### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REMAND

NO. 03-09-00356- CR

The State of Texas, App ellant

v. Randall Chup ik, App ellee

F ROM CO UNTY COURT AT LAW NO . 8 O F TRAVIS CO UNTY

NO. C-1 -CR- 08- 2228 90 HO NORAB LE CARLOS HUM B ERTO B ARRERA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The State char g ed Randall Chupik with dri v i n g wh i l e intox icated. The trial court g rante d Chupik’s pretria l motion to suppress evidenc e, and the State appea led. See State v. Chupik , No. 03-09-00356- CR, 2010 Tex. App. L EXIS 3618 (Tex. App.—Austin May 13, 2010), rev’ d , 2011 Tex. Crim. App. L EXI S 824 (J une 15, 2011). We a ffirme d the trial cour t’s order

. Id

. at *1. The State appea led our decision. See State v. C h u p i k , PD-0960-10, 2011 Tex. Crim. App. L EXI S 824 (Tex. Crim. App. J une 15, 2011). The Court of Criminal Appea ls reve rsed and

rema nded. Id

. at *1. On rema nd, we reve rse the trial co u rt ’s order and rema nd the cause for further proce eding s.F ACTUAL AND P ROCEDURAL BACK GR OUND We previously detailed the fac ts of this ca s e, s ee S tate v. Chupik , 2010 Tex. App. L EXI S 3618, at *1-6, so here we only outline them. A police office r stopped Chupik’s vehicle afte r seeing it wea

ving on a public street. After asking Chupik some questions, the office r g ave Chupik three field sobriety tests, the first of which was a Horizontal Gaze Ny stag mus (“H GN”) test. After administering the three tests, the office r for mally arr ested Chupik. At the hear ing on his motion to suppress, Chupik arg ued that the stop and the initial questions violated his f

eder al constitutional rig hts. See Miranda v. Arizona , 384 U.S. 436 (1966). The trial court ruled that the stop and the initial questions wer e p er m i s s i b l e, but it made written fi n d i n gs o f fac t and conclusions of law that Chupik was “under arr est at the conclusion of t h e administration of the HGN test” and was there afte r “subjec ted t o cu s t odial interrog ation without having had his Miranda warnings rec ited to him.” (Emphasis in orig inal.) The trial court there fore suppressed “[t] he answe rs to all questions asked of Chupik afte r the administration of the [HGN test]

. . . exclusive of his response to the question as to whether he would g ive a brea th or blood sample.”

On appea l, the State arg ued that the trial court err ed by concluding that Chupik was in custody for Miranda purposes afte r the administration of the HGN test. We aff irmed the trial court’s order

. See State v. C

hupik , 2010 Tex. App. L EXI S 3618, at *1. The S tate appe aled our decision, and the court of criminal appea ls reve rsed and rema nded. See State v. Chupik , 2011 Tex. Crim. App. L EXI S 824, at *1.

2STANDARD OF REVIEW We revie w a trial court’s ruling on a mot i o n t o s u ppress for abuse of discretion. Crain v. State , 3 1 5 S

. W

. 3 d 4 3 , 48 (Tex. Crim. App. 2010). We defe r almost completely to trialcourt deter

minati o n s of historical fac t, espec ially when they are based on assessments of witness cre dibilit y and demea nor. Id

. We also defe r almost completely to trial-cour t ruling s on the applica t i o n of l aw to questions of fact, and to mix ed questions of l aw and fac t, when they depend on assessments of witness c redibility and demea nor. Id

. For

mix ed questions of lawand fa ct that d o n o t d ep en d on assessments of witness cre dibilit y and demea nor, howeve r, we revie w a trial court’ s rulings de novo. Id

.

One such question is whether a person was “in custody ” at a particula r point in time. Herrer a v. S t a t e , 241 S.W .3d 520, 527 (Tex. Crim. App. 2007). A person is in custody if, under the circ umstances, a rea sonable person would believe that her fre edom of movement was restra ined to the deg ree associate d with a formal arr est. Stansbury v. Ca liforni a , 511 U.S. 318, 322 (1994); Herrera , 241 S.W .3d at 525; Dowthitt v. State , 931 S.W .2d 244, 254 (Tex. Crim. App. 1996). The deter mination of custody depends on objective circ umstances, not the subjective view of the police or t he suspect. Stansbury , 511 U.S. at 323; Dowthitt , 931 S.W .2d at 254. The subjec tive view of the police reg arding custod y may become rele vant if it is convey ed to the suspect, but only to the extent that it would aff

ect a rea sonable pe rson’s under standing of his fre edom of action. Houston v. State , 185 S.W .3d 917, 920 (Tex. App.—Austin 2006, pet. ref ’d).

