No. 05-09-00097-CR
Opinion Filed December 9, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Grayson County, Texas, Trial Court Cause No. 2007-2-1358.
Before Chief Justice WRIGHT and Justices FITZGERALD and MURPHY.
Opinion By Justice MURPHY.
Ginger Renea Waller brings three points of error in this appeal from a jury conviction for misdemeanor driving while intoxicated (DWI). In her first point, Waller asserts the traffic stop that led to her arrest was not justified and, as a result, the trial court erred in denying her motion to suppress. In her second and third points, she asserts the State's evidence concerning the intoxicant was legally and factually insufficient to support the conviction. The State did not file a responsive brief. We sustain the first point, reverse the trial court's judgment, and remand this cause for further proceedings.
Background
The trial was short and began with a hearing, outside the jury's presence, on the motion to suppress. Whitesboro police officer Aaron Kelly, the sole witness at the hearing, testified he was on patrol around 8:30 p.m. when dispatch advised that a concerned citizen had called to report "a possible intoxicated driver." The caller gave a description of the car-"gray passenger"-and the general location; the caller did not offer any facts or other details as to the basis for suspecting the driver was intoxicated. Although dispatch had the caller's name and telephone number, Kelly drove to the general area identified without contacting the caller to obtain more information. Moments later, he observed Waller driving a car matching the description. Waller turned into a parking lot, passed Kelly, and "attempted to get back out on the roadway going the opposite direction." Kelly did not see Waller commit any traffic violations but noticed she was driving "at an extremely slow rate of speed"-ten to fifteen miles-per-hour, which was below the posted thirty-five miles-per-hour limit. Kelly testified "it was pouring down rain" and "would be safe for people to drive slower in those kind of weather conditions," but he did not think it was necessary to drive that slow. When asked about the significance of Waller's attempt to go in the opposite direction on the roadway, Kelly testified that Waller "could have been lost, she could have been attempting to get away from [Kelly], it could have been a number of things." "Based on the totality of the circumstances"-the tip of a "possible intoxicated driver," Waller's "driving well below the posted speed limit," and Waller's "appear[ing] to possibly be avoiding [him]," Kelly conducted a stop. After Waller failed to respond to the flashing overhead lights, Kelly sounded his air horn approximately six times. Kelly approached Waller and noticed both rear windows were down despite the heavy rain. Kelly asked Waller for her driver's license and proof of insurance, but Waller had neither. Kelly testified Waller's speech was "extremely slurred" and her eyes appeared to be glassy. He returned to his car and learned from dispatch that Waller's license was suspended. He arrested her for "driving while license invalid." Based on the vagueness of the tip and Kelly's admission that he did not corroborate the caller's suspicion and did not personally observe any traffic violations, Waller argued Kelly lacked reasonable suspicion for the stop. The trial court denied the motion, and the trial continued. Testifying once more as the sole witness, Kelly recounted what led to the stop, what transpired during the stop, his observations of Waller, and his basis for the arrest. Kelly testified he had two years' experience at the time of the stop and was certified to administer field sobriety tests. He did not smell alcohol on Waller's breath or see any alcoholic beverages in her car, but had to assist her into his car after handcuffing her because she "was so unsteady on her feet." Kelly testified he believed Waller "was intoxicated by some drug or narcotic" but did not arrest her for DWI because he did not want to administer any field sobriety tests in the rain. Once at the jail, he attempted to administer the tests to Waller and also sought to obtain a blood and breath sample. Waller refused. Kelly believed that Waller had lost the normal use of her mental or physical faculties, but did not know what caused her condition. He also testified "that there are a lot of medical conditions that cause slurred speech and glassy eyes," and that he had no expertise in drug recognition. The jury was instructed on the legality of the stop pursuant to article 38.23 of the Texas Code of Criminal Procedure. They returned a verdict finding Waller guilty of DWI. Following evidence on punishment, the jury assessed a ninety-day sentence and a $1000 fine. Legal Sufficiency of the Evidence
