Darwood Lynn Kellett v. the State of Texas

Affirm and Opinion Filed March 19, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01212-CR
No. 05-22-01213-CR

DARWOOD LYNN KELLETT, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 073218

MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
A jury found appellant Darwood Lynn Kellett guilty of possession of

methamphetamine in an amount greater than one gram but less than four grams and

aggravated assault with a deadly weapon, and jurors assessed his punishment at

confinement in the Institutional Division of the Texas Department of Criminal

Justice for periods of ten years and twenty years respectively. In three issues,

appellant contends that the trial court erroneously denied two motions to suppress

evidence and his motion for mistrial. We affirm the trial court’s judgment.
Background1

On the morning of January 20, 2021, witnesses observed a tractor-trailer on

U.S. highway 75 veer—without signaling or braking—from the highway’s left lane

of traffic into the right lane, then across the median and the service road and into a

parking lot, where it struck a series of cars before finally coming to rest. Appellant

was driving the truck. The parking lot collision threw a woman in the parking lot

into the air; she landed on the pavement and was fatally injured.

Officer Jonathan Frith was among the police officers called to the scene. His

job was to maintain the scene’s integrity and to identify any persons who were

potentially involved. He assisted in care of the victim until emergency medical

personnel arrived and then turned to appellant. When asked to describe appellant’s

demeanor, Firth testified: “He appeared drowsy or tired maybe. It was hard to

determine. Just stood around with his hands in his pockets some and didn’t seem too

bothered by the whole incident.” He described appellant as “extremely quiet and

slow to react and [he] didn’t speak very clearly.”

Firth performed a brief search of appellant to be sure he had no weapons and

then directed him to sit in the back seat of Firth’s patrol car. Firth drove appellant to

a hospital for a blood draw. While at the hospital, Firth asked appellant if he would

1
Appellant does not challenge the sufficiency of the evidence supporting the jury’s findings of guilt
on either charge. Accordingly, we relate background facts to the limited degree necessary to provide context
for appellant’s issues in this Court. We expand on specific facts related to appellant’s issues as they are
discussed below.
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consent to the blood draw. Appellant took time to consider whether he would

consent, at one point saying he’d like to speak to an attorney and that he was

“scared.” Firth explained that he was not under arrest, and appellant ultimately

consented to have his blood drawn. Firth then drove appellant to the Sherman Police

Station and took him to an interview room.

At the police station, appellant was questioned by Detective Rob Ballew; the

interview was recorded. As the interview began, Ballew told appellant he was being

detained for questioning and was not under arrest, but Ballew read appellant his

Miranda and article 38.22 rights.2 Appellant answered questions concerning his

activities before and surrounding the crash for approximately forty minutes. At that

point, he asked for an attorney, and the interview stopped. Shortly after, Ballew

applied for and obtained a search warrant for appellant’s person, setting forth the

facts as known by police that afternoon; his affidavit notified the court that appellant

was in the custody of the Sherman Police.

Suppression of Appellant’s Police Interview

In his first two issues on appeal, appellant contends the trial court erred by

refusing to suppress his recorded police interview that was conducted on the

afternoon of the collision. We review a trial court’s denial of a motion to suppress

for an abuse of discretion. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App.

2
See Miranda v. Arizona, 384 U.S. 436 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2.

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2016). We apply a bifurcated standard: affording almost complete deference to the

trial court’s determination of historical facts—especially those based on assessments

of credibility and demeanor—and reviewing de novo any mixed questions of law

and fact that do not hinge on such assessments. Wells v. State, 611 S.W.3d 396, 405

(Tex. Crim. App. 2020). We will sustain the trial court’s ruling if it is correct under

any applicable theory of law. Id. at 406 (citing Furr, 499 S.W.3d at 877).

The Motions to Suppress

During Officer Frith’s testimony, appellant made an oral motion to suppress

“any video or statements” he made after Frith placed him in the patrol car. Appellant

argued that, from that point in time, he was in police custody and was effectively

under arrest. Outside the presence of the jury, Frith acknowledged that, while

appellant was in the patrol car, he was “restrained in the idea that he cannot get out

of the back seat on his own.” He testified further that he had searched appellant’s

person for weapons, including his pockets, but did not seize anything as a result.

Frith did not place appellant in handcuffs; he acknowledged that he had no probable

cause at that time to believe appellant had committed a crime. He agreed that he had

detained appellant pursuant to an investigation but did not agree he had placed

appellant in custody. The trial court also questioned Frith about conditions at the

scene of the incident, eliciting testimony that appellant was close to where the victim

was located, that it was very cold and raining, and that there was nowhere for Frith

to have appellant sit down and wait outside the car given that the police were not

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going to allow him to leave yet. The court overruled appellant’s request to suppress

any statements by appellant, noting that no contraband was seized during the search

and that the blood draw that followed was performed with appellant’s consent.

