• Koch v. State, 484 S.W. 3d 482, (Tex.App.-Houston (1st Dist) 2016)
      • Where officer places suspect in back of patrol car for her safety, told her she was not under arrest, transported a short distance before being questioned was not in “custody” when questioned and officer did not err in not administering Miranda warnings and DVD of investigation and questions and answers about when how much the Defendant had to drink were properly admitted.
    • Hauer v. State, 466 SW3d 866 (Tex.App.-Houston (14th Dist) 2015)
      • Defendant involved in an accident who was handcuffed at scene and put in back of patrol car to await arrival of another officer to contact a DWI investigation was detained and not “under arrest”. As a result answers given about how much he had to drink were admissible without him having received Miranda warnings.
    • Warren v. State, 377 S.W.3d 9 (Tex.App.-Houston [1 Dist.] 2011, pdr ref’d).
      • Court held that it was not error to admit the following statements by defendant made at the scene upon initial contact with defendant on the basis that he was not Mirandized before statements were made.
        1. Deputy asked defendant how he had come to know about the crash, and defendant responded that he drove his truck into the ditch.
        2. Deputy asked defendant where he was coming from, and defendant responded that he was coming from his home on Cypresswood. Deputy then asked defendant what his intended destination was, and defendant responded that his destination was his home.
        3. Deputy asked defendant for his driver’s license. Defendant started fumbling through his wallet, dropping business cards out of it. Defendant then looked back up and asked deputy what he had just asked him for.
        4. Deputy asked defendant if he had been drinking and defendant responded that he had “drunk some.” When asked how many, defendant referred to it “as a few.”
        5. While deputy was talking to him, the defendant demanded that deputy call a person identified as J.R. who he asserted was a deputy with the sheriff’s department.
        6. Prior to administering the field sobriety test, deputy asked defendant about any medications he was taking or physical problems he might have. Defendant said he was not taking any type of medications and indicated that he did not have any physical problems or difficulties.
        7. When he got out of deputy’s patrol car for the field sobriety test, defendant was unsteady on his feet and asked repeatedly what he was being charged with.
        8. At the time defendant was asking what he was being charged with, he told deputy that deputy couldn’t prove that he was driving the truck. Defendant then told deputy, “I beat one of these already.” 
    • Davidson v. State, No. 05-08-00948-CR, 201O WL 118776 (Tex.App.-Dallas 2010, no pet.) (not designated for publication).
      • After the officer administered the field sobriety tests, he asked the defendant if he thought that he should be driving and asked if the defendant would have been driving if his grandchildren were in the car. Defendant answered “no” to both questions. Defendant argued that such statements were inadmissible custodial interrogation, but Court held he failed to identify any facts of the incident that would objectively show that the officer manifested the existence of probable cause or intent to arrest him at the time he answered the questions. Therefore, questions and answers were admissible.
    • Froh v. State, No. 2-05-038-CR, 2006 WL 1281086 (Tex.App.-Fort Worth, 2006. May 11, 2006, no pet.) (not designated for publication) 
      • After stopping the defendant for a traffic violation and smelling an odor of alcohol, the officer asked the defendant how much he had to drink and the defendant responded “at least five” beers. The officer later asked him if he was saying he was intoxicated and appellant responded, “yes”. The defendant moved to suppress these statements arguing they were the product of custodial interrogation. The Court held that he was not in custody for purposes of Miranda when he made the statements in question. Though the officer’s questions concerning alcohol consumption and field sobriety evaluations may indicate that appellant was under suspicion, they were not so intrusive as to elevate the investigatory stop to a custodial interrogation. The Court further pointed out that the mere existence of probable cause alone is not sufficient to trigger Miranda; other circumstances must exist for a reasonable person to believe that he is under restraint to the degree associated with an arrest and those circumstances were not present in this case.
