Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00291-CR

The STATE of Texas,

Appellant

v.

Richard Michael DONOHOO,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court No. 453259

Honorable Celeste Brown, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: June 22, 2016

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

The State charged Richard Michael Donohoo with operating a motor vehicle in a public 

place while intoxicated with a blood-alcohol concentration of 0.15 or higher. Donohoo filed a 

motion to suppress, alleging he was arrested without a warrant in violation of article 14.01 of the 

Texas Code of Criminal Procedure and was thereafter subjected to “custodial interrogation without 

proper Miranda warnings, field sobriety testing, transport to the Magistrate’s Office for intoxilyzer

testing, and follow-up booking procedures.” After a hearing, the trial court granted Donohoo’s 

motion “in all respects.” The trial court’s order incorporated by reference its oral findings of fact 
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and conclusions of law from the hearing. We abated the case for the trial court to make additional 

findings of fact and conclusions of law. We affirm the trial court’s order in part and reverse and 

remand in part.

BACKGROUND

We summarize the trial court’s findings of fact and conclusions of law as follows: Around 

8:45 p.m. on March 9, 2014, officers of the San Antonio Police Department received a call that a 

vehicle had struck a light pole. The unidentified caller stated she followed the car to an apartment 

complex located on Huebner Road. The caller did not give a description of the driver, speak to the 

officers conducting the investigation, or maintain a view of the vehicle once it entered the gated

apartment complex. Approximately forty-five minutes elapsed between the time the accident was 

reported and the time the police officers made contact with Donohoo.

Officer Madiano knocked on Donohoo’s apartment front door and, upon Donohoo opening 

it, Officer Madiano told Donohoo his car was about to be towed. Donohoo, “after being coerced 

outside under the guise of the vehicle not having a handicap placard, admit[ted] to driving a couple 

of hours prior.” Donohoo stated the damage to his vehicle occurred two weeks prior and that he 

was unaware of any new damage. Officer Madiano asked Donohoo to come outside and Donohoo 

“request[ed] to put pants on.” Donohoo stated he did not remember hitting anything with his car. 

After Donohoo left his home, the officers showed him the damage to his car. Donohoo asked to 

go back inside less than three minutes after he was “told” to go outside. Officer Madiano told 

Donohoo, “No, I want you to stay out here ‘for a sec,’ and look at the damages a while.” Officer 

Madiano then called Officer Travis Gourley to come and conduct field sobriety tests.

Officer Gourley testified that Donohoo’s disorderly clothing was a clue of intoxication, but 

Donohoo had asked to put on clothes after being awakened and asked to leave his home. Donohoo 

stated he was tired. Officer Gourley conducted the Horizontal Gaze Nystagmus test and asked 
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several questions “designed to elicit incriminating responses.” Donohoo admitted he drank three 

beverages from 5:00 to 8:30 p.m. He also admitted he drove his vehicle, but stated he was not 

aware of any accident occurring that night. Following the field sobriety test, Donohoo was placed 

under arrest. 

The trial court concluded Donohoo’s home was not a “suspicious place” under Texas Code 

of Criminal Procedure article 14.03(a)(1)’s exception to the warrant requirement for an arrest. It 

further “conclude[d] that Donohoo was detained when he was asked to leave his home.” When 

Donohoo was detained, the officers lacked reasonable suspicion to support a detention for driving 

while intoxicated. Donohoo was never informed that he was free to leave and “in fact, he was told 

the opposite.” “[Donohoo] was clearly detained at the point he leaves his home. He requested to 

return to his home and was denied that request. A reasonable person would not believe they were 

free to leave when an officer says ‘No, I want you to stay here . . . .’” The presence of four police 

officers at various points throughout the interaction with Donohoo would cause a reasonable 

person to believe his freedom of movement had been restricted. 

The trial court further concluded Donohoo’s statements were not voluntarily made under 

voluntary conditions. In addressing whether Donohoo was in custody, the trial court concluded 

that a reasonable person would not have felt free to leave because (1) Donohoo was detained when 

he left his home; (2) the officers prohibited Donohoo from going back into his home, and (3) four 

officers were present throughout the interaction with Donohoo. The trial court found Donohoo was 

not given his Miranda warnings until he was informed he was under arrest at 10:32:50 p.m.

The trial court clarified that its order suppresses “the officers’ testimony, the video, and the 

results of the Standardized Field Sobriety Test.” To understand what evidence was suppressed, we 

reviewed the record to discern what “video” the trial court referred to in its findings of fact and 

conclusions of law. The record contains three electronic files on which there are audio-video 
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recordings from the time that the officers first arrived at the apartment complex until after Donohoo 

was handcuffed and informed he was under arrest. The three files contained audio-video 

recordings of different parts of the officers’ interactions with Donohoo. 

