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Foster v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 27, 2017
No. 06-16-00203-CR (Tex. App. Jun. 27, 2017)

Opinion

No. 06-16-00203-CR

06-27-2017

ROBERT RITER FOSTER, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 45,550-A Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION

After the trial court denied Robert Riter Foster's motion to suppress the fruits of a search warrant, Foster entered a plea of guilty to the offense of possession of a controlled substance in an amount more than one gram but less than four grams, this having been the subject of a plea agreement. Pursuant to that plea agreement, the trial court deferred a finding of guilt, and placed Foster on deferred adjudication community supervision for ten years. In his sole issue on appeal, Foster contends that the trial court erroneously denied his motion to suppress the evidence obtained pursuant to a search warrant. We affirm the trial court's judgment.

The trial court also ordered Foster to pay a fine in the amount of $10,000.00, as well as court costs and restitution.

I. Background

The trial court held two hearings on Foster's motion to suppress, where the following facts were established. On February 24, 2015, Gina Villarreal, a detective with the Longview Police Department, was on patrol in mid-afternoon when she observed a tan truck that appeared to be stuck in the median of a busy, four-lane highway. According to Villarreal, the weather had been inclement for several days, and the streets were icy. Villarreal stated that the median was "just mushy dirt and grass," and the tires on the truck were spinning in an attempt "to get unstuck." Villarreal exited her vehicle and asked if the driver, Foster (who correctly identified himself to Villareal as an attorney and former district attorney), was in need of assistance. Foster informed Villarreal "that they were fixing to get unstuck," but after a few more unsuccessful attempts to do so, Foster exited the truck. When Villarreal asked Foster to provide her with his driver's license, Foster gave her a credit card and, in the process, dropped other credit cards. Foster then began searching for his driver's license inside his vehicle while Villarreal attempted to contact a wrecker service.

Villarreal stated that Foster seemed to be unsteady on his feet and that she was having difficulty understanding what Foster was saying. Villarreal stated that she noticed a glass in Foster's hand and that when she moved closer to him, she could smell the odor of alcohol. Considering that Foster had a glass containing what Villarreal believed to be an alcoholic beverage and that Foster stumbled when he exited his truck, Villarreal contacted dispatch and asked for assistance at the scene. While waiting for assistance, Villarreal asked Foster where he had been and his intended destination. Foster responded that he had been at his residence and that he was traveling to the Hampton Inn.

Shortly afterward, Longview police officers Turner and Bray arrived at the scene, whereupon Villarreal made an effort to begin the process of conducting field sobriety tests on Foster. The dash cam video recording of the incident shows that after Villarreal informed Foster that she would be administering the sobriety tests, Foster asked Villarreal, "I don't suppose you have a lighter, do you?" Villarreal informed Foster that he could not smoke during the testing, to which Foster replied, "Oh, I can't?" Villarreal then proceeded to give Foster instructions regarding the Horizontal Gaze Nystagmus (HGN) Test. Villarreal stated that Foster was unable to comply with many of her instructions regarding the HGN Test. Villarreal testified that she noted four out of six clues, which were the lack of smooth pursuit in both eyes and distinct and sustained nystagmus at maximum deviation in both eyes. Next, Villarreal instructed Foster to perform the "walk and turn" test. According to Villarreal, Foster showed eight out of eight clues indicating intoxication. Villarreal asked Foster to perform the one leg stand, which resulted in Foster exhibiting four out of four clues of intoxication. Foster also failed the heel-to-toe walking test. The next test Foster attempted (but failed to perform satisfactorily) was the finger count test. Villarreal also asked Foster to recite the alphabet, which Foster successfully did.

Villarreal testified that she needed Turner at the scene to "watch over [her]" while she performed the field sobriety tests on Foster and that Bray was at the scene in order to "look out for traffic" while these tests were conducted.

On cross-examination, Villarreal testified that she, in fact, only observed two clues (lack of smooth pursuant in both eyes), but that Turner told her that he observed distinct and sustained nystagmus. However, in the recording of the incident, Turner is seen telling Villarreal that he saw a "little tick" during the HGN Test, but that "it was very minute."

Several times during the field sobriety testing, Foster told Villarreal that he suffered from Parkinson's disease and that he was unable to perform the sobriety tests in a successful manner due to the effects of the disease. According to Villarreal, Foster informed her that "[h]e had taken a handful of medications but did not know which ones." Foster also asked Villarreal if he could retrieve his medication from his vehicle, presumably in an attempt to substantiate his assertion that he suffered from Parkinson's disease. In addition, Foster explained to the officers during the testing, "I feel like I'm drunk, but I'm not."