    • Hernandez v. State, 107 S.W.3d 41 (Tex.App.-San Antonio 2003, pet. ref’d).
      • In holding that the defendant’s statement was admissible, the Court focused on the standard that it is not what the officer thought, his subjective intent, but rather how a reasonable person in suspect’s position would see the issue of whether he was in custody. After some brief questioning and field sobriety tests were performed, the officer formed a subjective intent to arrest the defendant but did not communicate that to him until the defendant told the officer he had consumed “nine beers” after which he was placed under arrest and handcuffed. Up to that point, the Court found that the defendant “would not have felt completely at the mercy of the police and would have expected to be able to proceed along his way if he passed the field sobriety tests”. For that reason, the defendant was not in custody when he made the statement and the statement was properly admitted.
    • Lewis v. State, 72 S.W.3d 704 (Tex.App.-Fort Worth 2002, pet. ref’d).
      • Officer arrived at the scene of the accident and witness pointed out defendant as being the driver. Officer asked defendant for drivers license and insurance, noticed odor of alcoholic beverage, noticed defendant stumble. Officer asked defendant if he had anything to drink and defendant responded he had approximately five beers. Court held statements were admissible as defendant was not in custody.
    • State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App. 1997).
      • Officer arrived at scene of one accident and finds defendant and his wife at the scene and asked who was driving. Both defendant and his wife said she was. Officer noted injuries on wife consistent with her being passenger and repeated the question after which defendant admitted he was the driver. In holding that the statement was admissible, the Court noted that defendant’s becoming the focus of a DWI investigation at the time the question was asked did not convert the roadside stop to custodial interrogation.
    • Loar v. State, 627 S.W.2d 399 (Tex.Crim.App. [panel op] 1981).
      • Statement made by defendant that he had “one glass of wine“ made during traffic stop, not product of custodial interrogation and is admissible.
    • Abernathy v. State, 963 S.W.2d 822 (Tex.App.-San Antonio 1998, pet. ref’d).
      • After stopping defendant, the officer smelled a moderate odor of intoxicants, noticed defendant’s eyes were glassy, asked him to get out of the vehicle, and if he had had anything to drink. Defendant responded that he had had a few drinks. The officer asked defendant to perform a series of three field sobriety tests after which he again asked him how much he had had to drink and defendant said he had consumed four drinks. In holding both statements were admissible; the Court found that all the measures employed by the officer until the time of the arrest were in pursuance of a temporary investigation to determine whether defendant was driving a motor vehicle while intoxicated. There was no coercive atmosphere of custodial interrogation as contemplated by Miranda and its progeny. No violations of the Fifth and Fourteenth Amendments have been shown, as defendant simply was not subjected to custodial interrogation.
    • Galloway v. State, 778 S.W.2d 111 (Tex.App.-Houston [14th Dist.] 1989, no pet.).
    • Massie v. State, 744 S.W.2d 314 (Tex.App.-Dallas 1988, pet. ref’d).
      • Questioning that occurs as normal incident of arrest and custody is not interrogation. Officer upon approaching defendant asked if he had been drinking and defendant replied, “Yes, I’ve been drinking a lot.“ That statement is admissible.
    • State v. Waldrop, 7 S.W.3d 836 (Tex.App.-Austin 1999, no pet.).
