Amador v. State

• Decision Date: 25 April 2007
• Docket Number: No. PD-0786-06.,PD-0786-06.
• Citation: 221 S.W.3d 666
• Parties: Justin AMADOR, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

221 S.W.3d 666

Justin AMADOR, Appellant v. The STATE of Texas.

No. PD-0786-06.

Court of Criminal Appeals of Texas.

April 25, 2007.

W. Troy McKinney, Houston, for Appellant.

Gail Kikawa McConnell, Asst. District Attorney, Conroe, Matthew Paul, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

Appellant was charged with DWI. He filed a motion to suppress evidence. The trial judge conducted a live hearing on appellant's motion during which he viewed portions of the arresting officer's patrol-car videotape. At some point, the court apparently denied the motion and later denied appellant's motion for reconsideration. Appellant then pled guilty, but appealed the trial court's ruling on his pretrial motion. The court of appeals affirmed the trial court's ruling.¹ It held, in part, that appellant failed to present a complete record on appeal because he successfully objected to the supplementation of the record with the videotape that had not been formally admitted into evidence. Therefore, the court of appeals "assume[d] the videotape of the stop shown in court supports the trial court's inference of reasonable suspicion sufficient to support [appellant's] arrest."²

We granted appellant's petition for discretionary review to consider whether the court of appeals erred in "assuming" that the missing videotape supported the trial court's ruling.³ We agree with appellant that a reviewing court cannot speculate about the contents of exhibits that are not contained in the appellate record. Because the trial judge is in the best position to resolve the parties' dispute concerning what portions of the videotape he actually saw and used in making his ruling, we vacate the judgment of the court of appeals and remand the case to that court for further proceedings.

I.

After appellant was charged with DWI, he filed several motions to suppress evidence. One of those motions claimed that he was seized "without any reasonable suspicion that he was engaged in criminal activity" and that "[t]he acquisition of the evidence which the Government will offer in this cause was not pursuant to search warrant, was absent exigent circumstances, and made without probable cause to believe the Defendant was engaged in criminal activity or that such evidence, if any, was in danger of being destroyed."

The trial court held a hearing on this motion to suppress. Appellant called DPS Trooper Alicia Fountain, the arresting officer, and played portions of her patrol-car videotape to challenge his "prolonged" detention. Appellant did not have the videotape marked, and he told the trial judge that it was not necessary to have a reporter's record of the words spoken on the videotape because "[t]he tape will suffice itself, Your Honor." Although portions of the tape were played, the videotape was never formally offered into evidence.

Trooper Fountain's testimony during the hearing showed that she was "working radar" on I-45 in Montgomery County at 2:30 a.m. on June 3, 2003. She saw appellant speed onto the freeway and followed him to the next exit, where he turned off. She turned on her emergency lights, and appellant pulled over in a parking lot. Besides speeding, the trooper saw no other traffic violation or indications of "bad driving."

Trooper Fountain did not, at that time, think she had stopped an intoxicated person. But when she approached appellant and asked for his driver's license and insurance, "[h]e was extremely slow to respond." He fumbled through his wallet, passing by his license, and was slow to provide both his license and insurance. When she asked appellant to get out of his car, he was slower than normal in doing so, and "his speech was mumbled, real under his breath and mumbled." She wrote up a warning ticket for speeding and was ready to deliver it to him when she smelled alcohol on his breath. At that point, she had a suspicion that he might be intoxicated. In response to the prosecutor's questions, Trooper Fountain stated that, based on that information, "I felt I needed to investigate further by performing standardized field sobriety tests."

Q: And did you perform those tests?

A: Yes, ma'am, I did.

Q: What tests did you have him do?

A: Did the horizontal gaze nystagmus, the walk and turn, and the one-leg stand.

Q: And on the basis of all of those tests and how the defendant performed, what did you decide to do?

A: I placed him under arrest for driving while intoxicated.

The focus of appellant's questioning on direct examination and of the State's questioning on cross-examination was Trooper Fountain's continued detention of appellant after she wrote a warning ticket for speeding.

