ACCEPTED
03-14-00454-CR
4252879
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 4:46:40 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00454-CR
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
2/23/2015 4:46:40 PM
COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
CLIFTON CREWS HOYT,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________
From the 391ST Judicial District Court
Tom Green County, Texas
Honorable Tom Gossett, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
STATE WAIVES ORAL ARGUMENT
Richard Villarreal
Assistant District Attorney
51st Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
TSB #00797602
ATTORNEY FOR STATE
TABLE OF CONTENTS
PAGE
LIST OF AUTHORITIES ............................................................................. 2
STATEMENT OF THE FACTS ................................................................... 5
ISSUE ONE ................................................................................................ 8
SUMMARY OF THE ARGUMENT ..................................................... 8
ARGUMENT AND AUTHORITIES ..................................................... 8
ISSUE TWO ............................................................................................. 14
SUMMARY OF THE ARGUMENT ................................................... 14
ARGUMENT AND AUTHORITIES ................................................... 14
PRAYER ................................................................................................... 27
CERTIFICATE OF COMPLIANCE ............................................................ 28
CERTIFICATE OF SERVICE .................................................................... 28
LIST OF AUTHORITIES
Cases
Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.) 15, 16
Amores v. State, 816 S.W.2d 407 (Tex. Crim. App. 1991) 9
Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979) 17
Brinegar v. United States, 338 U.S. 160 (1949) 8
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 15
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) 14
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) 15
Compton v. State, 120 S.W.3d 375 (Tex. App.—Texarkana 2003, pet. ref’d). 25
Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) 13
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) 8
Emerson v. State, 880 S.W.2d 750 (Texas. Crim. App. 1994) 20
Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988) 19
Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001) 9, 13
Jackson v. Virginia, 443 U.S. 307 (1979) 15, 16
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 15
Matthews v. State, No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, (Tex. App.—
Austin Dec. 23, 2014)(mem. op., not designated for publication) 15
Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) 15
State v. Garrett, 22 S.W.3d 650 (Tex. App.—Austin [3rd Dist.] 2000, no pet.) 9
State v. Long, No. 03-11-00725-CR 2012 Tex. App. LEXIS 4402 (Tex. App.—Austin
May 31, 2012) (mem. op., not designated for publication) 20
Taylor v. State, No. 03-03-00624-CR 2006 Tex. App. LEXIS 5148 (Tex. App.—Austin
June 16, 2006)(mem. op., not designated for publication) 21
2
Vaugn v. State, 493 S.W.2d 524 (Tex. Crim. App. 1972) 20
Statutes
Tex. Code Crim. Proc. Ann. art. 38.04. 15
Tex. Penal Code Ann. § 49.01 16
Tex. Penal Code Ann. § 49.01 (2) 16
Tex. Penal Code Ann. § 49.04 14, 16
Tex. Penal Code Ann. § 49.09 16
Tex. R. Evid. 701 20
Tex. R. Evid. 702 20
Tex. Transp. Code Ann. § 545.101(a) 9, 10
Tex. Transp. Code Ann. § 724.061 19
3
NO. 03-14-00454-CR
IN THE
COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
CLIFTON CREWS HOYT,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________
From the 391ST Judicial District Court
Tom Green County, Texas
Honorable Tom Gossett, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
TO THE HONORABLE COURT OF APPEALS FOR THE THIRD
SUPREME JUDICIAL DISTRICT OF TEXAS:
COMES NOW, The State of Texas, in the above entitled and
numbered cause, and files this the BRIEF OF STATE and in support
thereof, the State would show this Honorable Court as follows:
4
STATEMENT OF THE FACTS
San Angelo Police Department patrol officer Bruce Stewart was
patrolling in the southwest section of San Angelo on March 6, 2010. (R.R.
Vol. 2, p. 22). At approximately 2:21 a.m., Officer Stewart was dispatched
to a Whataburger restaurant on Sherwood Way in reference to an
intoxicated driver. (R.R. Vol. 2, p. 23).
