Dallas Criminal Appeals Lawyer Blog

An important case out of the San Antonio area (Bexar County) was decided by the Texas Court of Criminal Appeals in April 2013. The Court considered whether a police officer was justified in forcibly entering the apartment of a man who possessed marijuana while living with a six-month-old baby. This type of issue will come up across the State of Texas, particularly in urban areas like Dallas, Tarrant, Collin and Denton Counties, and similar cases will probably be decided by the Dallas and Fort Worth Courts of Appeals.

When the police were informed of the odor of marijuana coming from the apartment, an officer went to the apartment and knocked on the door. The resident of the apartment cracked open the door, and the officer asked if the six-month-old baby or the baby's mother were at home. The resident answered that neither of them were home, and the officer left.

Shortly after that, the officer returned to the apartment with a fellow officer. Believing that if he left to obtain a warrant, the resident would try to destroy the marijuana, one of the officers forced his way into the apartment. The officer pointed a Taser gun at the resident, then handcuffed and searched him. Marijuana was found in the resident's backpack, and he was placed under arrest.

At trial, the resident asked that the marijuana be suppressed as evidence, claiming that the police officers performed an illegal search and seizure when they discovered it. The State answered that the police officers were justified in entering the apartment without a warrant because the destruction of the marijuana was imminent. The trial court agreed with the State and admitted the seized marijuana as evidence against the resident.

The Fourth Court of Appeals at San Antonio, which includes Bexar County, reversed the trial court's decision. The court of appeals said that there was no evidence indicating that the resident would have destroyed the marijuana had the police officers left to obtain a warrant.

When the State appealed, the Texas Court of Criminal Appeals agreed with the court of Appeals. The Fourth Amendment protects citizens from unreasonable searches and seizures; when a police officer enters a residence without a warrant, his search of the residence presumptively violates the Fourth Amendment. The officer must then show that the circumstances were such that he would have been unable to obtain a warrant in time to prevent a crime or destruction of evidence. In this case, no such evidence was ever presented.

Earlier this month, the Texas Court of Criminal Appeals at Dallas recently decided an important sex offender case out of Kaufman County, Dallas County's immediate neighbor to the southeast. The Court addressed the longstanding issue of the rights of sex offenders who are on probation in Texas, and, in its opinion, recognized their basic constitutional right against self-incrimination, as guaranteed by the Fifth Amendment.

The defendant sex offender had pled guilty to a charge of indecency with a child and was undergoing treatment in a program that required him to take several polygraph (lie detector) tests. For one year, he successfully passed the polygraph tests and attended over fifty group therapy sessions, as required by the program's guidelines.

When the defendant took his third polygraph test, he was questioned about any previous sexual offenses he might have committed. The defendant properly replied that he would not answer any questions that might implicate him in a crime. The Fifth Amendment guarantees criminal defendants the right to refuse to incriminate themselves. After he repeatedly refused to answer the questions, the test was ended, and the defendant was thrown out of the program.

After he was expelled from the sex offender treatment program, the State sought to accelerate the charge against him on the grounds that he failed to complete the program as required. The defendant protested, saying that he had been thrown out of the program for exercising his constitutional rights.

During trial, the State sought to portray the defendant as uncooperative and unsuccessful in therapy, despite his attendance at over fifty sessions of group therapy and evidence of his improvement as revealed by his journal entries. The trial court, without elaboration, agreed with the State and sentenced the defendant to an eighteen-year jail sentence.

When the defendant appealed the decision against him in the Dallas Court of Appeals to the Texas Court of Criminal Appeals (the highest court in Texas to hear criminal cases), the Court found that there was no reason to expel the defendant from the therapy program other than his refusal to incriminate himself during polygraph examinations. The defendant was a good and faithful participant of group therapy sessions and seemed to be making good progress in the program overall. His invocation of his Fifth Amendment rights was the only reason he was terminated from the program.

This was a good and necessary decision by the Court. Although sex offenders have often committed heinous crimes, some of them can be successfully rehabilitated, and the State of Texas needs to support those offenders who show they are making progress. It is true that criminals lose some of their constitutional rights after they are convicted of crimes, but they don't lose all of them, and it is important that courts defend their remaining rights.

This week the Texas Court of Criminal Appeals reversed the decision of the Texas Court of Appeals at Dallas in a marijuana case where the defendant was convicted by the District Attorney in Kaufman County. The Texas Court of Criminal Appeals decided that, since driving in the left lane without passing was not a traffic violation, the defendant should not have been stopped by a Kaufman County sheriff's deputy. Consequently, there was no basis to search the defendant or his vehicle.