In reviewing a challenge to the legal sufficiency of the evidence, we apply the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) and examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2009). In conducting this review, we view all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). To establish Waller's guilt, the State had to prove beyond a reasonable doubt that Waller was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003); Gray v. State, 152 S.W.3d 125, 131 (Tex. Crim. App. 2004). Based on the charging instrument in this case, to establish Waller was "intoxicated," the State had to prove Waller had lost "the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body." See Tex. Penal Code Ann. § 49.01(2)(A); Bagheri v. State, 119 S.W.3d. 755, 762 (Tex. Crim. App. 2003). The State could prove this through circumstantial evidence and without proof of the type of intoxicant. See Gray, 152 S.W.3d at 132 ("the substance that causes intoxication is not an element of the offense"); Paschall v. State, 285 S.W.3d 166, 177 (Tex. App.-Fort Worth 2009, pet. ref'd) (intoxication may be proved by circumstantial evidence). Waller recognizes that the type of intoxicant is not an element of a DWI offense. She maintains, however, that the State still needed to prove " some intoxicant [was] introduced into [her] body." The record, she argues, fails to show that. Waller emphasizes that Kelly did not smell alcohol, find alcohol, or suspect alcohol as the reason for impairment. The record also contains no statements by Waller, either at the scene or at the jail, regarding use of alcohol or any substance; nor is there evidence of empty containers, prescriptions, or medical records suggesting use of alcohol, drugs, or other intoxicating substances. Waller argues the State's proof of the intoxicating substance was limited to Kelly's testimony that he " thought [Waller] was intoxicated by some drug or narcotic." Relying on Smithhart v. State, 503 S.W.2d 283 (Tex. Crim. App. 1973), Waller asserts this testimony was insufficient because Kelly was not a doctor, drug recognition expert, or EMT technician and could not provide any "basis, either in his own experience and training, or from circumstantial evidence, that supported his vague intuitions." In Smithhart, the appellant challenged the sufficiency of the evidence to support his conviction for driving "under the influence of drugs." 503 S.W.2d at 284. The proof in support of the conviction consisted of the testimony of a single witness-the arresting officer who had completed his training less than four months before the arrest and was a welder at the time of trial. Id. at 285. Reversing the conviction, the court of criminal appeals differentiated between intoxication by the use of drugs and "alcoholic intoxication." Id. at 285-86. Whereas "alcoholic intoxication . . . is `of such common occurrence' that its recognition requires no expertise," intoxication by the use of drugs requires expert opinion testimony that the accused was under the influence of drugs or evidence "connect[ing]" symptoms of intoxication "to a conclusion" that the accused was under the influence of a drug to a degree of impairment. Id. Because the State lacked expert testimony, the court reviewed the circumstantial evidence and determined the officer's testimony could not be considered. Id. Smithhart is inapplicable to this case. Smithhart was decided prior to Jackson v. Virginia and the adoption of the legal sufficiency standard of review. See Hooper, 214 S.W.3d at 15. Unlike the court in Smithhart, we are bound to consider all evidence admitted at trial, including Kelly's testimony that he believed Waller was intoxicated as a result of a drug or narcotic. Although Waller argues this testimony was insufficient because it could not be "supported" by Kelly's experience or circumstantial evidence, we conclude the testimony was supported by his two years of experience, his observations of Waller, and Waller's refusal to submit to the field sobriety, blood, and breath tests. From the evidence that Waller had slurred speech and glassy eyes, was unsteady on her feet, did not have a smell of alcohol on her breath, and refused to submit to the tests, we conclude a rational juror could have found beyond a reasonable doubt that Waller was intoxicated as a result of the introduction of a drug into her body. See, e.g., Tex. Transp. Code Ann. § 724.061 (Vernon 1999) (refusal of request to submit to breath or blood test admissible at trial); Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (evidence of refusal to submit to breath test "tends to show consciousness of guilt" and is relevant in DWI case); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001) ("[s]ince the definition of `intoxicated' includes `not having the normal use of mental or physical faculties,' any sign of impairment in [speech] would be circumstantially relevant [in a DWI case.]"); Cotton v. State, 686 S.W.2d 140, 142 n. 3 (Tex. Crim. App. 1985) (signs of intoxication include slurred speech and unsteady balance); Paschall, 285 S.W.3d at 178 (lack of smell of alcohol on breath factor from which jury could infer intoxication from controlled substance, drug, combination of those substances, or any substance). We overrule Waller's second point of error. Suppression of the Evidence
