ORSAG v. State

• Decision Date: 10 June 2010
• Docket Number: No. 14-08-00524-CR.,14-08-00524-CR.
• Citation: 312 S.W.3d 105
• Parties: Christopher Lee ORSAG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

312 S.W.3d 105

Christopher Lee ORSAG, Appellant, v. The STATE of Texas, Appellee.

No. 14-08-00524-CR.

Court of Appeals of Texas, Houston (14th Dist.).

March 25, 2010.

Rehearing Overruled June 10, 2010.

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W. Troy McKinney, Houston, for appellant.

Jason Travis Bennyhoff, Richmond, for appellee.

Panel consists of Justices YATES, SEYMORE, and BROWN.

OPINION

JEFFREY V. BROWN, Justice.

Appellant Christopher Lee Orsag was found guilty by a jury of felony driving while intoxicated. The trial court assessed punishment of four years in the Texas Department of Criminal Justice, Institutional Division, probated for four years, and a $1,000 fine. On appeal, Orsag raises four issues: (1) the trial court erred in overruling his motion to suppress; (2) the evidence was legally insufficient to prove he had previously been convicted two or more times of the offense of driving while intoxicated; (3) the trial court erred in overruling his objection to the State's alleged misstatement of the law in its opening statement; and (4) the trial court erred in overruling his objection to the admissibility of certain documents. We affirm.

I

On the evening of March 9, 2009, Officer Danny Cornelius, Jr., of the Sugar Land Police Department was sitting in his patrol car observing northbound traffic on U.S. Highway 59. Across the divided highway, Cornelius saw a blue Toyota pickup speeding. Using his laser device, he clocked the pickup at 90 miles per hour in a 65-miles-per-hour zone. Because Cornelius was unable to cross the divided freeway, he broadcast a description of the pickup to other officers.

Sergeant Wayne Coleman of the Sugar Land Police Department was on patrol and traveling southbound on the highway and saw Orsag's blue Toyota pickup. Based on the dispatch call, Coleman turned on his lights to signal Orsag to stop. By the time Coleman approached Orsag's vehicle, traffic had slowed due to construction requiring drivers to merge into fewer lanes. Orsag was not speeding when Coleman stopped him. At first, Orsag moved to the left side of the road next to a concrete barrier, and Coleman had to direct Orsag to pull over to the right side of the road where there was a shoulder. Coleman did not confirm with Cornelius that the vehicle he stopped was the same vehicle Cornelius saw speeding.

When Coleman approached Orsag and asked him for his identification, he noticed that Orsag's eyes were bloodshot and red and his eyelids were very droopy. Coleman also noticed a faint odor of alcohol and a very strong odor of tobacco on Orsag's breath. Orsag denied drinking, but his passenger, his fiancé Holli Woodling, confirmed that he had two beers that night while they were at the rodeo. After Orsag again denied drinking, Coleman performed field-sobriety tests on him. Based on Orsag's performance, Coleman arrested Orsag for DWI and took him to jail. At jail, Orsag refused to take a breath test, and evidenced his refusal by signing a "DIC-24" form.

II

In his first issue, Orsag contends the trial court erred in overruling his motion to suppress on the grounds that he was illegally seized without reasonable suspicion in violation of the Fourth Amendment of the United States Constitution. Specifically, Orsag contends Coleman stopped him without reasonable suspicion or probable cause because the stop was based solely on another officer's police-radio broadcast that he had observed a blue Toyota pickup speeding, and Coleman did not observe Orsag speeding or committing any other offense. Based on the totality of the circumstances, Orsag contends, a reasonable officer could not have pointed to specific and articulable facts to warrant a suspicion that Orsag's vehicle—as opposed to another vehicle—was the same vehicle reported on the police broadcast.

A

We review the trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). We view the evidence adduced in the light most favorable to the trial court's ruling. Id. We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id.

Law-enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Chapnick v. State, 25 S.W.3d 875, 877 (Tex.App.-Houston 14th Dist. 2000, pet. ref'd). An officer must have reasonable suspicion to justify an investigatory stop. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Reasonable suspicion for an investigatory detention arises when an officer has specific articulable facts which, premised on his experience and personal knowledge and coupled with the logical inferences from those facts, warrant intruding on the detained citizen's freedom. Chapnick, 25 S.W.3d at 877. The validity of the stop is determined from the totality of the circumstances. Id. (citing Sokolow, 490 U.S. at 8, 109 S.Ct. 1581).

