Opinion
No. 07-16-00281-CR
04-06-2017
ROY GONZALES, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas
Trial Court No. CR-15D-075 , Honorable Roland D. Saul, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Roy Gonzales, appeals his conviction for possessing a controlled substance. Through three issues, he contends the trial court erred in 1) denying his motion to suppress evidence and 2) failing to give an article 38.23 jury instruction. We affirm.
Background
The following facts were developed during the hearing on appellant's suppression motion. On December 7, 2014, two troopers with the Texas Highway Division of the Department of Public Safety (DPS) observed a vehicle commit a traffic violation by failing to signal a turn. They stopped the vehicle and learned that it was being driven by appellant.
One trooper, Deans, approached the driver side and asked appellant to exit the vehicle while the other, Sergeant Rejino, approached the passenger side to observe the interaction between appellant and Deans. After his initial interaction with appellant, Deans returned to the patrol car, checked for outstanding warrants, and decided to issue appellant a written warning. Upon Deans handing the warning ticket to appellant, Rejino asked appellant how much alcohol he had consumed. Appellant responded "one beer" and revealed that he had yet to finish it. Rejino apparently asked the question because he wanted Deans to observe things that he (Deans) may have missed but Rejino had seen. Rejino had observed those circumstances during his conversation with appellant, and that conversation transpired as Deans sat in the patrol car searching for outstanding warrants and completing the warning ticket. Appellant also alluded to the presence of an "open container" as the two spoke, which in itself constituted a violation of the law. This, then, led Rejino to tell Deans how much he (appellant) "had had to drink" once Deans returned.
When asked at the hearing about what he had observed that lead him to believe appellant had been drinking, Rejino alluded to the smell of alcohol on appellant and in the car, delayed reactions on the part of appellant, "a glazed-over appearance" to appellant's eyes, and a "drawl" in appellant's speech. Dean denied having observed any indicia of intoxication on the part of appellant or odor of alcohol before issuing the warning ticket and Rejino broaching the subject
Deans directed appellant to undergo field sobriety tests. The testing revealed the presence of a sufficient number of clues to give Deans probable cause to arrest appellant for intoxication, which Deans did. Rejino had also located a styrofoam cup of beer in the vehicle which he handed to Deans to confirm that it contained alcohol.
Rejino performed an inventory search of the vehicle. In doing that, he found "a glass pipe along with a plastic baggie containing a white substance." This led to further questioning of appellant and appellant's admission that the glass pipe and white substance were his and that the substance was methamphetamine.
Also occurring after arrest was appellant's submission to a breath test. The latter failed to detect the presence of alcohol, though, as did a second test. Eventually, appellant was transported to the county jail. There, he consented to a blood test. The blood test revealed the presence of methamphetamine in his body.
At trial, both Rejino and Deans (who was no longer a trooper) testified and repeated the foregoing facts. However, Rejino uttered additional matter relating to Deans' poor performance evaluations. So too did he state that he had noticed the odor of alcohol coming off of appellant's breath, that appellant seemed a little bit more distant, his eyes were red and, though his speech was not particularly slurred, he seemed relatively nervous or "a little bit more than what we're used to seeing." In turn, Deans mentioned that he failed to smell alcohol in the car or on appellant; yet, he admitted that the alcohol could be smelled once the styrofoam cup with the Clamato (beer) was removed from the vehicle by Rejino.
Issues One and Two - Suppression of Evidence
In his first two issues, appellant contends that the trial court erred in denying his motion to suppress because the officers 1) did not have reasonable suspicion to prolong the detention after deciding to issue a warning ticket, and 2) lacked individualized suspicion of criminal activity prior to issuing the traffic warning at the conclusion of the initial stop. We disagree and overrule both issues.
Appellant does not contend that the stop was illegal and, therefore, we do not address the legality of the stop. His arguments encompass whether the officers could have legally detained him once the purpose for the stop had been completed, i.e. the written warning had been issued.
As discussed above, Rejino testified that he had already developed suspicions regarding appellant's consumption of alcohol before Deans issued the warning. The circumstances underlying those suspicions were also disclosed to the trial court. In turn, Deans stated that he had not concluded the stop once he had determined to administer the field sobriety tests to appellant after Rejino questioned appellant about his alcohol consumption.
During an investigation of a traffic violation, if an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. See Sims v. State, 98 S.W.3d 292, 295-97 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (finding that the officer had reasonable suspicion to investigate criminal activity beyond the reason for the stop); Powell v. State, 5 S.W.3d 369, 378-79 (Tex. App.—Texarkana 1999, pet. ref'd) (holding that because of appellant's nervousness, the inconsistency in his statements, prior drug arrests, and his dishonesty about prior arrests, the officer had reasonable suspicion to investigate beyond the initial traffic offense); Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref'd) (holding that the smell of marihuana, during the officer's investigation of suspect's unsafe driving, supported reasonable suspicion to investigate drug activity). We find that from the collective knowledge of Trooper Deans and Sergeant Rejino a reasonable suspicion developed that another crime may be afoot to prolong the detention. See State v. Jennings, 958 S.W.2d 930, 933 (Tex. App.—Amarillo 1997, no pet.) (noting that circumstances to be considered in determining the reasonableness of a detention are those known by the officer making the stop as well as those collectively known by officers or agents cooperating in effecting the stop). The crimes involved both driving with an open container of alcohol and driving while intoxicated. And, again, the circumstances underlying the reasonable suspicion about those crimes being afoot arose before completion of the traffic stop and authorized the troopers to continue the detention to confirm or dispel their occurrence. The officers did that and encountered indicia vesting Deans with probable cause to believe that appellant was intoxicated while driving. Therefore, the trial court did not abuse its discretion in denying appellant's motion to suppress.
