Opinion
No. 05-10-00816-CR
01-25-2012
FRED JACKSON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued January 25, 2012
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB08-66442-K
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion by Justice Murphy
Fred Jackson appeals his driving while intoxicated (DWI) conviction for which he was fined $500 and sentenced to ninety days in jail, probated for one year. See Tex. Penal Code Ann. § 49.04(a),(b) (West 2011); see also id. § 12.22 (West 2011). Appellant claims in a single issue that the trial court should have granted his motion to suppress because the police lacked probable cause to arrest him for DWI. We affirm.
STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725. We give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We also afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where, as here, the trial court makes no fact-findings, we assume the trial court made implicit fact-findings if the evidence, viewed in the light most favorable to the trial court's ruling, supports the implied findings. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); Guzman, 955 S.W.2d at 89. We apply a de novo standard of review to all other mixed questions of law and fact, including probable cause for appellant's arrest. See Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010).
Probable cause to arrest exists when the police have reasonably trustworthy information that would warrant a reasonably cautious person to believe that an offense has been or is being committed. See Carroll v. United States, 267 U.S. 132, 162 (1925). The legal determination of probable cause is based on the totality of the circumstances and practical common sense. See Illinois v. Gates, 462 U.S. 213, 231-39 (1983). There is no all-encompassing definition of probable cause because it is a fluid concept "turning on the assessment of probabilities in particular factual contexts." Id. at 232. Only a "probability" of criminal activity is the standard for probable cause and "[f]inely tuned" standards such as proof beyond a reasonable doubt or by a preponderance of the evidence have no place in making a probable cause determination. Id. at 235; Guzman, 955 S.W.2d at 87.
ANALYSIS
The suppression-hearing record reflects that Dallas Police Officer John Tutt was the only witness to testify. Tutt testified that: (1) Tutt and his partner responded to the scene of an accident involving several cars; (2) appellant approached Tutt at the scene and informed Tutt that he had been the driver of one of the cars; (3) the driver of one of the other cars involved in the accident told Tutt that the accident was appellant's fault; (4) appellant had bloodshot eyes and his breath smelled of alcohol; (5) appellant was "overly friendly" and kept touching Tutt, who told appellant more than once not to touch him; (6) appellant exhibited a sufficient number of "clues" indicative of intoxication in each of three field sobriety tests that Tutt administered to appellant (the horizontal gaze nystagmus [HGN] test, the walk-and-turn test, and the one-leg-stand test); and (7) Tutt arrested appellant for DWI following these field sobriety tests. This evidence, viewed in the light most favorable to the trial court's denial of appellant's motion to suppress, is sufficient to support findings that Tutt reasonably believed there was a "probability" that appellant had been driving while intoxicated. See Gates, 462 U.S. at 235 (only a "probability" of criminal activity is the standard for probable cause).
In support of his argument that Tutt lacked probable cause to arrest him for DWI, appellant relies on Tutt's testimony that the smell of alcohol on appellant's breath did not necessarily indicate intoxication and that appellant's bloodshot eyes could have been caused by chemicals released from the vehicle's air bag deployment during the accident. This testimony does not require a decision contrary to our conclusion stated above. The possibility of an innocent explanation for appellant's bloodshot eyes and the smell of alcohol on his breath did not deprive Tutt of the capacity to entertain a reasonable suspicion of criminal conduct justifying further investigation. See State v. Castleberry, 332 S.W.3d 460, 468 (Tex. Crim. App. 2011).
Appellant also argues that Tutt administered the HGN test improperly, he miscounted the points on the walk-and-turn test, and he misapplied the one-leg-stand test. The State responds that Tutt had probable cause to make the DWI arrest of appellant without considering the field sobriety tests. Additionally, the State argues there was no affirmative evidence presented at the suppression hearing to show any deficiency in the manner in which Tutt administered the tests or his interpretation of the results.
In our review of the trial court's ruling on the motion to suppress, we consider only the record of the suppression hearing because that is the only evidence before the trial court at the time of its ruling on appellant's motion to suppress; the suppression issue of probable cause for appellant's arrest was not relitigated at appellant's trial. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007) (in reviewing trial court's pretrial ruling on suppression motion, reviewing court generally limited to record produced at hearing unless parties relitigate suppression issue at trial); see also Rangel v. State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008) (per curiam) (declining to examine propriety of trial judge's ruling based on evidence admitted after ruling and that trial judge had no opportunity to consider). Here, appellant did not attempt to relitigate the legality of his arrest either with a requested jury charge question or by a request that the trial court reconsider its prior ruling. We overrule appellant's sole issue and affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100816F.U05