B

As an initial matter, Orsag contends that we may consider only the evidence adduced before the trial court ruled on the suppression motion. On these facts, we disagree.

Generally, the appellate court reviews the trial court's ruling in light of what was before it at the time the ruling was made. See Rangel v. State, 250 S.W.3d 96, 97-98 (Tex.Crim.App.2008); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). This general rule does not apply, however, when the alleged error is the admission of evidence at trial and the issue was consensually litigated at trial. See Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996); see also Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim.App.2007) ("When the parties subsequently re-litigate the suppression issue at the trial on the merits, we consider all evidence, from both the pre-trial hearing and the trial, in our review of the trial court's determination.").

Here, unlike most cases, the motion to suppress was not litigated in a pretrial hearing. Instead, Orsag's counsel interjected the motion during the State's examination of its second witness. The State's first witness was Officer Cornelius. Cornelius testified that he was working on a selective traffic-enforcement assignment primarily designed to identify intoxicated drivers when he observed a blue Toyota pickup speeding. He was unable to pursue the vehicle because it was in the southbound lanes of Highway 59 and he was facing the northbound lanes, so he radioed a description of the vehicle and that it was speeding to other officers. He had no further involvement in the case.

The State's second witness, Sgt. Coleman, testified that he was on patrol in his marked police cruiser on Highway 59 when he received Cornelius's dispatch call concerning a blue Toyota pickup truck traveling southbound at 90 miles per hour. Coleman also was working on the selective traffic-enforcement assignment. He testified that, at the time of the call, Cornelius broadcast that he was in the 15,000 block of the highway, and Coleman was located "fairly close" in the 14,500 block of the highway on the opposite side. Coleman testified that, as soon as he heard Cornelius's broadcast, he "knew he was close" and so he "got on the accelerator" to see if he could catch the speeding vehicle. Near the University Boulevard exit, the traffic slowed as the roadway narrowed down to one lane due to construction. Coleman testified it was at this point that he saw Orsag's vehicle and stopped him. As the State began to question Coleman concerning his contact with Orsag, defense counsel moved to suppress "all evidence obtained from the point of the stop forward" because the State failed to establish any probable cause or reasonable suspicion to stop Orsag. After a bench conference, the trial court overruled the motion to suppress. No findings of fact or conclusions of law were made.

Immediately after the trial court denied Orsag's motion to suppress, the State asked Coleman whether he saw any other blue Toyota pickups at the time he stopped Orsag, and Coleman answered, "No." Coleman then testified that he stopped Orsag at 11:15 p.m., "right after" Officer Cornelius had spotted him. Orsag did not object to this line of questioning. Indeed, Orsag cross-examined Coleman concerning the reasonableness of the stop, and he raised the issue repeatedly throughout the trial. Orsag also moved for a directed verdict on the ground that the State had failed to prove there was reasonable suspicion to stop him, he began his closing argument to the jury with the issue, and the jury was instructed on reasonable suspicion. Accordingly, on these facts, we will consider the evidence adduced at trial both before and after the court ruled on Orsag's motion to suppress.

In addition to the above testimony, Sgt. Coleman testified on cross-examination that his decision to stop Orsag was based on Officer Cornelius's observations of a "blue Toyota pickup," and that he did not see Orsag do anything illegal. Coleman admitted Cornelius did not confirm that Orsag's vehicle was the same one he saw speeding. Coleman acknowledged that Cornelius gave no further details such as a description of the driver, the model of the truck, whether the truck was large or small, whether it was a two-door or a four-door truck, or whether it had any distinguishing features. Coleman acknowledged that a better description "would have helped." He also admitted that he did not know if the speeding vehicle continued southbound or exited the highway. But Coleman also testified that he knew he had the right vehicle because "it was the only blue Toyota pickup in the inside lane that he said was going that fast" and he did not see any other blue Toyota pickups at the time. On redirect,...