Foster's wife, Stephanie Foster, testified that Foster suffered from Parkinson's disease and that he was under the care of multiple physicians, including a neurological specialist. She also stated that Foster's physicians had prescribed him various medications as a part of his treatment plan. In Stephanie's opinion, Parkinson's disease had affected Foster's coordination and balance, and it would have been impossible for Foster to have satisfactorily performed the field sobriety tests due to the effects of the disease.
During the hearing, Foster offered the affidavit of defense expert Dr. Lance A. Platt. According to Platt, Foster was not an appropriate candidate for four out of five of the tests that had been administered to him on the roadside, the exception being the alphabet test. Platt opined that in light of Villarreal's training, the fact that Foster suffered from Parkinson's disease should have been a "red flag" to her in regard to her probable cause determination.
The trial court also admitted: (1) a stipulation of evidence, wherein Foster stated that he "intentionally or knowingly possess[ed] . . . Cocaine, in an amount of one gram or more but less than four grams"; (2) a controlled substance analysis laboratory report from the Texas Department of Public Safety showing that the substance found in Foster's vehicle was cocaine; (3) the offense report of the incident; (4) two digital recordings depicting the events prior to Foster's arrest; (5) the affidavit of Platt; (6) the results of an internet search for the symptoms of Parkinson's disease; the results of an internet search for "parkinson's disease"; (7) a National Parkinson Foundation article entitled "Understanding Parkinson's"; (8) the results of an internet search for "parkinson's balance"; (9) the results of an internet search for "parkinson's affect on balance"; (10) the results of an internet search for "eye movement parkinson's disease"; and (11) an article from The Michael J. Fox Foundation entitled "Parkinson's Disease Symptoms." The searches regarding Parkinson's disease consistently showed that a person suffering from the disease might show signs of shaking, tremors, slow movement, rigid muscles, impaired posture, loss of automatic movements, and changes in speech.
In addition to the foregoing evidence, the trial court also admitted the affidavit of Susan V. Vickery, wherein she stated that she had been a paralegal for Foster from October 1996 to June 30, 2015. Vickery averred that during that time, she witnessed Foster "experiencing severe tremors, difficulty walking and standing, having serious problems with coordination and balance, and experiencing fatigue and dizziness." Vickery also opined, "[Foster] would not have been able to successfully perform those tests on even, flat ground on a sunny day, much less in the weather conditions and on the surfaces presented on the day of the arrest."

After concluding the testing, Villarreal contacted her supervisor, explaining that Foster had failed the majority of the sobriety tests and that Foster had informed her that he suffered from Parkinson's disease. Turner's supervisor explained to Villarreal that if Foster failed the sobriety tests and showed clues during the HGN test, she should proceed with a driving while intoxicated (DWI) arrest. When Villarreal informed Turner of her supervisor's advice, Turner stated, "Here's the deal. From what we're seeing, you don't need to be driving. So that's intoxicated. Whether it's medical, alcohol, or whatever, he's in a state that he doesn't need to be driving." Turner continued, "As far as I'm concerned, that's intoxication." Shortly thereafter, Villarreal placed Foster under arrest for the offense of DWI.

The trial court also admitted the offense report of the incident, which was written by Turner. According to Turner, after Foster was placed under arrest, he conducted a search of Foster's person. Pursuant to the search, Turner located a cell phone and cash that appeared to be covered in a white, powdery substance. Turner also found a small plastic bag containing a white, powdery substance and a "rolled up bill," which was also covered in the same thing. Based on his training and experience, Turner believed the white, powdery substance was cocaine. Turner placed Foster in the back of his patrol vehicle, and then obtained a small sample of the substance from the baggy for use in a field test. The test indicated that the substance was, in fact, cocaine. Turner subsequently conducted an inventory of Foster's vehicle and found an empty beer can on the driver's side floorboard of the vehicle. He also found an empty beer bottle in the backseat floorboard and a firearm in the center console of the vehicle. After completing the inventory search, Turner obtained a search warrant for the purpose of obtaining a blood specimen from Foster. Shortly thereafter, Foster's blood was drawn in accord with the warrant. Foster was then transported to the Gregg County Jail, where he was booked for the offenses of DWI, possession of a controlled substance of more than four grams but less than twenty grams, and unlawfully carrying a weapon.

