Opinion
NO. 03-18-00531-CR
08-07-2020
The State of Texas, Appellant v. Jeffrey Don Grays, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
NO. 2017CR1315 , THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING MEMORANDUM OPINION
The State of Texas appeals the trial court's order granting Jeffrey Don Grays's pretrial motion to suppress evidence in the underlying prosecution for the offense of driving while intoxicated (DWI). See Tex. R. App. P. 44.01(a)(5) (authorizing State's appeal from order granting motion to suppress); see also Tex. Penal Code § 49.04(a) (defining DWI offense). The State contends that the trial court erred by granting the motion to suppress because there was probable cause to arrest Grays for DWI and probable cause to arrest him for public intoxication. We will affirm the trial court's order.
BACKGROUND
While patrolling on an evening shift, Texas Department of Public Safety Trooper Eleazar Juarez was dispatched to the scene of a two-vehicle collision on IH-35 involving an "18- wheeler" and an SUV, driven by Grays. Grays had used the off-ramp to exit the highway to the access road but got back on by cutting through a grass median, where his SUV began to roll, ending up "right-side up on the far right lane of I-35," where the collision occurred. Trooper Juarez spoke with Grays at the scene, who admitted that he was the SUV's driver and only occupant. Grays told Trooper Juarez that he "lost control" of his vehicle but denied being injured. Trooper Juarez "smelled alcohol emitting from [Grays']s person," noted that he seemed "confused" and "lethargic," and recalled that "he wasn't grasping what had just happened and he seemed a little agitated by pacing up and down." Grays told Trooper Juarez that he had purchased a case of beer, but he denied having an open container in his vehicle. He gave conflicting accounts about his alcohol consumption, eventually admitting to having "one beer and then . . . maybe half a cup" about an hour and a half or two hours before the collision.
Trooper Juarez conducted standardized field sobriety tests (SFSTs) and completed a "SFST Scoring Sheet" reflecting his observations, which was admitted into evidence. The Scoring Sheet included questions and instructions for use before administering the tests. On the Scoring Sheet, Trooper Juarez noted that Grays exhibited four of six clues on the horizontal gaze nystagmus (HGN) test, two clues on the walk-and-turn test, and two clues on the one-leg-stand test. When Grays finished performing the SFSTs, Trooper Juarez arrested him for DWI.
Grays filed a pretrial motion to suppress evidence requesting exclusion of all evidence relating to his DWI arrest and any testimony from law enforcement officers concerning any of his actions while he was detained or under arrest. The trial court held a hearing on the motion, during which the State stipulated that the events involved a "warrantless arrest," and the defense confirmed that the suppression motion was "limited to the stop and SFSTs." Although Trooper Juarez was the only witness at the suppression hearing, the trial court also viewed a dashcam video that was admitted into evidence showing his interaction with Grays, including Grays's performance of the SFSTs.
Trooper Juarez testified about the SFSTs that he administered to Grays and the clues indicating Grays's intoxication. He stated that he arrested Grays based on "the totality of the circumstances; the way the crash occurred, the alcohol emitting from his person," the way that he "didn't know what was actually going on," his "lethargic" appearance, and "his admission to consuming alcohol prior to the crash." On cross-examination, Trooper Juarez acknowledged that lights of the cars going by could have affected the nystagmus in Grays's eyes. He also acknowledged that he did not give Grays the precise standardized instructions on the Scoring Sheet for the walk-and-turn test and for the one-leg-stand test. On redirect, the State asked Trooper Juarez about what other clues and indicators he had to arrest Grays for DWI if, "hypothetically speaking, the SFSTs that [he] conducted were not conducted to the 'T.'" Trooper Juarez replied:
He [Grays] was on the access road and he entered the freeway, the I-35, through a grass median so that told me he went up to oncoming traffic, went over the grass median, rolled his vehicle several times, hit the semi. And also I would base that on the fact he told me he was drinking, then he wasn't, and then the last thing he told me he was drinking. Then during the crash investigation phase, he told me that there was a case of beer which we looked in the vehicle . . . and there was no case of beer and then a smell of alcohol coming from his person. All of those indicators would tell me that he was impaired or possibly impaired.
