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Abernathy v. State1/30/1998
AFFIRMED
Appellant was convicted by a jury of the offense of driving while intoxicated. The jury assessed his punishment at 180 days in the county jail and a fine of $1,500. In this appeal, appellant raises three points of error, claiming that the trial court erred in admitting extrajudicial statements of appellant into evidence, in violation of both the federal and state constitutions, and in violation of Texas statutory law. We will affirm.
Because all three of Appellant's points of error challenge his extrajudicial statements, a brief rendition of the facts is necessary. Viewed in the light most favorable to the trial court's overruling of Appellant's motion to suppress, the record reflects that on July 19, 1995 Appellant was stopped by San Antonio Officer Charles Marcus for speeding. After getting Appellant stopped, Marcus approached the vehicle and, upon Appellant opening his window, smelled a moderate odor of intoxicants. Marcus noticed that Appellant's eyes were glassy. He asked Appellant to get out of the vehicle, and asked him if he had had anything to drink. Appellant responded that he had had a few drinks. Marcus then asked Appellant to perform a series of three field sobriety tests. After Appellant performed the field sobriety tests, Marcus asked him how much he had had to drink. Appellant responded that he had consumed four drinks. Thereafter, Marcus placed Appellant under arrest for driving while intoxicated.
In point of error one, Appellant challenges the admission into evidence by the trial court of the two extra-judicial statements made by Appellant to Officer Marcus previously mentioned, claiming that these statements were obtained in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Appellant claims that he was in custody at the time the statements were made and that no Miranda warnings were given to him by Marcus prior to the statements being made, and therefore, the statements were not admissible at his trial. In his brief, Appellant's argument focuses on the issue of whether Appellant was in custody at the time the statements were given, or was being temporarily detained by Marcus for investigation.
Additionally, in point of error three, Appellant avers that the two statements made by Appellant were taken in violation of Tex. Code Crim. Proc. art. 38.22 Sec 3(a) (Vernon Supp. 1998). Since a threshold issue in point of error three is whether Appellant was in custody at the time the statements were made, our Disposition of point one will necessarily be dispositive of point three, since the requirements of section 3(a) are dependent upon whether the statements were a product of custodial interrogation. If the statements were not in response to custodial interrogation, then section 3(a) simply is not applicable in this case. See Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.-Austin 1997, no pet.).
Standard of Review
"s a general rule, the appellate courts, . . . , should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's factfindings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d. 85, 89 (Tex. Crim. App. 1997). "The appellate courts, . . . , should afford the same amount of deference to trial court's rulings on `application of law to facts questions,' also known as `mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo `mixed questions of law and fact' not falling within this category." Id. (citations omitted).
Applicabl
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