Affirm and Opinion Filed March 19, 2024

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-01212-CR

No. 05-22-01213-CR

DARWOOD LYNN KELLETT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 073218

MEMORANDUM OPINION

Before Justices Molberg, Pedersen, III, and Nowell

Opinion by Justice Pedersen, III

A jury found appellant Darwood Lynn Kellett guilty of possession of 

methamphetamine in an amount greater than one gram but less than four grams and 

aggravated assault with a deadly weapon, and jurors assessed his punishment at 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for periods of ten years and twenty years respectively. In three issues, 

appellant contends that the trial court erroneously denied two motions to suppress 

evidence and his motion for mistrial. We affirm the trial court’s judgment.
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Background1

On the morning of January 20, 2021, witnesses observed a tractor-trailer on 

U.S. highway 75 veer—without signaling or braking—from the highway’s left lane 

of traffic into the right lane, then across the median and the service road and into a 

parking lot, where it struck a series of cars before finally coming to rest. Appellant 

was driving the truck. The parking lot collision threw a woman in the parking lot 

into the air; she landed on the pavement and was fatally injured.

Officer Jonathan Frith was among the police officers called to the scene. His 

job was to maintain the scene’s integrity and to identify any persons who were 

potentially involved. He assisted in care of the victim until emergency medical 

personnel arrived and then turned to appellant. When asked to describe appellant’s 

demeanor, Firth testified: “He appeared drowsy or tired maybe. It was hard to 

determine. Just stood around with his hands in his pockets some and didn’t seem too 

bothered by the whole incident.” He described appellant as “extremely quiet and 

slow to react and [he] didn’t speak very clearly.”

Firth performed a brief search of appellant to be sure he had no weapons and

then directed him to sit in the back seat of Firth’s patrol car. Firth drove appellant to 

a hospital for a blood draw. While at the hospital, Firth asked appellant if he would 

 

1

 Appellant does not challenge the sufficiency of the evidence supporting the jury’s findings of guilt 

on either charge. Accordingly, we relate background facts to the limited degree necessary to provide context 

for appellant’s issues in this Court. We expand on specific facts related to appellant’s issues as they are 

discussed below.
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consent to the blood draw. Appellant took time to consider whether he would 

consent, at one point saying he’d like to speak to an attorney and that he was 

“scared.” Firth explained that he was not under arrest, and appellant ultimately 

consented to have his blood drawn. Firth then drove appellant to the Sherman Police 

Station and took him to an interview room.

At the police station, appellant was questioned by Detective Rob Ballew; the 

interview was recorded. As the interview began, Ballew told appellant he was being 

detained for questioning and was not under arrest, but Ballew read appellant his

Miranda and article 38.22 rights.2 Appellant answered questions concerning his 

activities before and surrounding the crash for approximately forty minutes. At that 

point, he asked for an attorney, and the interview stopped. Shortly after, Ballew 

applied for and obtained a search warrant for appellant’s person, setting forth the 

facts as known by police that afternoon; his affidavit notified the court that appellant 

was in the custody of the Sherman Police. 

Suppression of Appellant’s Police Interview

In his first two issues on appeal, appellant contends the trial court erred by 

refusing to suppress his recorded police interview that was conducted on the 

afternoon of the collision. We review a trial court’s denial of a motion to suppress 

for an abuse of discretion. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 

 

2

 See Miranda v. Arizona, 384 U.S. 436 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2.
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2016). We apply a bifurcated standard: affording almost complete deference to the 

trial court’s determination of historical facts—especially those based on assessments 

of credibility and demeanor—and reviewing de novo any mixed questions of law 

and fact that do not hinge on such assessments. Wells v. State, 611 S.W.3d 396, 405 

(Tex. Crim. App. 2020). We will sustain the trial court’s ruling if it is correct under 

any applicable theory of law. Id. at 406 (citing Furr, 499 S.W.3d at 877).