At the conclusion of the hearing, the trial court granted the motion to suppress. The State filed a motion to reconsider the ruling, which the trial court denied after another hearing. The trial court subsequently issued findings of fact and conclusions of law, including its findings that Trooper Juarez's testimony was not credible:
I.
Findings of Fact
A. Defendant, Jeffrey Grays, was arrested without warrant by Trooper Eleazar Juarez of the Texas Department of Public Safety, Texas Highway Patrol Division for the offense of Driving While Intoxicated on February 9, 2017.
B. Trooper Juarez was dispatched to the scene of a vehicle collision involving Jeffrey Grays and a semi-truck. Mr. Grays' vehicle rolled multiple times throwing items out of the vehicle, including his wallet. The State did not provide any credible reason for the collision that would indicate that Mr. Grays did not have the normal use of his faculties other than Mr. Grays lost control of his vehicle.
C. Mr. Grays admitted to consuming one beer or possibly one beer and a half of a cup of beer and having purchased beer to take home after initially stating that he had not been drinking. Trooper Juarez did not locate any beer in the vehicle, however, it is plausible that the beer was thrown from the vehicle as was Mr. Grays' wallet. Evidence of one beer or one beer and a half of a cup of beer is not evidence of intoxication.
[D]. Trooper Juarez' testimony regarding his observations of Mr. Grays regarding any indicators of intoxication was not credible. Mr. Grays did not appear overly confused or lethargic despite Trooper Juarez' testimony to the contrary and further, as admitted by Trooper Juarez, any possible confusion or lethargy could [have] be[en] a result of an injury sustained during the rollover collision Mr. Gray was involved in shortly before making contact with Trooper Juarez. Trooper Juarez failed to rule out any possible injury to Mr. Grays in his investigation, despite emergency personnel being on scene except to ask him if he was injured, specifically including that he did not clear him of possible head injuries or check with emergency personnel to see if he had been cleared of head injuries. Trooper Juarez testified that Mr. Grays was slurring his speech; however, this is not noted in his offense report and was not observed on the video. Trooper Juarez testified that Mr. Grays smelled of alcohol; however, this could also be explained by Mr. Grays having the alcohol he purchased in his vehicle during the rollover accident, but based on other testimony, the Court has serious concerns as to the credibility of this testimony. Trooper Juarez did not observe Mr. Grays to have red eyes or bloodshot eyes, nor did he have . . . any trouble understanding or obeying Trooper Juarez' instructions, and he was not swaying during instructions, which are all things Trooper Juarez would normally look at to indicate intoxication.
[E]. Trooper Juarez' testimony regarding his administration of the Standardized Field Sobriety Tests was not credible. Trooper Juarez incorrectly testified as to the number of clues with regard to the administration of the Horizontal Gaze Nystagmus until he was directed to refresh his memory from his report and was unable to recall the number of clues observed in the walk and turn and one leg stand tests without reviewing the contents of his report. Trooper Juarez failed to administer the Standardized Field Sobriety Tests properly and Trooper Juarez' testimony regarding the administration of the Standardized Field Sobriety Tests was not consistent with the other evidence presented. For example, Trooper Juarez failed to screen Mr. Grays for head injury or contact prior to administration of the HGN test and failed to check for equal pupil size and equal tracking and was unaware of the time periods required for reliable determination of nystagmus. Further, Trooper Juarez admittedly neglected essential portions of administering the walk and turn test such as the instruction and demonstration phase observation of Mr. Grays even though he indicated on his checklist admitted into evidence that he had administered that portion of the test, again affecting Trooper Juarez' credibility. Trooper Juarez incorrectly identified clues of intoxication on the walk and turn test such as Mr. Grays' using his arms for balance and improper turn, which was contrary to objective evidence in the case based on the instructions given. On the one leg stand test, Trooper Juarez failed to give proper instructions for the administration of the test regarding watching his raised foot and standing with feet together and Trooper Juarez acknowledged that the lack of those instructions could affect Mr. Gray's performance of the test. Additionally, Trooper Juarez could not properly recall much of his training regarding Standardized Field Sobriety Tests despite being certified and recertified and was not certain of even the name of the manual from which he was trained or when he was recertified. Trooper Juarez was not familiar with optokinetic nystagmus and had Mr. Grays facing traffic with headlights passing as he was administering the HGN, which could have affected any alleged observations of nystagmus.