Officer Stewart obtained a description of the suspect’s vehicle from
the dispatcher. (R.R. Vol. 2, p. 23). No such vehicle was located at the
restaurant, but the vehicle was quickly located by the officer on Alexander
Street. (R.R. Vol. 2, p. 23). The vehicle was traveling north down
Alexander toward Houston Harte. (R.R. Vol. 2, p. 23). Officer Stewart
observed the vehicle make a wide right turn onto Houston Harte. (R.R. Vol.
2, p. 24). After observing this traffic offense, Officer Stewart turned on his
overhead emergency lights. (R.R. Vol. 2, p. 24). Officer Stewart then
observed the vehicle veer to the north side of the Houston Harte roadway
and strike the curb. (R.R. Vol. 2, p. 24). Officer Stewart then observed that
the vehicle started pulling to the south side, and as it came to a stop, it
struck the south side curb. (R.R. Vol. 2, p. 24).
Officer Stewart then approached Appellant’s vehicle and spoke to
Appellant, who was the driver of the vehicle. (R.R. Vol. 2, pp. 24-25).
5
Officer Stewart then asked Appellant if he had been drinking. Appellant
said he had not been drinking. (R.R. Vol. 2, p. 26). Officer Stewart
observed that Appellant’s eyes were red and bloodshot. (R.R. Vol. 2, p.
26). Officer Stewart smelled the odor of an alcoholic beverage coming
from Appellant’s person. (R.R. Vol. 2, p. 26).
At this point, Officer Stewart decided to bring Appellant out of his
vehicle and administer standardized field sobriety tests. (R.R. Vol. 2, pp.
26-27).
The first test administered by Officer Stewart was the horizontal gaze
nystagmus test. (R.R. Vol. 2, p. 28). This test has six possible clues.
(R.R. Vol. 2, p. 31). Officer Stewart observed six of the six possible clues.
(R.R. Vol. 2, p. 31).
The next test administered by Officer Stewart was the walk and turn
test. (R.R. Vol. 2, p. 32). The walk and turn test is a divided attention test
consisting of an instruction stage, followed by the subject taking nine heel
to toe steps up a line, turning around and returning down the line with nine
heel to toe steps. (R.R. Vol. 2, pp. 32-33). This test has eight possible
clues. (R.R. Vol. 2, p. 34). Officer Stewart observed six of the eight
possible clues. (R.R. Vol. 2, p. 34).
6
The next test administered by Officer Stewart was the one leg stand.
(R.R. Vol. 2, p. 35). The one leg stand test involves a subject raising their
foot approximately six inches off the ground; once the foot is raised, it
should remain raised, and the subject should be counting out loud by one
thousands until told to stop by the officer. (R.R. Vol. 2, p. 35). This test
has four possible clues. (R.R. Vol. 2, p. 36). Officer Stewart observed
three of the four possible clues. (R.R. Vol. 2, p. 36).
Officer Stewart then placed Appellant under arrest for driving while
intoxicated. (R.R. Vol. 2, p. 37). Officer Stewart then conducted a search
of Appellant’s person incident to the arrest. (R.R. Vol. 2, p. 37). Officer
Stewart located less than two ounces of marihuana in Appellant’s left back
pants pocket. (R.R. Vol. 2, p. 37). An inventory of Appellant’s vehicle
located a marihuana cigarette. (R.R. Vol. 2, p. 37).
Officer Stewart read Appellant his statutory warnings. (R.R. Vol. 2, p.
38). Once Officer Stewart had read Appellant his statutory warning, he
asked Appellant to provide a sample of his breath or blood. (R.R. Vol. 2, p.
38). Appellant refused to provide a sample of either his breath or blood.
(R.R. Vol. 2, p. 39).
Appellant was transported to jail by Officer Stuart. (R.R. Vol. 2, p.
39).
7
ISSUE ONE
Whether there was probable cause and reasonable suspicion to
initiate a traffic stop and detain Appellant for the purpose of conducting
Standardized Field Sobriety Tests?