Appellant also filed a written motion to suppress contending that his interview

with Detective Ballew was not given freely or voluntarily. The motion complained

that Ballew did not indicate that appellant was free to leave; instead, Ballew told him

that he had been detained for questioning and was not being arrested. Appellant

argued that the clear implication was that he was not free to leave until he answered

the detective’s questions. The motion cited Ballew’s same-day affidavit for a search

warrant, which indicated that appellant “was in the custody of the Sherman Police

Department.” The argument concluded:

[Appellant’s] statement having been given under the threat of continued
detention though not under arrest, was a violation of both [appellant’s]
rights to due process and his rights to not incriminate himself provided
by both the United States and Texas Constitutions.
The motion did not address any matter occurring before the Ballew interview.

Ballew testified at the hearing on the motion. He explained that appellant was

being held at the time for questioning and was not under arrest; in fact, appellant was

not arrested that day or soon after the interview.3 Ballew testified that as the

interview began, he read appellant the Miranda and article 38.22 warnings even

though appellant was not under arrest. He explained that the affidavit’s “in custody”

3
The record indicates appellant was not placed under arrest until May 2021, some five months after
the incident and the Ballew interview.
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reference meant only that appellant was being detained by the police at the police

station, and he stated that “[t]he detention was so that we would have opportunity to

speak with him, yes. And then he was informed of his rights, and if he had invoked

his rights at that point, then he would have been released at that point without being

questioned.” In response to a question from appellant’s counsel, Ballew stated that

he did not know that appellant had asked for an attorney at the hospital. But the

detective continued: “he was detained, not—not under arrest. And to my knowledge,

Officer Frith was not questioning him regarding the—the incident. He was simply

questioning—asking consent for the blood draw.” According to Ballew, appellant

did invoke his right to counsel about forty minutes into the interview at the police

station; the interview stopped immediately.

Appellant argued that Ballew was imputed with knowledge of appellant’s

earlier request for counsel made to Officer Frith, and he contended that his hospital

request for counsel was not waived or revoked before his questioning by Ballew.

The trial court ultimately denied the motion and admitted the interview, noting that

Ballew was not aware of the “vague, questionable” request for an attorney at the

hospital and that Ballew “clearly went through and provided” appellant his rights

before being questioned.

In this Court, appellant’s complaint regarding both motions to suppress is

limited to the trial court’s refusal to suppress the Ballew interview.

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Right to Counsel

The gist of appellant’s first issue is that appellant invoked his right to an

attorney at the hospital and, based on that request, he was entitled to counsel before

Ballew questioned him at the police station. A right to counsel is recognized in the

Fifth Amendment, which protects a person’s being compelled to give witness against

himself, and in the Sixth Amendment, which guarantees a person the assistance of

counsel in a criminal prosecution. See Griffith v. State, 55 S.W.3d 598, 602 (Tex.

Crim. App. 2001). We conclude, however, that neither of those rights could be

effectively exercised by appellant when he asked for an attorney at the hospital or

before the Ballew interview.

Fifth Amendment Right to Counsel:

The Fifth Amendment right to counsel is one of the special procedural

safeguards outlined in Miranda. “It is the premise of Miranda that the danger of

coercion results from the interaction of custody and official interrogation.” Illinois

v. Perkins, 496 U.S. 292, 297 (1990). Thus, the Fifth Amendment right to counsel is

triggered only when a suspect is subjected to custodial interrogation. Griffith, 55

S.W.3d at 603. The defendant bears the initial burden of proving that a statement

was the product of such a custodial interrogation. Herrera v. State, 241 S.W.3d 520,

526 (Tex. Crim. App. 2007).

We determine whether a person is “in custody” based on the circumstances

surrounding the questioning and whether a reasonable person in those circumstances

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would have felt he was not free to leave. Wexler v. State, 625 S.W.3d 162, 167 (Tex.

Crim. App. 2021). A person is in custody only if, under the circumstances, a

reasonable person would believe that his freedom of movement was restrained to the

degree associated with a formal arrest. State v. Saenz, 411 S.W.3d 488, 496 (Tex.

Crim. App. 2013) (citing Stansbury v. California, 511 U.S. 318 (1994)). The

restriction upon the person’s freedom of movement “must amount to the degree

associated with an arrest as opposed to an investigative detention.” Id. at 168.

To determine the proper category of a police-citizen encounter, we look at the

totality of the circumstances. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App.

