PD-1190-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/19/2015 12:24:56 PM
Accepted 10/19/2015 4:33:48 PM
ABEL ACOSTA
PDR No. PD-1190-15 CLERK
________________________________
In the Court of Criminal Appeals Texas
________________________________
JAIME LEE GAMEZ, Appellant
V.
THE STATE OF TEXAS
_______________________________
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-14-00203-CR,
On Appeal from the 268th District Court
Of Fort Bend County, Texas
Cause No. 012-DCR-061850
_______________________________
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, JAIME LEE GAMEZ
______________________________________
Oral Argument Requested
Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401
Texas Bar No. 00793616
October 19, 2015
Attorney for Appellant
i
IDENTITY OF JUDGE, PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a
complete list of the trial court judge, all the parties to the judgment or order
appealed from, and the names and addresses of counsel in the trial and on appeal:
Trial Court Judge:
The Honorable Brady G. Elliott
Presiding Judge 268th District Court
Fort Bend County, Texas
Appellant:
Jaime Lee Gamez
Counsel for Appellant:
Lee D. Cox (at trial)
201S. Eleventh Street
Richmond, Texas 77469
Counsel for the State of Texas:
John F. Healey Jr.-District Attorney
Thomas L. Pfeiffer-Trial
John M. Hawkins-Trial
John Harrity-Appeal
Fort Bend County, Texas District Attorney’s Office
1422 Eugene Heimann Cir
Richmond, Texas 77469
ii
Table of Contents
Identity of judge, parties and counsel………………………………………………ii
Index of Authorities………………………………………………………………...v
Statement Regarding Oral
Argument………………………………………………vi
Statement of the
Case……………………………………………………….......…vii
Procedural History of the Case…………………………………...………………viii
Grounds for Discretionary Review…………………………………………………2
GROUND ONE
THE FOURTEENTH COURT OF APPEALS ERRED BY REFUSING TO FIND
THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR DRIVING WHILE INTOXICATED
Reasons to Grant Review in Support of Ground for Review………………………2
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter.
Argument and Authorities In Support Of Grounds for Review……………………3
iii
Prayer for
Relief……………………………………………………………….…..12
Certificate of Compliance.………………………………………………………...13
Certificate of
Service…...…………………………………………………….……14
Appendix
..…………………………………………………………………….…..15
iv
INDEX OF AUTHORITIES
CASES:
Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979)……………………….....…4
Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication)…………………………………………………………………….…6,7
Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006)..8, 9
Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986)…………………………..5
Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011)……….…...4, 5
Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication)………………………………………………………………………5, 6
Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987)…………………...8
Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995)……………...……7, 8
STATUTES, CODES AND RULES:
Tex. R. App. P. 9.4(i)…………..……………………………………………….....
12
v
Tex. R. App. P. 9.5…………………………………...…………………………...13
Tex. R. App. P. 66.3(a)…………………………...…………………….……..iii, 2,
3
Tex. R. App. P. 68.4(a)……………………………………………………………..ii
Tex. R. App. P. 68.4(c)…………………………………………………….............vi
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful because this case presents an issue that
needs to be resolved by this Court. This appeal involves questions of law,
questions of fact, public policy and procedure which cannot be adequately
addressed, analyzed and evaluated through written communication alone. Oral
argument is essential to emphasize the unique characteristics of these questions and
to address the unforeseeable exigencies arising during the Court’s consideration of
this appeal.
vi
STATEMENT OF THE CASE
On November 13, 2012, Appellant, was indicted for driving while
intoxicated. At trial, there was no evidence of failure of field sobriety tests, a
breath test, an accident, swerving from lane to lane or staggering while walking.