Issue Three - 38.23 Instruction
In his last issue, appellant contends that the trial court erred by failing to include an instruction in the jury charge pursuant to article 38.23 of the Texas Rules of Criminal Procedure. We overrule the issue.
At trial, defense counsel requested nine instructions regarding the legality of appellant's stop and continued detention. In requests 4 and 5, counsel for appellant stated:
So number 4: You are instructed that under our law, no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officers have specific, articulable facts, which, taken together with rational inferences from those facts, lead them to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity. Now, bearing in mind that unless you find beyond a reasonable doubt that, from the evidence, there was an odor of alcohol coming from [appellant's] vehicle at the time of the conclusion of Trooper Deans' traffic stop of [appellant] for the offense of failure to properly signal an intent to turn, or if you have a reasonable doubt thereof, then such detention of the accused would be illegal, and you will disregard any and all evidence obtained as a result of the [appellant's] detention by the officer, and you will not consider such evidence for any purpose whatsoever. Requested instruction number 5 -- I could save time, Your Honor, if it would help. It would be the very same as number 4, but instead of saying "[appellant's] vehicle," it would read "[appellant's] person."The trial court replied as follows:
THE COURT: All right. I -- I believe the only disputed fact the jury heard evidence of was concerning the -- whether or not proper turn signals were made when [appellant] turned his vehicle. And so your other requests -- and that includes 1 through 9 -- are denied.It then included the following instruction in its charge during the guilt / innocence phase of the trial:
You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officers
have specific articulable facts, which, taken together with rational inferences from those facts, lead them to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity. Now, bearing in mind that unless you find beyond a reasonable doubt that, from the evidence, Officer Samuel Deans actually believed [appellant], made an illegal turn without properly signaling his intent to turn or if you have a reasonable doubt thereof, then such detention of the accused would be illegal, and you will disregard any and all evidence obtained as a result of the [appellant's] detention by the officer and you will not consider such evidence for any purpose whatsoever.No instruction encompassing the legitimacy of the continued detention was afforded by the trial court, though.
Article 38.23 of the Texas Code of Criminal Procedure states that "where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); Bible v. State, No. 07-11-00192-CR, 2013 Tex. App. LEXIS 4455, at *10 (Tex. App.—Amarillo Apr. 8, 2013, no pet.) (mem. op., not designated for publication) (stating that a "trial court must give an article 38.23 instruction if the evidence raises a disputed fact issue about whether evidence was lawfully obtained"). The requirement that "the legal evidence raises an issue" is met when affirmative evidence creates a disputed issue of material fact. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). That is, a defendant is entitled to the submission if 1) the evidence heard by the jury raises a fact issue, 2) the evidence on that fact is affirmatively contested, and 3) that contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510; Bible v. State, 2013 Tex. App. LEXIS 4455, at *10. However, if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. Bible v. State, 2013 Tex. App. LEXIS 4455, at *10. Finally, an issue of material fact may be raised from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable. Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
Here, appellant asserts that "[t]he fact issues upon which Appellant sought jury review were those addressing the question of whether Trooper Deans and Sergeant Rejino had sufficient reasonable suspicion and probable cause to detain Appellant after the traffic stop." According to him, "[t]here was disputed evidence offered in the State's own case regarding whether the officers could smell alcohol on the person and in the vehicle of Appellant, and if either or both did, whether it occurred prior to the subsequent search of the vehicle." So too did he assert that "those fact issues gave rise to the right of Appellant to have the legality of the field sobriety tests and subsequent arrest of Appellant, as well as the search incident to the arrest, reviewed by the jury."
Assuming arguendo that Deans' inability to smell alcohol before Rejino offered the container of Clamato to him raised a fact issue concerning the presence of an odor of alcohol, it was immaterial. We arrive at that conclusion because: 1) though he did not smell alcohol during his initial encounter with appellant, Deans admitted that he smelled the alcohol in the opened container Rejino had removed from the car; 2) Deans did not dispute whether Rejino smelled alcohol in the car or on appellant's breath or whether appellant emitted other indicia of intoxication which Rejino may have observed before the warning ticket was issued; 3) the car contained an open container holding alcohol; 4) appellant admitted to Rejino that he (appellant) not only had something to drink but also had an open container in the vehicle; 5) the latter admissions were made as Rejino and appellant awaited Deans' return with the warning ticket; and 6) Rejino also noticed that appellant had alcohol on his breath, red eyes, "seemed distant," and appeared "relatively" nervous as they awaited Deans' return. To reiterate what we held in Bible, if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. The facts itemized above rendered Deans' inability to smell alcohol during his initial encounter with appellant immaterial.
Accordingly, we affirm the judgment.
Brian Quinn
Chief Justice Do not publish.