Campbell v. The State Of Tex.

• Decision Date: 17 June 2010
• Docket Number: No. 2-08-262-CR.,2-08-262-CR.
• Citation: 325 S.W.3d 223
• Parties: Trent Michael CAMPBELL, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

325 S.W.3d 223

Trent Michael CAMPBELL, Appellant,

v.The STATE of Texas, State.

No. 2-08-262-CR.

Court of Appeals of Texas,Fort Worth.

June 17, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Tracie E. Kenan, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallin, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, Sharon A. Johnson and Jon O'Toole, Asst. Crim. Dist. Attys., Fort Worth, TX, for The State of Texas.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.

OPINION

BOB McCOY, Justice.

I. Introduction

In a single point, Appellant Trent Michael Campbell appeals his conviction for driving while intoxicated (“DWI”). We affirm.

II. Background

Southlake Police Sergeant James Polley and Officer David Aldridge were the only witnesses to testify at Campbell's DWI trial. The DVD from Officer Aldridge's vehicle's dashboard camera (“DVD”) and the jail videotape of Campbell receiving his statutory warning regarding giving a breath specimen were also admitted in evidence and published to the jury, along with a copy of the statutory warning signed by Campbell.

A. Sergeant Polley's Testimony

Sergeant Polley testified that on March 29, 2008, around 1:15 a.m., he received information about a possible drunk driver. He proceeded to a nearby intersection to wait for the vehicle, a silver Mitsubishi, to drive by, and then he followed it, describing its manner of driving as follows:

The Mitsubishi was traveling with both left side tires over the center-the center stripes, and then would drift back across and the right side tires would go. And on that street it's an old county road and it has bar ditches on either side and the shoulders are very narrow and dirt, so it pretty much goes road surface to dirt to bar ditch. And he put both right side tires into the-just about into the bar ditch and then would come back in, and he did that numerous times.

Sergeant Polley described the Mitsubishi's line-crossing as “all the way over to about where the hood ornament would be on a normal car. It would be two to three feet over onto the right-hand side or to the left of the center turn stripe.” He followed the Mitsubishi for around a minute and a half-not more than a mile-during which time the Mitsubishi almost hit a culvert, ¹ causing him to fear for the driver's safety “and for anybody else[ ] he happened to cross.” He followed the Mitsubishi into a residential neighborhood, parked behind it, and waited several minutes for Officer Aldridge to arrive. ² He testified that no one entered or exited the vehicle while he waited.

B. Officer Aldridge's Testimony

Officer Aldridge testified that on March 29, 2008, during his 6 p.m. to 6 a.m. shift, there was a general broadcast about a possible drunk driver in a silver Mitsubishi, who was being followed first by a civilian on a cell phone and then by Sergeant Polley. Officer Aldridge did not see Campbell driving. He testified that he found the silver Mitsubishi parked on the residential street with its engine turned off; Sergeant Polley's vehicle was parked behind it.

Officer Aldridge found Campbell, either sleeping or passed out, in the silver Mitsubishi when he approached it. He testified that he noticed that Campbell smelled of alcohol; when Campbell woke up, he automatically reached for the ignition. Officer Aldridge told him to give him the keys and to step out of the car. He observed that Campbell slurred his words, and he testified that he felt that Campbell was a danger to himself or others. He put handcuffs on Campbell and placed him in the back seat of his patrol car, testifying that he detained Campbell “because [he] knew it was going to be at least a public intoxication or minor in consumption.” He also testified that he asked Campbell if he had had anything to drink that night and that Campbell replied that he had been drinking with some friends. Officer Aldridge admitted that he continued asking Campbell questions even though he was arresting Campbell, or at least detaining him, based on a public intoxication charge. Officer Aldridge then placed Campbell in his patrol car so he could speak with Sergeant Polley about what Sergeant Polley had seen.

Officer Aldridge subsequently administered the horizontal gaze nystagmus (“HGN”) field sobriety test to Campbell at Sergeant Polley's prompting. He testified that the test resulted in six clues-the maximum-and then he placed Campbell under arrest for suspicion of DWI after Campbell refused to perform additional field sobriety tests. And he testified that based on his experience and observations that night, he came to the conclusion that Campbell had lost the normal use of his mental and physical faculties due to alcohol use, based on his demeanor, “the stumbling around, staggering, and his speech.” Campbell refused to give a breath sample after he was transported to jail, and he received his Miranda warnings ³ after he received the statutory warning about the consequences of refusing a breath sample.

