State v. Espinosa
| Decision Date | 10 May 2022 |
| Docket Number | 14-20-00751-CR |
| Citation | 650 S.W.3d 849 |
| Parties | The STATE of Texas, Appellant v. Jennifer Aileene ESPINOSA, Appellee |
| Court | Texas Court of Appeals |
650 S.W.3d 849
The STATE of Texas, Appellant
v.
Jennifer Aileene ESPINOSA, Appellee
NO. 14-20-00751-CR
Court of Appeals of Texas, Houston (14th Dist.).
Opinions filed May 10, 2022
Discretionary Review Granted August 24, 2022
Jessica Alane Caird, Kim K. Ogg, Houston, Bridget Holloway, for Appellant.
Taly Thiessen, Carmen Mae Roe, Houston, for Appellee.
Panel consists of Justices Jewell, Bourliot, and Poissant.
Margaret "Meg" Poissant, Justice
The State of Texas appeals the trial court's order granting appellee Jennifer Aileene Espinosa's motion to suppress. Appellee was charged with driving while intoxicated ("DWI") and moved to suppress "all evidence seized and obtained" as a result of her "illegal detention, search[,] and seizure." In a single issue, the State asserts that the trial court erred in granting appellee's motion to suppress. We affirm.
I. BACKGROUND
At around 3:15 p.m. in August of 2019, Ashley Fajkus and her cousin drove past a stopped line of cars waiting in the far-right lane of a public roadway for after school pick-up at an elementary school. All the cars were at a standstill. Fajkus saw appellee sitting in the driver's seat of her car in the waiting line but noticed appellee's neck appeared to be at an odd angle. Concerned that appellee might be experiencing a medical emergency, Fajkus asked her cousin to stop. The two approached appellee's vehicle. Appellee was alone in the car, which was in park with the engine running. 1
Appellee appeared to be sleeping. Fajkus tried to open the door, but it was locked and the windows were up. Fajkus began pounding on the car's door and window. At this point, another driver waiting in the pick-up line called 911. Appellee awoke and opened her door. Fajkus could smell alcohol, and noticed appellee's car was in park. Though appellee was initially unresponsive, she spoke after a minute or two but was very difficult to understand. Appellee got out of the car and asked Fajkus to drive her home.
An elementary school teacher, Tasha Luce, approached and told appellee that 911 had been called and the police were on the way. According to Fajkus, when appellee learned that the police had been called, she went from "lethargic" to "kind of panicky a little bit" and started walking toward her car. Fajkus removed the keys from the vehicle. At that point, the vehicles in the pick-up line had begun moving and were driving around appellee's car to make the turn to proceed into the line. When Luce approached appellee, appellee was already outside her vehicle, and Luce could not say how long she had been in the pick-up line. With appellee's permission, Luce drove the vehicle to a nearby parking lot while appellee rode in the passenger seat. After Luce moved appellee's car, she kept the car keys. Luce confirmed that she did not see appellee inside her vehicle. Luce testified, however, that the pick-up line generally starts accumulating around 3:00 p.m. and that appellee's car was about the fifth car in line.
A fire truck arrived about thirty minutes after Fajkus first saw appellee. Fire department personnel checked appellee for medical issues and then waited for the police. Ten minutes later, Houston Police Department ("HPD") Officer Richard Brasuell arrived. Officer Brasuell is certified in standardized field sobriety testing and has some training and experience with evaluating intoxicated drivers. Officer Brasuell spoke to Fajkus, her cousin, Luce, a firefighter, and appellee.2
Fajkus told Officer Brasuell that she saw appellee behind the wheel of her parked vehicle stopped in the non-moving school pick-up line of traffic, with keys in the ignition and the engine running. Fajkus also told the officer that appellee "smelled like a bar" and "couldn't walk a straight line." One of the firefighters also told the officer that appellee smelled of alcohol. Four empty wine bottles were removed from appellee's car. Luce told Officer Brasuell that appellee said she was going to a nearby middle school, possibly to pick up her son. However, Luce also acknowledged that she did not see appellant actually drive her car or know when appellant parked at that location.
