NO. 07-07-0472-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 29, 2008
______________________________
KIRBY DALE CANTRELL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;
NO. 06-2364; HONORABLE CARTER T. SCHILDKNECHT, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Kirby Dale Cantrell, was convicted of felony offense of driving while
intoxicated and the jury further found, that at the time of commission of the offense,
appellant used or exhibited a deadly weapon, to-wit: a motor vehicle. The trial court
sentenced appellant to eight years confinement in the Institutional Division of the Texas
Department of Criminal Justice. Appellant appeals by three issues. We modify the
judgment to delete the affirmative finding of a deadly weapon. The judgment is affirmed
as modified.
Factual and Procedural Background
On August 28, 2006, a Garza County Deputy Sheriff was notified of a possible
intoxicated driver headed his direction. The deputy was informed that a waitress, whose
name was known, had observed appellant and another individual drinking from a paper
sack covered bottle at a drive-in restaurant in Post, Texas. The waitress further told the
Garza County Sheriff’s dispatcher that the sack contained alcohol and the driver and
passenger were drinking it. The waitress gave a description of the vehicle, and its two
white male occupants and stated that the vehicle had left headed south on U.S. Highway
84. The deputy sheriff proceeded to drive toward Post and met a car matching the
description occupied by two white males. Upon meeting the described car, the deputy
testified that both the driver and passenger looked directly at him when he passed by. The
deputy turned his car around and followed the car that appellant was driving. The
described vehicle immediately slowed down below the speed limit. After a short period of
time, the deputy drove in the right lane next to appellant’s car. When he looked into the
vehicle neither appellant nor the passenger would make eye contact with him. The deputy
testified that both driver and passenger stared straight ahead and appeared to be nervous.
The deputy initiated a stop. When the deputy came to the driver’s window, he immediately
smelled the odor of alcohol. Appellant then stepped from his vehicle and the deputy
noticed the alcohol odor was coming from appellant’s breath. Further, the deputy noticed
that appellant was slurring his words when he spoke. Inside the car, the deputy noticed
empty beer bottles, including one in a brown paper bag. The deputy then called for the
Texas Department of Public Safety (DPS) trooper assigned to the area to come and assist
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with administering field sobriety tests. The DPS trooper arrived and administered field
sobriety tests. The DPS trooper testified that he formed an opinion that appellant was
intoxicated and, as a result, asked appellant to give a specimen of his breath for testing.
Appellant refused. Subsequently, the trooper requested the magistrate in Post to issue a
search warrant for a specimen of appellant’s blood. The warrant was issued and appellant
was taken to a hospital in Lubbock, Texas, where a specimen of his blood was obtained.
The analysis of the blood revealed it contained 0.09 grams of alcohol per 100 milliliters of
blood.
In a pre-trial hearing, appellant challenged the initial stop contending that the deputy
lacked reasonable suspicion to stop him. After hearing the deputy testify and hearing the
recording of the call from the waitress, the trial court overruled appellant’s objection to the
stop. During those same pre-trial proceedings appellant notified the court that he was also
contending that the search warrant was not valid. However, that matter was not taken up
until the DPS trooper testified at trial. At trial, a hearing was held outside the presence of
the jury on the appellant’s motion to suppress the search warrant. The trial court overruled
appellant’s motion to suppress the warrant. At the conclusion of the State’s case in chief,
appellant moved for a directed verdict which was overruled. The jury subsequently
convicted appellant and found that he had used or exhibited a deadly weapon during
commission of the offense. This appeal followed.
By three issues appellant contends that the trial court committed reversible error by:
1) admitting the results of the blood test; 2) finding that the deputy had reasonable
suspicion for the initial stop; and, 3) that the evidence is legally and factually insufficient
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to support the finding of a deadly weapon. We will address each of appellant’s issues in
turn as presented.
Standard of Review
Appellant contested both the blood test and the initial stop through a motion to
suppress the evidence. A trial court’s ruling on a motion to suppress is reviewed by an
abuse of discretion standard. See Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.