SUMMARY OF THE ARGUMENT
There was reasonable suspicion or probable cause to initiate a traffic
stop for violation of a traffic law. Upon contact with the driver of the
stopped vehicle, the officer noted additional information which gave him
reasonable suspicion to conduct an intoxication investigation.
ARGUMENT AND AUTHORITIES
In order to justify a traffic stop, there must be reasonable suspicion
that a traffic violation has occurred. Davis v. State, 947 S.W.2d 240, 242-
244 (Tex. Crim. App. 1997).
Probable cause exists when the facts and circumstances within an
officer’s personal knowledge and of which he has reasonably trustworthy
information are sufficient to warrant a person of reasonable caution in the
belief that, more likely than not, a particular suspect has committed an
offense. Brinegar v. United States, 338 U.S. 160, 164 (1949). Probable
8
cause must be examined in light of the totality of the circumstances
established by the evidence. Amores v. State, 816 S.W.2d 407, 413 (Tex.
Crim. App. 1991); State v. Garrett, 22 S.W.3d 650, 653-654 (Tex. App.—
Austin [3rd Dist.] 2000, no pet.).
Reasonable suspicion exists when an officer observes specific
objective, articulable facts which, in light of the officer’s experience and
personal knowledge, together with inferences from those facts, would
warrant a reasonable person to believe a traffic violation had occurred.
See Davis v. State, 947 S.W.2d 240, 242-243 (Tex. Crim. App. 1997). This
standard is an objective one, there need only be an objective basis for the
stop; the subjective intent of the officer conducting the stop is irrelevant.
The reasonable suspicion determination is made by considering the totality
of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.
App. 2001).
Tex. Transp. Code Ann. § 545.101(a) requires an operator making a
right turn to make both the approach and the turn as closely as practicable
to the right hand curb or edge of the roadway.
The evidence in this case shows that Officer Stewart was dispatched
at approximately 2:21 in the morning to a Whataburger in reference to an
intoxicated driver. (R.R. Vol. 2, p. 22). That while in the area he got behind
9
Appellant’s vehicle and followed it. Officer Stewart observed that as the
vehicle was going northbound on Alexander, it made a wide right turn onto
Houston Harte. (R.R. Vol. 2, pp. 23-24). Officer Stewart described the
roadway onto which Appellant turned as a two lane access road with both
lanes going in one direction. Further testimony established that Appellant’s
turn was so wide that he wound up in the left hand lane of the two lane
roadway and then remained in that lane. (R.R. Vol. 2, pp. 45-46).
At this point, Officer Stewart has personally observed a traffic
violation, namely a violation of Tex. Transp. Code Ann. § 545.101(a), and
would therefore not only have reasonable suspicion but probable cause to
stop the vehicle for this violation of the law.
Officer Stewart did not observe a “slight” wide right turn, rather the
undisputed evidence at trial showed that Appellant made such a wide right
turn that he actually wound up in the left hand lane of a two lane road and
then remained in that lane. Clearly, when a vehicle makes such a wide
turn as to wind up in the wrong lane there can be no question but that an
unlawful wide right turn has occurred.
The evidence further shows that once Officer Stewart had activated
his emergency lights to stop Appellant’s vehicle for the traffic violation, he
observed that Appellant’s vehicle veered to the north side of Houston
10
Harte, struck the curb, and then it started pulling to the south side, and as it
came to a stop, it struck the south side curb.” (R.R. Vol. 2, p. 24). Officer
Stewart also later testified that Appellant, “… hit the curb pretty hard on the
north side. Then, when he came back over to the right, as he was coming
to a stop, he hit the right curb.” (R.R. Vol. 2, p. 46).
After making contact with Appellant, who was the driver of the
vehicle, Officer Stewart noted that Appellant’s eyes were red and bloodshot
and that he smelled the odor of an alcoholic beverage coming from
Appellant’s person. (R.R. Vol. 2, p. 26).
