Opinion
NO. 14-19-00232-CR
08-06-2020
JOHN EVERETT JASEK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court Austin County, Texas
Trial Court Cause No. 2016R-0093
MAJORITY MEMORANDUM OPINION
Appellant John Everett Jasek appeals his conviction for third-degree felony driving while intoxicated ("DWI"). Appellant contends that: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred in denying his motions to suppress evidence of field sobriety test results and videotaped statements; (3) his conviction should not rest on the testimony of a single witness, the state trooper who arrested appellant; and (4) the trial court improperly allowed the trooper to testify regarding the odor of "processed" alcohol.
We conclude that sufficient evidence supports appellant's conviction; that the trial court did not err in denying appellant's motions to suppress; and that error, if any, in admitting the trooper's testimony about the odor of processed alcohol was harmless. Accordingly, we affirm the trial court's judgment.
Background
On a January night in 2016, Department of Public Safety ("DPS") Trooper Louis Gabler drove past a truck parked on the public roadside near Highway 159 and the Cochran Store in Austin County, Texas. Though parked, the truck was occupied and the engine was running. Trooper Gabler, driving a marked DPS patrol car, turned around to check whether the truck's occupant was safe. As the trooper approached the truck, appellant, alone in the driver's seat, activated the truck's hazard lights. Appellant then rolled down the window to speak with Trooper Gabler. Trooper Gabler immediately smelled the odor of an alcoholic beverage emanating from appellant's breath. The trooper also saw that appellant's eyes were "glazed and bloodshot."
Trooper Gabler asked appellant if he was okay. Appellant replied that he was and that he had pulled over to check his phone. Appellant said he came from a nearby store. When Trooper Gabler asked appellant if he had consumed any alcoholic beverages, appellant replied that he had three beers at the store. Appellant claimed to be on his way home, which was three or four miles down the road.
Based on his observations, Trooper Gabler determined it was appropriate to investigate whether appellant was intoxicated. He asked appellant to exit the truck so he could conduct field sobriety testing. Trooper Gabler performed a horizontal gaze nystagmus ("HGN") test on appellant, during which the trooper observed six out of six intoxication clues. Next, Trooper Gabler administered the "walk-and-turn" test, during which the trooper observed six of eight intoxication clues. Finally, the trooper administered the "one-leg-stand" test. Appellant put his foot down, swayed, and used his arms for balance during this test, which indicated to the trooper that appellant was intoxicated. Based on the "totality of the circumstances," including his observations and appellant's performance on the field sobriety tests, Trooper Gabler determined that appellant was intoxicated and placed him under arrest for DWI.
After Trooper Gabler handcuffed appellant, read him his Miranda rights, and provided him with the requisite statutory warnings, the trooper requested a blood specimen. Appellant refused to provide a specimen. Trooper Gabler attempted unsuccessfully to reach a magistrate to obtain a search warrant. The trooper transported appellant to jail.
A grand jury indicted appellant with third-degree felony DWI. See Tex. Penal Code §§ 49.04(a), 49.09(b). During appellant's jury trial, the trial court admitted into evidence a video recording of appellant's interactions with Trooper Gabler taken from the trooper's patrol vehicle dash camera. At the beginning of trial, the court read the following stipulation of evidence into the record:
The indictment alleged that appellant had two previous DWI convictions, and appellant pleaded "true" to these enhancement allegations.
The State at this time has offered State's Exhibit 2 and the Court has admitted State's Exhibit 2. The State and Defense agreed redact portions of the video. The State and Defense stipulate that the video and audio presented in State's Exhibit 2 fairly and accurately depict the relevant and admissible portions of Trooper Louis Montero Gabler's dash camera and in-car camera recordings.
Our record includes a signed copy of the stipulation.
Trooper Gabler testified as described above. After hearing the evidence and argument of counsel, the jury found appellant guilty as charged in the indictment. The jury assessed punishment at three years' confinement, and the trial court sentenced appellant accordingly.
Appellant timely appealed.
Analysis
A. Legally Sufficient Evidence Supports the Jury's Verdict
In appellant's first two issues, he contends that the evidence is legally and factually insufficient to support the jury's verdict. We apply only one standard to evaluate the evidentiary sufficiency to support a criminal conviction beyond a reasonable doubt: legal sufficiency. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Mason v. State, 416 S.W.3d 720, 728 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In a legal sufficiency review, circumstantial evidence is as probative as direct evidence, and a conviction can be supported solely by circumstantial evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Although we consider everything admitted at trial, we do not reevaluate the weight and credibility of the evidence, nor do we substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). "When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination." Murray, 457 S.W.3d at 448-49.