2010). For our purposes, the difference between arrest and investigative detention

involves the degree of intrusion involved in each interaction.4 “[A]n investigative

detention occurs when a person yields to the police officer’s show of authority under

a reasonable belief that he is not free to leave.” Id. Thus, while a citizen’s freedom

of movement is limited by an investigative detention when he “yields” to the

officer’s authority, the limitation is temporary and is for the purpose of an

investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). In

contrast, an arrest occurs when a person “has been actually placed under restraint or

taken into custody by an officer or person executing a warrant of arrest, or by an

4
Arrest and investigative detention are also different because each requires a different legal
justification (i.e., probable cause and reasonable suspicion, respectively). See Derichsweiler v. State, 348
S.W.3d 906, 916 (Tex. Crim. App. 2011). Frith conceded he lacked probable cause to arrest appellant;
appellant does not challenge that the police had reasonable suspicion to detain and question him—it was
undisputed that he drove the truck in an incident that caused significant property damage and fatal injury.
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officer or person arresting without a warrant.” TEX. CODE CRIM. PROC. ANN. art.

15.22.

Appellant was placed in the patrol car, taken to the hospital for a blood draw,

driven to the police station, and questioned by a detective. His freedom of movement

was limited by this series of events; he yielded to the authority of Officer Frith and

Detective Ballew as police officers. However, he was never put in restraints, and he

voluntarily submitted to the blood draw. Both officers told appellant he was not

under arrest. The detention was integral to a preliminary investigation of the

collision, i.e., to obtain a legal blood draw from the driver and to question that driver

about the circumstances leading up to and surrounding the collision. And the

detention was temporary: when appellant asked for an attorney, the questioning

stopped; after a warrant was obtained and he was searched, appellant was free to

leave. Assessing the totality of the circumstances in this case, we conclude a

reasonable person would not have felt his freedom of movement was restrained to

the degree associated with a formal arrest. See Saenz, 411 S.W.3d at 496. We

conclude that appellant’s interaction with police was an investigative detention, not

a warrantless arrest. He was not in custody within the meaning of the Fifth

Amendment.

Nor was appellant subject to interrogation when he initially asked for an

attorney at the hospital. He was not questioned about the collision during that time—

he was asked only whether he consented to a blood draw. When a police officer is

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investigating driving while intoxicated, inquiring whether the driver will take a

blood-alcohol test is not an interrogation within the meaning of Miranda. S. Dakota

v. Neville, 459 U.S. 553, 564 n.15 (1983). “[T]here is no Fifth Amendment right to

counsel if there is no interrogation.” Griffith, 55 S.W.3d at 603.

Appellant’s statements during the Ballew interview were not produced by

custodial interrogation. Accordingly, appellant had no Fifth Amendment right to

counsel.

Sixth Amendment Right to Counsel:

The Sixth Amendment’s right to counsel applies in all state criminal

prosecutions in which the defendant is accused of a felony. Gideon v. Wainwright,

372 U.S. 335, 342 (1963). “Once the adversarial judicial process has been initiated,

the Sixth Amendment right to counsel guarantees an accused the right to have

counsel present at all ‘critical’ stages of the criminal proceeding.” Hughen v. State,

297 S.W.3d 330, 334 (Tex. Crim. App. 2009) (citing United States v. Wade, 388

U.S. 218, 227–28 (1967)). Undergoing interrogation by the police, after charges

have been brought, qualifies as a critical stage. Id.

In appellant’s case, formal adversary judicial proceedings were not initiated

until months after the incident on January 20, 2021. The State had not filed any

charges against appellant on that date. Accordingly, appellant’s Sixth Amendment

right to counsel had not yet attached. See Griffith, 55 S.W.3d at 604.

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We conclude that appellant’s request for an attorney in the hospital had no

legal effect. Appellant was not subjected to a custodial interrogation that would

trigger a Fifth Amendment right, and the State had not proceeded far enough in its

prosecution of appellant to implicate a Sixth Amendment right. See id. at 602.

Accordingly, the trial court did not abuse its discretion in denying appellant’s motion

to suppress based on a right to counsel. We overrule appellant’s first issue.

Illegal Arrest

In his second issue, appellant contends that the trial court erred by denying his

motion to suppress the recording of his questioning by Detective Ballew because the

questioning occurred following his unlawful arrest. Appellant cites to the Fourth

Amendment’s prohibition of unreasonable searches and seizures and correctly states

that the burden is on the State to establish the reasonableness of a warrantless arrest.

We have concluded that appellant was not under arrest, either formally or by

implication, before the Ballew interview. No illegal arrest took place on January 20,

2021.

We overrule appellant’s second issue.

Motion for Mistrial

In his third issue, appellant argues that the trial court erroneously denied his

motion for mistrial after he appeared in the courtroom while handcuffed when no

finding of particular need had been made for such restraints. We review the denial

of a motion for mistrial for an abuse of discretion; we must uphold the trial court’s

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ruling if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d

253, 292 (Tex. Crim. App. 2010).