1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985). Whether the trial
court abused its discretion depends upon whether, given the record and the law, its
decision fell outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d
915, 918 (Tex.App.–Amarillo 1999, pet. ref’d). However, if the facts determinative of the
motion are undisputed, then the review is de novo. See Oles, 993 S.W.2d at 106; Guzman
v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We must uphold the trial court’s
decision on any grounds, whether or not relied upon by the trial court, when the standard
of review is for abuse of discretion. See State v. Ross, 32 S.W.3d 853, 855
(Tex.Crim.App. 2000); State v. Clemmer, 999 S.W.2d 903, 905 (Tex.App.–Amarillo 1999,
pet. ref’d).
Blood Test
Appellant’s contention regarding the invalidity of the blood test is anchored on his
interpretation of the implied consent law in the State of Texas. See TEX . TRANSP . CODE
ANN . Ch. 724 (Vernon 1996). One particular section provides that a specimen may not be
taken from a person if the person refuses to submit to the taking unless specific exceptions
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enumerated in section 724.012(b) of the Transportation Code apply. See TEX . TRANSP .
CODE ANN § 724.013 (Vernon 1996). All parties agree that the exceptions of section
724.012(b) did not apply in this case. According to appellant’s contention, the taking of the
blood specimen, after appellant had refused to give a specimen of his breath, was illegal
and the results should have been suppressed.
This very contention has been previously decided adverse to appellant by the Texas
Court of Criminal Appeals. See Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.
2002) (holding that obtaining a validly issued search warrant authorizing the taking of a
specimen does not constitute a violation of the implied consent law and is a valid method
of obtaining evidence). As the Court in Beeman points out, the implied consent law
expands on the State’s search capabilities by providing another framework to obtain a
specimen of a driving while intoxicated suspect’s blood. Id. at 615. It does not however,
supplant the ability of the State to obtain a search warrant. Id. Further, to construe the
implied consent law as limiting the ability of an investigating officer to obtain a search
warrant is an absurd result contrary to the statute’s intent. Id. Once a search warrant has
been issued, the question of implied consent becomes moot. Id. at 616. Our sister Courts
of Appeals have followed the holding in Beeman. See Gatewood v. State, Cause No. 11-
07-00153-CR, 2008 Tex. App. LEXIS 7381 at *2 (Tex.App.–Eastland October 2, 2008, no
pet. h.) (not designated for publication), Dye v. State, Cause No. 08-02-00018-CR, 2003
Tex. App. LEXIS 1556 at *4, (Tex.App.–El Paso February 20, 2003, no pet.) (not
designated for publication). Thus, we conclude that the admission of the blood test was
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not outside the zone of reasonable disagreement and, hence, was not an abuse of
discretion. Benitez, 5 S.W.3d at 918. Accordingly, appellant’s first issue is overruled.
Reasonable Suspicion for Initial Stop
A police officer’s interaction with a citizen can be classified as an encounter,
detention, or seizure. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.–Houston [1st
Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in
public to ask questions. Id. Encounters do not require any justification whatsoever on the
part of an officer. Id. (citing U.S. v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980)). An investigative detention is a confrontation of a citizen by law
enforcement officers wherein a citizen yields to a display of authority and is temporarily
detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235
(Tex.Crim.App.1995). An investigative detention is permitted if it is supported by
reasonable suspicion. Citizen, 39 S.W.3d at 370. See also Terry v. Ohio, 392 U.S. 1, 27,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is a particularized and
objective basis for suspecting the person is, has been, or soon will be engaged in criminal
activity. Citizen, 39 S.W.3d at 370 (citing Crockett v. State, 803 S.W.2d 308, 311
(Tex.Crim.App.1991)). A determination of whether the police interaction is an encounter,
detention or seizure is assessed by looking at the totality of the circumstances. See Hunter
v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997).
In the case before the Court, the officer was directed to the vehicle driven by
appellant as a result of the observations of a civilian witness at a drive-in restaurant. The
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record reveals that the witness called the Garza County dispatch when appellant left the
drive-in and notified dispatch of her concerns regarding appellant consuming alcohol and
driving. The witness identified herself and described her encounter with appellant.
