NO. 07-10-0310-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 10, 2011
RUDY GONZALES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 20,940-B; HONORABLE JOHN B. BOARD, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Rudy Gonzales was convicted of the felony offense of driving while intoxicated.
He contends the trial court erred 1) in failing to grant his motion to suppress because he
was detained without reasonable suspicion and arrested without probable cause, and 2)
in refusing to sustain his objection to the State’s reference to his right to remain silent.
We affirm the judgment.
Motion to Suppress
We review the trial court’s ruling on a motion to suppress under the standard
discussed in Ford v. State,158 S.W.3d 488 (Tex. Crim. App. 2005). In doing so, we
defer to the trial court’s resolution of historical fact but review de novo its interpretation
of the law. Id. at 493.
While appellant does not challenge his detention for speeding, he does challenge
his detention and subsequent warrantless arrest for driving while intoxicated. A
detention for a traffic stop must cease once the purpose of the stop has been fulfilled;
however, this is not so when information learned by a police officer during the course of
the stop provides him with reasonable suspicion that another offense has been or is
being committed. Sieffert v. State, 290 S.W.3d 478, 483 (Tex. App.–Amarillo 2009, no
pet.).
Here, Officer Dennis Brassfield observed appellant traveling 71 m.p.h. in a 50
m.p.h. zone. This provided him both reasonable suspicion and probable cause to make
the initial traffic stop for speeding. Upon approaching appellant and his car, the officer
observed appellant’s slurred speech, glassy and bloodshot eyes, and smell of alcohol.
Four unopened cans of beer were also noticed in the back seat of his car. Thereafter,
appellant was asked to accompany the officer to the squad car and sit in it while he
drafted the speeding ticket. During this period, the officer continued to smell alcohol
coming from appellant. These facts were sufficient to give rise to reasonable suspicion
that appellant had been driving while intoxicated. State v. Priddy, 321 S.W.3d 82, 88
(Tex. App.–Fort Worth 2010, pet. ref’d) (holding there was reasonable suspicion to
detain the driver for investigation of driving while intoxicated when the officer smelled
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alcohol coming from the vehicle and saw the driver’s bloodshot and glazed eyes);
Perales v. State, 117 S.W.3d 434, 439 (Tex. App.–Corpus Christi 2003, pet. ref’d)
(finding reasonable suspicion to detain when the officer stopped the defendant for
speeding, saw that the defendant’s eyes were red, smelled a strong odor of alcohol
coming from the car and on Perales’ breath, and noticed a beer bottle in plain view
behind the seat).
Appellant denied that he had been drinking despite the continuing odor of alcohol
on him. So too did he refuse to participate in horizontal gaze nystagmus, field sobriety,
and portable breath testing. At that point, the officer arrested him for driving while
intoxicated. To have probable cause for a warrantless arrest, an officer must have facts
and circumstances within his knowledge from reasonably trustworthy sources which are
sufficient to warrant a prudent man to believe the arrested person has committed or is
committing an offense. State v. Woodard, No. PD-0828-10, 2011 Tex. Crim. App. LEXIS
447, at *14-15 (Tex. Crim. App. April 6, 2011). And, when assessing whether that
standard was met, we can consider not only the smell of alcohol, slurred speech, and
glassy eyes witnessed by the officer, Cotton v. State, 686 S.W.2d 140, 142-43 n.3 (Tex.
Crim. App. 1985) (noting that bloodshot eyes, slurred speech, and the odor of alcohol
are symptoms of intoxication), but also the fact of appellant’s speeding. Tex. Dep’t of
Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.–Fort Worth 2009, no pet.)
(wherein the court stated that speeding can be a sign of impaired judgment and is a
factor to be weighted when determining if the officer had probable cause to believe the
arrestee was driving while intoxicated); see also State v. Cullen, 227 S.W.3d 278, 282
(Tex. App.–San Antonio 2007, pet. ref’d) (recognizing the appellant’s excessive speed
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as a pertinent indicia). Another relevant factor is appellant’s refusal to take the field
sobriety tests. Tex. Dep’t Pub. Safety v. Gilfeather, 293 S.W.3d at 880; Maxwell v.
