## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 10 - 00034 - CR

CHAD RAYMOND DOWELL APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE COUNTY COURT AT LAW OF HOOD COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Introduction Appellant Chad Raymond Dowell appeals his conviction for driving while intoxicated (DWI) , contending i n two issues that the trial court abused its discretion by denying his motions to suppress because (1) h is arrest result ed f rom his false imprisonment by citizens at a fast food drive

- thru , and (2) h e

1 See Tex. R. App. P. 47.4.2

submitted to breath testing only because he was promised his car would not be impound ed if he did

. W e affirm. Factual and Procedural Background Around three o ‘ clock o n e morning, Susan Lowe and Vickie Sansom were at a Whataburger drive

- thru in Susan ‘ s small Ford pickup w hen Appellant ‘ s Lincoln Town Car stru c k them from behind. Vickie turned around and Susan looked in the rearview mirro r to see if Appellant w ould com e out to exchange insurance information , b ut h e remained in his car. Vickie thought h e looked drunk . She noticed that he ha d trouble lighting a cigarette ; his head bobb ed up and down a s he vainly tried to join tip and flame. She saw him drop the cigarette and try to pick it up

. Susan saw him grope toward the floorboard. Vick i e called 911

. Appellant did not retreat from Susan ‘ s bumpe r after colli d ing with it; instead , he push ed forward. Susan h e ld her foot down on t he brake pedal to keep her truck at the drive

- thru window. Although Vickie told the 911 operator that they would try to stall Appellant as long as they could, and although their order was not yet ready , Susan pulled around to the parking lot to wait for it there

. The y watched as the Lincoln paus ed at the drive

- thru window

. When it emerged , Susan took down t he license plate number. Responding to the 911 call, p atrol cars conve rge d at the Whataburger. Granbury Police Officer Brandi Dees drove into the front of the parking lot as Appellant rolled out the back. As other officers arrived , Susan and Vickie pointed3

them in that direction . Officer Dees followed Appellant to the highway and pulled him over after he failed to signal a left turn at the intersection

. Appellant ‘ s eyes were red and glassy , and he smelled heavily of cologne

. He fumbled in his glove box for proof of insurance when Officer Dees asked him for it. Unable to produce it, and unable to provide a straight answer about who se car he was in , Appellant offer ed that it was ― a complicated matter

. ‖ Officer Dees asked him if he had been in an accident at the Whataburger . He said no. She had Appellant step out of the car

. When Appellant exited the car , Officer Dees detected the odor of an alcoholic beverage beneath th at of cologne and Whataburger. Appellant displayed six out of six clues on the horizontal gaze nystagmus test (HGN), failed the walk and turn and the one

- leg stand tests , and had a $55 bar receipt stuffed in his pocket. Officer Dees arrested him for DWI and took him to jail. At the jail , after receiving the statutory DWI warning, Appellant consented to provide a breath sample. While filling out the paperwork , ho wever , Officer Dees mistakenly had Appellant sign on a line indicating that he had refused . She did not, however, check the box indicating a breath

- test refus al

. Appellant ‘ s car had been towed after his arrest. Appellant asked Officer Dees whether he would get i t back after he passed the breath test. She replied that if he blew below the legal limit , they ―would go from there.‖ Appellant provided two breath specimens. The first came back with an alcohol concentration of 0.156 ; the second, 0.164.4

The county attorney charged Appellant with DWI. Appellant filed a document entitled , ―Notice of Intent to Object to Illegal Search and Memorandum and Cases on Said Motion,‖ and seeking to ―suppress the alleged controlled substance, statements, and other items seized at the time of his detention and arrest.‖ Just before trial, Appellant ‘ s attorney explained to the trial court that he intended the document to serve as both a motion in lim ine and a motion to suppress. He argued that Appellant submitted to the breath test involuntarily and that his arrest was based on illegal conduct . The trial court denied the motion to the extent it sought suppression of the breath test results and carri ed the issue of the propriety of the arrest with the evidence presented at trial

. After the State rested, the trial court denied the suppression motions in toto. The jury returned a verdict of guilty . The trial court sentenced Appellant to six months in jail probated for twelve months, a $1,200 fine , and restitution to Susan Lowe for the damage to her pickup truck. Appellant contends in two is sues on appeal that the trial court abused its discretion by denying his motions to suppress. Standard of Review We review a trial court ‘ s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial cour t ‘ s decision, we do not engage in our own factual review. Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.5

State , 118 S.W.3d 857, 861 (Tex. App.

— Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the cre dibility of the witnesses and the weight to be given their testimony. Wiede v. State , 214 S.W.3d 17, 24

– 25 (Tex. Crim. App. 2007); State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial court ‘ s rulings on (1) questions of historical fact, even if the trial court ‘ s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) appli cation

of

- law

- to

- fact questions that turn on an evaluation of credibility and demeanor. Amador , 221 S.W.3d at 673; Montanez v. State , 195 S.W.3d 101, 108

– 09 (Tex. Crim. App. 2006); Johnson v. State , 68 S.W.3d 644, 652

– 53 (Tex. Crim. App. 2002). But when application

- of

- law

- to

- fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court ‘ s rulings on those questions de novo. Amador , 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Joh nson , 68 S.W.3d at 652

– 53. Stated another way, when reviewing the trial court ‘ s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial
court ‘ s ruling. Wiede , 214 S.W.3d at 24; State v. Kelly , 204 S.W.3d 80 8, 818 (Tex. Crim. App. 2006). Detenti on In his first i ssue , A ppellant does not specify precisely what evidence the trial court should have supp ressed; rather, he s eems to complain generally of all6

evidence obtained after his trip to Whataburger , where he claims he was falsely impri soned at the drive

- thru

. Nor does Appellant assert that Susan Lowe and Vickie Sansom violated any statute or constitutional provision in the drive

- thru ; instead, he relies on Wal

Mart Stores, Inc. v. Cockrell , 61 S.W.3d 774 (Tex . App.

— Corpus Christi 2001), a civil case , to argue that they falsely imprisoned him the re and th us rendered illegal his subsequent a rrest. In so doing, however, h e fails to t i e his allegation to the exclusionary rule set out in code of criminal procedure article 38.23 , which exclu des evidence obtained in violation of a statute or constitutional provision , but which is not i nvoked by a common law tort

. See Miles v. State , 241 S.W.3d 28, 37 n.34 (Tex. Crim. App. 2007) (citing Crowell v. State , 147 Tex. Crim. 299, 180 S.W.2d 343, 347 (1944)) ; Carroll v. State , 911 S.W.2d 210, 221 (Tex

. App.

— Austin 1995, no pet.); Delosreyes v. State , 853 S.W.2d 684, 689 (Tex. App.

— Houston [1st Dist.] 1993, pet. ref ‘ d) ; see also Rocha v. State , 16 S.W.3d 1, 14 (Tex. Crim. App. 2000) (discussing commentators ‘ views that ―law s of the S tate of Texas,‖ as that is used in article 38.23, is limited to statutes)

. Moreover, even if a civil cause of action could i mplicate article 38.23 , or if Appellant had relied on the penal code offense of unlawful restraint instead of

common - law false imprisonment, both require proof of restraint , and the record here does not show that Appellant was ever r e s t r ained. 2 T o the contrary, t he

2 Compare Randall’s Food Mkts., Inc. v. Johnson , 891 S.W.2d 640, 644

– 45 (Tex. 1995) (―A detention may be accomplished by violence, by threats, or by any7

record shows that no one was behind Appellant when he entered the drive

- thru and that the s o l e vehicle in front of him , Susan ‘ s truck, got out of his way. The evidence shows that Appellant rolled into a fast food drive

- thru , collided with Susan ‘ s truck , and then bull i ed ahead, forcing her and Vickie to wait for t he i r order in the parking lot while he continued on his way. 3 See State v. Garcia

Cantu , 253 S.W.3d 236, 246 , n.4 4 (Tex. Crim. App. 2008) (citing cases holding that there were no detentions whe n officers ‘ vehicles only partially blocked defendants ‘ egress es ) ; see also United States v. Mendenhall , 446 U.S. 544, 553