Officer Stewart now has the following information: he has observed
Appellant commit a traffic offense, he has observed driving which is
commonly indicative of intoxicated driving namely a wide turn, turning into
the wrong lane, striking a curb, striking a curb on the other side of the
roadway, the odor of alcohol from Appellant, red blood shot eyes, and the
fact that the stop occurred at 2:20 in the morning, a time commonly known
to be when bars and nightclubs have just closed.
Officer Stewart, who initially had justification to stop and detain
Appellant’s vehicle based on probable cause that a traffic violation had
occurred, now has sufficient reasonable suspicion to begin an intoxication
investigation.
11
And indeed only when all of this information, the totality of the
circumstances, is available to him does Officer Stewart have Appellant exit
the vehicle to begin his intoxication investigation. (R.R. Vol. 2, pp. 26, 51).
Appellant spends a large portion of his argument dealing with the
initial dispatch and whether there was a reliable tip and whether Officer
Stewart had probable cause or reasonable suspicion to “initiate a DWI
traffic stop”, however none of those arguments are relevant in this case.
Officer Stewart did not initially stop Appellant based on a DWI traffic stop,
he stopped Appellant’s vehicle because Appellant violated the law by
committing a traffic violation. It was after pulling Appellant over for this
traffic violation that Officer Stewart was able to make additional
observations about Appellant sufficient to justify expanding the initial
detention into a reasonable suspicion investigation of intoxication.
Appellant’s arguments are flawed because they do not consider
cases such as this, where an initial stop based on a traffic violation
expands into an intoxication investigation once an officer has made
additional observations. An officer would be severely hamstrung if he could
not expand an initial traffic stop into an intoxication investigation after
obtaining additional information and combining this additional information
with all the other facts known to him.
12
Appellant, through his argument, attempts to extrapolate Officer
Stewart’s alleged subjective beliefs to a legal argument. Appellant’s
arguments are based on the proposition that Officer Stewart stopped this
vehicle solely because he believed the driver of the vehicle was intoxicated
and argues therefore that if there was no reasonable suspicion or probable
cause for a DWI traffic stop then there was no valid stop. However, it is
clear that a stop will not be invalidated based on the subjective motivation
of a police officer so long as there is an objectively valid basis for the stop.
Crittenden v. State, 899 S.W.2d 668, 673 (Tex. Crim. App. 1995). The
standard to justify a traffic stop is an objective one; there need only be an
objective basis for the stop; the subjective intent of the officer conducting
the stop is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.
2001). Regardless of whether Officer Stewart initially and subjectively
believed that an intoxicated person was driving the vehicle he was
following, there was an objective traffic offense that justified the initial traffic
stop.
Officer Stewart had probable cause to stop Appellant’s vehicle
for violation of a traffic offense. Once Officer Stewart stopped the vehicle,
he observed additional facts which when combined with all the other
13
information available to him reached a sufficient level of reasonable
suspicion to allow him to expand the stop into an intoxication investigation.
ISSUE TWO
Whether the legal and factual evidence was sufficient at trial that the
Appellant was driving while intoxicated pursuant to Tex. Penal Code Ann. §
49.04.
SUMMARY OF THE ARGUMENT
The evidence was sufficient to sustain a conviction for driving while
intoxicated.
ARGUMENT AND AUTHORITIES
Due process requires that the State prove, beyond a reasonable
doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242,
246 (Tex. Crim. App. 2011).
In Texas, evidence to support a verdict is legally sufficient if viewed in
a light most favorable to the verdict, the evidence, and all reasonable
inferences there from would allow a rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt. Brooks v. State, 323
14
S.W.3d 893, 912 (Tex. Crim. App. 2010). The Court will review all the
evidence in the light most favorable to the verdict and assume that the trier
of fact resolved conflicts in testimony, weighed the evidence, and drew
reasonable inferences in a manner that supports the verdict. Jackson v.