The first audio-video file contains an audio recording of a discussion when the two officers 

went to Donohoo’s home, but the officers and Donohoo cannot be seen in the video. Before 

Donohoo stated he would come outside, the two officers talked to Donohoo about whether he was 

drinking and driving earlier that evening. Donohoo then left his home and the officers showed 

Donohoo the damage to the side of his vehicle. Donohoo and one of the officers had another 

conversation about whether Donohoo was drinking and driving earlier that evening. When an 

officer asked for his identification, Donohoo asked to go back inside. The officer then stated, “No, 

I want you to stay out here ‘for a sec,’ and look at the damages a while.” An officer and Donohoo 

continued to discuss whether Donohoo was drinking and driving. The audio on the first file was 

then muted. 

On the second audio-video file, an officer and Donohoo can be seen standing in the parking 

lot. Donohoo stated he was cold. When an officer asked Donohoo if he wanted to get a jacket, 

Donohoo invited the officers into his home where they continued their conversation. Two more 

officers, including Officer Gourley, arrived and Donohoo and the other two officers came out to 

the parking lot. The audio on the second file was then muted. The third file shows Donohoo coming 

out of his home with an officer. Officer Gourley and Donohoo discussed what happened earlier 

that evening and whether Donohoo was drinking and driving. Officer Gourley then conducted a 

horizontal-gaze-nystagmus (HGN) test. Officer Gourley told Donohoo that he believed Donohoo 

was drinking and driving, informed Donohoo that he was placing him under arrest, and then placed 

handcuffs on Donohoo. Donohoo was thereafter given his Miranda warnings. The third audiovideo file continues for approximately forty more minutes. 
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The State appeals, arguing the trial court erred by granting Donohoo’s motion to suppress. 

The State supplemented its briefing to address the trial court’s additional findings and conclusions 

regarding whether and when Donohoo was in custody under Miranda v. Arizona, 384 U.S. 436 

(1966).

STANDARD OF REVIEW 

We review a trial court’s ruling on a motion to suppress under a bifurcated standard. 

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review a trial court’s 

conclusions of law de novo. Id. at 328. If a trial court’s fact findings are supported by the record 

or are based on evaluation of witness credibility and demeanor, we should afford them almost total 

deference. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). “The trial judge is the 

sole trier of fact and judge of the credibility of the witnesses and the weight to be given their 

testimony.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court “is 

entitled to believe or disbelieve all or part of the witness’s testimony—even if that testimony is 

uncontroverted—because he has the opportunity to observe the witness’s demeanor and 

appearance.” Id. “If the trial judge makes express findings of fact, we view the evidence in the 

light most favorable to his ruling and determine whether the evidence supports these factual 

findings.” Id. “We will sustain the trial court’s ruling if that ruling is ‘reasonably supported by the 

record and is correct on any theory of law applicable to the case.’” Id. at 447-48 (quoting State v. 

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). However, we cannot blind ourselves to 

indisputable facts shown by video recordings that contradict the trial court’s findings. See 

Carmouche, 10 S.W.3d at 332.

ANALYSIS

The trial court concluded Donohoo was detained without reasonable suspicion “when he 

was asked to leave his home.” The trial court also concluded that the interaction became a custodial 
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interrogation without proper Miranda warnings when his request to go back inside his home was 

denied and when four officers were present. The trial court also concluded that Donohoo was 

unlawfully arrested without a warrant after the HGN test because the officers lacked probable 

cause and Donohoo was not found in a “suspicious place.” 

The State contends the officers’ encounter with Donohoo was consensual and, 

alternatively, the officers had reasonable suspicion to detain Donohoo. The State also argues the 

officers had probable cause to arrest Donohoo and that article 14.01’s “suspicious place” exception 

to the prohibition against warrantless arrests applies in this case. In its supplemental briefing, the 

State contends Donohoo was not in custody for purposes of Miranda. 

A. Police–Citizen Interactions under the Fourth Amendment

“There are three distinct types of police-citizen interactions: (1) consensual encounters that 

do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment 

seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal 

activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only 

if supported by probable cause.” Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013). 

“Which type of encounter exists under a given set of historical facts is a question of law that is 

reviewed de novo.” Melendez v. State, 467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no 

pet.) (citing State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).

