Moore v. State, s. 01-97-00631-C
| Decision Date | 20 August 1998 |
| Docket Number | 01-97-00632-CR,Nos. 01-97-00631-C,s. 01-97-00631-C |
| Citation | 981 S.W.2d 701 |
| Parties | Earl Garland MOORE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Michael B. Charlton, Houston, for appellant.
John B. Holmes, Houston, William Delmore, III, Houston, for appellee.
Before O'CONNOR, TAFT, and SMITH, *JJ.
OPINION ON MOTION FOR REHEARING
Earl Garland Moore, the appellant, appeals his convictions for driving while intoxicated (DWI). On motion for rehearing, we overrule the motion, withdraw our earlier opinion, and issue this one in its stead. We affirm.
On January 24, 1997, the appellant was stopped for having an expired inspection sticker on his car. On February 19, 1997, the appellant was stopped for not wearing his seatbelt. After both stops, he was arrested for DWI and he refused to perform a breath test.
The appellant was charged by information with two counts of misdemeanor DWI. His January arrest was charged under trial cause number 9703541 (our cause number 01-97-00631-CR), and his February arrest was charged under trial cause number 9707342 (our cause number 01-97-00632-CR). The cause numbers were brought together in the county court.
In both cases, the appellant filed identical pretrial motions, asking the court (1) to suppress his refusals to take breath tests and all evidence arising out of his initial stops, and (2) to declare Texas Transportation Code section 724.061 unconstitutional. The appellant and the State filed an agreed stipulation of facts.
On his first arrest, the appellant and the State stipulated the appellant was stopped by Officer Hill on January 24, 1997, because Hill concluded the inspection sticker on the appellant's car was expired. Hill smelled an alcoholic beverage when he approached the appellant, and so had the appellant get out of his car for DWI investigation. Hill arrested the appellant for DWI due to the appellant's demeanor, his failure of field sobriety tests, and the smell of an alcoholic beverage. Officer Cortez then took custody of the appellant from Hill and brought him to the Harris County Courthouse Annex for further DWI investigation, including videotaping and a breath test request. Cortez gave the appellant his DWI statutory warnings orally and in writing, and the appellant refused to take a breath test on the Intoxilyzer 5000. The appellant did not explain his refusal to take the test and was not told anything regarding the Intoxilyzer's accuracy or reliability. After his refusal to take the breath test, the appellant was videotaped. The appellant denied drinking and said he had used antiseptic mouthwash just before driving. At the end of the tape, the appellant's warnings were read and the appellant invoked his right to an attorney. The taping was stopped at that point.
On his second arrest, the appellant and the State stipulated that he was stopped on February 19, 1997, by Officer Taylor because the officer concluded the appellant was not wearing his seatbelt. Taylor ordered the appellant out of his car and became suspicious that the appellant was intoxicated. Taylor arrested the appellant for DWI because of his demeanor, his refusal to take some field sobriety tests, his failure of other tests, and the smell of an alcoholic beverage. Officer Magee took custody of the appellant from Taylor and brought the appellant to the Harris County Sheriff's Department for further DWI investigation. At the sheriff's department, Magee gave the appellant his written and oral DWI statutory warnings. Without an explanation, the appellant refused the breath test on the Intoxilyzer 5000. The police did not tell the appellant any facts regarding the accuracy or reliability of the Intoxilyzer. After he refused to take a breath test, the appellant was brought into the videotape room for the purpose of taping his interrogation and his performance of field sobriety tests. The appellant refused to participate in the taping session and did not waive his rights, and the taping session was stopped.
On June 2, 1997, a hearing was held on the appellant's pretrial motions. The trial court denied all of his motions, except it suppressed the audio portion of the videotape made the night of his January arrest, during which the appellant invoked his right to counsel. The appellant then pled no contest to both charges of misdemeanor DWI, pursuant to a plea bargain, and pled true to an enhancement paragraph. The trial court found him guilty of both charges of DWI and assessed the recommended punishment of a year in jail, probated for two years, a $1,500 fine, and a two-year suspension of his driver's license. The appellant received the trial court's permission to appeal his pretrial motions.
