once right to counsel is invoked, there shall be no further interrogation until counsel is made available "unless the accused, himself, initiates further communication, exchanges or conversations with the police." 

          2. "Initiation" by the accused is not involved by requests "that are so routine that they cannot be fairly said to  represent a desire on the part of any accused to open up a more generalized discussion relating directly or indirectly to the investigation." Oregon v. Bradsbaw. 462 U.S. 1039 (1983). Citing non-"initiating" examples such as "well, what is going to happen to me now?", a request for drink of water or a request to use the telephone. Nor is inquiry (after conversation with lawyer's office) whether the advice was correct that a bail bondsman could help. Kraft v. State. 713 S.W.2d 168 (TexApp.-Houston [1st Dist.] 1986). 
             
             

       5. INITIATION BY ATTORNEY

          Where the lawyer initiates the assertion of rights, its effect can turn on whether, at time of assertion, the lawyer is already retained. See and compare Upton v. State. 853 S.W.2d 548 (Tex.Cr.App. 1993) where the lawyer had been hired and had spoken with defendant and Dams v. State. 872 S.W.2d 325 (Tex. App. - Beaumont 1994) where the lawyer had not yet talked to defendant and "retained" evidence was unclear.
          
          

       6. CONSULTATION PRECEDING INTERROGATION

          Consultation does not allow re-initiation of interrogation "unless the accused has counsel with him at the time of questioning." Murphy v. State. 801 S.W.2d 917 (Tex.Cr.App. 1991) following Minnick v. Mississippi. 111 S.Ct. 486 (1990).
           
          

       7. AUDIO PORTION OF TAPE

          1. Texas Court of Criminal
             Appeals Case In Gavie Lee Jones v. State. 795 S.W.2d 171 (Tex.Cr.App. 1990, pet. refd), the issue of the audio portion was addressed en bane. In this case the officers words to defendant were directed to informing her of her rights, asking if she understood them and giving instructions regarding the sobriety tests. Finding that the defendant did effectively invoke her Miranda right to counsel which was never waived, the Court focused its inquiry on whether the statements were the "product of custodial interrogation" and held that they were not. In reaching this decision, they adopted the definition of Rhode Island v. Innis. 446 U.S. 291 (1980), that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police."

          2. Supreme Court Case The opinion of Pennsylvania v. Muniz. 496 U.S. 582, 110 S.Ct. 2638 (1990), by Justice Brennan, ruled that even though no Miranda warnings were given and the sound track revealed incriminating evidence of slurred speech, "the physical inability to articulate words in a clear manner" was simply physical  evidence without "testimonial elements necessary to invoke the Fifth Amendment". Answers to routine booking questions regarding name, address, age and birth date were also held admissible as "routine booking question" exceptions over Fifth Amendment objections. The "routine booking question" exception exempts from Miranda's coverage questions designed "to secure the biographical data necessary to complete booking or pretrial services". This part of the opinion was supported eight to one with Justice Thurgood Marshall the lone dissenter. By a five to four margin a distinction was drawn, however, regarding a question designed to display the suspect's reasoning ability. It was considered testimonial and therefore inadmissible. After supplying his date of birth, the defendant was asked to calculate the year that he turned six and his answer indicated he was unable to do so. Because Muniz' answer "was incriminating, not just because of his delivery, but also because of his answer's content." the Court ruled that the response was testimonial and therefore should have been suppressed. The court specifically reserved in note 17 whether counting aloud was testimonial.
             
             

       8. ALPHABET AND COUNTING-TEXAS

          The Court of Criminal Appeals holds, post-Muniz. that both counting and reciting the alphabet are not testimonial, therefore are admissible. Gassawav v. State. 957 S.W.2d 48 (Tex.Cr.App. 1997).
          
          

       9. PRE-JURY SCREENING BY COURT

          Where objections are raised concerning video, the court should view it outside of the presence of the jury to allow for admissibility ruling. (Without proper objection waiver will be found). Durham v. State. 710 S.W.2d 176 (Tex.App.- Beaumont 1986).
          
          

       10. SHOWING DEFENDANT HANDCUFFED

           The rule declaring it to be an infringement on the constitutional presumption of innocence to have a jury view the defendant in handcuffs applies to jury  view by videotape as well. Lucas v. State. 791 S.W.2d 35 (Tex.Cr.App. 1989) (defendant handcuffed during videotaped confession); Dennis v. State. 925 S.W.2d 32 (Tex.App.-Tyler 1995).
           
           

       11. RELEVANCY TEST - EXCLUSION 

           The trial court's decision to exclude the following because of balancing relevancy under TEX. R. CRIM. EVID. Rules 401 and 402 was held not to be an abuse of discretion.

           1. extensive discussion of the breath test when the test itself was ruled inadmissible. 

           2. discussion of defendant's pressing need to urinate

           3. defendant's displeasure concerning the fact that his car had been towed. To the State's argument that Jones v. State, supra, allowed admission to show manner of speech "which can be used as evidence of his degree of intoxication", and to show defendant's "volunteered statements", the appellate court concluded that the audio's "slight probative value" (in light of the video's disclosure of ability to perform the sobriety tests) "could have been substantially outweighed by the danger of unfair prejudice under Rule 403 TRACE." 