These factors of intoxication would be stronger, sufficient evidence for a rational
jury to find beyond a reasonable doubt that a defendant was intoxicated. There
was testimony from a witness, police officer, that there could be other possible
reasons for the indicators of intoxication. The jury convicted Appellant of driving
while intoxicated third or more, and assessed his punishment at 15 years. The
Fourteenth Court of Appeals affirmed the conviction, holding that the evidence
was legally sufficient to prove intoxication. This petition challenges that holding.
vii
PROCEDURAL HISTORY OF THE CASE
On August 4, 2015, the Fourteenth Court of Appeals affirmed Appellant’s
conviction. Gamez v. State, No. 14-14-00203-CR, slip op. at 1-5, (Tex. App.-
Houston [14th Dist.], August 4, 2015, pet. pending). On August 13, 2015,
Appellant timely filed his motion for rehearing. The Fourteenth Court of Appeals
overruled and denied Appellant’s motion for rehearing on August 18, 2015. On
October 19, 2015, Appellant timely filed this petition for discretionary review with
the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
viii
PDR No. PD-1190-15
________________________________
In the Court of Criminal Appeals Texas
________________________________
JAIME LEE GAMEZ, Appellant
V.
THE STATE OF TEXAS
_______________________________
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-14-00203-CR,
On Appeal from the 268th District Court
Of Fort Bend County, Texas
Cause No. 12-DCR-061850
_______________________________
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, JAIME LEE GAMEZ
______________________________________
To The Honorable Justices of the Court of Criminal Appeals:
Comes now Appellant, Jaime Lee Gamez by, and through his attorney of
record, Michael C. Diaz, and files this petition for discretionary review of the of
the August 4, 2015, decision of the Fourteenth Court of Appeals of Texas in
Gamez v. State, No. 14-14-00203-CR, slip op. at 1-5, (Tex. App.-Houston [14th
1
Dist.], August 4, 2015, pet. pending), and would respectfully show the Court the
following:
GROUND ONE
THE FOURTEENTH COURT OF APPEALS ERRED BY REFUSING TO FIND
THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR DRIVING WHILE INTOXICATED
Reasons to Grant Review in Support of Ground for Review
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter, namely:
Ground One: Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979).
Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication).
Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006).
Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986).
Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).
Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication).
Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987).
Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).
2
In conflict with: Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979).
Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication).
Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006).
Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986).
Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).
Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication).
Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987).
Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).
ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW
ONE
In its August 4, 2015, opinion, the Fourteenth Court of Appeals affirmed
Appellant’s conviction in determining that the evidence is legally sufficient to
prove intoxication.
This Court should review this ground and review is appropriate under Tex.
R. App. P. 66.3(a), because the Court of Appeals has rendered a decision which is
in conflict with the decisions of another court of appeals on the same matter.
3
In its opinion, the Fourteenth Court of Appeals responded to Appellant’s
sole point of error by citing and using case law which appears to be in conflict with
case law from other Court of Appeals’ decisions on the same issue, which
Appellant cited and used in his brief. In other words, there is no bright-line rule
for determining intoxication. All the cases conflict with one another in interpreting
or making a determination of intoxication which leaves a jury to speculate.
As Appellant argued in his brief, although there are cases that indicate the
opinion of an officer is sufficient to prove intoxication, those line of cases, again
include more factors and corroboration, such as: failure of field sobriety tests, a
breath test, an accident, swerving from lane to lane and staggering while walking,
that contributed to the officer’s opinion. None of these factors were present in this
case.
In its opinion, this Court cited the following cases, to support its holding that
in a DWI prosecution, generally evidence is sufficient to prove intoxication when
the arresting officer opines that a person is intoxicated based on observed cues of
intoxication:
Annis, Trooper Martin, the arresting officer, testified that he formed an
opinion as to appellant's intoxication prior to and independent of the "breathalyzer"
test. Supporting this independent opinion, Trooper Martin stated that while
4
following appellant's vehicle he noticed the vehicle swerve across a lane-dividing
stripe several times. When Trooper Martin attempted a traffic stop, appellant
pulled into the parking lot of a tavern and parked. Approaching appellant, Trooper
Martin observed that appellant appeared disorderly and that his speech was "mush-
mouthed." Appellant's eyes were red and his breath smelled of alcohol. Further,
Appellant swayed from side to side when walking or standing. Annis v. State, 578
S.W.2d 406 (Tex. Cr. App., 1979).