Virginia, 443 U.S. 307, 318 (1979); Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009); Matthews v. State, No. 03-13-00037-CR, 2014
Tex. App. LEXIS 13722, at 8,9 (Tex. App.—Austin Dec. 23, 2014)(mem.
op., not designated for publication).
In determining the legal sufficiency of the evidence, the Court must
consider all the evidence in the record, whether direct or circumstantial,
properly or improperly admitted, or submitted by the prosecution or the
defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen
v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.). The
trier of fact, as the exclusive judge of the facts, is entitled to weigh and
resolve conflicts in the evidence and draw reasonable inferences
therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. Ann.
art. 38.04. Thus, when faced with a record of historical facts that supports
conflicting inferences, a reviewing court must presume that the trier of fact
resolved any such conflicts in favor of the verdict and defer to that
15
resolution. Jackson v. Virginia, 443 U.S. 307, 326 (1979); Padilla v. State,
326 S.W.3d 195, 200 (Tex. Crim. App. 2010). Every fact does not need to
point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction. Allen, 249 S.W.3d at 689. The role of a court
reviewing a sufficiency argument is not that of a fact finder but rather as a
due process safeguard, ensuring only the rationality of the trier of fact's
finding of the essential elements of the offense beyond a reasonable doubt.
Allen, 249 S.W.3d at 688.
Appellant was found guilty of the offense of felony driving while
intoxicated. The elements of the offense of driving while intoxicated under
Tex. Penal Code Ann. § 49.04 are that Appellant was operating a motor
vehicle in a public place while intoxicated. Further under Tex. Penal Code
Ann. § 49.09, to be punished as a felony offense, the State had to show
that Appellant had two prior convictions for driving while intoxicated.
Appellant limits his sufficiency argument to the element of
intoxication. Intoxication is defined in Tex. Penal Code Ann. § 49.01 (2) as
not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
16
combination of two or more of those substances, or any other substance
into the body or by having an alcohol concentration of 0.08 or more.
Appellant attempts to limit Apellee’s evidence of intoxication to two
items: 1) Officer Stewart’s observations of Appellant in the immediate
moments after the officer initiated the traffic stop and Appellant’s
performance of the SFST. (Appellant Brief, p.14). Appellant’s argument is
flawed from the beginning, because he incorrectly limits the scope of the
State’s evidence of intoxication. Officer Stewart made his determination
that Appellant was intoxicated not just on the two items Appellant has
chosen to argue but based on his observations from beginning to end, on
the totality of the entire incident. (R.R. Vol. 2, pp. 72-73).
As a general rule, the testimony of a peace officer that a person is
intoxicated provides sufficient evidence to establish the element of
intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App.
1979).
The fact finder in this case, when considering the element of
intoxication, under the totality of the circumstances would have had the
following information: That Officer Stewart observed Appellant commit a
traffic offense. This traffic offense consisted of making a wide right turn.
Officer Stewart testified that the turn was so wide that Appellant turned into
17
the left lane of a two lane roadway and remained in that lane. (R.R. Vol. 2,
pp. 45-46). Officer Stewart observed Appellant’s vehicle strike a curb
pretty hard. Appellant’s vehicle then crossed the roadway and struck the
curb on the other side of the roadway as he pulled over. (R.R. Vol. 2, pp.
24,46). Officer Stewart noted the odor of alcohol from Appellant and that
Appellant had red blood shot eyes. (R.R. Vol. 2, p. 26). The stop occurred
around 2:21 a.m. (R.R. Vol. 2, p. 22), a time commonly known to be when
bars and nightclubs have just closed. Further Officer Stewart had been
dispatched to the area in reference to an intoxicated driver. (R.R. Vol. 2, p.
23). Officer Stewart observed that Appellant denied drinking any alcohol
even though Officer Stewart could smell the odor of an alcoholic beverage
coming from his person. (R.R. Vol. 2, p. 26). Office Stewart’s observations
of Appellant’s performance on the field sobriety tests including six out of six
possible clues on the Horizontal Gaze Nystagmus test. (R.R. Vol. 2, p. 32).