State, 253 S.W.3d 309, 314 (Tex. App.–Fort Worth 2008, pet. ref’d); see also Partee v.
Tex. Dep’t of Pub. Safety, 249 S.W.3d 495, 502 (Tex. App.–Amarillo 2007, no pet.).
These elements, combined with appellant’s denial that he had been drinking and the
presence of beer in his vehicle, provided probable cause for the arrest. Tex. Dep’t of
Pub. Safety v. Gilfeather, 293 S.W.3d at 880-81. So, we overrule appellant’s first issue.
Reference to Right to Remain Silent
Next, appellant questioned the officer, during trial, about whether reasons
besides intoxication could cause a person to be speeding. And various were offered by
appellant, which reasons included inattention and defective equipment in the vehicle.
After those particular questions were asked and answered, the State queried whether
appellant had offered any explanations to the officer. The latter said “no,” and appellant
objected on the ground that the question was a comment on appellant’s right to remain
silent which he had invoked after his arrest. The trial court overruled the objection, and
in doing so, the trial court allegedly erred. We overrule the issue.
When the State comments on a defendant's post-arrest silence, it violates the
Fifth Amendment prohibition against self-incrimination. Doyle v. Ohio, 426 U.S. 610,
617-618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Lighteard v. State, No. 04-09-00022-CR,
2010 Tex. App. LEXIS 3558, at *10-11 (Tex. App.–San Antonio May 12, 2010, no pet.)
(not designated for publication). Commenting on a defendant's post-arrest silence is
akin to commenting on his failure to testify at trial because it attempts to raise an
inference of guilt arising from the invocation of a constitutional right. Dinkins v. State,
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894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Lighteard v. State, 2010 Tex. App. LEXIS
3558, at *10. To determine whether such a comment was made, we view the language
from the jury's standpoint and the context in which the comment was made and decide
whether the jury would necessarily and naturally take it as a comment on the
defendant's right to remain silent. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
Crim. App. 2001) (setting out the test for whether the State commented on defendant's
failure to testify).
The purportedly objectionable question and answer here came after appellant
vigorously cross-examined the witness. Furthermore, appellant was proffering other
potential explanations for his speeding and was meeting with success in having the
arresting officer acknowledge their potential applicability. In response, the State queried
of the officer whether any of those explanations were offered by appellant to explain his
speeding. The answer given, i.e. “no,” could reasonably be viewed as debunking the
likelihood that appellant was speeding for reasons unrelated to intoxication. So too
must it be remembered that the officer did not initially stop appellant for driving while
intoxicated but rather for speeding. And, while legally detained for that infraction and
long before being arrested for DWI, appellant had ample opportunity to dissuade the
officer from ticketing him for driving too fast by attempting to justify his conduct, but he
did not. See Rosas v. State, 76 S.W.3d 771, 776 (Tex. App.–Houston [1st Dist.] 2002,
no pet.) (noting that pre-arrest silence is admissible as substantive evidence of guilt).
Given this context, trial courts could reasonably debate and disagree about whether a
jury would necessarily and naturally view the question and answer at bar as a comment
on appellant’s right against self-incrimination. Lighteard v. State, 2010 Tex. App. LEXIS
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3558, at *11-12 (noting that the question was propounded after Lighteard had vigorously
cross-examined the detective about several perceived deficiencies in the investigation,
including the failure to analyze the gunshot residue test conducted on the victim, a
report by the first offcer to respond to the scene that was lost, the failure to recover the
shotgun and another pistol witnesses asserted were present at the shooting, and the
failure to recover any physical evidence such as spent shell casings from those
weapons and finding, in this context, the question – “Did Roderick Lightheard tell you
where the gun was?” – was not of such a character that the jury would necessarily and
naturally take it as a comment on Lighteard’s exercise of his right to remain silent).
And, because of that, we cannot say that the decision to overrule the objection
constituted an abuse of discretion. See Young v. State, 283 S.W.3d 854, 874 (Tex.
Crim. App. 2009), cert. denied, __ U.S. __, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009)
(stating that a court abuses its discretion when its decision falls outside the zone of
reasonable disagreement).
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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Rudy Gonzales v. State
Combined Opinion