The trial court granted Foster's motion to suppress the results of the blood draw.

Prior to trial, Foster filed a motion to suppress arguing that there was no probable cause to arrest him for the charge of DWI and that any evidence seized as a result of the search of his person or vehicle following his warrantless arrest was illegally obtained. Specifically, Foster argued that Villarreal was aware he suffered from Parkinson's disease, that having Parkinson's disease explained his poor performance on the field sobriety tests, and that without considering the results of the sobriety tests, there was insufficient evidence to support a finding that Foster was intoxicated. After two hearings on the matter, the trial court concluded, among other things, that (1) "there [was] insufficient evidence to find probable cause for [Foster]'s warrantless arrest solely based upon alcohol induced loss of normal use of faculties," and (2) "there [was] sufficient evidence to find probable cause on non-alcohol statutory grounds to sustain [Foster's] warrantless arrest."

Foster points out that there was no evidence demonstrating he had bloodshot eyes, slurred speech, or that he smelled of alcohol when he spoke to the officers. In other words, Foster did not exhibit any of the usual signs of intoxication.

The trial court granted Foster's motion to suppress the results of the blood draw.

In his sole point of error on appeal, Foster contends the trial court's order denying his motion to suppress was reversible error. In other words, Foster maintains that his arrest was made solely on the assumption that he was intoxicated by liquor and that his symptoms of intoxication may have been caused by Parkinson's disease. Because the officer's belief of Foster's alcohol intoxication was not proven, Foster maintains that the arrest itself was erroneous and that any fruits obtained from a subsequent search of his vehicle should have been suppressed. Foster asks this Court to vacate the trial court's order placing him on deferred adjudication community supervision and to remand the case to the trial court for entry of a judgment of acquittal.

II. Standard of Review

When an appellate court reviews a trial court's ruling on a motion to suppress, it must afford almost total deference to the "trial court's determination of the historical facts that the record supports[,] especially when the trial court's fact[-]findings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when the ruling is based on an application of law to a fact question that does not depend upon an evaluation of credibility or demeanor, an appellate court reviews the trial court's decision de novo. Id. Thus, we review the facts that led the trial court to conclude there was probable cause using an abuse of discretion standard; we review de novo the application of these facts to the legal tests to determine whether probable cause existed for Foster's arrest. See Chilman v. State, 22 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist. 2000, pet. ref'd).

III. Discussion

As described above, Villarreal placed Foster under arrest without the benefit of an arrest warrant. A warrantless arrest is unreasonable per se unless the arrest falls into one of a "few specifically defined and well delineated exceptions." Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). A law enforcement officer may arrest a person without a warrant only if probable cause exists with respect to that person and the arrest falls within one of the exceptions set out in Article 14.01 of the Texas Code of Criminal Procedure. Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987).

Article 14.01 states,

(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
TEX. CODE CRIM. PROC. ANN. art. 14.01 (West 2015).

Probable cause exists when the facts and circumstances within an officer's personal knowledge, or of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable prudence to believe that, more likely than not, a particular individual has committed the offense. Torres v. State, 182 S.W.3d 899, 901-02 (Tex. Crim. App. 2005). The standard for a finding of probable cause is an objective standard, requiring an officer to draw a reasonable conclusion from the facts available to him at the time of the arrest. Amores v. State, 816 S.W.2d 407, 415 (Tex. Crim. App. 1991).

Probable cause involves probabilities. "[I]t requires more than mere suspicion, but far less evidence than that needed to support a finding by a preponderance of the evidence." State v. Cullen, 227 S.W.3d 278, 281 (Tex. App.—San Antonio 2007, pet. ref'd). The United States Supreme Court recognizes that in some instances, law enforcement officers make mistakes when determining the existence of probable cause. "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community's protection.'" Heien v. N. Carolina, 135 S.Ct. 530, 536 (2014) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). "The limit is that 'the mistakes must be those of reasonable men.'" Id. (quoting Brinegar, 338 U.S. at 176).

In this case, officers found probable cause to arrest Foster for the offense of DWI. A person commits the offense of DWI if, while operating a motor vehicle in a public place, the person is intoxicated. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2016). The Texas Penal Code defines "intoxicated" as (1) "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 combination of two or more of those substances, or any other substance in the body," or (2) "having an alcohol concentration of 0.08 or more." TEX. PENAL CODE ANN. § 49.01(2) (West 2011).

