State v. Esparza

• Decision Date: 30 October 2013
• Docket Number: No. PD–1873–11.,PD–1873–11.
• Citation: 413 S.W.3d 81
• Parties: The STATE of Texas v. Carlos ESPARZA, Appellee.
• Court: Texas Court of Criminal Appeals

413 S.W.3d 81

The STATE of Texas

v.Carlos ESPARZA, Appellee.

No. PD–1873–11.

Court of Criminal Appeals of Texas.

Oct. 30, 2013.

James D. Lucas, El Paso, TX, for Appellant.

Joe J. Monsivais, Assistant District Attorney, El Paso, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

PRICE, J., delivered the opinion of the Court in which WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ., joined.

Following his arrest for the misdemeanor offense of driving while intoxicated, the appellee filed a motion to suppress “all evidence seized as a result of illegal acts by the state.” Specifically, he alleged that his arrest was illegal and that the circumstances under which breath testing for blood-alcohol concentration was conducted rendered the results illegally obtained for purposes of Article 38.23 of the Texas Code of Criminal Procedure.¹ At a pretrial hearing on the motion to suppress, the State presented testimony from one of the arresting officers and then rested. The trial court determined that the appellee's arrest was legal, but it nevertheless granted the appellee's motion to suppress on the explicit basis that “[t]he State failed to present any testimony regarding the breath test results[.]” The State appealed, and the Eighth Court of Appeals reversed the trial court's ruling, holding that the arrest was legal and that the appellee had failed to establish any illegalities in the way the breath-test results were obtained.² We granted the appellee's petition for discretionary review to examine his contentionthat the court of appeals erred in failing to uphold the trial court's ruling as “correct under any theory of law applicable to the case.” ³ We affirm the court of appeals's judgment.

FACTS AND PROCEDURAL POSTURE

In the Trial Court

Having stipulated at the outset of the hearing on the motion to suppress that the appellee had been arrested without a warrant, the State proffered as its only witness the arresting officer, Officer Ruben Rivas of the El Paso Police Department.⁴ Rivas testified that, on December 6, 2009, he and his patrol partner “rolled up on an accident that just, apparently, looked like it just occurred.” The appellee was sitting in the driver's seat of one of the cars with the ignition still on. He admitted that he had been driving and had struck the second car from behind. A passenger from the second car confirmed this to the officers. Rivas detected a strong odor of alcohol on the appellee's breath and person, slurred speech, “red, glossy” eyes, and, when the appellee got out of his car, a “swaying” gait. Because Rivas believed the appellee to be intoxicated, he summoned “a DWI STEP unit” to the scene to conduct field sobriety testing.⁵ In its written findings of fact and conclusions of law, which the State requested as the losing party after the trial court granted the appellee's motion to suppress,⁶ the trial court expressly found that Rivas's initial contact with the appellee was a lawful “encounter,” that the odor of alcohol gave Rivas reasonable suspicion to investigate further, and that the addition of further indicia of intoxication supplied probable cause to arrest the appellee for driving while intoxicated. These particular findings and conclusions are not presently in issue.

The trial court also found, however, that “[t]he State failed to present any testimony regarding the breath test results[.]” Without providing a supporting legal basis, the trial court simply declared that, “therefore, those results were suppressed by the Court.” From this we think it fair to assume that the trial court did not sustain the appellee's motion to suppress on the basis of his contention that his arrest was illegal. Nor did the trial court sustain the motion to suppress on the discretebasis of certain alleged irregularities in the course of the breath test that the appellee claimed should render the results of that testing illegally obtained and therefore subject to suppression.⁷ Instead, it is apparent that the reason that the trial court granted the appellee's motion to suppress the breath-test results was simply because the State failed to produce any evidence at the evidentiary hearing to show the circumstances under which the breath-test results were obtained.⁸

In the Court of Appeals

On appeal,⁹ the State contended that the burden to produce evidence of the circumstances under which the breath-test results were obtained is rightly posited, not with the prosecutor, but with the appellee, who was the proponent of the motion to suppress. That being the case, the trial court abused its discretion to grant the motion to suppress based upon the failure of the State to satisfy a burden of production that does not reside with the State. The court of appeals agreed and, having “found no theory of law applicable to the case that will support the trial court's order suppressing the breath test results[,]” reversed the trial court's order and remanded the cause for further proceedings.¹⁰

For the first time on appeal, however, the appellee began to argue that there was yet another theory of law applicable to the case that would justify the trial court's ruling on his motion to suppress: that the breath-test results could be excluded because the State failed to establish their scientific reliability under Rule 702 of the Texas Rules of Evidence.¹¹ The court of appeals disagreed, rejecting this as an alternative legal theory because the appellee had not raised it in the trial court—the appellee “never used the words ‘reliability’ or ‘accuracy,’ and he never referred to Rule 702.” ¹² Utilizing language and case law pertaining to principles of procedural default, the court of appeals held that admissibility of the breath-test results as a function of scientific reliability was not a theory of law applicable to the case because the appellee did not raise it at the trial court level by an “objection in plain, unambiguous language, so that both the trial court and the State could understand, without guessing, the specific nature of his objection and then could take, if necessary, appropriate responsive action.” ¹³ Although the appellee claimed that he made a specific objection, the court of appeals did not find any such objection in the record ¹⁴—and neither do we.

In his petition for discretionary review, the appellee argues that the court of appeals erred to require him to have raised his alternative argument at the motion to suppress hearing before he could invoke it as a theory of law applicable to the case on appeal. We granted the appellee's petition to take a closer look at his contention that the court of appeals improperly utilized principles of procedural default to determine whether his alternate “legal theory” under Rule 702, even though identified for the first time only on appeal, should nevertheless be regarded as “law applicable to the case.”

ANALYSIS

We have consistently held that a first-tier appellate court should reject an appellant's claim of reversible error on direct appeal so long as the trial court correctly rejected it “on any theory of law applicable to the case,” even if the trial court did not purport to rely on that theory. ¹⁵ Professors Dix and Schmolesky call this the Calloway rule, after this Court's opinion in Calloway v. State.¹⁶ Under the Calloway rule, the prevailing party at the trial court level need not have explicitly raised that alternative theory in the court below to justify the appellate court's rejection of the appellant's claim.¹⁷ Or, as ProfessorsDix and Schmolesky describe it, “an appellee [be it the State or the defendant below] has no obligation to raise a contention in the trial court in order to ‘preserve’ that contention in some sense for consideration on appeal.” ¹⁸ The court of appeals in this case eschewed the so-called “ Calloway rule,” however, effectively concluding that Rule 702 of the Rules of Evidence did not constitute a “theory of law applicable to the case”—at least not in the context of a pretrial motion to suppress evidence and attendant hearing, that nowhere even conceivably put the State or trial court on notice that the admissibility of the breath-test results was in question based on a challenge to their scientific reliability.¹⁹ Ultimately, we agree.

At trial, the proponent of scientific evidence is not typically called upon to establish its empirical reliability as a predicate to admission unless and until the opponent of that evidence raises an objection under Rule 702. It is only “[o]nce the party opposing the evidence objects ... [that] the proponent bears the burden of demonstrating its admissibility.” ²⁰ Allocation of the burden with respect to scientific reliability as a function of Rule 702 should be no different in the context of a pretrial motion to suppress than it is when the issue is raised during the course of trial. Whether at trial or in a pretrial hearing, the State (as proponent of the breath-test results here) can, of course, be made to satisfy its burden to demonstrate reliability. But it is not called upon to satisfy that burden unless and until the appellee (as opponent) has made a specific objection that those test results are scientifically unreliable or (perhaps) until the trial court, in its capacity as the gatekeeper of the admissibility of scientific evidence, should sua sponte call upon it to do so.²¹In this case, as the court of appeals correctly observed,²² nothing happened at the trial court level to alert the State that the scientific reliability of the breath-test evidence, as a function of Rule 702, was in play at the hearing on the pretrial motion to suppress evidence. ²³

In fact, far from it. The appellee's written motion to suppress exclusively raised issues of suppression of illegally obtained evidence, invoking the Fourth Amendment's exclusionary rule and Article 38.23 of the Texas Code of Criminal Procedure. Nowhere did it purport to request the trial court to make a pretrial...