      • A roadside stop does not place a driver in custody to the degree that Miranda warnings need to be administered. In this case, the Court reversed an order of the trial court suppressing statements about when and where a defendant was drinking and his comment that he was drunk when all statements were made after the stop but before field sobriety tests were conducted.
    • Hutto v. State, 977 S.W.2d 855 (Tex.App.- Houston [14th Dist.] 1998, no pet.).
      • Before an accident investigation becomes a custodial situation where Miranda protection is available there must be:
        1. evidence that defendant subjectively perceived he was not free to leave;
        2. a manifestation by the officer to the defendant of his intent to arrest him.
      • In this case, the Court found the officer’s conducting field sobriety testing and questioning of defendant did not convert roadside stop into arrest and that oral statements of defendant were admissible.
    • Harrison v. State, 788 S.W.2d 392 (Tex.App.-Houston [1st Dist.] 1990, no pet.).
      • Statement made by defendant, in response to questioning by officer, that he had three to five beers, was not result of custodial interrogation where officer had just stopped the defendant, had noted the odor of alcohol on his breath, and had not arrested him. Court stressed officer was “just beginning to form suspicion that motorist was intoxicated at time of statement”.
    • Morris v. State, 897 S.W.2d 528 (Tex.App.-EI Paso 1995, no pet.).
      • During DWI videotaping, officer asked defendant during recitation of statutory warning—“Are you too intoxicated to understand me?”—not custodial interrogation.
    • Shepherd v. State, 915 S.W.2d 177 (Tex.App.-Fort Worth 1996, pet. ref’d).
      • Statement made by defendant that he was not going to take breath test because he was too intoxicated to pass it was admissible when it was an unsolicited response to a query by intox operator over the radio to arresting officer as to whether the defendant was going to take the test.
    • Raymundo v. State, No. 07-14-00439, 2015 WL 4999127 (Tex.App.–Amarillo, 2015)
      • This case involves the question of whether the Defendant was “in custody” for purposes of Miranda when roadside questioning was done. Officer responded to call about possible accident and found Defendant’s truck stopped along shoulder of roadway, observed Defendant asleep or passed out behind wheel with engine running, woke him up and turned off engine, escorted him to rear of truck and re-positioned patrol vehicle to record FST’s, ordered a wrecker to tow vehicle, determined Defendant could not do FST’S and began asking questions that produced incriminating answers. Court held this showed a degree of restriction on freedom of movement that a reasonable person would associate with arrest.
    • Alford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth 2000, pet. ref’d).
      • Defendant who had exhibited signs of intoxication including field sobriety test failures, who was subsequently handcuffed, was in custody when second officer arrived six to seven minutes after the stop. As such, the officer’s question about whether he had been drinking was custodial interrogation and his answer of six beers was inadmissible and warranted reversal of his conviction.
    • Gonzales v. State, 581 S.W.2d 690 (Tex.Crim.App. 1979).
      • After viewing vehicle weaving, driver stopped for DWI investigation, asked to sit in patrol car while license was checked, not free to go, asked if “he had been in trouble before”.
    • Scott v. State, 564 S.W.2d 759 (Tex.Crim.App. 1978).
      • Driver stopped for license check, arrested for outstanding warrant, placed in patrol car, pistol found, asked: “Who does the pistol belong to?”
    • Newberry v. State, 552 S.W.2d 457 (Tex.Crim.App. 1977).
      • Driver stopped for traffic violations, had difficulty getting out of car and finding his license, asked if, what and how much he had been drinking, and then placed under arrest. Testimony showed he was not free to go from the time he was stopped.
    • Ragan v. State, 642 S.W.2d 489 (Tex.Crim.App.1982).
      • Defendant stopped for weaving. Officer suspected intoxicated. Asked to sit on police car for further questioning. Officer tape recorded statements.