Officer Brasuell approached appellee. He observed that she had slurred speech, was disoriented, was confused about where she lived, was unsteady on her feet, had "glossy" red eyes, and had a strong odor of alcohol emanating from her person. The officer acknowledged that no one had seen appellee driving her vehicle but explained that appellee told him that she was coming from her house and was on her way to pick up her son.3 Appellee refused standardized field sobriety testing, and Officer Brasuell
arrested her for suspicion of DWI. It is undisputed that Officer Brasuell arrested appellee without a warrant.
Appellee filed a pretrial motion to suppress, claiming her warrantless arrest was unsupported by probable cause because neither the arresting officer nor any witness saw her drive or operate her vehicle. The court held a suppression hearing, during which three witnesses, including the arresting officer, testified about the events leading to appellee's arrest.
After hearing the evidence, the trial court granted appellee's motion to suppress all evidence, concluding that appellee was arrested without probable cause because the State failed to establish that appellee operated a motor vehicle while intoxicated as required for the offense. The court signed written findings of fact and conclusions of law. Among other findings, the court determined that no one saw appellee operating her vehicle and that no witness knew when appellee arrived in the pick-up line. The court found all witnesses truthful and credible.
After the suppression hearing, the trial court made findings of fact, including:
4. Fajkus had no medical training other than some training in high school where she was part of a group of students that trained with the doctors and nurses at Kingwood Medical Center.
...
8. Fajkus testified the defendant was not driving or doing anything to operate the vehicle.
9. Fajkus testified that she had no idea how long the Defendant had been at the school pickup line.
10. Fajkus told officer Brasuell that she had not seen the Defendant driving that day.
...
15. Luce testified that the Defendant was not driving the vehicle at the time she approached, and was not sure how long the Defendant had been in the school pickup line.
16. Luce stated that Defendant was polite when she approached the scene. When Luce offered to move the car for the Defendant, she said sure and got into the passenger seat. Luce then drove the defendant in her car over to the nearby daycare.
...
23. When [Officer Brasuell] approached the scene, he observed the Defendant sitting outside her vehicle.
24. Officer Brasuell spoke with Fajkus and asked whether she saw the defendant driving. Fajkus responded that she did not see the Defendant driving the vehicle.
25. Officer Brasuell testified that he did not see the Defendant driving her vehicle.
26. Officer Brasuell further testified, that after talking to all the witnesses on the scene, no one saw the Defendant operating her vehicle.
27. On cross examination, Officer Brasuell agreed that on exhibit one, Luce stated several times, "I just came up after they had already taken the keys."
28. Officer Brasuell testified he had no idea when the Defendant arrived at the school pickup line. He agreed that the Defendant could've arrived in the line at 10 AM or even earlier.
...
32. He further testified that he had no idea when these wine bottles were consumed.
33. Officer Brasuell further agreed that it is possible that the Defendant could've been at the school pickup line the night before.
34. The court finds the witnesses Fajkus, Luce, and Officer Brasuell's testimony to be truthful and credible in their testimony in this court.
The trial court also made the following conclusions of law:
1. A Defendant "operates" a motor vehicle when the totality of the circumstances demonstrates that the defendant took action to affect the functioning of a vehicle in a manner that would enable the vehicle's use. Tex. Dep't of Pub. Safety v. Allocca , 301 S.W.3d 364, 368 (Tex. App.—Austin 2009, pet. denied) (citing Denton v. State , 911 S.W.2d 388, 390 (Tex. Crim. App. 1995) )....
2. Although a Defendant need not move a vehicle in order to "operate" a vehicle, there must be "at least one additional factor, other than the driver being asleep with the engine running, that indicated the driver had attempted or intended to drive the vehicle." Id.
3. Evidence is insufficient to support a conviction for driving while intoxicated if there is no other evidence to show that the Defendant was driving the vehicle or that she was intoxicated at the time she was driving. Coleman v. State , 704 S.W.2d 511, 512 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd). This is true even if there is testimony that indicates a Defendant is intoxicated when officers arrive at the scene. Id.
4. There was no "action to affect the functioning of his vehicle in a manner that would enable the vehicle's use" when a Defendant was found "sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine
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