– 54, 100 S. Ct. 1870, 1877 (1980) ( ― [A] person is  ̳ seized ‘ only when, by means of physical force or a show of authority, his freedom of movement is restrained

. . . [a] s long as the person

. . . remains free to

. . . walk away, there has been no intrusion upon that person ‘ s liberty [.] ‖ ). Finally, even if the record showed that Appellant w a s restrained, under the facts before us, his restrain ing was called for. The code of criminal procedure

a uthorizes a person to make a citizen ‘ s arrest for a breach of the peace

c ommitted within that person ‘ s view. Tex. Code Crim. Proc. Ann. art. 14.01(a) ( West 2005 ). The court of criminal appeals has held th at citizen s ‘ arrests for DWI are lawful when (1) the citizen has probable cause to believe that an other i s
other means that restrains a person from moving from one place to another.‖) with T ex. Penal Code Ann. § 20.02 (a) ( West 2003) (―A person commits an offense if he intentionally or knowingly restrains another person.‖)

.

3 Susan testified, ―He could have backed out. There wasn‘t anybody else in line.‖8

driving while intoxicated in his view, and (2) the commission of th e offense, if not stopped, pose s an ongoing threat of violence or harm to that person or others. Miles , 241 S.W.3d at 42 ; s ee Woods v. State , 152 Tex. Crim. 338, 213 S.W.2d 685, 687

– 88 (1948) ; see also McEathron v. State , 163 Tex. Crim. 619, 294 S.W.2d 822, 8 23

– 24 (1956) (upholding citizen ‘ s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600, 603

– 04 (Tex. App.

— Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drov e the wrong way down the highway , placing ― his own life and the lives of other motorists in danger‖) ; Turner v. State , 901 S.W.2d 767, 770

– 71 (Tex. App.

— Hous ton [14th Dist.] 1995, pet. ref ‘ d) (relying on Woods and upholding a citizen ‘ s arrest by a private security officer for

an offense involving a breach of the peace when circumstances showed it was night, the apartment complex had previous incidents of criminal activity, defendant acted suspiciously, gave citizen a false name, and held up a handgu n); Crowley v. State , 842 S.W.2d 701, 704 (Tex. App.

— Houston [1st Dist.] 1992, pet. ref‘d ) (relying on Woods and concluding that, under particular circumstances, failure to stop and give information after traffic accident was an offense involving a breach of the peace); Estes v. State , 660 S.W.2d 873, 874

– 75 (Tex. App.

— Fort Worth 1983, pet. ref ‘ d) (citing Woods and holding that, under the circumstances, obscene gesture constituted ―fighting words‖ and was an offense constituting breach of the peace when def endant, a senior at Grand9

Prairie High School , had extended ―his middle finger of his right hand to Phillip M. Farris, principal of said school, during the commencement exercises on May 29, 1981‖)

. Here, the evidence shows that Appellant appeared so intoxicated that he could not manage to light a cigarette, that he had already collided with one vehicle, and then pushed that vehicle forward, and that he was on his way to re

entering the roadway where it was reasonable to believe that he posed a threat of harm to others. A citizen ‘ s arrest would have been appropriate under the circumstances

. See Miles , 241 S.W.3d at 42

. We hold that the trial court did not err by deny ing Appellant ‘ s motion to
suppres s evidence obtained as a result of the arrest, and we overrule Appellant ‘ s first issue

. Breath Sample In his second issue , Appellant claims that he was falsely induced to provide a breath sample because Officer Dees prom ised him that his car would be released and not impounded if he did so. Again, however, the record does not support Appellant ‘ s claim. Officer Dees testified that although Appellant expressed some concern about what would happen to his car, he agreed to provide a breath sample and s he did not make any promises. Specifically, she testified on direct as follows: Q. Did you make any promises to the Defendant in this case regarding if he took this test or anything about if he passed this test something would happen to him?10

A. No, I did not. Q. Okay. Did the Defendant question you on what would happen if he gave a sample, of what the ultimate conclusion would be?
A. He was more concerned about his car. He asked what would happen to his car. Q. Did you promise him his car wouldn ‘ t get towed or anything like that if he passed the test?
A. No