3DISCUSSIO N The issue befor e us on rema nd is whether Chupik was “in custody ” at the conclusion of the HGN test. The trial court ruled that he was, and beca use the arr esting office r did not inform Chupik of his Miranda rig hts at that point, the court suppressed evidenc e that the o ff i cer subsequently

obtained. 1 What beg ins as a noncustodial traff ic stop may esca l at e i n t o a custodial detention, there by trig g ering the driver’ s Miranda rig hts, befor e the driver is formally arr ested. See Berke mer

v. McCarty , 468 U.S. 420, 441-42 (1984); State v. Steve nson , 9 5 8 S

. W.2d 824, 828 (Tex. Crim. App. 1977); State v. W

aldrop , 7 S.W .3d 836, 839 (Tex. App.—Austin 1999, no pet.). A defe ndant bear s the burden of establishing that such esca lation has occur red. See Herrera , 241 S.W .3d at 526 (def endant be ars bur den of e stablishing he w as “in c ustody ” at pa rticular point in time). The only witness at the hear ing on Chupik’s motion to suppress was the office r who

arr ested Chupik. He testified that he stopped Chupik’s vehicle shortly befor e 1:00 a.m. afte r seeing it chang e lanes without signa ling. He testified that he had been following Chupik for sever al minutes and suspected that Chupik might be intox icated beca use his vehicle had been wea ving within its lane of traff ic. Def ense exhibi t one, co n t ai n ing a three -minute excerpt from the office r’s in-ca r video

rec ording sy stem, was introduced into evidenc e at the hear ing. The video shows Chupik’s vehicle driving down West Six th Street followed by the office r’s patrol car, an d it contains the office r’s running commentar

y o n t h e q u al i ty of Chupik’s driving

. The video exhibi t ends when Chupik is

As we previously noted, the rec ord does not indicate what actua l evidenc e, if any , 1 wa s suppressed. See State v. Chupik , No. 03-09-00356- CR, 2010 Tex. App. L EXI S 3618, at *8 (Tex. App.—Austin May 13, 2010), rev’ d , 2011 Tex. Crim . App. L EXI S 824 (J une 15, 2011).

4stopped by the office r; there is no video evidenc e in the rec ord of the subsequent interac tion betwee n

the offic er a

nd Chupik. The office r testified that when he spoke to C h u p i k t hroug h the driver’ s window immediately afte r the stop, he smelled the odor of alcohol on Chupik’s brea th and not i ce d that Chupik’s speec h was slurred and his ey es wer e bloodshot. The office r order ed Chupik to g et out of his ve hicle and beg an to a sk Chupik a series of questions, twe nty or twenty -one in all. The office r testified that Chupik was not fre e to leave during this questioning, but he also testified that Chupik was not re strained a

nd was not told that he wa s under a rre st. After completing this questioning, the office r administered the s t andardized fi el d s obriety tests, beg inning with the HGN test. The office r did not testify as to Chupi k ’s perf ormanc e on this test, but he testified th at when it was conclude d, he believed that he had probable cause to arr est Chupik for DWI

. There is no evidenc e that the office r convey ed this belief to Chupik, howeve r, and the officer testified that he did not decide to actual l y ar re s t C h upik until afte r he f inished administering the other f ield sobriety

tests. No other evidenc e was introduced at the hear ing on Chupik’s motion. I t appea rs that the trial court may have rec eived additional video evidenc e afte r the hear ing, but we must disreg ard that evidenc e beca

use it is not in the rec ord. See Hoyos v. State , 982 S.W .2d 419, 422 (Tex. Crim. App. 1998). Ba sed on the evidenc e that is in the rec ord, we hold that the tri al court abused its discretion by ruling that Chupik was in custody afte r the HGN test. A no n cu s t o d i al traff ic stop does not esca late into a custodial detention just becaus e a m o t o ri st is questioned and order ed to perf orm field sobriety tests. Berke mer , 468 U.S. at 442; W aldrop , 7 S.W .3d at 839; State v. Hutto , 5977 S.W .2d 855, 858 (Tex. App.—Houston [14t h Dist.] 1998, no pet.). Apar t from questioning and field sobriety tests, howeve r, the rec ord contains no evidenc e of objective circ umstances that sug g est Chupik was in cust o d y af t er the HGN test. See Dowthitt , 931 S.W .2d at 254 (dete rmination of 2 custody depends on objective circ umstances)

. I n other words, the evidenc e did not su p p o rt the trial court’s ruling that Chupik was in custody afte r the HGN t est
. See Hutto , 977 S.W .2d at 858 (whe re evidenc e showed only that motorist was questioned and order ed to perf orm field s o b ri ety tests, evidence did not support r uling that motorist wa s in c ustody ). A ruling that is not supported b y t h e evidence is an abuse of di scre tion. See Carrol l v. Stat e , 916 S.W .2d 494, 503 (Tex

. C ri m . App. 1996). We the ref

ore reve rse the order g ranting Chupik’s motion to suppr ess and rema nd the

cause for f

urther pr ocee dings.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson; J ustice Patterson not par ticipating Reverse d and Remande d on Remand Filed: September

15, 2011 Do Not Publish

As previously mentioned, the arr esting office r did t es t ify that he believed he had 2 probable cause to arr est Chupik afte r the HGN test, but there i s n o ev i d ence that the office r communicated this belief to Chupik. The office r’s belief there fore does not support a ruling that Chupik was in custody

. See Dowthit t v. State , 931 S.W .2d 244, 254 (Tex. Crim. App. 1996); Houston v. State , 185 S.W .3d 917, 920 (Tex. App.—Austin 2006, p et
. ref ’d); State v. Hutto , 977 S.W .2d 855, 858 (Tex. App.—Houston [14t h Dist.] 1998, no pet.).

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