II.
Conclusions of Law
A. Based on testimony presented and observations in Court, Trooper Juarez was not credible as to any indicia of intoxication of Jeffrey Grays.
B. An objectively reasonable officer, given the facts and circumstances available at the time of Mr. Grays' arrest could not have found probable cause to arrest Mr. Grays[] for public intoxication or driving while intoxicated.
C. Considering the totality of the circumstances of the evidence presented and the lack of credibility of [the] witness, there . . . could be no reasonable belief that an offense was committed.(Emphases added.). This appeal followed.
D. The evidence provided by the State was insufficient to support a finding of probable cause to arrest Mr. Grays for public intoxication or driving while intoxicated.
DISCUSSION
The State contends that the trial court erred by granting the motion to suppress because the totality of the facts and circumstances showed that there was probable cause to arrest Grays for DWI or for public intoxication.
Standard of review
We review a trial court's ruling on a motion to suppress under an abuse of discretion standard, giving almost complete deference to its determination of historical facts, especially if those are based on an assessment of a witness's credibility and demeanor. State v. Cortez, 543 S.W.3d 198, 203-04 (Tex. Crim. App. 2018); Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We afford the same deference to the trial court's rulings on application of the law to questions of fact and to mixed questions of law and fact, if the resolution of those questions depends on an evaluation of a witness's credibility and demeanor, id., but we analyze de novo the trial court's application of the law, State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015). We sustain the trial court's decision if we conclude that the decision is correct under any applicable theory of law. Cortez, 543 S.W.3d at 203. The trial court's ruling should be reversed only if it is arbitrary, unreasonable, or outside the zone of reasonable disagreement. Id.
We apply that same deferential standard of review to a trial court's determination of historical facts, even when that determination is based on a videotaped recording admitted into evidence at a suppression hearing. State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013). Although we may review de novo "indisputable visual evidence" contained in a videotape, we must defer to the trial court's factual finding on whether a witness actually saw what was depicted on a videotape or heard what was said during a recorded conversation. Id. at 570-71. At a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses' credibility and the weight to be given their testimony. Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). Thus, the trial court may believe or disbelieve all or part of a witness's testimony provided at a suppression hearing. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990); see State v. Fecci, 9 S.W.3d 212, 221 (Tex. App.—San Antonio 1999, no pet.) ("Even if the appellate court cannot find a reason to disbelieve the testimony of the officers from a cold record, deference must be given to the trial court's assessment of the credibility of the witnesses."). We view the record in the light most favorable to the trial court's ruling, and we will sustain the ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
Probable cause
The Fourth Amendment prohibits unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Thus, police officers may arrest an individual without a warrant only if probable cause exists as to that individual, and the arrest falls within one of the exceptions set out in the Code of Criminal Procedure. State v. Martinez, 569 S.W.3d 621, 628 (Tex. Crim. App. 2019); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); see Tex. Code Crim. Proc. arts. 14.01-.04. Probable cause exists when the arresting officer has a reasonable belief, based on facts and circumstances within the officer's personal knowledge or about which the officer has reasonably trustworthy information, that an offense has been or is being committed. Torres, 182 S.W.3d at 901.
