State v. Wallis

Full title: THE STATE OF TEXAS, Appellant v. GREGORY WALLIS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 27, 2009

No. 05-08-00833-CR (Tex. App. Apr. 27, 2009)

Opinion

No. 05-08-00833-CR

Opinion Filed April 27, 2009. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the County Criminal Court No. 4 Dallas County, Texas, Trial Court Cause No. MB07-33529.

Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.

OPINION

JOSEPH B. MORRIS, Justice.

In this appeal, the State challenges the trial court's order granting Gregory Wallis's motion to suppress. Concluding the trial court erred in granting appellee's motion, we reverse the order and remand the case for further proceedings.

Factual Background

Appellee was charged by information with driving while intoxicated. In his motion to suppress, he challenged the arresting officer's authority to detain and arrest him. The officer was dispatched to appellee's apartment complex. The dispatch office informed the officer that a white car had backed into another car in the parking lot and was "driving around the parking lot possibly DWI." When the officer got to the public parking lot, he saw appellee driving a white car matching the description he had been given. The car also had a dent in the center rear bumper, which the officer suspected could have been caused by the car backing into another vehicle. Appellee's car was the only one the officer saw moving in the parking lot at that time, and the officer knew that the apartment complex was "very small." The officer observed appellee drive the car for approximately six seconds before appellee parked the car. He failed to line up the car parallel to the other diagonally parked cars in the lot. The officer parked his car nearby and turned on his emergency overhead lights. By the time he got to appellee's car, appellee's engine was off and his driver's side window was down. The officer smelled the strong odor of an alcoholic beverage coming from the vehicle. He also noticed a blue plastic cup in the center console and what appeared to be an empty beer bottle lying in the front passenger seat. Appellee gave the officer his driver's license when the officer requested it. When the officer asked him where he had been, appellee stated that he had come from Burleson, Texas. His speech was slurred. He told the officer that he lived at the apartment complex, and he drank from the blue plastic cup as he talked with the officer. The officer later determined the cup contained an alcoholic beverage. When a back-up officer arrived at the scene, the two officers asked appellee to step out of his car so they could interview him. As he approached the back of his car, he stumbled and nearly fell down. At times, appellee's speech was so slurred the arresting officer had no idea what he was saying. The officer attempted to direct appellee to perform field sobriety tests, but appellee's balance was so impaired the officer eventually just had him lean back against the car. While the officer was attempting to instruct appellee about one of the tests, appellee explained, "I'm f**ed up, I can't do this." The officer arrested appellee for DWI. On cross-examination, the officer acknowledged that once he parked near appellee's vehicle in the parking lot, appellee was not free to go until the officer finished his investigation. A citizen-witness to appellee's erratic driving testified that, through a security camera he had installed to protect his truck from being burglarized, he observed appellee twice backing into another car in the parking lot of the apartment complex where they both lived. The witness's daughter, who also lived in the apartment complex, called 911. When police arrived on the scene, the witness went out to speak with an officer and offered the police a videotape of appellee's car backing into the other vehicle. At the conclusion of the suppression hearing, the trial judge made the following comments:

Well, it is clear to me that the defendant in this case was intoxicated, there's no doubt about that. We went from seeing somebody almost falling-down drunk to speaking in tongues, so to speak, with syllables that . . . could be called nonsense syllables at certain times. So public intoxication, yes.

I have a very big question about driving while intoxicated, however. All the evidence shows me is that a man got into a car to move it from one parking spot to another. It is true that he had to turn on the ignition and drive the car whatever number of feet that was to get around to the back of a unit to park his car by his own apartment.

I believe the intent of the driving while intoxicated law is to keep people off the streets or in parking lots who are going to be a danger to themselves or others. It is not clear at all to me that the defendant in this case was involved in significant driving, other than moving the car from one spot to another, and I don't think that's the intent of the driving while intoxicated law.

* * *

There is no indication there was any other car moving in that parking lot or that there were any other people in the parking lot. The officer himself stated this was a small parking lot and there were no other cars moving in that parking lot. Certainly, there was cause for a public intoxication charge in this case, absolutely, but in reference to a driving while intoxicated case I have serious reservations. I'm going to grant this Motion to Suppress.

Discussion

In its second issue on appeal, the State contends the trial court erred in granting the motion to suppress because the officer had reasonable suspicion to detain appellee and then acquired probable cause to arrest him. We agree. A police officer may temporarily detain a person if there is reasonable suspicion to believe that the detained person has violated the law. See Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App. 2008), cert. denied, 129 S. Ct. 1037 (2009). Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that the person has, or soon will be, engaged in criminal activity. We must consider the totality of the circumstances in making this determination. Id. We do not, however, take into account the subjective intent or motivations of the officer when considering the totality of the circumstances. We do consider the officer's training, knowledge, and experience. See Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App. 2007). Probable cause to arrest exists if the officer knows of facts that would lead a reasonable person to believe that the suspect has committed or will soon commit a crime. Neal, 256 S.W.3d at 280. In reviewing the trial court's decision to grant the motion to suppress, we accord almost total deference to the trial court's determination of the historical facts, especially if the determination turns on witnesses' credibility or demeanor. When the trial court makes no specific findings of fact, we view the evidence in the light most favorable the court's ruling. Where the trial court's applications of law to facts does not turn on credibility or demeanor, we review the determination de novo. See id. at 281. In this case, we can gather from the trial judge's comments that she believed appellee was obviously intoxicated and that he was in a public place for the purposes of convicting him of public intoxication. See Tex. Penal Code Ann. § 49.02 (Vernon Supp. 2008). She further noted that the officer had seen appellee operate the car to some extent. Nothing in the trial judge's comments reveals a belief by the judge that the officer was not a credible witness, nor was the officer's testimony contradicted by any defense witnesses. We therefore review the trial court's ruling under a de novo standard. See Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). Dispatch told the arresting officer that a car in appellee's apartment complex was "possibly DWI," had backed into another car in the parking lot, and was driving through the lot. Appellee's car matched the description of the car given by dispatch, and it had a dent on the center rear bumper. The officer saw no other cars moving in the lot, and he knew the apartment complex was very small. After the officer observed appellee park his car incorrectly, the officer parked his patrol car, activated the car's emergency lights, and approached appellee. Based on the facts of this case, the officer had reasonable suspicion to justify briefly detaining appellee to determine if he had caused a collision or was intoxicated as he drove through the parking lot. When the officer reached appellee, he smelled the strong odor of an alcoholic beverage coming from the car's open window and saw what he believed to be an empty beer bottle in the front passenger seat. These facts provided reasonable suspicion for the officer to detain appellee further for the purpose of investigating whether he had committed the offense of DWI. Moreover, once the officer began talking with appellee, he determined that appellee could not speak without severely slurring his words and that appellee could not balance enough to perform any of the field sobriety tests. Appellee essentially admitted to the officer that he was too incapacitated to submit to any of the field sobriety tests. And a witness whose daughter had called 911 appeared at the scene to confirm that he had seen appellee's car twice back into another car in the parking lot. This evidence provided the officer with probable cause to arrest appellee for driving while intoxicated. After reviewing all of the evidence before us, including the officer's video tape recording, we conclude the trial court erred in granting appellee's motion to suppress. We therefore resolve the State's second issue in its favor. Due to our disposition of this issue, we need not address the State's first issue. We reverse the trial court's order granting appellee's motion to suppress and remand the case for further proceedings.