C. Dashboard Camera DVD

The dashboard camera DVD corroborates Officer Aldridge's testimony. Specifically, it shows Officer Aldridge approaching the Mitsubishi with a flashlight, shining the flashlight through the driver's side window, and opening the driver's side door. Some movement occurs inside the Mitsubishi, and Officer Aldridge tells Campbell to leave his car turned off, to give him the keys, and to step out of the vehicle. Campbell steps out of the vehicle on his own.

Officer Aldridge then asks Campbell how old he is. Campbell responds that he is nineteen. He asks Campbell if he has any identification on him, and Campbell responds that he does not. He asks Campbell how much he has had to drink tonight and whether it was a couple of beers. Campbell responds, “yes, sir.” Officer Aldridge handcuffs Campbell and then asks him whether he knows that he is not old enough to be drinking. Campbell replies, “yes.” Officer Aldridge then states, “But you did it anyway. Right?” Campbell says, “Right.” He asks Campbell where he has been tonight; Campbell's response is unintelligible except for the word “house.” Campbell then insists that he had not been driving. Officer Aldridge responds, “You just got through driving and parked right here,” and then asks him off-camera, after informing him that he has been followed by police officers, “If you wasn't [sic] driving, who was?” Campbell's response is unintelligible. Off-camera, Officer Aldridge tells him to wait “right here” and the sound of the patrol car's door closing can be heard on the DVD.

When Officer Aldridge administers the HGN test to Campbell, Campbell demonstrates trouble following the instructions. Officer Aldridge asks him if he has been doing anything besides drinking, and Campbell says no. When asked if he has been doing any drugs, Campbell states, “No drugs at all.” As Officer Aldridge puts Campbell in the patrol car (off-screen), Campbell asks what the charge is. Officer Aldridge replies, “Driving while intoxicated,” to which Campbell again argues that he had not been driving.

Campbell can clearly be heard to slur his words throughout, and he visibly sways during the administration of the HGN test. The DVD also shows that Officer Aldridge was not by himself-after he opens Campbell's car door, another uniformed officer approaches the vehicle and an officer in plain clothes walks to the passenger side of the vehicle. They both stand there while Officer Aldridge handcuffs Campbell.

D. Jail Videotape

The videotape of Campbell receiving his warnings at the jail and refusing to give a breath sample also shows that Campbell has trouble stating his birth date and that he refuses the offer of more sobriety tests. He clearly slurs his words and has trouble understanding what is going on, asking Officer Aldridge what he is signing [the statutory warning] after it has been read to him and a copy given to him to read along, and trying to bargain, “I will sign it if my mom can come pick me up.” Officer Aldridge tells him more than once that he has to see a judge and set a bond before anyone can come pick him up. After he receives his Miranda warnings, he asks Officer Aldridge, “When can my lawyer come get me?”

E. Procedural Posture, Findings, and Conclusions

Campbell was charged with DWI, and he filed a motion to suppress, which the trial court denied after carrying the motion along during trial. A jury found Campbell guilty of DWI, and the trial court assessed a $500 fine, ninety days' confinement (suspended), and twenty-four months of community supervision.

After this appeal was filed, this court abated the case and remanded it to the trial court for findings of fact and conclusions of law regarding the voluntariness of Campbell's statements at issue. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005); Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App.2004). The trial court's findings of fact parallel the information set forth above in our review of Sergeant Polley's and Officer Aldridge's testimonies. ⁴

The trial court made the following conclusions of law: (1) Officer Aldridge had reasonable suspicion, based on specific articulable facts, to detain the defendant for investigation of whether he had been driving on a public roadway while intoxicated; (2) Having detained the defendant for further investigation, Officer Aldridge was entitled to ask a moderate number of questions to gather information to confirm or dispel his suspicions; (3) The defendant was not in custody for purposes of Miranda and Article 38.22 at the time he admitted he had been drinking, and his statement was not, therefore, the result of custodial interrogation; and (4) Further, the defendant's statement that he had been drinking was freely and voluntarily made, and was not the result of duress, threat, physical force or any other unlawful persuasion. This appeal was automatically reinstated upon submission of the trial court's...