The Motions to Suppress

During Officer Frith’s testimony, appellant made an oral motion to suppress 

“any video or statements” he made after Frith placed him in the patrol car. Appellant 

argued that, from that point in time, he was in police custody and was effectively 

under arrest. Outside the presence of the jury, Frith acknowledged that, while 

appellant was in the patrol car, he was “restrained in the idea that he cannot get out 

of the back seat on his own.” He testified further that he had searched appellant’s 

person for weapons, including his pockets, but did not seize anything as a result. 

Frith did not place appellant in handcuffs; he acknowledged that he had no probable 

cause at that time to believe appellant had committed a crime. He agreed that he had 

detained appellant pursuant to an investigation but did not agree he had placed

appellant in custody. The trial court also questioned Frith about conditions at the 

scene of the incident, eliciting testimony that appellant was close to where the victim 

was located, that it was very cold and raining, and that there was nowhere for Frith 

to have appellant sit down and wait outside the car given that the police were not 
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going to allow him to leave yet. The court overruled appellant’s request to suppress 

any statements by appellant, noting that no contraband was seized during the search 

and that the blood draw that followed was performed with appellant’s consent.

Appellant also filed a written motion to suppress contending that his interview 

with Detective Ballew was not given freely or voluntarily. The motion complained 

that Ballew did not indicate that appellant was free to leave; instead, Ballew told him 

that he had been detained for questioning and was not being arrested. Appellant 

argued that the clear implication was that he was not free to leave until he answered 

the detective’s questions. The motion cited Ballew’s same-day affidavit for a search 

warrant, which indicated that appellant “was in the custody of the Sherman Police 

Department.” The argument concluded:

[Appellant’s] statement having been given under the threat of continued 

detention though not under arrest, was a violation of both [appellant’s] 

rights to due process and his rights to not incriminate himself provided 

by both the United States and Texas Constitutions.

The motion did not address any matter occurring before the Ballew interview.

Ballew testified at the hearing on the motion. He explained that appellant was 

being held at the time for questioning and was not under arrest; in fact, appellant was

not arrested that day or soon after the interview.

3 Ballew testified that as the 

interview began, he read appellant the Miranda and article 38.22 warnings even 

though appellant was not under arrest. He explained that the affidavit’s “in custody” 

 

3

 The record indicates appellant was not placed under arrest until May 2021, some five months after 

the incident and the Ballew interview.
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reference meant only that appellant was being detained by the police at the police 

station, and he stated that “[t]he detention was so that we would have opportunity to 

speak with him, yes. And then he was informed of his rights, and if he had invoked 

his rights at that point, then he would have been released at that point without being 

questioned.” In response to a question from appellant’s counsel, Ballew stated that 

he did not know that appellant had asked for an attorney at the hospital. But the 

detective continued: “he was detained, not—not under arrest. And to my knowledge, 

Officer Frith was not questioning him regarding the—the incident. He was simply

questioning—asking consent for the blood draw.” According to Ballew, appellant 

did invoke his right to counsel about forty minutes into the interview at the police 

station; the interview stopped immediately.

Appellant argued that Ballew was imputed with knowledge of appellant’s 

earlier request for counsel made to Officer Frith, and he contended that his hospital 

request for counsel was not waived or revoked before his questioning by Ballew. 

The trial court ultimately denied the motion and admitted the interview, noting that 

Ballew was not aware of the “vague, questionable” request for an attorney at the 

hospital and that Ballew “clearly went through and provided” appellant his rights 

before being questioned. 

In this Court, appellant’s complaint regarding both motions to suppress is 

limited to the trial court’s refusal to suppress the Ballew interview.
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Right to Counsel

The gist of appellant’s first issue is that appellant invoked his right to an 

attorney at the hospital and, based on that request, he was entitled to counsel before 

Ballew questioned him at the police station. A right to counsel is recognized in the 

Fifth Amendment, which protects a person’s being compelled to give witness against 

himself, and in the Sixth Amendment, which guarantees a person the assistance of 

counsel in a criminal prosecution. See Griffith v. State, 55 S.W.3d 598, 602 (Tex. 