“Police officers are as free as any other citizen to knock on someone’s door and ask to talk 

with them.” Garcia-Cantu, 253 S.W.3d at 243. “Such consensual encounters may be 

uncomfortable for a citizen, but they are not Fourth Amendment seizures.” Wade, 422 S.W.3d at 

667 (footnote omitted). A consensual encounter becomes a detention when an officer “by means 

of physical force or show of authority, has in some way restrained the liberty of a citizen.” GarciaCantu, 253 S.W.3d at 242. “It is the display of official authority and the implication that this 
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authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure. 

At bottom, the issue is whether the surroundings and the words or actions of the officer and his 

associates communicate the message of ‘We Who Must Be Obeyed.’” Id. at 243. “Courts must 

take into account the totality of the circumstances of the interaction to decide whether a reasonable 

person would have felt free to ignore the police officer’s request or terminate the consensual 

encounter.” Wade, 422 S.W.3d at 667. 

The trial court “found” Donohoo was “coerced outside” when he was told that his car was 

about to be towed for not having a handicap placard. Although the trial court and the dissent 

characterize this determination as a “finding” of fact, whether an encounter is “coerced” (i.e. not 

consensual) and amounts to an investigative detention involves an application of law to facts, and 

is not a question of fact. Garcia-Cantu, 253 S.W.3d at 241. It is a legal conclusion as to the type 

of encounter that existed under the historical facts found by the trial court. See Melendez, 467 

S.W.3d at 592. We therefore review the trial court’s legal conclusion that Donohoo was “coerced 

outside” de novo and afford it no deference. See Garcia-Cantu, 253 S.W.3d at 241; Meadoux v. 

State, 307 S.W.3d 401, 407 (Tex. App.—San Antonio 2009), aff’d, 325 S.W.3d 189 (Tex. Crim. 

App. 2010).

Although the trial court found that two officers went to Donohoo’s door and Donohoo was 

“asked to come outside,” the audio-video recordings show that an officer knocked on Donohoo’s 

door or window and told him his car was about to be towed.1 Before Donohoo said he would come 

outside, Donohoo told the officers he had been drinking, he owned the Lincoln car that was parked 

in a handicap spot without a handicap placard and had driven that evening, and his car had 

sustained damage to its right side two weeks prior to that evening. One of the officers told Donohoo 

 1 Although the dissent characterizes the officer’s statements as a “threat” that the officers would tow Donohoo’s car 

if he did not come outside, the trial court did not make this finding.
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he could smell alcohol on his breath. After Donohoo was informed there was “fresh damage” along 

the left side of this vehicle, Donohoo informed the officers he would put on some pants and come 

outside. The trial court’s findings that around 9:30 p.m., Officer Madiano came to Donohoo’s 

home with another officer, repeatedly knocked on Donohoo’s door, and told Donohoo that his car 

was about to be towed, are supported by the record.

But before Donohoo left his apartment, the officers had not commanded Donohoo under 

their official authority to leave his home or otherwise restrained his liberty. See Garcia-Cantu, 253 

S.W.3d at 242. There was no display of official authority implying that Donohoo could not have 

ignored the officer’s statement that his car was about to be towed and terminated his encounter 

with the officers. See id. at 243; see also Lopez v. State, No. 04-13-00300-CR, 2014 WL 5353627, 

at *5 (Tex. App.—San Antonio Oct. 22, 2014, pet. ref’d) (mem. op., not designated for publication) 

(holding five minutes of continuous knocking in the middle of the night might be annoying, but is 

not a “display of official authority”). Applying the law to the historical facts found by the trial 

court, we hold Donohoo was not detained when he left his home.

2

B. Custodial Interrogation under the Fifth Amendment

Under the Fifth Amendment, statements made by a suspect during a custodial interrogation 

are inadmissible unless certain warnings were given to the suspect before he makes those 

statements. Miranda, 384 U.S. at 444-45. Article 38.22 of the Texas Code of Criminal Procedure 

also requires the suppression of statements made during a custodial interrogation unless certain 

statutorily prescribed warnings are given. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 

2015); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). “Thus, the concerns raised 

by failing to comply with Miranda only arise when the individual is subject to both (1) custody by 

 2 We need not address the State’s alternative argument that if Donohoo was detained when he left his home, the 

officers had reasonable suspicion. See TEX. R. APP. P. 47.1.
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a law enforcement officer and (2) an interrogation.” Martinez-Hernandez v. State, 468 S.W.3d 

748, 757 (Tex. App.—San Antonio 2015, no pet.). 

