Bright v. State, 13-92-078-CR

• Decision Date: 31 August 1993
• Docket Number: No. 13-92-078-CR,13-92-078-CR
• Citation: 865 S.W.2d 135
• Parties: Robin Sylvester BRIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 135

865 S.W.2d 135

Robin Sylvester BRIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 13-92-078-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1993.

Discretionary Review Refused

Jan. 26, 1994.

Charles Manning, Beeville, for appellant.

Steven G. Paulsgrove, County Atty., Goliad, for appellee.

Before FEDERICO G. HINOJOSA, Jr., KENNEDY and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found appellant guilty of driving while intoxicated. The trial court assessed punishment at thirty days' confinement and a $300 fine. By four points of error, appellant complains that the trial court erred by refusing to impanel a jury to determine his competency to stand trial, by refusing to suppress evidence, by refusing to quash the information, and by refusing to charge the jury that failure to submit to a breath test may not be considered evidence of intoxication. We abate the appeal so the trial court may hold a retrospective competency hearing.

On March 7, 1992, Department of Public Safety Trooper Jerry Mead received a report from Deputy Sheriff Mike Gregg of a disturbance at a convenience store in Goliad. Deputy Gregg reported that persons who were intoxicated, used abusive language, and made threats had left the scene in a yellow or tan Ford with personalized license plates spelling "ENDIA." Trooper Mead observed a string of four or five vehicles approaching him on U.S. Highway 59 east of Goliad. The last car in the line was weaving in and out. The car would appear from behind the car in front of it and then disappear from view. Mead turned around, followed the vehicles, saw that appellant's vehicle was a yellow Ford with personalized license plates, but could not read the plates. Appellant's car traveled onto the shoulder a couple of times and was then jerked sharply back to the roadway. Mead then stopped the vehicle.

Appellant stepped out of the vehicle from the driver's seat, smelling of alcohol and staggering. He identified himself as Ken Jefferson and argued with Trooper Mead about the manner in which he had driven the vehicle. Appellant failed field sobriety tests and refused to submit to a breath test. Mead arrested him for driving while intoxicated.

By his second point of error, appellant complains that the trial court erred by failing to suppress evidence obtained as a result of an illegal arrest. Appellant argues that the officer testified he saw appellant commit no traffic violations.

An appellate court, when reviewing a ruling on a motion to suppress evidence, views the evidence in the light most favorable to the trial court's ruling and defers to the trial court's findings. Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim.App.1992). The State bears the burden of establishing the legality of a warrantless search or seizure. Lalande v. State, 676 S.W.2d 115, 116 (Tex.Crim.App.1984); McVickers v. State, 838 S.W.2d 651, 654 (Tex.App.--Corpus Christi 1992), aff'd, No. 1453-92, 1993 WL 491538 (Tex.Crim.App. December 1, 1993) (not yet reported).

An officer may temporarily stop and investigate a vehicle if the officer has reasonable suspicion based on articulable facts that the detainee is connected to unusual activity with some indication that the activity is related to crime. Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986).

Trooper Mead saw a yellow or tan Ford with personalized license plates weaving sharply, drifting to the edge of the shoulder and then jerking sharply back onto the main roadway, moments after he received a report that intoxicated persons caused a disturbance at a nearby convenience store and left the scene in a tan or yellow Ford with personalized license plates. These facts warranted a reasonable suspicion that the driver was intoxicated, and Trooper Mead legally detained the vehicle temporarily to investigate the condition of the driver. We overrule appellant's second point of error.

By his third point of error, appellant complains that the trial court erred by refusing to quash an information that he claims failed to give him adequate notice. He argues that the information charged him with driving while intoxicated without specifying what intoxicant, the measure of intoxication, or the location of the offense that the State would prove.

Appellant's argument is without merit. The information charged that appellant did:

while intoxicated, drive and operate a motor vehicle, in a public place, in Goliad County, Texas, to-wit: a public road and highway when the said Robin Sylvester Bright did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body.

The information clearly charges appellant with an offense under TEX.REV.CIV.STAT.ANN. art. 6701l -1(a)(2)(A) (Vernon Supp.1993). The information sufficiently alleges the intoxicant (alcohol) and the method of proving intoxication (lack of normal use of mental and physical faculties). State v. Carter, 810 S.W.2d 197, 200 (Tex.Crim.App.1991).

A charging instrument generally need only allege the county in which the offense was committed. See Pinkerton v. State, 660 S.W.2d 58, 63 (Tex.Crim.App.1983); Wilson v. State, 825 S.W.2d 155, 159 (Tex.App.--Dallas 1992, pet. ref'd). When a type of location is an element of the offense, the charging instrument must allege the offense occurred in the specified type of location but need not allege a specific place within the type. Nevarez v. State, 503 S.W.2d 767, 769 (Tex.Crim.App.1974); Lamm v. State, 653 S.W.2d 495, 497 (Tex.App.--Corpus Christi 1983, pet. ref'd). The information charges appellant with driving while intoxicated in Goliad County and that he did so on a public highway or road, thus alleging an offense under TEX.REV.CIV.STAT.ANN. art. 6701l -1(a)(2). We overrule appellant's third point of error.

By his fourth point of error, appellant complains that the trial court erred by refusing to instruct the jury that refusal to submit to a breath test may not be considered evidence of intoxication. Appellant makes no constitutional challenges, and he does not contend that the officers failed to give statutory warnings before requesting a breath sample. Appellant only argues that statutes require a written charge on the law in fairness to the defendant.

The legislature has plainly stated that evidence that an accused refused to submit to breath or blood tests may be admitted in later prosecutions. TEX.REV.CIV.STAT.ANN. art. 6701l -5 § 3(g) (Vernon Supp.1993). A jury may consider the refusal as evidence that the accused was intoxicated. Finley v. State, 809 S.W.2d 909, 913 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd). We overrule appellant's fourth point of error.

By his first point of error, appellant complains that the trial court erred by refusing his motion for a jury trial to determine his competency.

A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he does not have a rational and factual understanding of the proceedings against him. TEX.CODE CRIM.PROC.ANN. art. 46.02 § 1 (Vernon 1979). If evidence of the accused's incompetency comes to the trial...