Appeal from the County Criminal Court at Law No. 7 Harris
County, Texas Trial Court Cause No. 1935745
consists of Justices Christopher, Jamison, and Donovan.
Hill Jamison Justice.
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. 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.
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.
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.
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.
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.
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.
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.
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.
finding appellant guilty of DWI, the jury assessed punishment
at one year of community supervision.
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.
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.
No Showing that State's Delay in Disclosing Evidence
Resulted in Prejudice
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.Appellant contends the State's untimely
disclosure of this information deprived him of due process
under the United States Constitution.
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. 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. Id. We conclude
that appellant has not made such a showing under these
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.
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
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.
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.Attacking Nguyen's
credibility and the fact that officers had relied on his
statements would not have changed this fact.
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.
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