A person commits the offense of DWI if "the person is intoxicated while operating a motor vehicle in a public place." Tex. Penal Code § 49.04(a). Appellant contends that the evidence is legally insufficient to support his conviction because there is no evidence that he was operating a motor vehicle. According to appellant, the "only evidence of 'operating a motor vehicle' was that of Appellant sitting in a stationary car with a running motor on a cold, dark night and when approached by the Trooper, the emergency flasher lights came on." He does not contest, and the evidence is legally sufficient to establish, both the intoxication and public-place elements of the offense.
A temporal link must exist between the defendant's intoxication and operation of the vehicle. Kuciemba, 310 S.W.3d at 462. The Penal Code does not define the term "operate." But the Court of Criminal Appeals has taken a "totality of the circumstances" approach in deciding whether a defendant operated a vehicle. See Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1996). In Denton, the court stated that the defendant operated a vehicle when he "took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Id. The court reasoned that, although driving involves operation, operation does not necessarily involve driving. Id. at 389.
In Murray, the Court of Criminal Appeals applied Denton's totality-of-the-circumstances approach and determined that the defendant "operated" his vehicle for purposes of DWI. Murray, 457 S.W.3d at 449. There, the record showed that: (1) the arresting officer found Murray asleep and alone in the driver's seat of a running vehicle; (2) no one else was in the vicinity and there were no alcoholic beverages or containers in the area; (3) Murray smelled strongly of alcohol and displayed other signs of intoxication; and (4) Murray admitted that he had been drinking. Id. Based on this evidence, the court reasoned that a factfinder reasonably could have inferred that Murray consumed alcoholic beverages other than where he was found and that he drove his vehicle to the location where he was found after drinking to intoxication. Id.
In another factually similar case, the First Court of Appeals determined that the evidence sufficiently established the appellant "operated" his vehicle for DWI purposes because: (1) the defendant was alone in the driver's seat of a running truck, which was parked in a traffic lane; (2) no one else was nearby; and (3) the defendant stipulated that he was legally intoxicated. Hearne v. State, 80 S.W.3d 677, 678-79 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
The facts of today's case are quite similar to those in Murray and Hearne. The jury reasonably could have inferred that appellant operated his truck while intoxicated because: (1) he was in the driver's seat and the truck's engine was running; (2) no one else was nearby; (3) when Trooper Gabler approached, appellant activated the truck's emergency lights; (4) appellant told the trooper that he had been on his way home when he pulled off the road to check his phone; (5) appellant told Trooper Gabler that he had been drinking; (6) no alcoholic beverages were found in appellant's truck; and (7) appellant smelled strongly of alcohol and displayed other signs of intoxication. Appellant does not contest that he was intoxicated or that the truck was in a public place. Viewing the evidence in the light most favorable to the verdict, a jury reasonably could have found that appellant operated a vehicle while intoxicated. See Murray, 457 S.W.3d at 449; Hearne, 80 S.W.3d at 678-79.
We conclude that legally sufficient evidence supports the jury's finding that appellant operated a vehicle in a public place while intoxicated. We overrule appellant's first issue.
Because appellant's second issue challenges the factual sufficiency of the evidence, it presents nothing for our review, and we overrule it. See Temple, 390 S.W.3d at 360.
B. The Trial Court Did Not Err in Denying the Motions to Suppress
Before trial, appellant filed two motions to suppress, in which he sought to suppress the field sobriety test results, the video of appellant's arrest, and appellant's statements. Appellant's third and fourth issues, construed liberally, relate to the trial court's denial of his motions to suppress.
1. Standard of review and applicable law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to the trial court's determination of historical facts, provided that those determinations are supported by the record. Id.; State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We review de novo the trial court's application of law to those facts. Valtierra, 310 S.W.3d at 447. Generally, a sufficiently specific motion to suppress will preserve error in the admission of evidence if the motion is overruled by the court following a pretrial hearing, and a defendant need not object at trial to the same evidence. McCoslin v. State, 558 S.W.3d 816, 822 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).
2. The motion-to-suppress hearing
The trial court conducted a hearing on appellant's motions to suppress. During the hearing, appellant sought to suppress the field sobriety test results and videotaped statements on the grounds that (1) Trooper Gabler lacked reasonable suspicion to detain appellant, and (2) Trooper Gabler did not properly administer the HGN and walk-and-turn tests. Trooper Gabler was the only witness, and he testified about his decision to investigate appellant's truck parked on the side of the roadway, his observations that led him to believe that appellant may have been driving while intoxicated, and his administration of the field sobriety testing. The court admitted Trooper Gabler's dash cam video for purposes of the hearing.
As noted above, the court subsequently admitted the dash cam video at trial based on the parties' stipulation that it "fairly and accurately depict[ed] the relevant and admissible portions of [the trooper's] dash camera and in-car camera recordings."