In Kiffe, the appellant nearly rear-ended the vehicle in front of him,
but at the last moment again swerved, clipping the rear driver-side door of that
vehicle and then crossed into oncoming traffic and struck the front of the other
vehicle. Both airbags deployed in the other vehicle, which was totaled in the
collision. Immediately after the collision, the witness, whose car was struck,
stated that Kiffe appeared drunk. According to the witness, Kiffe staggered when
he walked, slurred his speech when he spoke, and had the smell of alcohol on his
breath. Another witness also thought Kiffe was drunk and testified that Kiffe had a
“discombobulated look on his face” and staggered around as if he could not
maintain his balance. He said that Kiffe looked “just ... out of it.” Trooper Terry
observed that Kiffe had an unstable gait, pinpointed pupils, and slurred speech.
Based on these characteristics and his experience as a state trooper, Trooper Terry
concluded that Kiffe was intoxicated. While in route to the hospital, Kiffe told the
5
EMS technicians that he had taken “1/2 a bar of Xanax” the night before the
accident. He denied any alcohol or drug use on the day of the accident. Kiffe v.
State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).
In Irion, Officer Olvera of the Austin Police Department observed
appellant's car weaving from lane to lane on Research Boulevard. The vehicle
continued weaving after turning onto Burnet Road, while traveling 30 to 35 miles
per hour in a 45 miles-per-hour zone. After stopping appellant's car, Officer Olvera
asked her to exit her vehicle. He observed that her eyes were bloodshot, her breath
smelled of alcohol, and she swayed from side to side. Appellant then performed
poorly on several field sobriety tests. Irion v. State, 703 S.W.2d 362 (Tex.App.-
Austin, 1986).
In Lovett, the officer administered a horizontal-gaze nystagmus (HGN) field-
sobriety test on the appellant and concluded that appellant exhibited six clues of
intoxication. The officer also attempted to administer a walk-and-turn field
sobriety test and had explained the instructions for the test to appellant. Appellant
expressed a desire to walk along a painted yellow line in the parking lot instead of
walking along an imaginary line as the officer instructed. Appellant also expressed
a desire to record the test with his cell phone and removed the phone from his
pocket to film the test. Appellant refused the officer’s instructions to put his phone
6
away to perform the test. The officer characterized appellant’s demeanor as
belligerent. The officer placed appellant under arrest, believing appellant to be
intoxicated based on appellant’s demeanor, bloodshot eyes, slurred speech,
unsteadiness, and the odor of alcohol on appellant’s breath. Lovett v. State, No.
14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—Houston [14th Dist.] June
25, 2013, no pet.) (mem. op., not designated for publication).
In Cloud, Appellant was driving a truck on Interstate Highway 10 on
January 13, 2007, when he passed Officer Charles Beckworth. Officer Beckworth
testified that he had detained another driver for a traffic violation and was exiting
his vehicle when appellant came by me in his truck and almost hit me. I had to
lean up against the patrol car. Officer Beckworth finished writing the citation,
pursued appellant, and pulled him over. When he approached the driver’s side
window of appellant’s truck, he smelled alcohol and saw that appellant had red
eyes and flushed skin. Officer Beckworth asked appellant to exit the vehicle, and
when appellant did so he appeared unsteady. Officer Beckworth testified that
appellant’s speech was slurred. Officer Beckworth told appellant to spit out his
chewing gum, and when appellant did so, Officer Beckworth smelled alcohol on
his breath. Officer Beckworth also testified that appellant tore off the bracelet he
was wearing, which appeared to be a paper bracelet allowing admission to a bar or
nightclub. Appellant stated he had come from the Katy Mills Mall. Officer
7
Beckworth testified that there was only one place open at that hour at the Katy
Mills Mall, a nightclub called Midnight Rodeo. Appellant refused to perform any
field sobriety tests at the site of the stop. Appellant later refused to take a
breathalyzer test. Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2
(Tex. App.—Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not
designated for publication).
Appellant relied upon Annis, Kiffe and Irion and the following in his brief to
distinguish these cases because of the lack of more factors and corroboration which
are sufficient to prove intoxication.
