State v. Fecci

• Decision Date: 20 October 1999
• Docket Number: No. 04-98-00695-CR,04-98-00695-CR
• Parties: (Tex.App.-San Antonio 1999) THE STATE OF TEXAS, Appellant v. Eugene Anthony FECCI, Appellee
• Court: Texas Court of Appeals

Page 212

9 S.W.3d 212 (Tex.App.-San Antonio 1999)

THE STATE OF TEXAS, Appellant v. Eugene Anthony FECCI, Appellee

No. 04-98-00695-CR

In the Fourth Court of Appeals San Antonio

October 20, 1999

From County Court No. 4, Bexar County, Texas

Trial Court No. 677568

Honorable Sarah Garrahan-Moulder, Judge Presiding

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

John F. Onion, Jr., Justice¹

Opinion by: John F. Onion, Jr., Justice

The State of Texas appeals from the trial court's interlocutory orders granting three pretrial motions to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5)(Vernon Supp. 1999).

Appellee Eugene Anthony Fecci was charged by complaint and information with the misdemeanor offense of operating a motor vehicle in a public place while intoxicated. See Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1999). The one-count information alleged in part, that on October 27, 1997, appellee "did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body." The information utilized only one definition of intoxication. See Tex. Penal Code Ann. 49.01(2)(a) (Vernon 1994).

Appellee filed three pretrial motions to suppress evidence including (1) physical evidence, (2) his written or oral statements, if any, and (3) a videotape made at the police station. Appellant alleged, inter alia, that his warrantless arrest for driving while intoxicated was without probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution, article I, section 9 of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure.

After the pretrial suppression hearing, the trial court orally granted the three motions to suppress, stating that while there was reasonable suspicion for the traffic stop, there was no probable cause to arrest appellant for driving a motor vehicle while intoxicated. There were no findings of facts or other conclusions made. Three formal written orders were entered simply granting the motions to suppress evidence.

Point of Error

In its sole point of error the State urges that:

The trial court erred by granting appellant's motions to suppress evidence because it based its decision to grant the motions on a finding that the arresting officers did not have probable cause to arrest appellant for driving while intoxicated despite that such a finding was outside the "zone of reasonable disagreement."² Additionally, the trial court's additional finding - that the officers had a reasonable suspicion - provides this Court with a sufficient factual basis to conclude that the evidence gathered prior to and as a result of appellant's arrest was not subject to suppression.

Background

At the pretrial suppression hearing, the parties agreed and stipulated that the facts would show a warrantless arrest for driving a motor vehicle while intoxicated. The State therefore agreed that it had the burden of proof at the hearing. See generally Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).³

The State argues that it sustained its burden of proof as to the reasonableness of the warrantless arrest under the circumstances; that the testimony of the three police officers - witnesses was consistent and uncontradicted as to the historical facts as to appellant's intoxication and other facts surrounding the issue of probable cause to arrest for driving while intoxicated and that the trial court erred in its ruling or rulings. Appellee Fecci calls attention to the videotape which the State introduced into evidence but does not mention in its appellate argument. Appellee contends that the videotape contradicted and impeached the police officer - witnesses and demonstrated his sobriety. In addition, there was a vigorous cross-examination of the officers using, inter alia, the police offense reports marked for identification Defense Exhibit No. One. Appellee Fecci argues that there was a factual dispute which was resolved in his favor by the trial court, who had the right to pass on the credibility anddemeanor of the witnesses.

Most questions about a trial court's pretrial suppression ruling are raised on appeal by a defendant following conviction. The issues invariably involve the denial by the trial court of a motion to suppress. The caselaw generally relates to this type of appeal or to cases where the evidence is undisputed and supportive of the trial court's implied findings of fact. The instant case involves a pretrial appeal by the State from pretrial orders granting the motions to suppress following a hearing where the burden of proof had shifted to the prosecution to show probable cause for making a warrantless arrest.