The male driver was followed for a mile by the sheriff's deputy, who observed that the driver was staying in the left hand lane, although there were no cars in the right hand land for him to pass. The deputy pulled the driver over and arrested him after discovering marijuana in his possession. The driver was charged with possessing under two ounces of marijuana.

The trial court refused to suppress the marijuana as evidence against the driver. Although the driver argued that he did not know the left lane was for passing only, the trial court ruled that a sign reading "Left lane for passing only" (located about fifteen to twenty miles away from the location where the deputy first observed the driver) was sufficient to give the driver warning. The Dallas Court of Appeals agreed with the trial court, and the driver appealed to the Texas Court of Criminal Appeals.

The Texas Court of Criminal Appeals found that there was no reason to believe the driver had passed the sign before he was pulled over by the deputy. The Texas Manual on Uniform Traffic Control Devices requires regulatory traffic signs to be installed at or near the place where the traffic regulations apply. Because the driver was pulled over so far away from the "Left lane for passing only" sign, he was not bound by the regulation, and he should not have been pulled over.

In summary, the decision illustrates that the Fourth Amendment protection against unreasonable searches and seizures applies to cars, although with some limitations. (Generally, a home receives greater Fourth Amendment protection than a vehicle.) However, police officers need a valid reason to pull a driver over in the first place before they proceed with a search of the vehicle. In this case, because the deputy did not have a proper reason to pull the driver over, he did not have the authority to perform a search of his car. For that reason, the marijuana was suppressed as evidence against the driver in his criminal case.

My good friend Dan Wood represented the Defendant during the entire appellate process, and he did an amazing job obtaining the ultimate ruling favorable to the Defendant in this important case; Kudos to Dan!

The Texas Court of Criminal Appeals sent a failure-to-register-as-a-sex-offender case back to the Dallas Court of Appeals last week with instructions for the Court of Appeals to re-decide in view of a decision in a recent case from Tyler, in Smith County, where the Court of Criminal Appeals held that an out-of-state conviction does not trigger the reporting requirements unless it has been considered to be substantially similar to a Texas offense by the Texas Department of Public Safety.

In the Dallas case, the Dallas Police Department arrested the defendant because he had been convicted of "sexual battery" in Louisiana. The legal question for the Dallas Court to now decide is whether the Department of Public Safety has made a "substantial similarity" determination with respect to that offense; if not, the conviction should be set aside, according to the majority of the Court of Criminal Appeals. The Court of Criminal Appeals instructed the Dallas Court of Appeals to reconsider the Dallas Court's original holding that: "[w]hile the statute obligates the Department [of Public Safety] to make such [substantial similarity] determinations, it does not condition statutes being substantially similar on such a determination."

A decision from the Fourteenth Court of Appeals last week illustrated a problem that plagues the indigent defense system in Texas: the defendant is dissatisfied with his court-appointed lawyer. In this case, the defendant thus tried, ineptly, to represent himself at trial. Of course, a defendant has a constitutional right to have a lawyer represent him for free, but he does not have the choice of which lawyer will represent him unless he can pay the lawyer of his choosing. The defendant in the case from last week received a life sentence.

Since a defendant must voluntarily waive his right to be represented by counsel, the argument on appeal was that the trial judge failed to properly warn the defendant about the dangers of self-representation. The defendant argued on appeal that the quality of court-appointed counsel "coerced" him into representing himself. The Court of Appeals rejected this argument, since refusing to allow the defendant to represent himself would have violated his right to represent himself, and because the defendant was warned about the dangers of self-representation. The Court also rejected the argument that the defendant was not competent enough to act as a lawyer, i.e., that his waiver was invalid because it was unwise; the Court said that the standard for waiving the right to counsel is generally not any higher than the standard of competency to stand trial. Under such competency standard, a defendant may proceed if he has sufficient present ability to evaluate the case with a reasonable degree of rational understanding.

The Texas Court of Criminal Appeals in Austin held in January that a trial court should not have revoked a defendant's probation for violating a "no contact" order that was a condition of his probation for assaulting his wife. Conditions that forbid contact with certain persons are common in cases that involve identifiable victims or classes of similar potential victims, such as in sexual abuse cases. The problem with "no contact" conditions of probation is that it is hard to define "contact" or predict all situations where something that might be contact may occur. Moreover, the "preponderance of the evidence" standard of proof for establishing a purported probation violation is much easier to satisfy than the requirement of "proof beyond a reasonable doubt" that was necessary to establish the offense to begin with, and thus to order probation.