The test for probable cause is objective, unrelated to the arresting officer's subjective beliefs, and requires consideration of the totality of the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S. 366, 371 (2003); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); see Torres, 182 S.W.3d at 901 (noting that "probable cause must be based on facts, not opinions"). "Probable cause is a 'fluid concept' that cannot be 'readily, or even usefully, reduced to a neat set of legal rules.'" Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Pringle, 540 U.S. at 370-71). The Court of Criminal Appeals has stated that probable cause involves a "relatively high level of suspicion" that is greater than "reasonable suspicion," and probable cause requires "information that is more substantial in quality or content and a greater reliability with respect to the source of information." Id. The State has the burden of proving the existence of probable cause justifying a warrantless arrest. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); see Torres, 182 S.W.3d 902 (concluding that State failed to meet that burden).
Driving while intoxicated
The State contends that probable cause existed to arrest Grays for DWI under the totality of the circumstances, including: (1) "an accident in which Grays inexplicably 'lost control' of and rolled his car"; (2) Grays "changing his story about how much he drank"; (3) Grays's "admission of drinking"; (4) "the odor of alcohol"; and (5) Grays's "confusion." Similarly, the factors that Trooper Juarez identified in support of his DWI arrest were "the way the crash occurred, the alcohol emitting from [Grays's] person," the way that Grays "didn't know what was actually going on," his "lethargic" appearance, and "his admission to consuming alcohol prior to the crash."
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). "Intoxicated" is defined in the Penal Code as "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 into the body; or having an alcohol concentration of 0.08 or more." Id. § 49.01(2).
The trial court ruled that there was not probable cause for Grays's DWI arrest "based upon the totality of the circumstances, [and] setting aside what [the court] consider[ed] to be improperly administered Standardized Field Sobriety Tests." The findings of fact that the trial court provided for its ruling are reasonably supported by the record. See Dixon, 206 S.W.3d at 590. As to the factors of confusion and lethargy, the trial court found that Grays "did not appear overly confused or lethargic despite Trooper Juarez' testimony to the contrary." The trial court noted Trooper Juarez's acknowledgment at the hearing that confusion and lethargy would have been consistent with a head injury. Further, although Trooper Juarez testified that Grays's SUV "rolled about three times" and that the first thing to do before starting the HGN test is "[a]sk the individual if he has a head injury," he acknowledged that he did not confer with Grays about potential head injuries before arresting him.
The trial court found that the smell of alcohol could be explained by the alcohol that Grays had recently purchased and that he said was inside his vehicle during the rollover accident. Moreover, the trial court stated that it had "serious concerns as to the credibility of this testimony [about the smell of alcohol from Grays]."
As to Grays's "admission to consuming alcohol prior to the crash," the video shows before Trooper Juarez began administering the SFSTs, Grays initially denied, and then admitted to consuming one beer in San Antonio. After Grays completed the HGN test, Trooper Juarez asked Grays "how many beers [he] had to drink," and Grays replied that he had "one beer and then maybe half a cup" at a friend's house, about an hour and a half or two hours earlier.
But other factors that Trooper Juarez said he would normally consider as indications of intoxication were not present. For example, Trooper Juarez did not observe Grays having red or bloodshot eyes, having any trouble understanding or obeying Trooper Juarez's instructions, or swaying during instructions. Further, as Trooper Juarez noted on the video, Grays conducted himself in a cooperative manner with law enforcement. Trooper Juarez testified that Grays was slurring his speech, but the trial court pointed out that slurred speech was "not noted in his offense report and was not observed on the video." Trooper Juarez does not appear to have had difficulty understanding Grays when they were speaking with each other, as shown on the video.
The trial court specifically found that "Trooper Juarez'[s] testimony regarding his observations of Mr. Grays regarding any indicators of intoxication was not credible" and that his testimony regarding his administration of the SFSTs was not credible. Overall, the trial court found that that there was not credible evidence showing that Grays lacked the normal use of his mental or physical faculties, other than the fact that Grays lost control of his vehicle, and thus, the trial court determined that there was no probable cause for Grays's DWI arrest. We have reviewed the record, which contains no "indisputable visual evidence" in the video that is contrary to the trial court's stated findings, and we defer, as we must, to the trial court as the fact finder. See Duran, 396 S.W.3d at 570-71; State v. Evans, 500 S.W.3d 528, 538-39 (Tex. App.—San Antonio 2016, no pet.) (deferring to trial court's findings that trooper's testimony about HGN test was not credible and noting that defendant did not exhibit signs of intoxication on video).