After hearing the evidence and argument of counsel, the trial court denied appellant's motion to suppress as to Trooper Gabler's reasonable suspicion to conduct an investigatory detention of appellant, stating:
I feel, based on the time of night and proximity to the Cochran Store, that the officer, under his caretaking function, had more than enough reason to stop to investigate this vehicle, see what is going on and then once he encountered the individual, the smell of alcohol, the observation of the eyes and the admission from the person that he had at least two beers or two beers, that that gave rise to the officer to go further at that point. So I am going to deny the Motion to Suppress.
As to appellant's second argument raised in the motion to suppress—his objections to the field sobriety testing—the trial court carried those objections until trial. When the State offered this evidence at trial, however, appellant did not object to its admission, nor does he complain about the admission of this evidence on appeal. See Tex. R. Evid. 103(a) (claiming error in admission of evidence); Tex. R. App. P. 33.1(a)(1) (preservation of appellate complaint); Tex. R. App. P. 38.1(f) (presentation of issue).
3. Appellant did not preserve his probable cause issue
In his third issue, appellant contends that the trial court erred in denying his motion to suppress because the officer lacked probable cause to arrest him. Specifically, appellant contends that there is no evidence that he was operating a motor vehicle.
As discussed supra, there exists legally sufficient evidence that appellant was operating a motor vehicle while intoxicated.
An appellant's issue on appeal must comport with a trial objection. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) ("A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial."). Global assertions of constitutional violations in a written motion to suppress do not preserve tailored arguments, later presented on appeal, that differ from the specific complaints made in a suppression hearing. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Luckenbach v. State, 523 S.W.3d 849, 854-56 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Moreover, written motions to suppress asserting multiple grounds that are not subsequently asserted with argument during the suppression hearing do not preserve the subsequently unasserted grounds for appeal. Glenn v. State, 475 S.W.3d 530, 535 (Tex. App.—Texarkana 2014, no pet.); Johnson v. State, 263 S.W.3d 287, 290 (Tex. App.—Houston [1st Dist.] 2007, pet. dism'd).
In his written motion to suppress, appellant asserted that he was arrested without a warrant and "without reasonable suspicion or probable cause." He urged, "If an arrest is made based on offenses which occur outside the presence of the officer, then he must still have 'reasonably trustworthy information sufficient to warrant a prudent man in believing the arrested person had committed or was committing an offense.' State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011)." However, during the suppression hearing, appellant argued only that Trooper Gabler lacked reasonable suspicion to investigate; he did not contend alternatively that the trooper lacked probable cause to effect an arrest, nor did he otherwise articulate the probable cause argument he asserts on appeal, i.e., that nothing showed that he actually was driving his truck while intoxicated.
Because appellant did not assert during the motion-to-suppress hearing the probable cause arguments he now asserts on appeal, appellant's third issue is not preserved for our review. See, e.g., Clark, 365 S.W.3d at 339; Lovill, 319 S.W.3d at 691-92; Moreno v. State, 409 S.W.3d 723, 727-29 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (where arguments on appeal do not comport with those made in motion to suppress and suppression hearing, appellant failed to preserve complaint for review); Rothstein v. State, 267 S.W.3d 366, 373-74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (same); cf. also Swain, 181 S.W.3d at 365; Luckenbach, 523 S.W.3d at 854-56.
We overrule appellant's third issue.
4. Trooper Gabler had reasonable suspicion to detain appellant
In his fourth issue, appellant essentially contends that the State failed to prove that Trooper Gabler had reasonable suspicion to investigate appellant's parked vehicle. According to appellant, the trooper's testimony was unspecific and conclusory, and thus insufficient to support a finding of reasonable suspicion. Appellant suggests that this failure of proof at the motion-to-suppress stage, and the trial court's denial of the motion, effectively resulted in the jury giving "blind deference" to police officers.
Appellant's fourth issue is ambiguous. The issue, as stated, asserts that the State "effectively asks the Jury to give law enforcement testimony 'blind deference.'" The body of appellant's argument, however, focuses on testimony presented to the trial court during the motion-to-suppress hearing. For instance: (1) appellant challenges whether the trooper's testimony sufficiently established reasonable suspicion to investigate, as he argued to the trial court during the motion-to-suppress hearing; (2) appellant cites the standard of review applicable to suppression rulings; and (3) he directs us to Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005), in which the court—analyzing the denial of a motion to suppress—held that an officer's conclusory testimony did not support a finding of reasonable suspicion. Id. at 493-94. For these reasons, we construe appellant's fourth issue as a challenge to the trial court's denial of his motion to suppress on the ground that the trooper's testimony was too conclusory to support a finding of reasonable suspicion.