State v. Subke, 918 S.W.2d 11 (Tex.App.-Dallas 1995 pet. ref’d).

When giving Miranda warning, the wording must be followed precisely. In this case the officer warning that any statement could be used against the suspect “at trial” instead of “in court” rendered statements made inadmissible.


State v. Reyna, 89 S.W.3d 128 (Tex.App.-Corpus Christi 2002, no pet.).

State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App. 1997).

Spradling v. State, 628 S.W.2d 123 (Tex.App.-Beaumont 1981, pet. ref’d).

Statute making accident reports privileged and confidential did not prevent police officer from testifying to oral statements given by defendant concerning said accident.


  1. NO
    • Rhodes v. State, 945 S.W.2d 115 (Tex.Crim.App. 1997).
      • Based finding of no custody on its determination of whether the defendant was subjected to treatment that resulted in his being in custody for practical purposes and whether a reasonable person in those circumstances would have felt he or she was not at liberty to terminate interrogation and leave.
  2. YES
    • Campbell v. State, 325 S.W.3d 223 (Tex.App. -Fort Worth, 2010, no pet.).
      • Stop of defendant constituted an arrest after defendant was placed in handcuffs, and thus defendant’s subsequent statements were subject to warning requirements of Miranda and State statute for purposes of later driving while intoxicated (DWI) prosecution. Police officer who stopped defendant did not testify that he handcuffed defendant for officer safety purposes, to continue investigation, or to maintain the status quo; and after handcuffing defendant, officer asked defendant identification questions as would be beyond normal Terry stop questions. Even though it was error to allow the jury to hear statements, the case was not reversed as Court found it did not contribute to defendant’s conviction or punishment.
    • Alford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth, July 20, 2000, pet. ref’d).
      • Using the same standard listed above and distinguishing this case from that one held that handcuffing the defendant did place him in custody and thereby rendered his statements inadmissible and required reversal.


State v. Whittington, 401 S.W.3d 263 (Tex.App.-San Antonio 2013, no pet.).

This case involves the question of what elevates a detention to an arrest. Citizen caller (CC) came upon Defendant stopped in roadway for no apparent reason. Defendant then, in spite of CC honking to get her attention, backed into CC and then drove away. CC called police dispatcher and per dispatcher’s request, followed Defendant as she drove to her home and then CC stopped across the street and waited until officers arrived. Upon arrival officer approached the Defendant who was still sitting in her car in the driveway. Defendant denied being involved in collision, handed officer a map when he asked for proof of insurance, and had inappropriate demeanor. Officer asked Defendant to step out of her vehicle, step to the back, turn over her keys, and told her to stay right there and not go inside while he went back to move his squad car into position to videotape. 


Snokhous v. State, No. 03-08-00797-CR, 2010 WL 1930088 (Tex.App.-Austin 2010, no pet.) (not designated for publication).

Defendant’s husband made the statement to officers during his wife’s arrest for DWI that, “whatever you guys can do to keep her out of a DWI I would really appreciate it”, was admissible as non-hearsay as a present sense impression. (Concurring opinion)


Salinas v. State, 369 S.W.3d 176 (Tex.Crim.App. 2012).

This was a murder case (not a DWI case) but the issue of being able to present evidence of pre-arrest silence is an issue that certainly occurs in DWI cases all the time so I think this will prove to be a useful decision. The Court finds that the Fifth Amendment right to remain silent is irrelevant when defendant is under no official compulsion to speak and that prosecutors can comment on that silence regardless of whether the defendant testifies.


State v. Adams, 454 S.W.3d 48 (Tex.App. – San Antonio 2014)

Trial Court had found Defendant was arrested when he was transported from house back to accident scene and suppressed evidence that followed that arrest. In reversing the Court of Appeals focused on fact that Officer after locating Defendant at residence asked and got him to agree to come back to scene with him did not constitute an arrest. Defendant got into patrol car unhandcuffed. Noticing Defendant might be intoxicated and feeling that the scene of the wreck was not a safe place to conduct the tests he drove him to a fire department parking lot. The Court find the above to constitute an investigative detention which resulted in sufficient PC to justify arrest. 


Friend v. State, No. 01-14-00884-CR, 2015 WL 5026078 (Tex.App.Houston (1st Dist) 2015, pdr filed)

After reading Miranda Warnings Officer interviewed Defendant at station and wrote his answers down. Some questions he answered and some he stated “Not saying” or “Not saying anything to that one”. The Defendant argued that his “not saying” response constituted an invocation of his Fifth Amendment rights and argued jury should not be allowed to hear that. Court of Appeals agreed and reversed case.


Moreno v. State, No. 03-14-00596-CR, 2016 WL 3679175 (Tex. App. – Austin, 2016)

Traffic stop was on shoulder of a highway and after seeing signs of intoxication officer transported Defendant in his vehicle to a nearby gas station to do FST’s. Defendant said she did not want to go but got into Officer’s car un-handcuffed. Officer stated reason to move her for FST was for safety reasons and he told her she was not under arrest. Court holds this was not an arrest and was merely being detained for investigative purposes.