Crim. App. 2001). We conclude, however, that neither of those rights could be 

effectively exercised by appellant when he asked for an attorney at the hospital or 

before the Ballew interview.

Fifth Amendment Right to Counsel:

The Fifth Amendment right to counsel is one of the special procedural 

safeguards outlined in Miranda. “It is the premise of Miranda that the danger of 

coercion results from the interaction of custody and official interrogation.” Illinois 

v. Perkins, 496 U.S. 292, 297 (1990). Thus, the Fifth Amendment right to counsel is 

triggered only when a suspect is subjected to custodial interrogation. Griffith, 55 

S.W.3d at 603. The defendant bears the initial burden of proving that a statement 

was the product of such a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 

526 (Tex. Crim. App. 2007).

We determine whether a person is “in custody” based on the circumstances 

surrounding the questioning and whether a reasonable person in those circumstances 
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would have felt he was not free to leave. Wexler v. State, 625 S.W.3d 162, 167 (Tex. 

Crim. App. 2021). 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. State v. Saenz, 411 S.W.3d 488, 496 (Tex. 

Crim. App. 2013) (citing Stansbury v. California, 511 U.S. 318 (1994)). The 

restriction upon the person’s freedom of movement “must amount to the degree 

associated with an arrest as opposed to an investigative detention.” Id. at 168. 

To determine the proper category of a police-citizen encounter, we look at the 

totality of the circumstances. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 

2010). For our purposes, the difference between arrest and investigative detention 

involves the degree of intrusion involved in each interaction.

4

“[A]n investigative 

detention occurs when a person yields to the police officer’s show of authority under 

a reasonable belief that he is not free to leave.” Id. Thus, while a citizen’s freedom 

of movement is limited by an investigative detention when he “yields” to the 

officer’s authority, the limitation is temporary and is for the purpose of an 

investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). In 

contrast, an arrest occurs when a person “has been actually placed under restraint or 

taken into custody by an officer or person executing a warrant of arrest, or by an 

 

4

 Arrest and investigative detention are also different because each requires a different legal 

justification (i.e., probable cause and reasonable suspicion, respectively). See Derichsweiler v. State, 348 

S.W.3d 906, 916 (Tex. Crim. App. 2011). Frith conceded he lacked probable cause to arrest appellant; 

appellant does not challenge that the police had reasonable suspicion to detain and question him—it was 

undisputed that he drove the truck in an incident that caused significant property damage and fatal injury.
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officer or person arresting without a warrant.” TEX. CODE CRIM. PROC. ANN. art. 

15.22. 

Appellant was placed in the patrol car, taken to the hospital for a blood draw, 

driven to the police station, and questioned by a detective. His freedom of movement 

was limited by this series of events; he yielded to the authority of Officer Frith and 

Detective Ballew as police officers. However, he was never put in restraints, and he 

voluntarily submitted to the blood draw. Both officers told appellant he was not 

under arrest. The detention was integral to a preliminary investigation of the

collision, i.e., to obtain a legal blood draw from the driver and to question that driver 

about the circumstances leading up to and surrounding the collision. And the 

detention was temporary: when appellant asked for an attorney, the questioning 

stopped; after a warrant was obtained and he was searched, appellant was free to 

leave. Assessing the totality of the circumstances in this case, we conclude a 

reasonable person would not have felt his freedom of movement was restrained to 

the degree associated with a formal arrest. See Saenz, 411 S.W.3d at 496. We 

conclude that appellant’s interaction with police was an investigative detention, not 

a warrantless arrest. He was not in custody within the meaning of the Fifth 

Amendment.