Under the Fourth Amendment, a warrantless detention that amounts to less than a custodial arrest must be justified by a reasonable suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, combined with rational inferences from those facts, would lead the officer to reasonably conclude that the person is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Under this objective standard, courts disregard any subjective intent of the officer and look solely to whether an objective basis for the detention exists. See Ford, 158 S.W.3d at 492. A reasonable-suspicion determination is made by considering the totality of the circumstances. Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).
Here, when Trooper Gabler spoke with appellant, he immediately noted a strong odor of alcohol emanating from appellant's person. Gabler also noticed that appellant's eyes were "glazed and bloodshot," and appellant admitted that he had had "a couple of beers" at a store not far away. The vehicle's engine was running, and appellant, the vehicle's sole occupant, was sitting in the driver's seat. Appellant told Trooper Gabler that he was "going to a residence a couple of miles down the road."
Appellant has not challenged that Trooper Gabler initially approached appellant's truck because he was concerned about appellant's well-being. E.g., Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002) (discussing police officer's community caretaking function).
Based on the above testimony, we conclude that Trooper Gabler provided specific, articulable facts that, combined with rational inferences from these facts and the totality of the circumstances, would lead a reasonable officer to believe that appellant had been or soon would be driving while intoxicated. See Castro, 227 S.W.3d at 741; see also Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (listing several indicia of intoxication, including bloodshot eyes and any admissions by the defendant that he had been drinking). In short, the trooper provided evidence that "supports more than an inarticulate hunch or intuition . . . that something of an apparently criminal nature [was] brewing." Derichsweiler v. State, 348 S.W.3d 906, 916-17 (Tex. Crim. App. 2011). Accordingly, the record supports the trial court's determination that the trooper had reasonable suspicion to detain appellant for further investigation.
We overrule appellant's fourth issue.
C. Admission of Testimony About Alcohol Odors Was Not Harmful Error
In his fifth issue, appellant contends that the trial court erred in admitting Trooper Gabler's testimony concerning the smell of what the trooper referred to as metabolized, or "processed," alcohol. Appellant contends that the trooper's testimony was tantamount to retrograde extrapolation evidence and was improper because Trooper Gabler was not an expert.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). The erroneous admission of evidence is non-constitutional error that requires reversal, i.e., is harmful, only if the error affects the appellant's substantial rights. Id. at 373. An error affects substantial rights only if the error had a substantial and injurious effect or influence in determining the jury's verdict. Id. But if we are fairly assured by the record as a whole that the error did not influence the jury or had only a slight effect, we will not overturn the conviction. See id.
During a pretrial hearing, the trial court ruled that Trooper Gabler could testify to the different odors of fresh or metabolized alcohol, so long as the trooper did not "quantify it" or "put a time frame on it." During trial, Trooper Gabler testified that he "could smell the odor of alcoholic beverage, as well as processed alcohol" on appellant. The prosecutor asked, "What is processed alcohol?", and appellant objected on the ground that it "goes to our previous hearing." The trial court overruled the objection, referring to its ruling during the pretrial hearing. Trooper Gabler then testified that "[p]rocessed alcohol is alcohol that has already been consumed and the body is already working on getting it out of it's [sic] system."
Appellant contends that the trial court erroneously overruled his objection because the trooper's testimony about the smell of "processed" alcohol was "improper extrapolation evidence," which purported to establish that appellant was intoxicated while driving. Presuming for argument's sake that appellant properly preserved this argument and further presuming that the trial court erred in admitting this evidence, we conclude that appellant was not harmed by the admission of this very brief testimony.
In determining whether error in admitting evidence harmed an appellant, we consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the evidence that drew the complaint. Id. Trooper Gabler did not testify further about the odor of processed alcohol, nor did he testify that the odor of "processed alcohol" was linked to any specific passage of time or level of intoxication. Nor did the State mention this evidence again during trial. Thus, the character of the evidence militates against finding harm. Further, the nature of the evidence supporting the verdict, and the existence and degree of additional evidence indicating guilt, do not support a finding of harm. Trooper Gabler testified that appellant displayed numerous intoxication clues during his field sobriety testing, and appellant admitted that he had been drinking at a nearby location. Finally, although the State briefly mentioned during closing argument that an odor of processed alcohol emanated from appellant, the State did not emphasize that testimony.
Considering the entire record, we are not persuaded that Trooper Gabler's testimony that he detected an odor of processed alcohol on appellant's person had a substantial and injurious effect or influence in determining the jury's verdict. We are fairly assured that this evidence had but a slight effect, if any, on the jury's verdict; thus, appellant's substantial rights were not affected.
Under these circumstances, we overrule appellant's fifth issue.
Conclusion
Having overruled appellant's five issues, we affirm he trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Frost and Justices Jewell and Spain (Spain, J., concurs in the judgment without opinion). Do Not Publish — Tex. R. App. P. 47.2(b).