In his closing argument at the hearing, appellant mentioned, for the first time, the issue of probable cause to arrest. He stated that, assuming arguendo that there was articulable suspicion to detain appellant for further investigation, the State

failed to show you other and conclusory terms that he failed field sobriety tests. They are undescribed field sobriety tests. How he did on those tests was not described to you. It wasn't my burden. It's their burden. All you heard was that he did-she did an HGN, a walk and turn test and a one-leg stand test. You never even heard he failed them. I know you didn't hear why he failed them. . . . I believe the El Paso Court of Appeals decided this exact case and they found that when field sobriety tests are referenced but they are not described and the State fails in their burden to show probable cause.

The trial judge took the matter under consideration and apparently denied appellant's motion at some later time. It is unclear exactly when the trial court ruled and what he ruled upon-the motion to suppress generally, the issue of articulable suspicion to detain, or both articulable suspicion to detain and probable cause to arrest.⁴

Some months later, appellant filed a motion to reconsider, and, in presenting that motion to the trial judge, noted that "the main issue focuses on was the trooper justified in continuing the investigation after she had issued a warning citation." He stated that the videotape showed that "there is no mumbled speech on the tape. There is no slow reaction. So no matter what the officer said she observed or heard, it just wasn't there." Thus, according to the defense, "Once the citation was given, the warning citation was given, she had no legal right to further detain him." The State then argued that the trooper

said he was slow to respond, seemed to be fumbling for his license and I think that coupled with what she perceived that evening with slurred speech. Now, did we hear it on the video? I can't recall if we did or not, but the quality of the video is not as good as her ears right there that night when she said she perceived fumbling with the license, slurred speech. She said when she was handing them to him, she smelled alcohol. Those three things do justify her detention of him and are reasonable under the circumstances that existed that night, the totality of the circumstances.

Appellant responded that "there are only two items prior to her continuing the investigation. That would be mumbled speech, which the Court is not bound to accept because the Court heard the audio portion. I brought it if you wanted to re-listen to it, just the portion we're talking about, like a three-minute section. Slowness to react, I don't see it there either."

The trial court concluded: "I understand and I don't think it's strong, but I think there was enough there to justify it. . . . I think your arguments will be or will be well received by a jury when you look at all of it, but I still think there was enough to get her to that point."

Immediately thereafter, appellant pled guilty, and the trial court sentenced him to 180 days in jail probated for a year and a fine of $600.

Appellant raised two issues on appeal. He claimed that the trial court erred in denying his motion to suppress because (1) Trooper Fountain lacked articulable suspicion to detain him after she decided to give him a warning ticket, and (2) the State had failed to show that she had probable cause to arrest appellant for DWI. Appellant did not designate the videotape to be included in the appellate record. The State therefore requested that it be permitted to supplement the appellate record with a copy of Trooper Fountain's scene videotape which showed appellant performing the field sobriety tests. Appellant objected, arguing that the videotape had never been marked as an exhibit or formally introduced into evidence in the trial court. The court of appeals stated that because appellant "did not agree to the State's request, and because [it] could not determine whether [appellant's] attorney showed the entire videotape in court," it denied the State's request.⁵

On the issue of Trooper Fountain's articulable suspicion, the court of appeals held that the facts that Trooper Fountain had before her "justified further investigation" into appellant's sobriety.⁶ Those facts included: (1) appellant's "difficulty in complying promptly to her ordinary requests for license and insurance information"; (2) "his unusually slow movement" getting out of his car; (3) his "mumbled speech"; and (4) the smell of alcohol on his breath before he signed the warning ticket.⁷

Concerning the issue of probable cause, the court of appeals noted that the State initially responded in its appellate brief by asserting that appellant "did not challenge the State's evidence of probable cause during the motion to suppress hearing."⁸ The court of appeals rejected the State's contention that appellant forfeited his right to complain about the issue of probable cause on appeal because he had failed to litigate it in the trial court.⁹ The State also argued that the videotape provided sufficient evidence of probable cause to support appel...