Walker v. State, No. 2-04-336-CR (TX 2/16/2006)
| Decision Date | 16 February 2006 |
| Docket Number | No. 2-04-336-CR.,2-04-336-CR. |
| Parties | PAUL JOHN WALKER, JR. Appellant v. THE STATE OF TEXAS, State. |
| Court | Texas Supreme Court |
Appeal from County Criminal Court No. 2 of Denton County.
Panel F: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
A jury convicted Appellant Paul John Walker, Jr., of driving while intoxicated, and the trial court sentenced him to 120 days' confinement, suspended for twenty months, and an $800 fine. In three points, Appellant contends that: (1) the trial court abused its discretion in denying his motion to suppress because the traffic stop violated article 1, section 9 of the Texas Constitution and the Fourth Amendment of the United States Constitution; (2) the trial court reversibly erred in admitting his blood test results, violating Texas Rule of Evidence 403; and (3) the trial court reversibly erred in admitting his blood test results without the requested jury instruction, violating Texas Rule of Evidence 105(a). In one cross point, the State contends that the trial court erred in denying its request to include the per se definition of intoxication in the jury charge. We affirm.
On January 30, 2004, Appellant filed a motion to suppress all evidence and testimony obtained directly or indirectly by any law enforcement officers regarding a blood test to which Appellant consented after his arrest for DWI. Appellant based his motion on the contention that the evidence was seized without a warrant in violation of the federal and state constitutions as well as various statutes. Subsequently, on February 5, 2004, Appellant filed a supplemental motion seeking to suppress, among other things, all evidence directly or indirectly obtained as a result of the traffic stop and subsequent arrest on the basis that the traffic stop was made without a warrant, probable cause, or reasonable suspicion under the federal and state constitutions. The trial court conducted a hearing on February 17, 2004.
The State called Trooper Michael Windham as one of two witnesses. Trooper Windham testified that he was sitting in a patrol car on the shoulder of U.S. 377 when he noticed Appellant's Suburban approaching from behind. Trooper Windham stated that he observed the Suburban cross the white shoulder line as it approached the patrol car and then swerve and cross the center yellow lines as it passed the patrol car. He decided to follow Appellant and at that point activated his video camera. Trooper Windham stated that he noticed that Appellant's driving improved, yet he continued to weave within his own lane; therefore, