State v. Esparza

• Decision Date: 26 October 2011
• Docket Number: No. 08–10–00173–CR.,08–10–00173–CR.
• Citation: 353 S.W.3d 276
• Parties: The STATE of Texas, Appellant, v. Carlos ESPARZA, Appellee.
• Court: Texas Court of Appeals

353 S.W.3d 276

The STATE of Texas, Appellant,

v.Carlos ESPARZA, Appellee.

No. 08–10–00173–CR.

Court of Appeals of Texas, El Paso.

Oct. 26, 2011.

Jaime E. Esparza, Dist. Atty., El Paso, for Appellant.

James D. Lucas, El Paso, for Appellee.

Before McCLURE, C.J., RIVERA, J., and CHEW, C.J., (Senior).

OPINION

GUADALUPE RIVERA, Justice.

The trial court issued an order granting, in part, Carlos Esparza's motion to suppress. The State appeals from that order. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). We reverse.

BACKGROUND

Esparza was charged by information with misdemeanor driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (West 2011). The information alleged both the “per se” and “impairment” types of intoxication. See Tex. Penal Code Ann. § 49.01(2) (West 2011).

Esparza filed a motion to suppress a police video as well as the results of an intoxilyzer breath test administered to him after his arrest.¹ In his motion, Esparza, citing the Fourth Amendment, argued that the video and breath test results should be suppressed as the fruits of an unlawful seizure. He also argued that the breath test results should be suppressed because: (1) there was no deemed consent to the taking of a breath specimen under Texas Transportation Code § 724.011 because he “was illegally detained but not arrested”; ² (2) the arresting police officers failed to give him the statutory warning required by Texas Transportation Code § 724.015; ³ (3) he did not voluntarily, knowingly, and intelligently consent to the breath test; (4) his breath specimen was not taken within a reasonable period of time; (5) he “took the breath test after [he] was stopped [and] there [was] no way to ascertain what [his] breath alcohol concentration was at the time he was stopped”; and (6) the State did not preserve his breath specimen, which denied him the opportunity to discover potentially exculpatory evidence.

The trial court held an evidentiary hearing on Esparza's motion to suppress. At the start of the hearing, the State moved for a continuance because it was “having trouble getting ahold of the intox supervisor,” whom it had subpoenaed. ⁴ Defense counsel objected to a continuance but stated nonetheless that he wanted to cross-examine the “intox supervisor,” although he did not say why he wanted to cross-examine him. Defense counsel's objections continued:

Judge, the State has not provided me a breath test slip [ ⁵] in this case. When the test—there is testimony about the breath test, for extrapolation purposes, I need to know at what time the specimens were provided—they've got to provide two of them. There's got to be a two-minute delay between the two of them. And they have to put him behind the wheel at the time of driving intoxicated, and within two hours, according to State versus Mata, [ ⁶] they have to perform the field sobriety test—I'm sorry, the breath test. Without the breath test slip there's no way for me to know when those tests were done. The trial court did not rule on the State's motion for a continuance, and the State failed to press its motion to an adverse ruling.

The State, after stipulating that Esparza's arrest was carried out without a warrant, offered the testimony of El Paso Police Officer Ruben Rivas, who testified as follows:

Q (by the State): Let me draw your attention then to December 6th, 2009. Did you have—do you have any occasions involving a DWI car accident?

A: Yes, sir.

Q: Can you tell me a little bit about that case then?

A: We were doing a proactive patrol and we rolled up on an accident that just, apparently, looked like it just occurred.

Q: Okay.

A: We got out of the vehicle and we observed the defendant inside the vehicle with the keys in the ignition and the ignition was on. We asked him what had happened. He stated that he had—

...

Q: Continue on.

A: We asked him what had happened. He said he struck the vehicle from behind. We asked him if he was okay, which he stated he was. We went over to check on the welfare of the other—of the other car, and we observed a passenger, pregnant lady. She said she was doing okay, but that they were just hit by the defendant and they identified the defendant as the driver of the vehicle that struck them.

...

Q: Okay. And did you notice any signs of intoxication when you were having contact with the defendant?

A: Yes, sir.

Q: And what were those signs?

A: We could detect a strong odor of alcohol emitting from the breath and person; also we saw red, glossy [sic] eyes of the defendant.

...

Q: What other signs?

A: We observed slurred speech. We got him out of the vehicle and we saw him swaying.

At the conclusion of Officer Rivas' testimony, the following transpired:

The Court: All right. Call your next witness.

Thank you, Officer.

The State: Well, Your Honor, at this point I'm not sure that we need to go any further. We have established now that there was, you know, a valid reason for the encounter with the defendant. They were investigating a car accident. And so we've established, you know, the reason for the stop, basically....

Now, at this point, you have enough determination [information?] to decide whether or not they had a right to continue. We're pretty much done.

The Court: Call your next witness.

The State: The point I'm trying to make, Your Honor, is even if you said at this point that it was an illegal arrest, then what does that mean—

The Court: Are you going to call a witness or not?

The State: Well, I'm just asking if you think it's necessary, Your Honor.

The Court: Motion's granted.

The State filed a motion asking the trial court to make findings of fact and conclusions of law with respect to its granting of Esparza's motion to suppress. The trial court made such findings and conclusions, which were as follows:

1. The defendant was arrested and charged with Driving While Intoxicated on December 6, 2009.

2. Officer Rivas was on patrol and drove up to a car accident.

3. Officer Rivas observed the defendant inside one of the vehicles involved with the keys still in the ignition and the ignition on.

4. The defendant stated that he struck another vehicle from behind.

5. The driver of the other vehicle identified the defendant as the driver of the vehicle that struck her vehicle.

6. Officer Rivas detected a strong odor of alcohol coming from the breath and person of [the] defendant, and he also noticed that the defendant's eyes were red and glossy.

7. In addition, Officer Rivas noticed that the defendant's speech was slurred and that he swayed as he stood outside of his vehicle.

8. Officer Rivas called in a DWI STEP unit to assist with the case. [ ⁷]

9. The Court finds that the encounter with the defendant was lawful because of the traffic accident that had occurred.

10. Once Officer Rivas detected the strong odor of alcohol from [the] defendant, he had reasonable suspicion to investigate whether [the] defendant was intoxicated.

11. After Officer Rivas observed the defendant to have red and glossy eyes, slurred speech and other signs of intoxication, there was sufficient probable cause to arrest [the] defendant for driving while intoxicated.[ ⁸]

12. The State failed to present any testimony regarding the breath test results; therefore, those results were suppressed by the Court.

The trial court's findings and conclusions made it clear that its order granting Esparza's motion to suppress actually granted it only in part. That is, the trial court found what it considered a proper basis on which to suppress the results of the breath test—the State's failure to present any testimony regarding that test—but the court found no violation of the Fourth Amendment and, therefore, no proper basis on which to suppress the police video.

On appeal to this Court, the State, in a single issue, argues that the trial court erred in suppressing the breath test results because Esparza established no proper basis for suppression. The State argues in particular that the arresting officers did not violate the Fourth Amendment on the day in question and that, in the trial court, Esparza failed to present any evidence that he did not voluntarily consent to the breath tests. Esparza argues in response that, both in his motion to suppress and at the start of the suppression hearing, he “informed the trial court that he was challenging the reliability and accuracy of the intoxilyzer test results,” and, therefore, the trial court properly suppressed those results when the State “failed to make any showing that [those] scientific test results were reliable....” Esparza also argues that the trial court properly suppressed the breath test results because “the State failed to demonstrate through competent evidence that probable cause authorized [his] arrest.”

DISCUSSION

An appellate court must uphold a trial court ruling that is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. White, 306 S.W.3d 753, 757 n. 10 (Tex.Crim.App.2010). “This principal holds true even when the trial judge gives the wrong reason for his decision, and is especially true with regard to admission of evidence.” Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (citation omitted). “The evident purpose of this rule is to ensure that a trial court ruling will be upheld if the appellate court has assurance that the ruling was just and lawful.” White, 306 S.W.3d at 757 n. 10.

In the instant case, the “theories of law applicable to the case” are limited to those theories of exclusion that Esparza offered to the trial court, because a trial court may properly exclude evidence only insofar as a party precisely and timely requests that it do so. See Willover v. State, 70 S.W.3d 841, 845–46 n. 4 (Tex.Crim.App.2002).

As we noted above, Esparza argues that, in the trial court, he objected to the admission of the intoxilyzer breath test results on the basis of their reliability and accuracy. If Esparza had in fact made such an...