Nor was appellant subject to interrogation when he initially asked for an 

attorney at the hospital. He was not questioned about the collision during that time—

he was asked only whether he consented to a blood draw. When a police officer is
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investigating driving while intoxicated, inquiring whether the driver will take a 

blood-alcohol test is not an interrogation within the meaning of Miranda. S. Dakota 

v. Neville, 459 U.S. 553, 564 n.15 (1983). “[T]here is no Fifth Amendment right to 

counsel if there is no interrogation.” Griffith, 55 S.W.3d at 603.

Appellant’s statements during the Ballew interview were not produced by 

custodial interrogation. Accordingly, appellant had no Fifth Amendment right to 

counsel.

Sixth Amendment Right to Counsel:

The Sixth Amendment’s right to counsel applies in all state criminal 

prosecutions in which the defendant is accused of a felony. Gideon v. Wainwright,

372 U.S. 335, 342 (1963). “Once the adversarial judicial process has been initiated, 

the Sixth Amendment right to counsel guarantees an accused the right to have 

counsel present at all ‘critical’ stages of the criminal proceeding.” Hughen v. State, 

297 S.W.3d 330, 334 (Tex. Crim. App. 2009) (citing United States v. Wade, 388 

U.S. 218, 227–28 (1967)). Undergoing interrogation by the police, after charges 

have been brought, qualifies as a critical stage. Id.

In appellant’s case, formal adversary judicial proceedings were not initiated

until months after the incident on January 20, 2021. The State had not filed any 

charges against appellant on that date. Accordingly, appellant’s Sixth Amendment 

right to counsel had not yet attached. See Griffith, 55 S.W.3d at 604.
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We conclude that appellant’s request for an attorney in the hospital had no 

legal effect. Appellant was not subjected to a custodial interrogation that would 

trigger a Fifth Amendment right, and the State had not proceeded far enough in its 

prosecution of appellant to implicate a Sixth Amendment right. See id. at 602.

Accordingly, the trial court did not abuse its discretion in denying appellant’s motion 

to suppress based on a right to counsel. We overrule appellant’s first issue.

Illegal Arrest

In his second issue, appellant contends that the trial court erred by denying his 

motion to suppress the recording of his questioning by Detective Ballew because the 

questioning occurred following his unlawful arrest. Appellant cites to the Fourth 

Amendment’s prohibition of unreasonable searches and seizures and correctly states 

that the burden is on the State to establish the reasonableness of a warrantless arrest.

We have concluded that appellant was not under arrest, either formally or by 

implication, before the Ballew interview. No illegal arrest took place on January 20, 

2021.

We overrule appellant’s second issue.

Motion for Mistrial

In his third issue, appellant argues that the trial court erroneously denied his 

motion for mistrial after he appeared in the courtroom while handcuffed when no 

finding of particular need had been made for such restraints. We review the denial 

of a motion for mistrial for an abuse of discretion; we must uphold the trial court’s 
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ruling if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 

253, 292 (Tex. Crim. App. 2010).

On the morning of the third day of trial, the jury was brought into the 

courtroom, and the State called Hannah Siegal to the stand. Siegal, a forensic 

scientist for the Department of Public Safety, was questioned briefly about her 

professional background and was handed a copy of the report she had prepared for 

appellant’s case. At that point in time, the trial judge apologized for interrupting, 

said “[w]e’re going to take a quick break,” and directed the jury to return to the jury 

room.

When the jury had gone, the trial judge told counsel for appellant to “go 

ahead,” and counsel stated:

Your Honor, it was just brought to my attention—and I had not noticed 

it—but Mr. Kellett, the defendant, his handcuffs, which are painted red 

and quite obvious, had not been removed before the jury entered. I 

know they’ve been excused so that they can be removed, but he was 

wearing that and standing, as appropriate, for the jury when they 

entered. So, it’s quite possible that they’ve been allowed to know that

he’s in custody and I have no choice but to ask for a mistrial.

The State’s attorney responded that there was no evidence that the jury had seen the 

handcuffs and he thought that for a mistrial to be granted, the jury had to have seen 

the restraints.

The trial judge stated:

Well, if we have to ask them, then they’ll know. . . . So, we can’t do 

that. I didn’t notice it. I think the bailiff’s figured it out. Somebody did. 