In a decision authored by Presiding Judge Sharon Keller, who often disagrees with the defense arguments, the Court of Criminal Appeals unanimously held (except for one judge who did not participate) that the defendant did not violate the order for him to have "no contact" with his wife by having a baby-sitting arrangement with her. One of their children had special needs, and the defendant and his wife wanted to assure proper care and supervision. In order to comply with the no contact order, the defendant and his wife made sure that they were never in the house at the same time, although the defendant would stay there when the wife was at work or traveling. The defendant and his wife spoke over the telephone regarding the arrangements, since a "Catch-22" condition of probation forbade the defendant from communicating with his wife through a third party.

The Court of Criminal Appeals rejected the prosecution arguments that the defendant really lived at his wife's house, since he left a lot of his belongings there, and that he had "contact" with his wife by talking with her more then infrequently regarding the child care arrangements.

Yesterday the Texas Court of Criminal Appeals held for the defendant in a Frisco, Texas case where the Collin County District Attorney prosecuted the defendant for theft after the defendant breached a contract to finish paying a general contractor for an office-space build out in the wake of a construction delay which contributed to the defendant's window-tinting business going out of business as the 2008 great recession took hold. The Court of Criminal Appeals agreed with the lower appellate court, the Texas Fifth District Court of Appeals at Dallas. As a result, the conviction was set aside, and the Collin County District Attorney will not be allowed to re-prosecute.

The case was prosecuted under a law that is meant to prevent "theft by deception" that transpires at the time when financial arrangements are first made. The Collin County District Attorney unsuccessfully argued that it was "immaterial" that the law normally requires deception at the time when a worthless hot check is written.

This case illustrates an unfortunate situation where the District Attorney tries to act as if it were a plaintiff in a breach of contract case in civil court. Instead of putting the defendant through the burden of being prosecuted, the District Attorney should have told the contractor that it could not help, and should have advised the contractor to consult with a civil court attorney. In a civil lawsuit, the contractor could have obtained damages, if he won, and could have possibly won attorney fees for having to hire a lawyer to sue. The District Attorney was wrong in prosecuting the matter as a supposed criminal offense on the basis that the defendant should have told the contractor that the defendant was having financial problems during the construction process, instead of waiting until it was complete.

In Dallas County, a defendant is sometimes held in custody for an extended period before his case is resolved by virtue of a high bond amount. Of course, this situation can result in an favorable plea bargain or ill-preparedness for trial, not to mention the injustice if the defendant is never indicted. The problem was illustrated in a case this week from the Fort Worth Court of Appeals.

In Texas, the District Attorney is required under law, when the defendant is in custody, to bring a case to trial within 90 days at risk of a bond reduction or release on personal recognizance. There is an additional right that applies to the right to a dismissal after a defendant spends 180 days in jail without an indictment, but such dismissals are without prejudice, meaning that the State could still indict and start the process over. These rights are created under Texas law by the legislature, and they exist in addition to the constitutional speedy trial protection under the federal constitution.

Unfortunately, enforcement of the Texas law can sometimes require a pre-trial writ of habeas corpus to be filed to set up an appeal in order to force the District Attorney and the trial judge to comply with the law. In the Fort Worth case from this week, the in-custody defendant based his claim on un-indicted charges, urging that he should have been released on a reduced bond or PR bond within 90 days of his arrest. The Tarrant County District Attorney argued that the 90-day rule did not apply because there was compliance in another case that was already under indictment. The Fort Worth Court of Appeals held that the mandatory requirements of the statute applied to every case.

Because it affects so many resident aliens and other immigrants in the process of becoming citizens in Dallas and other metropolitan parts of Texas, I have been keeping my eye closely on ongoing developments in Texas applying the Supreme Court's 2010 decision in Padilla v. Kentucky. In Padilla, the Supreme Court held that defense lawyers have a duty under the Sixth Amendment of the United States Constitution to accurately and specifically advise a defendant about deportation and other immigration consequences that will result from a guilty plea. A defendant will plead guilty either under an "open" guilty plea to a judge or jury, where the punishment is left to the judge or jury, or in a situation involving a plea bargain, a more common scenario. The case law says that, whenever a defendant pleads guilty and waives his rights, the defendant has to be informed about immigration consequences in terms that are "succinct, clear and specific."