During the Walk & Turn test, Officer Stewart observed Appellant step out of
the starting position during the instruction phase, observed him start the
test before being told to start, observed him miss heel to toe steps during
the test, observed him use his arms for balance, observed him step off the
line and observed him make an improper turn. Officer Stewart observed six
out of eight possible clues on the Walk & Turn test. (R.R. Vol. 2, pp. 32-
18
34). During the One Leg Stand test, Officer Stewart observed Appellant
use his arms for balance, observed him put his foot down and observed
him sway with his body. Officer Stewart observed three out of four possible
clues on the One Leg Stand test. (R.R. Vol. 2, pp. 35-36). Appellant
refused to provide a sample of his breath or blood after his statutory
warnings were read to him. (R.R. Vol. 2, pp. 38-39). Texas courts have
held that intoxication is a legitimate deduction from a defendant’s refusal to
take a breath test. Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim.
App. 1988). A person’s refusal of a request by an officer to submit to the
taking of a specimen of breath or blood, whether the refusal was express or
the result of an intentional failure to give the specimen, may be introduced
into evidence at the person’s trial. Tex. Transp. Code Ann. § 724.061.
Appellant argues that the odor of alcohol alone is insufficient to prove
intoxication and that the presence of bloodshot eyes alone is insufficient to
prove intoxication. However, as the State has already said, Officer Stewart
did not rely on any one particular piece of evidence to make his
determination of intoxication rather he looked at his observations from
beginning to end. Appellant attempts to make a “piecemeal” argument
stating that a particular piece of evidence by itself is not sufficient proof of
intoxication. However, when looking at the sufficiency of evidence, this
19
Court should not use a “divide-and-conquer” or “piecemeal” approach to
the evidence. Evidence should be reviewed in totality not in isolation. State
v. Long, No. 03-11-00725-CR 2012 Tex. App. LEXIS 4402 at 18-19 (Tex.
App.—Austin May 31, 2012) (mem. op., not designated for publication).
Appellant next cites Emerson v. State, 880 S.W.2d 750, 769 (Texas.
Crim. App. 1994) for the proposition that “a properly administered SFST is
admissible scientific evidence under Tex. R. Evid. 702.” (Appellant Brief, p.
15). Appellant improperly attempts to extend the scope of the holding of
Emerson. Emerson dealt only with the horizontal gaze nystagmus test
(HGN) which is only one of the three standardized field sobriety tests.
Further, the lay opinion of a police officer is admissible as to the officer’s
observations and to prove a defendant’s intoxication. Emerson, 880
S.W.2d at 763; Vaugn v. State, 493 S.W.2d 524, 525 (Tex. Crim. App.
1972). Therefore, it is possible that a psychomotor field sobriety test such
as the one leg stand (and by extension the walk and turn test) would be
admissible as lay testimony under Tex. R. Evid. 701 and relevant as
testimony about a suspect’s coordination, balance and mental agility
problems exhibited during the psychomotor field sobriety test grounded on
an officer’s common knowledge. Taylor v. State, No. 03-03-00624-CR 2006
Tex. App. LEXIS 5148 at 16-18 (Tex. App.—Austin June 16, 2006)(mem.
20
op., not designated for publication). Therefore, even if Appellant’s next
argument that Officer Stewart “violated most of the SFST protocols” and
that these were not “slight variations” but rather “went to the very reliability
of the intoxication determination” and any observations from these SFSTs
should be excluded from consideration as unreliable scientific evidence
was a valid argument, the trial court could still have considered Officer
Stewart’s observations as lay testimony.
However, the State does not agree that Officer Stewart “violated most
of the SFST protocols”. Appellant makes the broad, sweeping argument
that Officer Stewart: “violated most of the SFST protocols”, that they were
not “slight variations”, that Officer Stewart’s administration of the SFST was
completely flawed and finally that the tests were “ horrifically flawed SFST”.