A motion to suppress was not recognized in Texas prior to the advent of the 1966 Texas Code of Criminal Procedure. The code, however, provided for a pretrial motion to suppress evidence under certain circumstances. See Tex. Code Crim. Proc. Ann. art. 28.01 1 (6) (Vernon 1989) & Special Commentary 1965; Bosley v. State, 414 S.W.2d 468 (Tex. Crim. App. 1967). It was not until 1981 that the State was granted a limited right of appeal including an appeal from an order granting a motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a) (5) (Vernon Supp. 1999). The same rules, however, should apply whether the State or the defendant appeals the trial court's adverse decision. See State v. Comeaux, 786 S.W.2d 480, 482 (Tex. App.--Austin 1990) aff'd, 818 S.W.2d 46 (Tex. Crim. App. 1991); State v. Carr, 774 S.W.2d 379, 380 (Tex. App.--Austin 1989, no pet.).

FACTS

We will view the evidence in the light most favorable to the trial court's findings as required. See Upton v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1992). San Antonio Police Officer Matthew Broiheir testified that on the night of October 27, 1997, he was on patrol driving south on San Pedro Avenue; that he was in the right lane in the 6000 block when he observed appellee swerve his vehicle from the center southbound lane into the right lane almost hitting the patrol car and then "jerk back;" that appellant did this four times without giving a turn signal and without getting completely into the right lane; that this all occurred between the 6000 and 5800 blocks; that he turned on his siren and the overhead lights on his patrol car; that appellee stopped his vehicle within 100 feet and pulled into a parking space at a well-lighted gas station at the intersection of San Pedro and Basse Road; that appellee's actions were safer than pulling off to the side of the highway; that the time of the stop was "about 10:27" p.m.; that when appellee got out of his truck appellee held onto the vehicle; that he (Broiheir) could tell appellee was "highly intoxicated by the smell of alcohol;" that he could tell it was the smell of beer; that appellee's eyes were bloodshot and his speech slurred; that appellee was a danger to himself and others; and that appellee had been driving while intoxicated.

Officer Broiheir obtained appellee's driver's license, but could not remember whether he ever got proof of insurance. Broiheir called for Officer Ferguson to come to the scene to perform the field sobriety tests including the horizontal gaze nystagmus (HGN) test; he did not call the DWI Task Force for assistance but sought out Ferguson personally because Ferguson had "some sort of HGN, a field sobriety test class and needed to perform additional sobriety tests for certification."⁴ Broiheir sought to aid Ferguson in this regard. Broiheir acknowledged that he was qualified to perform the standard sobriety tests but not the HGN test.

Officer Broiheir did not give traffic tickets to appellee, nor arrest appellee for traffic offenses, nor for any other offense, including public intoxication. See Tex. Penal Code Ann. 49.02 (Vernon 1994 & Supp. 1999). He explained to appellee that appellant was being detained for investigation into drinking and driving and that he (Broiheir) had requested assistance in further evaluation. While awaiting the arrival of Officer Ferguson, Broiheir left appellee leaning against his truck in the parking lot of the gas station near the busy intersection of San Pedro and Basse Road, despite his description that appellee was a danger to himself and others.

On cross- examination, Officer Broiheir agreed that it was "possibly" 2/10ths of a mile from the 6000 to the 5800 block of San Pedro where appellant was stopped; that appellee had not been speeding but was not going slow; and that it would "possibly" take 10 to 15 seconds to travel the blocks in question. Broiheir did not explain how appellee could have jerked his truck over the traffic lane four times in light of the time and distance traveled. Broiheir testified that when Officer Ferguson arrived, he informed Ferguson of what had happened, and then he stepped back to allow Ferguson "to do his work."

Officer William M. Ferguson, Jr., testified that he was called by Officer Broiheir at 10:27 p.m. on the night in question which was "about" the time Broiheir stopped appellee. Ferguson was asked to administer sobriety tests because Broiheir "felt that the suspect may have been intoxicated while driving." Ferguson arrived at the Stop 'N Go convenience store at the San Pedro and Basse Road (apparently the gas station) about 15 to 20 minutes after he received Broiheir's call. He found appellee being detained while Broiheir was "still administering a traffic stop." Broiheir told him that appellee's vehicle had crossed over the traffic lane one time. He included that information in his police offense report.

Ferguson interrogated appellee and learned that appellee had three beers that night at the Knights of Olde nightclub, and had watched a television football game but could not remember the name of the teams. Ferguson noted that appellee smelled of intoxicants, but he did not mention the other usual signs of intoxication....