. . . It was very quick. I will be glad—I mean, again, I will emphasize, 

as I always do, that the fact that somebody’s in custody that that’s not 
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an indication of guilt. And that’s going to be in the jury charge. I think 

they often believe people are in jail, but they don’t know. And I do think 

—I don’t—I don’t—if it was noticed, I don’t know that it was noticed. 

I didn’t see it. I was in here. Maybe—you know, I don’t know. The only 

way I can ask the jury is if they saw it. If I do, then they’ll all know that

he’s in. So, I don’t think I can cure it by asking the jury.

The judge denied the motion for mistrial.

Texas law has long recognized that requiring an accused person to wear 

handcuffs before the jury can infringe his constitutional presumption of innocence. 

Clark v. State, 717 S.W.2d 910, 918 (Tex. Crim. App. 1986). Both the Fifth and 

Fourteenth Amendments prohibit the use of physical restraints that are visible to the 

jury unless the trial court determines they are justified by a specific state interest in 

the particular trial. Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013). 

Visible shackling undermines the presumption of innocence by suggesting to jurors 

that that the justice system itself has determined that it is necessary to separate the 

defendant from the community at large. Id. at 281–82. 

In this case, however, it is undisputed that the court did not require appellant 

to wear restraints before the jury; the failure to remove the handcuffs before the jury 

entered the courtroom that morning was merely an oversight. Moreover, nothing in 

the record indicates that the jury ever saw or otherwise became aware that appellant 

was wearing handcuffs. The judge was not aware of the handcuffs, and he was well 

situated to observe such factors as how appellant stood and sat in the courtroom and

where the jurors’ attention was focused. Even appellant’s counsel did not notice the
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handcuffs, although we can presume he stood and sat right next to appellant.5 The

actual circumstance of appellant’s being handcuffed and being in the same room as 

the jury lasted only a matter of minutes.6

We share earlier courts’ “appropriate unwillingness to make the factual 

assumption that the jury perceived a defendant’s shackles in the absence of any 

record support.” Bell, 415 S.W.3d at 282 (citing Long v. State, 823 S.W.2d 259, 283 

(Tex. Crim. App. 1991) and Cooks v. State, 844 S.W.2d 697, 723 (Tex. Crim. App. 

1992)). Here, we cannot conclude there was a reasonable probability that jurors

observed appellant’s handcuffs during the short period of time that elapsed before 

they were removed from the courtroom. Id. at 283. Although appellant should not 

have been restrained before the jury, we conclude that he suffered no harm on that 

account. See Long, 823 S.W.2d at 283; Cooks, 844 S.W.2d at 723.

The trial court did not abuse its discretion by denying the motion for mistrial. 

We overrule appellant’s third issue.

 

5

 Appellant was the only defendant at trial, and he was represented by a single attorney.

6

 While the record does not indicate the precise amount of time that elapsed, we can use the reporter’s 

printed record to estimate the duration. According to the reporter, the jury entered the courtroom that 

morning in the middle of page 7; at the top of page 11, the trial judge interrupted the proceedings and 

removed the jury.
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Conclusion

We affirm the trial court’s judgment.

221212f.u05

221213f.u05

Do Not Publish

TEX. R. APP. P. 47

/Bill Pedersen, III//

BILL PEDERSEN, III

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DARWOOD LYNN KELLETT, 

Appellant

No. 05-22-01212-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial 

District Court, Grayson County, 

Texas

Trial Court Cause No. 073218.

Opinion delivered by Justice 

Pedersen, III. Justices Molberg and 

Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 19th day of March, 2024.
–17–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DARWOOD LYNN KELLETT, 

Appellant

No. 05-22-01213-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial 

District Court, Grayson County, 

Texas

Trial Court Cause No. 073219.

Opinion delivered by Justice 

Pedersen, III. Justices Molberg and 

Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 19th day of March, 2024.