In Scott, the State's evidence in this case was given by the arresting officer,
Charles Marsh. He testified that he was patrolling on Stemmons Freeway in Dallas
on February 14, 1994, at about 11:45 p.m., when he observed an automobile driven
by Scott swerve back and forth three or four times, straddling the centerline of its
lane of traffic. He pulled the car over to investigate the offense of failure to
maintain a single lane. He asked Scott if he had been drinking, and Scott said he
had "two or three." The officer testified that Scott's eyes were red, he smelled of
alcohol, there was a slight slur in his speech, and he was unsteady on his feet.
Marsh said he had Scott perform a straight-line test, and that Scott lost his balance
8
and "fell off to the side" two or three times. Marsh gave Scott no other test. Scott
v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).
In Martin, the officer testified that appellant stumbled as he got out of
his car, he staggered and swayed as he stood, his speech was slurred and his tongue
was thick, his eyes bloodshot and watery, and his hand-eye coordination was
sluggish. The officer also testified that appellant failed three field sobriety tests
conducted at the scene of the arrest. Appellant failed the horizontal gaze and
astigma test, he could not count from one to four on his fingers, and he could not
recite the alphabet out loud. While in jail, Appellant consented to taking the
intoxilyzer test. The test was administered to Appellant at approximately 7:00 p.m.
the same day. The test results indicated that Appellant's blood alcohol content was
0.21%, over twice the legal limit. Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort
Worth, 1987).
In Hartman, Trooper Phillip Gonzales stopped Hartman after radar detected
she was driving eighty-three miles per hour on an interstate highway. Trooper
Gonzales approached Hartman's vehicle and detected a strong odor of alcohol
emanating from Hartman and her vehicle. He observed a nearly-empty bottle of
vodka on the front seat of her vehicle.2 Hartman admitted to Trooper Gonzales that
she last consumed a few drinks, "something stronger than beer," at about 10:30
9
p.m. After Hartman failed the standard field sobriety tests, Trooper Gonzales
arrested her for driving while intoxicated. Hartman v. State, 198 S.W.3d 829 (Tex.
App., Corpus Christi-Edinburg 2006).
In this case, there is no evidence of failure of field sobriety tests, a breath
test, an accident, swerving from lane to lane or staggering while walking. These
factors of intoxication would be stronger, sufficient evidence for a rational jury to
find beyond a reasonable doubt that a defendant was intoxicated.
In addition, the only possible indicators of intoxication according to Officer
Gonzales’ testimony were: the Appellant was driving the wrong way on the
freeway, (RR 4 at 27), unsteady and unbalanced (RR 4 at 28), red bloodshot eyes,
(RR 4 at 29), possible urine on Appellant, (RR 4 at 25), could smell a strong odor
of alcoholic beverage emanating from the Appellant’s breath and person, (RR 4 at
16), the Appellant refused field sobriety tests, (RR 4 at 18), the Appellant refused
the blood test, (RR 4 at 22) and bottles of beer inside Appellant’s vehicle. (RR 4 at
23).
Morales testified that the only indicators that the Appellant was intoxicated
were: a little dazed and confused, speech was very slurred, appeared to have
urinated on himself and he refused to perform field sobriety tests Officer Gonzales
had requested. (RR 4 at 80).
10
However, on cross examination of Gonzales, he conceded that there could be
other possible reasons for the indicators of intoxication. In addition, Morales said
that it is entirely possible that the wet spot on the Appellant’s pants came from that
beer possibly spilling when it was sitting in his lap. Morales had never met the
Appellant before that night and never heard him talk before yet didn't have a hard
time understanding him that night. Morales said that a mistake was made by not
drawing the Appellant’s blood because of his prior convictions. (RR 4 at 85-89).
It is clear from the argument, authorities, and statements from the record that
this Court has committed error in its judgment. This Court draws an incorrect
conclusion in that none of those particular facts are required for a rational jury to
find beyond a reasonable doubt that a defendant was intoxicated. Reviewing the
evidence discussed above and the entire record, a rational jury could not have
found that appellant was intoxicated without more factors and corroboration.
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Jaime Lee Gamez,
prays that this Court grant the Petition for Discretionary Review for Appellant,
order briefing on this cause, and set it for submission at the earliest possible date.