Further, based upon her observations, the witness opined that appellant was continuing
to consume alcohol. This information, along with general description of the vehicle and the
number of occupants was relayed to the deputy sheriff. Upon seeing a vehicle matching
the description of the vehicle with the described number of occupants, the deputy turned
around and followed the vehicle. Upon following the vehicle driven by appellant and pulling
up beside the vehicle, neither occupant would look at the deputy or in any manner make
eye contact with him even though the occupants had previously made eye contact with the
deputy when he met the vehicle before turning around to pursue their vehicle. Additionally,
the record reflects that the vehicle driven by appellant suddenly slowed to a speed well
below the speed limit when the deputy was behind them. When all of these facts are taken
together, it is apparent that the decision to stop appellant’s vehicle was based upon a
reasonable suspicion that is supported by the record. Citizen, 39 S.W.3d at 370.
Accordingly, the trial court did not abuse its discretion in overruling appellant’s motion to
suppress. Oles, 993 S.W.2d at 106.
Deadly Weapon Finding
Appellant challenges both the legal and factual sufficiency of the evidence to
support the jury finding of a deadly weapon. When both legal and factual sufficiency are
attacked we must first address the issue of legal sufficiency. See Clewis v. State, 922
S.W.2d 126, 133 (Tex.Crim.App. 1996).
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In assessing the legal sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an
appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict
unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno
v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
To sustain a deadly weapon finding, the evidence must show that the object in
question meets the requirement of a deadly weapon, see TEX . PENAL CODE ANN . §
1.07(a)(17)(B) (Vernon 2003); the deadly weapon was used during the transaction from
which the conviction was obtained, see Ex parte Jones, 957 S.W.2d 849, 851
(Tex.Crim.App. 1997); and that other people were put in actual danger, Cates v. State, 102
S.W.3d 735, 738 (Tex.Crim.App. 2003). A motor vehicle may become a deadly weapon
if used in a manner capable of causing death or serious bodily injury. Ex parte McKithan,
838 S.W.2d 560, 561 (Tex.Crim.App. 1992).
In reviewing the evidence at trial, we turn to the testimony of the deputy sheriff who
answered the dispatch. On direct examination he stated, “There was moderate traffic on
South 84.” The deputy then agreed with the State’s attorney that the highway in question
was “pretty frequented.” Upon cross-examination, the deputy further testified he observed
no dangerous maneuvers or actions in appellant’s driving during the period he followed
appellant’s vehicle. The DPS trooper testified that he arrived on the scene after the initial
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stop had been completed. Both officers opined that driving a vehicle while intoxicated
exposed the public to some sort of risk. When we view this evidence in the light most
favorable to the jury’s verdict, we are left with the following: 1) there was no testimony of
any other vehicles on the road with appellant, only a general observation that traffic at the
time on the day in question was moderate, 2) appellant drove in a manner that violated no
traffic laws, and 3) no other witness was present when appellant was operating the vehicle.
The evidence thus produced amounts to nothing more than a “hypothetical risk” to the
driving public. Cates, 102 S.W.3d at 738. As such, the evidence is not legally sufficient
to sustain the jury’s verdict. See Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App.
2005). Accordingly, we sustain appellant’s issue regarding the legal sufficiency of the
evidence and modify the judgment deleting the deadly weapon finding. See TEX . R. APP.
P. 43.2(b). Because we have sustained appellant’s issue regarding the legal sufficiency
of the evidence to support a deadly weapon finding, we need not address the issue
regarding the factual sufficiency of the evidence on the question of the deadly weapon
finding.
Conclusion
Having overruled appellant’s first two issues and deleted the affirmative finding that
a deadly weapon was used during the commission of the offense, we affirm the judgment
as modified.
Mackey K. Hancock
Justice
Publish.
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Kirby Dale Cantrell v. State
Combined Opinion