Nieschwietz v. State, No. 4-05-00520-CR (Tex. App. 6/21/2006)
| Decision Date | 21 June 2006 |
| Docket Number | No. 4-05-00520-CR.,4-05-00520-CR. |
| Parties | CRAIG ALAN NIESCHWIETZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the County Court at Law No. 1, Bexar County, Texas, Trial Court No. 863616, Honorable Al Alonso, Judge Presiding.
AFFIRMED.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
Craig Alan Nieschwietz appeals from his conviction for driving while intoxicated and sentence of 180 days in jail suspended for one year of community supervision. We affirm the trial court's judgment.
The evidence admitted at trial showed that at approximately 2:00 a.m. on September 19, 2003, Elisha Evans was driving eastbound on Bandera Road when a Toyota Camry traveling westbound turned left in front of her, causing her Jeep Cherokee to collide with the Toyota. The Toyota driver attempted to start the vehicle and drive away, but it got stuck on a grassy slope near the road. Two men exited the Toyota and fled on foot; Evans saw that one man was wearing a cowboy hat. Evans followed the two men in her car and found the one wearing the cowboy hat hiding behind a column in a nearby parking lot. She called out, The man stepped forward and Evans observed he was not walking straight, smelled of alcohol and was "not making any sense." He then turned and ran away. Evans called the police at 2:29 a.m. to report the accident, stating that the other people had fled the scene. When the first officers arrived, Evans pointed them in the direction where the men had run.
Officer Olivarez arrived at the scene at approximately 2:31 a.m. and observed an abandoned Toyota Camry off to the side of the road. He proceeded to a nearby parking lot where he saw Evans standing by her damaged vehicle. Evans gave him a description of one of the men who had fled as a "white male in a black shirt," which he broadcast to other officers searching the area. Within approximately five minutes, two other officers returned to the parking lot with two male suspects. Officer Olivarez had already checked the vehicle registration for the Toyota Camry on his patrol car computer, and it showed the vehicle was registered to "Craig Alan Nieschwietz." He had also found insurance paperwork in the Toyota listing Nieschwietz as the owner and a driver of the vehicle. Olivarez testified that Nieschwietz had a strong smell of intoxicants on his breath, was unsteady on his feet, and his eyes were glossed over and bloodshot, leading Olivarez to conclude based on his experience that Nieschwietz was intoxicated. In addition, the officer observed that Nieschwietz's feet were muddy. It was Olivarez's opinion that Nieschwietz was the driver of the Toyota at the time of the accident. He arrested Nieschwietz for fleeing the scene of an accident, public intoxication and DWI, cuffed him and placed him in the patrol car to wait for another officer to assist with the DWI investigation.
At 3:15 a.m., Detective De La Garza arrived at the scene and performed the standard field sobriety tests on Nieschwietz. Based on his performance on the tests, De La Garza believed Nieschwietz was intoxicated. In addition, De La Garza had observed that Nieschwietz had a strong odor of intoxicants, glossy bloodshot eyes, was unsteady on his feet, swaying side to side, had slurred speech, and appeared confused with disorderly clothing and muddy feet. De La Garza testified he detained Neischwietz for suspicion of DWI and transported him to the police station where he performed the field sobriety tests again in front of a video camera, approximately two hours after the initial dispatch call; he performed better on the videotape, but still showed signs of intoxication. On the videotape, Nieschwietz states that he was not at fault in the accident because he was simply making a turn and someone else hit him. Nieschwietz refused to take a breath test. De La Garza testified at trial that in his opinion Nieschwietz was intoxicated at the scene as well as at the police station. Olivarez testified at trial that the Toyota driver caused the accident by making an unsafe turn because he failed to yield the right of way and was under the influence of alcohol; he further stated that in his opinion Nieschwietz was the driver of the Toyota and was driving while intoxicated.