Moreover, upon submission and review of the appellate record and the briefs and
arguments of counsel, the Court issue an opinion resolving this conflict so that the
bench and bar of this state will know how to address and dispose of similar issues
in the future.
Respectfully submitted,
/s/Michael C. Diaz
Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401
State Bar No. 00793616
Attorney for Appellant
12
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing
document, Appellant’s Petition for Discretionary Review, filed on October 19,
2015, has 3336 words, based upon the word count under Microsoft Word.
/s/ Michael C. Diaz
Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401
Texas Bar No. 00793616
E-mail: mjoeldiaz@sbcglobal.net
Attorney for Appellant
13
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a
true and correct copy of the foregoing Petition for Discretionary Review has been
served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422
Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 19th day of
October, 2015.
/s/Michael C. Diaz
Michael C. Diaz
14
APPENDIX
15
16
Affirmed and Memorandum Opinion filed August 4, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00203-CR
JAIME LEE GAMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 12-DCR-061850
MEMORANDUM OPINION
A jury found appellant Jaime Lee Gamez guilty of felony driving while
intoxicated (DWI), enhanced by a prior felony DWI, and assessed punishment at fifteen
years’ confinement. See Tex. Penal Code Ann. §§ 12.42(b), 49.04, 49.09(b)(2). In two
issues, appellant contends (1) the evidence is legally insufficient, and (2) the trial court
erred by denying appellant’s motion to suppress. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends the evidence is legally insufficient to prove
he was intoxicated. Appellant argues that because there is no evidence his blood
alcohol concentration was 0.08 or more, the “only issue is whether [he] did not have his
normal use of his mental or physical faculties due to alcohol.” See Tex. Penal Code
Ann. § 49.01(2) (defining “intoxicated”).
“In determining whether the evidence is legally sufficient to support a conviction,
a reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational fact finder could have found the essential elements of the crime
beyond a reasonable doubt.” Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014) (quotation omitted); see also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).
In reviewing historical facts that support conflicting inferences, we must presume that
the jury resolved any conflicts in the State’s favor, and we must defer to that resolution.
Whatley, 445 S.W.3d at 166. “[A]n inference is a conclusion reached by considering
other facts and deducing a logical consequence from them.” Id. (alteration in original)
(quotation omitted).
In a DWI prosecution, generally evidence is sufficient to prove intoxication when
the arresting officer opines that a person is intoxicated based on observed cues of
intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]
1979) (sufficient evidence based on arresting officer’s opinion testimony); Kiffe v. State,
361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“Also, as a
general rule, the testimony of an officer that a person is intoxicated provides sufficient
evidence to establish the element of intoxication for the offense of DW[I].”); accord
Irion v. State, 703 S.W.2d 362, 364 (Tex. App.—Austin 1986, no writ); see also Lovett
v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—Houston [14th
Dist.] June 25, 2013, no pet.) (mem. op., not designated for publication); Cloud v. State,
No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—Houston [14th Dist.] June
2
24, 2008, pet. ref’d) (mem. op., not designated for publication).
Here, two police officers stopped appellant because he was driving the wrong
way on a freeway. Officer Benny Gonzalez opined that appellant was intoxicated
because appellant (1) had a strong odor of alcohol emanating from his person and
breath; (2) did not realize he was driving the wrong way on the freeway; (3) was
unsteady on his feet and unbalanced; (4) had red, bloodshot eyes; (5) appeared to have
urinated on himself, which is common for DWI suspects; and (6) refused field sobriety
tests and a blood test. There was also an open bottle of beer on the floorboard of the
driver’s side of appellant’s vehicle. On cross-examination, Gonzalez acknowledged that
appellant did not stumble or fall, and it was possible the wet spot on appellant’s pants
was from a spilled beer rather than urine. Sergeant Marty Morales also testified that he
believed appellant was intoxicated, and appellant (1) had slurred speech; (2) was dazed
and confused; and (3) urinated on himself. On cross-examination, Morales
acknowledged that it was a mistake to not have tested appellant’s blood for alcohol.