              See also Raffaelli v. State. 881 S.W.2d 714 (Tex.App.-Texarkana 1994) where the dissenting judge expressed a concern - albeit not raised by point of error - regarding the "many editorial remarks and comments by the officer in charge concerning [defendant] and his actions during the course of the visual recording." 

              The concern is express as follows: The visual recording mandated by Article 67011-1 does not contemplate that such remarks and comments will be presented to the fact finder. Tex.Rev.Civ.Stat.Ann. art 67011-1 (Vemon Supp. 1994). Neither the Miffleton decision nor the Jones decision, cited by the majority, approve the use of such comments of the audio recording. In fact, the more recent Jones decision twice emphasizes that the officer giving the test in that case made no comments other than those necessary to inform Jones of her rights and to instruct her.
              

       12. VIDEO/AUDIO PREDICATE

           The Authentication requirement for admissibility "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901 (a) Texas Rules of Evidence. Rule 901(b) provides non-exclusive list of methods for authenticating evidence. Robert Nicholas Angleton v. State. __ S.W.2d __ (Tex.Cr.App. No. 1536-97, May 27, 1998). The Angleton case specifically overruled Kephart v. State. 875 S.W.2d 319 (Tex.Cr.App. 1994) which had stated that "rule 901 is consistent with our pre-Rule interpretation of cases requiring authentication of videotapes." To meet specificity requirement, objection that proper predicate not set out "must inform the [trial] court just how the predicate is deficient." Jones v. State. 825 S.W.2d 470 (TexApp.-Corpus Christi 1991, pet. refd). 
           
           

       13. JURY REQUEST TO REVIEW VIDEOTAPE

           When (1) tape properly in evidence and (2) jury requests during deliberations, refusal is error. Paikerv. Stale. 745 S.W.2d 934 (TexApp.-Houston [IstDist] 1988.pet.refd).
           
           

       14. GUILTY PLEA - ADMISSIBILITY OF VIDEO AT PUNISHMENT STATE

           Because videotape was relevant "as circumstantial evidence from which the jury could infer the degree of intoxication and thereby assess the appropriate level of punishment," it was admissible under TEX. R. CRIM. EVID. Rule 401 at punishment hearing to jury where defendant had pled guilty. Jones v. State. 825 S.W.2d 470 (TexApp.-Corpus Christi 1991, pet. refd).
           
           
           

       15. VISUAL RECORDING EQUIPMENT REQUIREMENT

           Visual Recording Capability - Mandatory Statute In 1983, the legislature provided:

           1. Each county with a population of 25,000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 67011-1, Revised Statutes, or Subdivision (2), Subsection (a). Section 19.05, Penal Code.

           2. The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant's appearance within a reasonable time after the arrest.

           3. The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the defense if the offense occurred in a county required to purchase and maintain electronic devices under this section.

           Act of May 20, 1983, 68th Leg., R.S., ch. 303 § 24, 1983 Tex. Gen. Laws 1568, 1605. For continuing validity of this requirement, see Cooper v. State. 961 S.W.2d 222 (Tex.App.-Houston [1st Dist.j 1997, observing as follows: The legislature did not give section 24 of the Act an official article number in the Revised Statutes, thus never making it a part of article 67011-1, which was an official article number. See Johnson v. City of Fort Worth. 774 S.W.2d 653, 655 (Tex. 1989) (explaining difference between official and unofficial article numbers).... When the 1993 Penal Code and the 1995 Transportation Code were enacted, the legislature repealed article 67011-1. Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15 1993 Tex. Gen. Laws 3586, 3704 (repealing article 67011-1); Since the legislature did not officially incorporate section 24 into article 67011-1, section 24 has not been repealed. Section 24 is still "die law" even though it has not been codified.
           

       16. FAILURE TO VIDEOTAPE-CONSEQUENCES

           Jury can consider State's failure to videotape in reaching their verdict. Drewett v. State. 704 S.W.2d 43 (Tex.Cr.App. 1986). Dismissal is not a required remedy for refusal to videotape. Irion v. State. 703 S.W.2d 362 (Tex.App.-Austin [3rd Dist.] 1986); State v. Fox. 772 S.W.2d 455 (Tex-App.-Beaumont 1989). Nor does the trial judge have authority to do so. State v. Lyons. 812 S.W.2d 336 (Tex.Cr.App. 1991). Defendant not entitled to a charge relating to failure of state to make videotape. To do so would be improper comment on the evidence. Franks v. State. 724 S.W.2d 918 (Tex.App.-San Antonio 1987).
           
           

       17. DEFENDANT'S REFUSAL TO DO SOBRIETY TESTS

           In Dawkins v. State. 822 S.W.2d 668 (TexApp.-Waco 1991, pet. refd), it was held that since the refusal to submit to the sobriety tests on videotape did not result from impermissible coercion, it was admissible.