Davy v. State

• Decision Date: 28 December 2001
• Docket Number: No. 10-00-020-CR.,10-00-020-CR.
• Citation: 67 S.W.3d 382
• Parties: Kevin Wayne DAVY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

67 S.W.3d 382

Kevin Wayne DAVY, Appellant, v. The STATE of Texas, Appellee.

No. 10-00-020-CR.

Court of Appeals of Texas, Waco.

December 28, 2001.

Scala D. Byers, Garland, for appellant.

Bill Hill, Dallas County Criminal District Attorney, Anne B. Wetherholt, Dallas County Asst. District Attorney, Dallas, for appellee.

Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.

OPINION

DAVIS, Chief Justice.

A jury convicted Kevin Wayne Davy of driving while intoxicated. The court assessed Davy's punishment at ninety days in jail and a $300 fine, suspended imposition of sentence, and placed him on community supervision for twenty-four months. Davy contends in five issues that: (1) the evidence does not support the jury's implied finding that the arresting officer had reasonable suspicion to stop his car; (2) the court's definition of the phrase "normal use of mental or physical faculties" in the charge is erroneous; (3) the court committed fundamental error by instructing the jury that the State needed to prove only reasonable suspicion to justify the officer's stop of Davy; and (4) the evidence is legally and factually insufficient to prove that he was intoxicated (two issues).

BACKGROUND

Officer Terry Barber testified that Davy came to his attention in the early morning hours of February 5, 1998 when Davy's car pulled into the parking lot of a city park which had closed at midnight. According to Barber, Davy was "just driving around in circles in the parking lot." He testified that Davy did so four or five times. He decided to contact the driver "to see if there was a problem." As he approached, Davy exited the parking lot. Barber noted that Davy was driving at about twenty miles per hour on a street with a posted speed limit of thirty-five miles per hour. He observed that Davy's car "was extremely close to the curb." He stopped Davy to investigate.

Barber thought Davy appeared "confused" when he asked him for his license and proof of insurance. Davy fumbled through his wallet to locate the requested items. He stumbled and nearly fell when he got out of his car at Barber's request. He used his car to maintain his balance. Davy had no odor of an alcoholic beverage on his breath, but he was "definitely impaired." Barber asked Davy to perform a number of field sobriety tests which he was unable to successfully complete. Davy informed the officer that he had taken several prescription medications pursuant to his doctor's orders. Barber arrested him for DWI.

On cross-examination, Barber agreed that Davy remained in the proper lane of traffic and never hit the curb. He suggested that Davy was "weaving toward the curb" when he stopped him. Barber followed Davy for 100 to 150 feet from the park entrance before stopping him. He testified that there were no other cars in the area at the time. Though Barber had testified on direct examination that Davy had not reported any physical limitations which would affect his ability to perform the sobriety tests, he conceded on cross-examination that he had stated on the video made at the jail that Davy had told him of a leg problem while at the roadside. Barber did not receive his certification for field sobriety testing until after Davy's arrest.

At the jail, Davy repeated his poor performance on the sobriety tests while on video. He submitted to an intoxilyzer test which revealed that he had no alcohol in his system. Barber then contacted his supervisor to obtain permission to have a drug recognition evaluation ("DRE") conducted by an officer trained for this task. He obtained the requested approval, and an off-duty officer later joined him to conduct the DRE.

The DRE officer Thomas Bromley described the DRE process at length to the jury. In general terms, this evaluation involves: a discussion with the subject about his medical history; various physiological evaluations;¹ standard sobriety testing (Romberg test, walk-and-turn test, one-leg-stand test, and finger-nose touch test); an examination for any physical evidence of substance ingestion (e.g., powder in the nostrils or needle marks on the arms); an evaluation of the subject's muscle tone to determine whether he is relaxed or tense; and the taking of a blood or urine specimen to confirm the presence of a drug or controlled substance.

Davy informed Bromley that he had taken several prescription medications pursuant to his doctor's instructions. Bromley categorized all of these medications as depressants. He testified that Davy's performance in the DRE was consistent with that of a person under the influence of such medications. However, he conceded that many of Davy's "symptoms" could also be consistent with those of a person suffering from sleep deprivation. Some of his observations were inconsistent with what he would expect to find in a person under the influence of depressants.

An analysis of Davy's urine specimen confirmed the presence of the prescription medications which he told the officers he had taken. The laboratory analyst who tested Davy's specimen testified that Davy's medications "may not cause" intoxication in an individual who took them as prescribed and had been taking them "for some period of time." However, the analyst also agreed that these medications could cause the symptoms observed by the officers in Davy's case and could cause intoxication when taken "at therapeutic levels."

Davy testified in his own behalf. He denied that he drove in circles in the parking lot. According to Davy, he pulled into the parking lot, did a three-point turn, then drove the other way. He agreed that Barber promptly stopped him after he left the parking lot.

Davy has experienced severe migraine headaches since he was twelve. Despite various prescribed pain medications during these years, he has not experienced appreciable relief until December 1998 when a physician prescribed sunglasses to protect his eyes, which are oversensitive to light. Davy has also suffered from insomnia for about fifteen years. He had slept only six hours in the five days preceding his arrest.

In Davy's opinion, his prescription medications did not affect his performance on the sobriety tests. He testified that he has a "bad leg" which caused him to perform poorly on the physical sobriety tests. He attributes the remainder of the intoxication-like symptoms which the officers observed to sleep deprivation.

ARTICLE 38.23 INSTRUCTION

Davy contends in his first issue that the evidence does not support the jury's implied finding that Barber had reasonable suspicion to stop him. He alleges in his third issue that the court committed fundamental error by instructing the jury that the State needed to prove only reasonable suspicion to justify the stop.²

The Instruction

The court sua sponte submitted the following instruction to the jury under article 38.23.

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

You are further instructed that an officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to crime or a criminal offense.

The law regarding minimum speed regulations states that an operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

Now, therefore, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that Officer T. Barber had a reasonable suspicion based on articulable facts to temporarily detain the Defendant, Kevin Wayne Davy, for a traffic violation, to-wit: driving so slowly as to impede the normal and reasonable movement of traffic you may proceed to consider whether or not the Defendant was driving while intoxicated; however, if you have a reasonable doubt thereof, then you will not consider the question of whether or not the Defendant was driving while intoxicated but enter a verdict of "not guilty" based upon no reasonable suspicion to detain.

Reasonable Suspicion

Under Terry v. Ohio, a law enforcement agent has what has come to be known as "reasonable suspicion" to temporarily detain a suspect when the agent is aware of "specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000).

When a person is stopped on the basis of reasonable suspicion, then no Fourth Amendment violation has occurred because the seizure is by definition "reasonable." See Terry, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905 (Fourth Amendment prohibits "unreasonable searches and seizures"). Article 38.23(a) applies when an officer has seized evidence in violation of an accused's constitutional or statutory rights. See Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2002). Accordingly, if Officer Barber had reasonable suspicion to stop Davy, then his "seizure" of Davy did not violate Davy's Fourth Amendment rights, and the evidence he acquired thereafter would not be excluded under article 38.23.

Davy contends in his third issue that the court's instruction should have required the jury to determine that Officer Barber had probable cause to stop him. Because "reasonable suspicion" is a constitutional justification for a warrantless stop, we disagree. Accordingly, we conclude that Davy's third issue is without merit. See Reynolds v. State, 967 S.W.2d 493, 494-95 (Tex.App.-...