Appellant cites six cases in which various appellate courts affirmed convictions
for DWI,1 and he attempts to distinguish those cases because there is no evidence that
appellant failed field sobriety tests or a breath test, was in an accident or swerved from
lane to lane, or staggered while he walked. However, none of those particular facts is
required for a rational jury to find beyond a reasonable doubt that a defendant was
intoxicated. Reviewing the evidence discussed above and the entire record, a rational
jury could have found that appellant was intoxicated. See, e.g., Jackson v. State, No.
14-13-00170-CR, — S.W.3d —, 2015 WL 3459521, at *2–3 (Tex. App.—Houston
[14th Dist.] May 28, 2015, no pet. h.) (sufficient evidence of intoxication existed when
1
See Annis, 578 S.W.2d 406; Kiffe, 361 S.W.3d 104; Hartman v. State, 198 S.W.3d 829 (Tex.
App.—Corpus Christi 2006, pet. struck); Scott v. State, 914 S.W.2d 628 (Tex. App.—Texarkana 1995,
no pet.); Martin v. State, 724 S.W.2d 135 (Tex. App.—Fort Worth 1987, no pet.); Irion, 703 S.W.2d
362.
3
the defendant wore disorderly clothing and had an unsteady gait and stance, incoherent
speech, red and glassy eyes, and a combative behavior; the defendant’s breath smelled
of alcohol; the defendant refused a breath test and field sobriety tests; a fresh alcoholic
beverage was found in the vehicle; and a police officer opined that the defendant was
intoxicated); Kiffe, 361 S.W.3d at 106, 108–09 (sufficient evidence of intoxication
existed when an officer opined that the defendant was intoxicated because he observed
slurred speech, unstable gait, and pinpointed pupils, and the defendant was swerving in
and out of his lane, struck another vehicle, and drove into oncoming traffic; officer did
not conduct a field sobriety test or smell alcohol); see also Lovett, 2013 WL 3243363, at
*3 (“As a general rule, the testimony of a peace officer that a person is intoxicated
provides sufficient evidence to establish the element of intoxication.”). The evidence is
legally sufficient to prove intoxication.
Appellant’s first issue is overruled.
II. MOTION TO SUPPRESS
In his second issue, appellant contends the trial court abused its discretion by
denying appellant’s motion to suppress. He contends that the officers “lacked any
probable cause to arrest [him] for driving while intoxicated.” Appellant appears to be
urging that an unlawful arrest occurred when the officers stopped appellant’s vehicle,
ordered him out at gunpoint, and briefly handcuffed him. Then, the officers uncuffed
appellant and began questioning him to investigate a possible DWI. The officers asked
appellant to take field sobriety tests several times, and after appellant refused to perform
the tests, the officers arrested him for DWI.
However, appellant’s counsel concedes that the undisputed facts support
appellant being “under arrest at the moment Gonzales drew his gun for the offense of
driving the wrong way.” See Tex. Transp. Code Ann. § 545.063 (operator shall drive
on the right roadway of a divided freeway); id. § 543.001 (peace officer may arrest
4
person violating the rules of the road). The test for probable cause for a warrantless
arrest is “whether at the moment of the arrest the facts and circumstances within the
officer’s knowledge and of which he had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the arrested person had committed
or was committing an offense.” State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim.
App. 2002) (quotation omitted). Here, the officers observed appellant violating the
rules of the road by driving on the wrong side of the freeway. The trial court would not
have abused its discretion in concluding that the officers had probable cause to arrest
appellant at the beginning of the traffic stop, and so an arrest occurring at that time
would have been lawful.2
Appellant’s second issue is overruled.
III. CONCLUSION
Having overruled both of appellant’s issues, we affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
2
To the extent appellant is complaining about his arrest at the conclusion of the traffic stop, we
note that the trial court in fact suppressed all verbal statements obtained after appellant unequivocally
refused the field sobriety test for the first time.
Appellant limits his argument on appeal to the issue of probable cause. He does not contend, as
trial counsel did, that he was subject to a custodial interrogation without receiving adequate Miranda
warnings.
5