We conclude that the totality of the circumstances in this record, when viewed in the light most favorable to the trial court's ruling and with deference to its findings of fact, shows that the State did not meet its burden of proving that Trooper Juarez had probable cause to arrest Grays for driving while intoxicated. See Cortez, 543 S.W.3d at 203-04; Arguellez, 409 S.W.3d at 662; Evans, 500 S.W.3d at 539 (affirming order granting motion to suppress based on trial court's determination that there was no probable cause to arrest defendant for DWI and deferring to trial court's factual determinations that testimony about SFSTs was not credible); State v. Nelson, 228 S.W.3d 899, 906 (Tex. App.—Austin 2007, no pet.) (affirming order granting motion to suppress based on trial court's determination that there was no probable cause to arrest defendant for DWI and deferring to trial court's factual belief that SFSTs were not properly administered); see also State v. Padon, No. 03-16-00532-CR, 2018 Tex. App. LEXIS 10553, at *10 (Tex. App.—Austin Dec. 20, 2018, no pet.) (mem. op., not designated for publication) (concluding that order granting suppression of evidence, considered with due deference to trial court's factual finding as to officer's credibility, was not outside zone of reasonable disagreement and did not constitute abuse of discretion); cf. Belk v. State, No. 03-09-00402-CR, 2010 Tex. App. LEXIS 6529, at *12 & n.2 (Tex. App.—Austin Aug. 11, 2010, no pet.) (mem. op., not designated for publication) (distinguishing facts of its case supporting probable-cause determination—including Belk's bloodshot eyes, slurred speech, confused and disoriented behavior, and difficulty understanding and answering officer's questions—from cases in which those additional facts were not present and officer's opinions and observations were not given much weight by trial court).
Because the trial court's ruling on the motion to suppress is supported by the record and the trial court's findings and witness credibility determinations, we cannot conclude that its ruling was arbitrary, unreasonable, or outside the zone of reasonable disagreement. See Cortez, 543 S.W.3d at 203. Accordingly, we overrule the State's first appellate issue.
Public intoxication
The State also contends that the trial court erred by granting the motion to suppress because there was probable cause to arrest Grays for public intoxication. A person commits public intoxication if he "appears in a public place while intoxicated to the degree that the person may endanger himself or another." Tex. Penal Code § 49.02(a) (emphasis added).
However, we have concluded that the evidence in this record and the trial court's credibility determinations support the trial court's finding that Grays was not shown to have lacked the normal use of his mental or physical faculties by reason of the introduction of alcohol—i.e., there was an insufficient showing of his intoxication—which would be necessary for a "relatively high level of suspicion" of the offense of DWI. See id. §§ 49.01(2)(A) (defining "intoxication"), .04(a) (defining offense of DWI); Baldwin, 278 S.W.3d at 371. In the absence of evidence tending to show the intoxication element for DWI, evidence of the intoxication element that would be necessary for a "relatively high level of suspicion" of the offense of public intoxication in the same record is similarly lacking. See id. §§ 49.01(2)A), .02(a), .04(a); Baldwin, 278 S.W.3d at 371; cf. Null v. State, No. 14-95-01212-CR, 1997 Tex. App. LEXIS 2646, at *8 (Tex. App.—Houston [14th Dist.] May 15, 1997, pet. ref'd) (op., not designated for publication) (concluding that "the DWI charge following the [defendant's] warrantless arrest for public intoxication was valid because the warrantless arrest for public intoxication was valid"). We overrule the State's second issue.
CONCLUSION
We affirm the trial court's order granting the motion to suppress.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Kelly and Smith Affirmed Filed: August 7, 2020 Do Not Publish