Waller's first point questions the legality of the stop and the court's denial of her motion to suppress. Waller maintains the court's ruling was erroneous because the stop could not be justified solely by the caller's uncorroborated tip of a "possible intoxicated driver." A traffic stop is an investigative detention and, to be lawful, must be justified by reasonable suspicion that a traffic violation or other crime has occurred or is occurring. See State v. Guzman, 240 S.W.3d 362, 366 (Tex. App.-Austin 2007, pet. ref'd); Garcia v. State, 3 S.W.3d 227, 233, 241 (Tex. App.-Houston [14th Dist.] 1999), aff'd, 43 S.W.3d 527 (Tex. Crim. App. 2001). The "reasonable suspicion" standard is an objective one and the burden of demonstrating reasonable suspicion falls on the State. Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.-Houston [14th Dist.] 2006, no pet.). In assessing reasonableness, we look at the totality of the circumstances, considering both the content of the information possessed by the detaining officer and its degree of reliability. State v. Fudge, 42 S.W.3d 226, 236, 237 (Tex. App.-Austin 2001, no pet.). When, as here, the information possessed by the officer comes from a citizen informant, the officer generally must have additional or corroborating facts to reasonably conclude the tip is reliable and a traffic stop justified. See Brother v. State, 166 S.W.3d 255, 259 n. 5 (Tex. Crim. App. 2005) (stop based on facts supplied by citizen-eyewitness lawful if adequately corroborated by arresting officer); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.-Fort Worth 1995, pet. ref'd) (tip by unnamed informant of undisclosed reliability standing alone "rarely will establish the requisite level of suspicion necessary to justify" stop). Those facts may include that the citizen "put himself in a position to be held accountable for his intervention" by identifying himself or making himself easily identifiable; specific details about the accused's actions and crime being committed; and the officer's experience, prior knowledge, and own corroboration of the details linking the accused to the offense being committed. See, e.g., Brother, 166 S.W.3d at 256-57, 258 (identifying information and specific details); Dowler v. State, 44 S.W.3d 666, 670 (Tex. App.-Austin 2001, pet. ref'd) (corroboration of details indicating criminal activity); Sailo, 910 S.W.2d at 186-87, 189 (specific details and officer's knowledge and experience). We will conclude reasonable suspicion existed for the stop if a person of reasonable caution, looking at the facts available to the officer at the moment of the investigation, would believe that a traffic violation occurred. Goudeau, 209 S.W.3d at 716. We review de novo a ruling on a suppression motion based on the legality of the stop. State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim. App. 2008). We will sustain the ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). In determining whether the trial court's ruling is supported by the record, we consider the evidence from the suppression hearing, and, if the motion was relitigated at trial, trial evidence also. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). When conducting our review, we do not engage in our own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Rather, we view the evidence in the light most favorable to the ruling. Iduarte, 268 S.W.3d at 548. We give almost complete deference to the determination of historical facts by the trial judge, who sits as the sole trier of fact and judge of the credibility of the witnesses and the weight of their testimony. St. George, 237 S.W.3d at 725. The totality of the circumstances leading to the stop was that Kelly received a call from dispatch about a possibly intoxicated driver in a gray passenger car; Kelly observed a gray passenger car in the general area driving at ten to fifteen miles-per-hour in a thirty-five miles-per-hour zone; it was "pouring" rain; the driver attempted to exit a parking lot to drive in the opposite direction from which the car had come; one possible reason for the change in direction was to avoid Kelly; and Kelly observed no traffic violations. Viewing this evidence in the light most favorable to the trial court's ruling, we agree with Waller that these facts did not provide an objective basis for the stop. The tip, though reliable to the extent dispatch had the caller's contact information and the caller was put in the position of accountability, lacked any facts. The record is silent as to the basis for the caller's suspicion; and no evidence exists corroborating the tip or identifying a traffic violation. On this record, we conclude the State failed to satisfy its burden of demonstrating reasonable suspicion and the trial court erred in denying Waller's motion. Compare, e.g., Pipkin v. State, 114 S.W.3d 649, 652-53, 655-56 (Tex. App.-Fort Worth 2003, no pet.) (reasonable suspicion established by citizen's tip of driver traveling approximately thirty miles-per-hour below the posted speed, smoking what appeared to be crack cocaine, and steering with knee; caller provided description, location, and license plate of car and own contact information) with State v. Griffey, 241 S.W.3d 700, 705-07 (Tex. App.-Austin 2007, pet. ref'd) (restaurant manager's report that appellant "passed out behind the wheel in the drive-through line" could not establish reasonable suspicion where officer observed exact opposite and no other behavior reported consistent with criminal activity). We sustain Waller's first point. We do not reach Waller's last point because of our disposition of the first point. Tex. R. App. P. 47.1. We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.