With regard to the trial court’s conclusion regarding Miranda and article 38.22, the State 

argues that Donohoo was not in custody. A person may be in custody in at least four general 

situations:

(1) when the suspect is physically deprived of his freedom in any significant way, 

(2) when a law enforcement officer tells the suspect he cannot leave, (3) when law 

enforcement officers create a situation that would lead a reasonable person to 

believe 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 

he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). “The determination of custody 

must be made on an ad hoc basis, after considering all of the (objective) circumstances.” Id. “When 

making custody determinations, Texas courts have also considered whether: (1) the officer was 

conducting an investigation; (2) the suspect was handcuffed; (3) the officers used weapons to 

detain the suspect; (4) police outnumbered the individuals detained; (5) threatening language was 

used; (6) the suspect was transported to another location; (7) the suspect’s [movement] was 

blocked; and (8) physical force was used.” Estrada v. State, No. 04-12-00136-CR, 2012 WL 

6720655, at *3 (Tex. App.—San Antonio Dec. 28, 2012) (mem. op., not designated for 

publication), aff’d, PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014) (not 

designated for publication). If a person voluntarily agrees to accompany law enforcement officers 

to a different location to answer questions about an incident, the person is not in custody. MartinezHernandez, 468 S.W.3d at 758. 

The trial court concluded Donohoo was in custody before he was formally arrested on the 

basis of its findings that an officer denied Donohoo’s request to go back inside his home; Donohoo 

was being asked questions designed to illicit incriminating responses; and four officers were 
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present. These findings are supported by the record. However, the audio-video recordings show 

that Donohoo did not have his identification on his person and asked to go back inside in response 

to an officer’s request to see it; an officer permitted Donohoo to go back into his home to get a 

jacket because Donohoo stated he was cold; and Donohoo then invited the officers to come inside 

his home. The audio-video recordings also establish that before Donohoo was placed under arrest, 

Donohoo had not been handcuffed, the officers had not exhibited weapons or used threatening 

language, Donohoo had not been involuntarily transported to another location, Donohoo’s 

movement had not been blocked, and the officers had not used physical force. See Estrada, 2012 

WL 6720655, at *3. We hold, under these circumstances, Donohoo was not in custody before 

Officer Gourley placed Donohoo under arrest for driving while intoxicated. 

“SUSPICIOUS PLACES”

The State contends the trial court erred by concluding Donohoo’s home was not a 

“suspicious place” under article 14.03 of the Texas Code of Criminal Procedure. Article 

14.03(a)(1) permits peace officers to make warrantless arrests of “persons found in suspicious 

places and under circumstances which reasonably show that such persons have been guilty of some 

. . . breach of the peace.” TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015).3 The 

Court of Criminal Appeals has construed this exception to the warrant requirement as coterminous 

with the “exigent circumstances” doctrine under the Fourth Amendment. See Swain v. State, 181 

S.W.3d 359, 366 (Tex. Crim. App. 2005). Thus, article 14.03(a)(1) authorizes a warrantless arrest 

only if the arresting officer has probable cause “and exigent circumstances call for immediate 

action or detention by police.” Id.

 3 We note that “driving while intoxicated is a breach of the peace.” Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. 

App. 2004).
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The State’s only argument that exigent circumstances called for Donohoo’s immediate 

arrest was “the need to obtain [Donohoo’s] blood-alcohol level created an exigency that called for 

immediate detention by the police.”4 The Supreme Court of the United States has held that the 

natural dissipation of alcohol in a suspect’s body does not present “a per se exigency that justifies 

an exception to the Fourth Amendment’s warrant requirement.” Missouri v. McNeely, 133 S. Ct. 

1552, 1556 (2013). If the “warrant process will not significantly increase the delay before the blood 

test is conducted because an officer can take steps to secure a warrant while the suspect is being 

transported to a medical facility by another officer,” then “there would be no plausible justification 

for an exception to the warrant requirement.” Id. at 1561. During cross-examination, Officer 

Gourley testified he arrested Donohoo because he had probable cause and did not need further 

justification. Officer Gourley further admitted he did not know how to obtain an arrest warrant 

because he had only filled out requests for search warrants to draw blood. Therefore, McNeely

forecloses the State’s position. See id. at 1556-61. We hold article 14.03(a)(1) did not authorize 

Officer Gourley to arrest Donohoo without a warrant. See Swain, 181 S.W.3d at 366.

CONCLUSION

We affirm the trial court’s order suppressing all evidence obtained after Officer Gourley 

placed Donohoo under arrest. We reverse the trial court’s order suppressing evidence obtained 

before Officer Gourley formally placed Donohoo under arrest. We remand the case to the trial 

court for further proceedings consistent with this opinion.

Luz Elena D. Chapa, Justice

DO NOT PUBLISH 

 4 The State does not argue that any other exigency justified bypassing the Fourth Amendment’s warrant requirement. 

See TEX. R. APP. P. 38.1(i), 47.1.