In a scenario where the Court blamed the defendant even though the lawyer did not comply with Padilla, the Fourteenth Court of Appeals in Houston (Case No. 14-11-00730-CR) held last week that a defendant failed to establish his Padilla claim, since there were indications that he disregarded advice from defense counsel that would not have complied with Padilla. It did not matter that the defendant had been granted asylum in the United States 10 years earlier due to being a target of violence in El Salvador.

The Court held: "his trial counsel's advice, no matter how inaccurate it may have been, did not influence his decision to plead guilty." This seems to me to entirely miss the point of Padilla; with all due respect to the Court, it could be seen as an attempt to water-down Padilla in Texas; it would be like a doctor saying: "well, he would not sit still during surgery, since I did not give him anesthetic, so it is his fault that he lost all his teeth." The reason people hire a doctor or a lawyer is for expertise and guidance in adherence with constitutional requirements, not to given up their rights.

The courts in Texas seem to be understandably concerned about "you-cannot-lead-a-stubborn-horse-to-water" situations where the horse will not accept an attractive plea bargain, but those concerns are limited to considerations and procedural realities under state law. Of course, the vast majority of cases have been historically resolved by attractive plea bargain offers, due to public finance constraints, and since most defendants do not want to take the risk of a jury imposing a heavy sentence. In Dallas County, for example, there were almost 28,000 non-capital felony criminal cases that were filed in 2011 that involved a court-appointed lawyer.

Again with due respect to the Houston Court, it seems cavalier to play games with Padilla:

In a twist that I have not seen before, the Houston Court seemingly considered the defendant's criminal history, in terms of leniency having been shown by federal immigration officials, even though such considerations as an exclusive matter of concern for the federal government are no business of state appellate courts.

Also, this decision was handed down as "un-published," which means that the Court takes the position that it is not really an important situation, and thus should not attract much attention. I believe the situation is completely opposite.

The Court never cited a specific case with the same reasoning. The Court relied on application of broad principles and on a case where the defendant showed "total inaction" about the "possibility" of deportation after the lawyer gave immigration advice. Again, Padilla is about actual, correct advice, not possibilities.

Many constitutional protections have been initiated by requiring the state courts and legislative branches to do things that they do not want, such as providing a court-appointed lawyer to begin with. In the Padilla situation, no lawyer likes to advise a client to reject a plea bargain offer that will keep the client from going to prison, but in many circumstances, Padilla effectively requires such advice to be given on consideration of actual immigration consequences. As inconvenient and expensive as it may be to enforce Padilla in a border state, the courts have a constitutional duty to do so.

Issues concerning the defendant's right to a bond and the amount of the bond are often contested after an arrest in Dallas County. Both the federal and state constitutions, and specific Texas law, prohibit excessive bail. A hearing can be held, and if the defendant can appeal if he believes that the bond is set too high in violation of his rights.

In setting the amount of bail, a court should consider factors such as: (1) the defendant's work record; (2) the defendant's family and community ties; (3) the defendant's length of residency; (4) the defendant's prior criminal record; (5) the existence of other outstanding bonds, if any; and (6) any aggravating circumstances alleged to have been involved in the charged offense. The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. The amount of bail must be high enough to give reasonable assurance that the accused will appear as required, but while bail should be sufficiently high to give reasonable assurance that the accused will appear, the power to require bail should not be used as an instrument of oppression.

Bail is excessive if it is set in an amount greater than is reasonably necessary to satisfy the government's legitimate interests. Under specific Texas law, the bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; the power to require bail is not to be so used as to make it an instrument of oppression; the nature of the offense and the circumstances under which it was committed are to be considered; the ability to make bail is to be regarded, and proof may be taken upon this point; and the future safety of a victim of the alleged offense and the community shall be considered.

The Texas Court of Criminal Appeals addressed a situation last week that I have seen come up in Dallas County drug cases more than once: what do the police have to do when somebody lets the police come into their home but then changes their mind? The case went to the Court of Criminal Appeals from the San Antonio Court of Appeals, with the case originating from Kerrville. The defendant was charged with methamphetamine possession.

When deputy sheriffs responded to a disturbance call at her apartment, the defendant answered the door, and she appeared intoxicated and distraught. The officers asked to go inside, and the defendant agreed. While waiting on a warrant check, the defendant changed her mind about letting the police in and asked them to leave. The officers ignored her request because they wanted the warrant check to came back before they decided to leave. While waiting, the officers saw evidence of drug use, and the defendant shortly thereafter admitted drug use. The officers then searched the immediate area and checked the kitchen for things in "plain view." They arrested the defendant after finding more drugs. There was no one else at home except for two children who were asleep.