In his first three issues, Nieschwietz asserts the trial court abused its discretion in denying his motion to suppress evidence seized as a result of his illegal arrest under the Fourth and Fourteenth Amendments to the United States Constitution, article I, § 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Because Nieschwietz does not argue or provide authority that article I, § 9 of the Texas Constitution provides different protection than the Fourth Amendment, we will make no distinction between his federal and state claims. Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993); Sturchio v. State, 136 S.W.3d 21, 23 (Tex. App.-San Antonio 2002, no pet.). In addition, article 38.23(a) is not an independent ground for objection to admission of evidence at trial; rather, it codifies the procedural result that occurs when evidence is determined to have been illegally seized. Tex. Code Crim. Proc. Ann. art. 38.23(a); Polk v. State, 738 S.W.2d 274, 276 (Tex. Crim. App. 1987). Therefore, we need not separately address Nieschwietz's third issue.
We review a trial court's ruling on a motion to suppress for an abuse of discretion under a bifurcated standard. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We afford almost total deference to the trial court's express or implied findings of fact supported by the record, but review its application of the law to the facts de novo. Id. at 327-28; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a trial court does not make findings of fact in denying a motion to suppress, we view the evidence in the light most favorable to the court's ruling and assume the court made implicit findings of fact in support of its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial court's decision is correct on any theory of law applicable to the case, its decision will be upheld. Id. at 855-56. We review a determination of probable cause under a de novo standard because it is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. Id. at 856; Moss v. State, 75 S.W.3d 132, 137 (Tex. App.-San Antonio 2002, pet. ref'd).
It is undisputed that Nieschwietz was arrested without a warrant. For a warrantless arrest to be valid, the State must show that (1) the arrest was based on probable cause, and (2) the arrest fell within one of the statutory exceptions to the warrant requirement. See Tex. Code Crim. Proc. Ann. art. 14.03(a) (Vernon Supp. 2005); see also Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Johnson v. State, 32 S.W.3d 294, 298 (Tex. App.-San Antonio 2000, pet. ref'd). Nieschwietz states in his brief that he is only challenging the warrantless arrest on the first prong, i.e., a lack of probable cause. Therefore, we will limit our analysis to the existence of probable cause. To determine whether probable cause exists, we look to the totality of the circumstances. Amores, 816 S.W.2d at 413; Johnson, 32 S.W.3d at 298. "Probable cause [to arrest] exists where the police have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense." Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); see also Johnson, 32 S.W.3d at 298. Probable cause requires "more than mere suspicion but far less evidence than that needed to support a conviction or even ... to support a finding by a preponderance of the evidence." State v. Parson, 988 S.W.2d 264, 267 (Tex. App.-San Antonio 1998, no pet.). When members of the same law enforcement agency have been cooperating in the investigation, we consider the sum of the information known to the cooperating officers at the time of the arrest in determining whether there was sufficient probable cause. Moss, 75 S.W.3d at 138; see also Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982).
Officer Olivarez was the only witness to testify at the suppression hearing. He testified that when the other officers brought the two suspects back to the parking lot, they were detained so he could determine which one was the driver of the Toyota at the time of the accident; he stated that Nieschwietz was not free to leave because he was "being investigated for his part in a hit and run accident." When Olivarez inquired which man was the driver of the Toyota, Nieschwietz stated that he was the driver. Olivarez testified he gave Nieschwietz his Miranda warnings after he admitted being the driver because he appeared intoxicated beyond the legal limit.1 Olivarez testified to his observations that Nieschwietz's breath had a strong smell of intoxicants, his speech was slurred, he was unsteady on his feet, and his eyes were "glossy" — all of which led Olivarez to believe that Nieschwietz was over the legal limit of 0.08 for operating a motor vehicle at that time, and that he had lost the normal use of his mental and physical faculties. Olivarez placed Nieschwietz in the patrol car and called for a DWI Task Force officer to come to the scene to evaluate Nieschwietz. Olivarez stated that at that time Nieschwietz was under arrest for DWI; he did not recall whether...
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