(Appellant Brief, pp.15-16,18). Appellant did not present any evidence at
trial, did not cite any legal authority, did not call any expert witnesses, did
not present any documentation, did not introduce any version of the
NHTSA SFST Student Manual to support his broad allegations that these
were “horrifically flawed SFST.”
Appellant’s first example of Officer Stewart’s violation of Standardized
Field Sobriety Testing procedures is that “Officer Stewart could not state
how many SFSTs he had conducted or even place an estimate on the
21
number.” (Appellant Brief, p. 15). This statement is very misleading
because it implies that Officer Stewart could not tell us how many of the
three standardized field sobriety tests he gave to Appellant on the date of
this particular incident. The question that had been put to Officer Stewart,
however, dealt with the number of occasions on which he had administered
the standardized field sobriety tests to other individuals and then released
them. (R.R. Vol. 2, p. 55). The exact or estimated number of individuals
that Officer Stewart had released on other occasions after administering
the standardized field sobriety tests and determining they were not
intoxicated has absolutely nothing to do with the procedure or protocol for
any of the three standardized field sobriety tests.
Appellant next argues that “distractions”, such as the patrol vehicle’s
emergency lights, passing traffic, and allowing another officer to walk by
and around Appellant resulted in a “completely flawed” SFST, specifically
the HGN test. Appellant again makes this allegation without any actual
evidence, documentation, or case law to support Appellant’s argument.
Appellant in no way makes any showing that these “potential” distractions
did in fact distract Appellant and therefore affect the tests. A potential
distraction is in fact a hypothetical distraction unless and until evidence is
presented that Appellant was in fact affected by the distraction. Even if
22
there had been any evidence showing that Appellant was, in fact, in any
manner “distracted”, then Appellant would still only be able to argue that
this should affect the weight a fact finder would give the evidence.
Officer Stewart was asked during cross examination, “..what I am
asking you is, the environment that you put him in which would have
allowed for some of these distractions was not the ideal situation for you to
perform these nystagmus tests, correct?” (R.R. Vol. 2, p. 59). Officer
Stewart replies, “I guess there could have been a better environment, but I
worked with what I had...” (R.R. Vol. 2, p. 59). Standardized Field Sobriety
Tests such as the HGN test are field tests. They are used by Officer
Stewart and other law enforcement officers not in a laboratory environment
but out in the field. Officers are expected to give these tests in a variety of
locations; from the side of a roadway to a parking lot and at a variety of
times from the middle of the day to the middle of the night. An officer must
not only observe and analyze the behavior of the person being tested but
must also insure the safety of the officer himself of the person being tested
as well as the general public. When an officer is in the field there will
always be possible or potential distractions. Standardized field sobriety
tests are field tests designed to be used in such an environment.
23
Officer Stewart was certified to administer the Horizontal Gaze
Nystagmus test. (R.R. Vol. 2, p. 29). Officer Stewart testified that during
the HGN test he had his stimulus 12 to 15 inches from Appellant, was very
close to Appellant, was looking in his eyes while performing the test, and
that Appellant’s eyes were fixated on the pen that was held in front of him.
(R.R. Vol. 2, pp. 74, 75). If there had been a distraction that affected the
test, certainly an officer looking directly at Appellant’s eyes from 12 to 15
inches would have been able to recognize that there was a problem.
Testifying as an expert witness in regards to the HGN test, Officer Stewart
testified that the HGN testing of Appellant, “was reliable as far as I am
concerned, just from my observations.” (R.R. Vol. 2, p. 61). Further,
Officer Stewart, after being asked, “okay. and it’s your testimony that all
these distractions didn’t have, as far as you are concerned, they didn’t have
any impact on the nystagmus tests at all?” states “Not from what I
observed, no sir.” (R.R. Vol. 2, p. 63).
Appellant continues his “distractions” argument with the walk and turn
test. Appellant argues that Officer Stewart gave further instructions during
the walk and turn test and that these instructions invalidated the results of
the test. (Appellant Brief, p. 16). Officer Stewart testified he believed he
had given Appellant clear instructions for performing the walk and turn test.