A defendant can give up her normal rights against having the police search her home if she consents to their entry and search. However, consent to enter or to search can be revoked; consequently, the officers were required to leave before they saw any drugs. Without the drugs, there was no probable cause for the continued search or to arrest the defendant, and all of the drugs were inadmissible in court.

The Court also noted that sometimes rights that normally apply become inapplicable if there is some kind of emergency or threat to someone's safety. Even though the defendant's apartment was in disarray, there was no evidence of threatened violence. She said that she was angry with her boyfriend, but the boyfriend was not there.

Polygraph tests are used routinely in Dallas County as a means of obtaining information and assuring compliance with conditions of probation (Community Supervision) in sex offender cases. In Dallas, and across State of Texas, sex offenders who are subject to rehabilitation are often granted deferred adjudication community supervision on condition that they participate in sex offender treatment. This week the Texas Court of Criminal Appeals held in a case out of Fort Worth (Tarrant County) that polygraph results cannot be used as the sole basis for revoking probation, for adjudicating guilt or for imprisoning the defendant in the Texas Department of Criminal Justice.

People who are charged with sex offenses are often faced with a difficult choice: go to trial and risk up to a life sentence, or admit guilt and accept deferred adjudication community supervision, with the risk of up to life in prison remaining an option if the probation department motions the court to revoke probation based on alleged non-compliance with conditions of probation. If a defendant is going to serve probation, he must give up the rights he would normally have that most people take for granted, such as where he might work, go to school, go out to eat, etc. The defendant also agrees to participate in rehabilitation, which will include the polygraph examinations taken in connection with psychotherapy.

Polygraphs can be a useful tool in terms of the therapeutic process and rehabilitation, but people often fail polygraph tests for innocent reasons. If a psychotherapist believes that a defendant is not participating in good faith in therapy and in the sex offender treatment program, the therapist can terminate the defendant from therapy, which will lead to the probation department requesting the District Court to adjudicate and to revoke probation. At the revocation hearing in this week's case, the therapist testified against his former client based on polygraph results from testing conducted by a third-party polygraph examiner.

Of course, polygraphs are not admissible to prove someone's guilt at trial because they are so unreliable, but once somebody gives up their rights to be on probation, polygraphs can be used during probation. Its quite another thing to bring mandatory polygraph results into a revocation hearing in support of claims of non-compliance with probation conditions. This week the Texas Court of Criminal Appeals decided that the district court in Tarrant County abused its authority by revoking probation based solely on polygraph failures during sex offender therapy. Since polygraph results are inherently unreliable, it didn't matter that the burden of proof is lower at a revocation hearing; that there are no juries at revocation hearings; or that a defendant gave up his rights to be on probation.

It goes both ways, which might explain the Court's reluctance to allow polygraph evidence as the sole basis for adjudication and revocation. I represented a murder defendant about 16 years ago in seeking discretionary review from a decision that kept him from using his polygraph results at his jury trial; the defendant wanted to show the jury that he passed the test as a reason for him to be found not guilty. The Court refused to grant review, but there was a dissenting opinion that indicated that maybe it was time to reconsider. Fast forward 16 years, and the Court is still firm in its opposition to polygraph testing, even when there is no jury. This is unlikely to change.

In a DWI case that was tried in Bexar County, the San Antonio Court of Appeals earlier this month addressed a common situation in DWI cases where prosecutors seek to use recorded statements of the investigating officer during the roadside investigation even though the statements were one-sided and self-serving. These recordings are known as "talking offense reports."

On-the-scene officer observations in DWI cases are "fraught with the thought of future prosecution," according to the courts, because the police officer is gathering evidence to use in deciding whether to arrest and charge someone with a crime. Calculation "shimmers in the air," since the officer is gathering evidence; he is not making an off-hand, non-reflective observation about the world as it passes by. For a talking offense report to be admissible over the hearsay rule, the statements have to be "non-reflective observations of a neutral observer."