On the morning of the third day of trial, the jury was brought into the

courtroom, and the State called Hannah Siegal to the stand. Siegal, a forensic

scientist for the Department of Public Safety, was questioned briefly about her

professional background and was handed a copy of the report she had prepared for

appellant’s case. At that point in time, the trial judge apologized for interrupting,

said “[w]e’re going to take a quick break,” and directed the jury to return to the jury

room.

When the jury had gone, the trial judge told counsel for appellant to “go

ahead,” and counsel stated:

Your Honor, it was just brought to my attention—and I had not noticed
it—but Mr. Kellett, the defendant, his handcuffs, which are painted red
and quite obvious, had not been removed before the jury entered. I
know they’ve been excused so that they can be removed, but he was
wearing that and standing, as appropriate, for the jury when they
entered. So, it’s quite possible that they’ve been allowed to know that
he’s in custody and I have no choice but to ask for a mistrial.

The State’s attorney responded that there was no evidence that the jury had seen the

handcuffs and he thought that for a mistrial to be granted, the jury had to have seen

the restraints.

The trial judge stated:

Well, if we have to ask them, then they’ll know. . . . So, we can’t do
that. I didn’t notice it. I think the bailiff’s figured it out. Somebody did.
. . . It was very quick. I will be glad—I mean, again, I will emphasize,
as I always do, that the fact that somebody’s in custody that that’s not
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an indication of guilt. And that’s going to be in the jury charge. I think
they often believe people are in jail, but they don’t know. And I do think
—I don’t—I don’t—if it was noticed, I don’t know that it was noticed.
I didn’t see it. I was in here. Maybe—you know, I don’t know. The only
way I can ask the jury is if they saw it. If I do, then they’ll all know that
he’s in. So, I don’t think I can cure it by asking the jury.

The judge denied the motion for mistrial.

Texas law has long recognized that requiring an accused person to wear

handcuffs before the jury can infringe his constitutional presumption of innocence.

Clark v. State, 717 S.W.2d 910, 918 (Tex. Crim. App. 1986). Both the Fifth and

Fourteenth Amendments prohibit the use of physical restraints that are visible to the

jury unless the trial court determines they are justified by a specific state interest in

the particular trial. Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013).

Visible shackling undermines the presumption of innocence by suggesting to jurors

that that the justice system itself has determined that it is necessary to separate the

defendant from the community at large. Id. at 281–82.

In this case, however, it is undisputed that the court did not require appellant

to wear restraints before the jury; the failure to remove the handcuffs before the jury

entered the courtroom that morning was merely an oversight. Moreover, nothing in

the record indicates that the jury ever saw or otherwise became aware that appellant

was wearing handcuffs. The judge was not aware of the handcuffs, and he was well

situated to observe such factors as how appellant stood and sat in the courtroom and

where the jurors’ attention was focused. Even appellant’s counsel did not notice the

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handcuffs, although we can presume he stood and sat right next to appellant.5 The

actual circumstance of appellant’s being handcuffed and being in the same room as

the jury lasted only a matter of minutes.6

We share earlier courts’ “appropriate unwillingness to make the factual

assumption that the jury perceived a defendant’s shackles in the absence of any

record support.” Bell, 415 S.W.3d at 282 (citing Long v. State, 823 S.W.2d 259, 283

(Tex. Crim. App. 1991) and Cooks v. State, 844 S.W.2d 697, 723 (Tex. Crim. App.

1992)). Here, we cannot conclude there was a reasonable probability that jurors

observed appellant’s handcuffs during the short period of time that elapsed before

they were removed from the courtroom. Id. at 283. Although appellant should not

have been restrained before the jury, we conclude that he suffered no harm on that

account. See Long, 823 S.W.2d at 283; Cooks, 844 S.W.2d at 723.

The trial court did not abuse its discretion by denying the motion for mistrial.

We overrule appellant’s third issue.

5
Appellant was the only defendant at trial, and he was represented by a single attorney.
6
While the record does not indicate the precise amount of time that elapsed, we can use the reporter’s
printed record to estimate the duration. According to the reporter, the jury entered the courtroom that
morning in the middle of page 7; at the top of page 11, the trial judge interrupted the proceedings and
removed the jury.
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Conclusion

We affirm the trial court’s judgment.

221212f.u05 /Bill Pedersen, III//
221213f.u05 BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DARWOOD LYNN KELLETT, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-22-01212-CR V. Trial Court Cause No. 073218.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Molberg and
Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 19th day of March, 2024.

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DARWOOD LYNN KELLETT, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-22-01213-CR V. Trial Court Cause No. 073219.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Molberg and
Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 19th day of March, 2024.

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