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(R.R. Vol. 2, pp. 34, 64). The alleged distraction Appellant complains of
consisted of Officer Stewart reinstructing Appellant after Appellant has
failed to follow Officer Stewart’s initial instructions. (R.R. Vol. 2, pp. 64-65).
Appellant makes no actual showing that Appellant was in fact distracted,
presents no documentation, no expert testimony, no case law stating that
reminding Appellant of the original instructions is anything other than a
slight variation in the administration of the test that would not render the
evidence unreliable. It would seem that if anything reminding Appellant of
the original instructions after he has failed to follow instructions would
actually help him perform the test. As Appellant admits in his brief, slight
variations in the administration of portions of the SFST does not render the
evidence unreliable but may affect the weight of the testimony and certainly
it is up to the fact finder listening to the testimony to determine the weight to
give such evidence. Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—
Texarkana 2003, pet. ref’d).
As a continuation of his “distractions” argument, Appellant argues that
Officer Stewart “interfered” with the one-leg stand. The alleged
interference, which Appellant does not specify in his brief, is Officer Stewart
telling Appellant to point his toes several times. (R.R. Vol. 2, p. 70). Again
Appellant makes no actual showing that Appellant was in fact distracted,
25
presents no documentation, no expert testimony, no case law supporting
the position that telling a person to point his toes during the test is anything
other than a slight variation in the administration of the test that would not
render the evidence unreliable. As Appellant admits in his brief, slight
variations in the administration of portions of the SFST does not render the
evidence unreliable but may affect the weight of the testimony and certainly
it is up to the fact finder listening to the testimony to determine the weight to
give such evidence.
Appellant again in an attempt to limit the State’s evidence of
intoxication argues that, “Officer Stewart stated that the incidents of the
traffic stop--wide right turn, brushing a curb, bloodshot eyes, and an odor of
alcohol were not indicators of intoxication.” (Appellant Brief, p. 18). This is
clearly a mischaracterization of what Officer Stewart said. Officer Stewart
agreed that any one of these events by themselves would not necessarily
be indicators of intoxication. However, he also went on to testify that he did
not rely on any one particular event to determine that Appellant was
intoxicated rather he looked at, “my observations from beginning to end,
that’s what I based the arrest on.” (R.R. Vol. 2, p. 72). “Right, from
beginning to end, that’s what I based it on. The totality of the entire
incident.” (R.R. Vol. 2, p. 73).
26
The evidence presented to the trial court was sufficient to sustain
Appellant’s conviction for driving while intoxicated. The trial court as trier of
fact was the arbitrator of credibility and weight given to evidence. The trial
court held that Officer Stewart’s testimony was uncontradicted and credible.
(R.R. Vol. 2, p. 88).
For the foregoing reasons, the State respectfully requests this Court
overrule the Appellant’s Issues Presented.
PRAYER
WHEREFORE, the State prays this Court overrule all issues
presented by Appellant and Affirm the Judgment of the trial court for the
reasons stated herein.
Respectfully Submitted,
ALLISON PALMER
51ST DISTRICT ATTORNEY
___________________________
Richard Villarreal
Assistant District Attorney
51ST & 119th Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
TSB# 00797602
ATTORNEY FOR STATE
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,
based upon the computer program used to generate this brief, that this
brief contains 4,974 words, excluding words contained in those parts of the
brief that Rule 9.4(i) exempts from inclusion in the word count. I further
certify that this brief is in a conventional 14-point typeface.
___________________________
Richard Villarreal
Assistant District Attorney
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
State was electronically served on John T. Floyd (jfloyd@johntfloyd.com)
and Christopher M. Choate (choate@johntfloyd.com), The Kirby Mansion,
2000 Smith Street, Houston, TX 77002, counsel for Appellant on the 23rd
day of February, 2015.
___________________________
Richard Villarreal
Assistant District Attorney
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