In the typical talking offense report case, the officer begins by asking for the defendant's driver's license and for his insurance. The officer will also ask whether the defendant was drinking, because the officer purportedly smelled alcohol, and the officer will then quickly ask the defendant how much the defendant had been drinking. The officer will then go back to his patrol car and dictate that the defendant slurred his speech, and fumbled with his insurance and license, and the officer will also say that he smelled a strong odor of alcoholic beverage. The officer will return to the defendant and order him to stand outside of view of the video camera for purposes of conducting field sobriety tests, including the HGN test, which is the examination of the defendant's eyes. The officer will dictate his observations, which will be unfavorable to the defendant, during the field sobriety tests.

The San Antonio Court held that the narrative statements in its case could not be used. After the initial encounter, the officer dictated that "this gentleman...smells like alcohol...his eyes are bloodshot...his face is flushed...he was unaware of the speed limit out here...he told me that he hasn't had any alcohol to drink, but I smell the alcohol...he does not want to do any sobriety tests." During his off-camera search of the car, the officer pointed out that he saw pills, beer, and wine, and "did not expect to find all this alcohol." The statements were obviously made with the thought of a DWI prosecution in mind.

Yesterday the Texas Court of Appeals at Fort Worth held for the defendant in a warrantless-entry methamphetamine manufacturing case out of Weatherford, in Parker County. The police went ahead and entered the defendant's home, pending their warrant application, on the basis that a confidential informant indicated that the defendant was soon going to be cooking a batch of methamphetamine using the dangerous "shake and bake" method. The Fort Worth Court of Appeals held that all of the evidence against the defendant had to be excluded under the Texas Exclusionary Rule.

With certain exceptions, police have to obtain a search warrant even if there is probable cause to conduct a search of a home. The Fort Worth Court of Appeals held in yesterday's case that there was no "exigent circumstances" exception because the situation did not require "now or never" action by the police to prevent "imminent" destruction of evidence. For the exception to apply, the situation must already be urgent. The Court seemed to chide the prosecutors for suggesting that exigent circumstances exist per se in cases involving methamphetamine laboratories; regardless of the type of activity, all defendants are entitled to a case-by-case constitutional analysis.

The Court also addressed the "independent source doctrine," which excuses illegal police conduct when there was sufficient information for a warrant before the illegal entry. When the independent source exception applies in federal court, it defeats the federal court exclusionary rule, because the federal rule is not a mandatory law, like it is in Texas.

The State argued in yesterday's case that the highest criminal appeals court in Texas, the Texas Court of Criminal Appeals in Austin, has impliedly adopted the federal independent source doctrine, but the Fort Worth Court of Appeals disagreed. The closely related federal exclusionary rule doctrine of "inevitable discovery" has not been held to apply in Texas; it applies in situations where the police would have obtained evidence separately from violating the defendant's rights.

This is the type of case with broad implications that the Texas Court of Criminal Appeals is likely to accept on discretionary review. The Court would address whether it really has adopted the independent source doctrine for Texas cases. Deciding that question would also involve direct consideration of the status of the closely related inevitable discovery doctrine in Texas.

Today the Texas Court of Criminal Appeals in Austin held in a cocaine trafficking case that went up to the Court through the Seventh Texas Court of Appeals at Amarillo that the Lubbock County Sheriff's Office violated the defendant's rights by questioning him during a roadside traffic stop without reading him his Miranda rights.* Since the unsophisticated defendant was not warned that he had the right to remain silent, he admitted that he and his wife were in possession of cocaine.

The police have to provide Miranda warnings only when they "interrogate" somebody who is in "custody." The question in today's case was whether the defendant was in "custody," which does not necessarily require someone to be under arrest. A detention during a roadside investigation or similar circumstances can amount to a custodial situation.

The Court of Criminal Appeals held that the defendant was in custody at the time of his incriminating statements because the officer had expressed suspicion that the defendant had drugs in his possession, there were additional law enforcement officers that had arrived at the scene, the defendant and his passenger/wife were handcuffed, and the officers clearly expressed their belief that the defendant was connected to illegal activity.

The Court applied the traditional considerations for deciding whether someone was in "custody:" (1) whether the suspect was physically deprived of his freedom of action in any significant way, (2) whether a law enforcement officer told the suspect that he could not leave, (3) whether law enforcement officers created a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) whether there was probable cause to arrest and law enforcement officers did not tell the suspect that he is free to leave.

======
*In addition to the right to remain silent, the warnings required under Miranda v. Arizona include information that any statement a defendant makes may be used as evidence against him in court, that he has the right to have a lawyer present to advise him prior to and during any questioning, and that if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning. Texas has codified these rights, and added a fifth essential warning: a suspect be informed that he has the right to terminate an interview at any time.