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Kuether v. State

Court of Appeals of Texas, Fourteenth District

April 18, 2017


         On Appeal from the County Criminal Court at Law No. 7 Harris County, Texas Trial Court Cause No. 1935745

          Panel consists of Justices Christopher, Jamison, and Donovan.


          Martha Hill Jamison Justice.

         In two issues, appellant Erik Kuether challenges his driving while intoxicated (DWI) conviction. He complains that the State failed to disclose purportedly exculpatory evidence prior to trial. He also contends that the trial court erred in admitting his statements made before he was given Miranda warnings.[1] Concluding that appellant has not shown prejudice from the State's untimely disclosure of evidence and that the challenged statements were not made pursuant to custodial interrogation, we affirm.


         A woman and her cousin were driving home from Christmas shopping one evening in Houston, Texas, when the woman's car was struck on the driver's side door by a dark colored truck, causing the woman's car to spin several times before coming to rest on the highway. Officer Gonzales was dispatched to the scene and located an unoccupied black Ford F150 truck off the highway on a grassy area near some woods. The truck was damaged on its front-end passenger side. There were no other vehicles in the area.

         Officer Fortson, a member of Houston Police Department's DWI task force, arrived on the scene. Based on the damage to the F150, Fortson concluded that it had struck the woman's car. Fortson searched the F150 and found a picture identification belonging to appellant inside.[2]

         A K9 unit was summoned to search for the driver of the F150. Officer Hanley arrived with his dog, Tyson. Tyson was trained to detect human scent. He led Hanley "[s]traight into the wood line." Tyson alerted to the scent of a person in the woods. The woods were too dense for officers to get inside. Hanley called for a helicopter.

         The helicopter was equipped with infrared radar. Someone in the helicopter verified that a person was in the woods and directed the officers on the ground to the easiest route to the suspect. Hanley located appellant stuck in a "bush loaded with stickers." Officers extricated appellant from the bushes, handcuffed him, and put him in the backseat of a patrol car.

         Fortson approached appellant while he was in handcuffs. He was wearing one shoe, and Fortson noticed that appellant smelled like alcohol, slurred his speech, had red, glassy eyes, and was unsteady on his feet. In response to Fortson's questions, appellant told Fortson that his other shoe was in the woods, he ran because he had been drinking and was scared, and he had been driving the F150. At that point, Fortson decided to take appellant to the HPD "Central Intox" station to conduct sobriety testing.

         When they arrived at Central Intox, Fortson read appellant his Miranda warnings and administered three sobriety tests: horizontal gaze and nystagmus (HGN), one-leg stand, and walk-and-turn. Appellant displayed six of six clues of intoxication on the HGN text, no clues on the one-leg stand test, and five of eight clues on the walk-and-turn test.

         Fortson also obtained a search warrant to draw appellant's blood. A blood test revealed that appellant's blood alcohol concentration (BAC) was .12, which is above the legal limit of .08. At trial, the State's expert testified that she could not determine what appellant's BAC had been at the time he was driving.

         After finding appellant guilty of DWI, the jury assessed punishment at one year of community supervision.


         In his first issue, appellant asserts that he was unconstitutionally deprived of due process because the State did not disclose that a witness had changed his statement until after trial began. We conclude that appellant did not establish he was prejudiced by the State's delay.

         In his second issue, appellant challenges the trial court's admission of statements appellant made at the scene of the collision that he contends were admitted in violation of his constitutional right against self-incrimination under Miranda v. Arizona, 384 U.S. 436 (1966), and his right to statutory warnings under article 38.22 of the Texas Code of Criminal Procedure. We conclude appellant was not in custody for purposes of Miranda during the relevant timeframe and appellant waived his article 38.22 argument.

         I. No Showing that State's Delay in Disclosing Evidence Resulted in Prejudice

         Appellant complains that the State did not inform him until after trial began that a witness had changed his statement regarding appellant's identity as the driver of the F150 and appellant's demeanor and behavior after the collision.[3]Appellant contends the State's untimely disclosure of this information deprived him of due process under the United States Constitution.

         In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. In this connection, to establish a violation under Brady, a defendant generally must show that the State failed to disclose material evidence that was favorable to the defendant, regardless of the prosecutor's good or bad faith. Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). But when, as here, evidence favorable to the defendant is disclosed in an untimely manner, an appellant bears the initial burden to show that the delay resulted in prejudice.[4] See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). To show prejudice, appellant must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different.[5] Id. We conclude that appellant has not made such a showing under these circumstances.

         Here, Fortson signed a search warrant affidavit to obtain appellant's blood specimen. She attested that she spoke with witness Jason Nguyen, who saw the driver of the F150. Nguyen said that he asked the driver to "stay on scene, but the driver stated . . . he was intoxicated and then ran into the brush." With the help of the K9 unit and HPD helicopter, Fortson and the other officers subsequently located appellant hiding in the woods.

         As noted in the State's file, an intern from the prosecutor's office called Nguyen in February 2014. Nguyen told the intern that he witnessed the collision, spoke with appellant while appellant was in the woods, and told appellant to come out. Appellant said he needed help. Nguyen said he could not help and proceeded to tell "the officer" what he saw. In June 2014, also noted in the State's file, a prosecutor spoke with Nguyen. Nguyen said he did not see appellant's face but viewed the collision and identified the person "in the woods that he was talking to as the driver of the vehicle." The person indicated "that he messed up." These notes in the State's file were contemporaneously available to appellant.

         In January 2015, Nguyen had a change of heart and told the trial prosecutor that he did not remember the incident, did not want to testify, and did not recall anything he told officers. These statements were not disclosed to defense counsel until after trial began.

         Appellant argues that Nguyen's latest statement "called into question the credibility and reliability of [Nguyen], the information relied on by the officers, and even the officers' own statements." But appellant does not demonstrate a reasonable probability that his learning of this statement at an earlier juncture would have resulted in a different trial outcome. Even if the State or appellant had requested a trial subpoena and Nguyen had appeared at trial, appellant has not demonstrated what evidence he would have elicited from Nguyen. According to Forston, Nguyen initially identified appellant as the driver of the F150 and stated that appellant was intoxicated. But the State presented ample evidence that officers would have identified and apprehended appellant without Nguyen's help.[6]Attacking Nguyen's credibility and the fact that officers had relied on his statements would not have changed this fact.

         Additionally, Nguyen's latest statement does not contradict any of the officers' statements. Nguyen merely said that he no longer remembered what happened. Appellant has not shown how this evidence, if presented at trial, could have resulted in a different outcome.

         Appellant further contends that Nguyen's latest statement contradicts his earlier statement to Fortson that she relied on in her search warrant affidavit, thus casting doubt on the reliability of that information. As discussed, the statements are not contradictory. Even if they were, certainly at the time Fortson signed her affidavit, Nguyen had not changed his story, ...

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