In points of error one, two, and three in both cause numbers, the appellant argues the trial court erred in not granting his motion to suppress because the stipulated evidence was too conclusory to establish probable cause to stop him in the first place. 1 We disagree.
The appellant stipulated he was stopped on January 24, 1997, by Officer Hill, who concluded the appellant's inspection sticker had expired in December 1996, and on February 19, 1997, by Officer Taylor, who concluded the appellant was not wearing his seat belt as he drove down Railroad Street. The appellant stipulated that the officers concluded the appellant might be intoxicated. The officers investigated the appellant's sobriety further, and based on his demeanor, the smell of an alcoholic beverage, his failure of field sobriety tests, and, in the case of the February stop, his refusal to take other field sobriety tests, arrested him for DWI.
In his motions to suppress, the appellant made general claims that he was subjected to illegal detentions, searches, and seizures, and that the officers lacked probable cause. He also alleged he was subjected to illegal custodial interrogations and was wrongly denied counsel. The appellant argued in his motions:
The seizure of the [appellant] was pretextual and made without any reasonable suspicion that he was engaged in criminal activity. The acquisition of the evidence which will be offered by the Government in this cause was not pursuant to a reasonable investigative detention, not pursuant to an arrest warrant, was absent exigent circumstances, and made without probable cause to believe the [appellant] was engaged in criminal activity.
The acquisition of the evidence which the Government will offer in the cause was not pursuant to a search warrant, was absent exigent circumstances, and made without probable cause to believe the [appellant] was engaged in criminal activity or that such evidence, if any, was in danger of being destroyed.
At the hearing on his pretrial motions, the appellant did not explain why the two stops were without probable cause. With respect to the motion in cause number 01-97-00632-CR, the February arrest, defense counsel said, "[W]e have a general catch-all motion, which has grounds: illegal detention, search and seizure, illegal custodial interrogation, denial of counsel, no consent." With respect to the motion in cause number 01-97-00631-CR, the January arrest, defense counsel said, At no time when the appellant was before the trial court did he make the argument he makes here--that the stipulated evidence was too conclusory to establish probable cause for the stops.
A defendant should not be allowed to stipulate to evidence, and then attack it for the first time on appeal on the grounds that the stipulation was too conclusory and did not set out the underlying basis for the arresting officer's conclusions. Without a showing that the officers' conclusions were not based on their personal observations, the stipulations will be viewed in the light most favorable to the trial court's judgments. See Yorko v. State, 699 S.W.2d 224, 226 (Tex.Crim.App.1985) (). Viewed in that light, it is a fair inference that the officers' conclusions were based on their personal observations.
To the extent that the appellant attacks the officers' conclusions as being without sufficient underlying grounds, the appellant waived any error arising out of the conclusory stipulated facts. See TEX.R.APP.P. 33.1(a)(1)(A) (); Collier v. State, 959 S.W.2d 621, 626 (Tex.Crim.App.1997); Rushing v. State, 962 S.W.2d 100, 102 n. 2 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd).
We overrule points of error one, two, and three in both cause numbers.
In point of error six in cause number 01-97-00631-CR and point of error five in cause number 01-97-00632-CR, the appellant claims the trial court erred in refusing to suppress evidence of his refusal to take a breath test because the officers gave him an erroneous warning on the consequences of such a refusal. We disagree.
In both arrests, the appellant was arrested and taken to a Harris County facility for breath testing, videotaping, and interrogation. In each case, he refused to take a breath test and was given a statutory warning. After his January arrest, the warning he was given read as follows:
You are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place while intoxicated. You will be asked to give a specimen of your breath and/or blood. The specimen will be analyzed to determine the...
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