. No, I did not. O n cross , she testified as follows : Q

. State ‘ s Exhibit No. 2 there ‘ s a place for the accused person to sign if they refuse; is that correct?
A. Yes, sir, it is. Q. And you had him sign there, did you not?
A. Y es, sir, I did. Q. Because at first he said he didn ‘ t want to do that, didn ‘ t he?
A. No, sir. Q. Ma ‘ am?
A. No, sir. Q. So you just had him sign it for the fun of it?
A. No, sir. I made a mistake and I had him sign it. Q. And do you recall telling him that if he took the test and passed it that you would assist him in getting his vehicle released?
A. No, sir, I don ‘ t recall that. Q. This was all videotaped, was it not?11

A. Yes, sir, it was. Q. This was videotaped as well, was it not, when he talked to you about this?
A. Yes, sir. Q. Y ou do recall now him asking about getting his car rel e ased if he took the test and passed it?
A. He just mentioned if he was going to get his car once he passed the test. Q. And your response was?
A. ―We ‘ ll talk about it when we get there.‖ Q. Indicating that you would assist him?
A. No, just we ‘ ll talk about the options whenever we get there. I wasn ‘ t going to say anything until we knew the results. The video referred to by Appellant ‘ s counsel during his cross

- examination of Officer Dees was marked as State ‘ s Exhibit 3. During its publi cation to the jury, the State asked Officer Dees these questions: Q. (BY MR. HILL) Officer Dees, it seems that the answer to your question on the breath test se e med a little muffled. What was the answer that you heard from the Defendant?
A. ―Yes.‖ Q. Okay. Meaning what?
A. Yes, he would submit to the breathalyzer test.

. . . . Q. (BY MR

. HILL:) What was that conversation about? What did he ask you about?12

A. He was concerned about his vehicle. He was wanting to know what happened to his vehicle. Q. Okay. What did happen to his vehicle?
A. It was towed. Q. Did you promise him that you would return his vehicle to him or his vehicle wouldn ‘ t be towed if he gave a breath specimen?
A. No, I did not.

. . . . Q. (BY MR. HILL) What was that statement that you made?
A. I told him if he blew under .08 we would go from there. Q. Is that an indication to you that he was going to go free if he blew under .08?
A. No. Q. Just that your investigation would be different?
A. Exactly. On further cross

- examination by Appellant, Officer Dees testified as follows: Q. Do you remember talkin g or do you remember telling Mr. Dowell at the time just before he took the test that you were going to see about

- - talk to your supervisor about getting his car released or something of that nature?
A. No, sir, I don ‘ t recall that. Appellant cites Er

dman v. State , 861 S.W.2d 890 (Tex. Crim. App. 1993), and State v. Sells , 798 S.W.2d 865 (Tex. App.

—Austin 1990, no pet.), to argue13

that his breath sample was ―acquired under a false pretense.‖ In both of those cases, however, the defendant was given the proper statutory warnings but also
an extra

- statutory warning that they would be jailed and charged with DWI if they refused to submit to breath testing. Erdman , 861 S.W.2d at 893

– 94; Sells , 798 S.W.2d at 866. Each of those cases involved misrepresentations of direct statutory consequences , which required reversal. Here, in contrast, the re cord shows that Appellant was properly advised of the direct statutory consequences of a refusal and there is nothing in the record to sh ow that he was misled or advised improperly. Moreover, v iewing the evidence in the light most favorable to the trial
court ‘ s ruling , there is no evidence that Officer Dees made any promises to Appellant in exchange for his submitting to a breath test. Ac cordingly, we hold that the trial court acted within its discretion to find that Appellant was not induced by any promise to provide a breath sample and that it properly denied the motion to suppress . W e overrule Appellant ‘ s second issue

.14 Conclusion Having overruled both of Appellant ‘ s issue s, we affirm the judgment of the trial court.

L E E GABRIEL JUSTICE
PANEL: McCOY, MEIER, and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b )
DELIVERED: June 9, 2011