Here, the evidence shows that Villarreal initially observed Foster after he had driven off the highway and into the grassy median and while he was in the process of attempting to drive his vehicle back onto the road. After determining that he would be unable to drive out of the median, Foster exited his vehicle carrying what was later determined to be a full glass of an alcoholic beverage. Foster was unsteady on his feet, and Villarreal could not understand what Foster was saying to her when he began speaking. In addition, when Villarreal asked Foster for his driver's license, Foster provided Villarreal with a credit card, and then proceeded to fumble with other credit cards instead of producing his driver's license. Foster failed every field sobriety test he was given, with the exception of orally reciting the alphabet. The recording of the incident shows that immediately prior to Foster's attempt to perform the heel-to-toe test, he had extreme difficulty even standing in one area; so much so that one of the officers placed himself near Foster's side in order to prevent him from falling over into the oncoming traffic. In addition, the recording also shows that Foster (1) repeatedly either ignored Villareal's instructions while giving him sobriety tests or failed to comprehend them and (2) exhibited quite unusual behavior by asking Villareal for a cigarette lighter during the period when he was being asked to perform sobriety tests. Moreover, Foster also explained to Villarreal that there were several different types of prescription medications inside of his vehicle, which drugs he was currently taking due to his Parkinson's disease. Lastly, by Foster's own admission, he felt "drunk."

Foster told Villarreal that his vehicle had hydroplaned, forcing him to leave the highway.

Foster presented no evidence that the rather extraordinary behavior exhibited by Foster during these instances would have been prompted by the effects of Parkinson's disease.

Foster emphasizes the fact that he repeatedly told Villarreal that he suffered from Parkinson's disease and that Villarreal could have effortlessly searched the internet from her patrol car to determine whether Parkinson's disease would have an affect on Foster's inability to perform the sobriety tests. The record does, in fact, show that Foster told Villarreal about his illness and that it was the reason he could not successfully complete the tests. Foster does not, however, point us to caselaw supporting his assertion that law enforcement is required to investigate to the extent he suggests prior to determining whether probable cause exists to support an arrest, especially when there are additional signs indicating that an arrest is appropriate. Likewise, Foster contends that the State could have (but did not) inspect the prescription drugs in his vehicle, presumably proving that Foster suffered from a disease that resulted in his physical impairment. While these additional inquires might have assisted the officers in forming an opinion of whether Foster was actually afflicted with Parkinson's disease, it would not have nullified the fact that Foster (1) lost control of his car and ran into the median, (2) was unable to provide Villarreal with his driver's license and fumbled about while attempting to do so, (3) could not follow simple instructions prior to commencing a sobriety test, (4) nearly fell down when he attempted to begin one of the sobriety tests, (5) admitted that he felt "drunk," or (6) informed Villarreal that there were prescription drugs in his vehicle, which drugs he was currently taking. Certainly, Foster was demonstrating symptoms of an inability to safely operate a motor vehicle, and many times those symptoms are caused by intoxication by alcohol or some other kind of intoxicant. Moreover, we are to keep in mind that Villarreal and Turner were required to consider the totality of the factual circumstances at the time of the arrest, and not what may or may not have been established at a later date.

While any one of the foregoing facts, alone, would not support a finding of probable cause to arrest Foster for DWI, considering the totality of the circumstances at the time of Foster's arrest, we conclude that the trial court did not err when it found that probable cause existed to arrest Foster for the offense of DWI by virtue of the introduction of some substance into his system. Likewise, it was not error for the trial court to deny Foster's motion to suppress.

Because we find probable cause existed to arrest Foster for DWI based on the introduction into his body of a substance other than alcohol, we find it unnecessary to address whether there was sufficient evidence to make a finding of probable cause to arrest Foster for DWI due to the consumption of alcohol.

IV. Conclusion

We affirm the trial court's judgment.

Bailey C. Moseley

Justice Date Submitted: April 26, 2017
Date Decided: June 27, 2017 Publish


Summaries of

Foster v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 27, 2017
No. 06-16-00203-CR (Tex. App. Jun. 27, 2017)
Case details for

Foster v. State

Case Details

Full title:ROBERT RITER FOSTER, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 27, 2017

Citations

No. 06-16-00203-CR (Tex. App. Jun. 27, 2017)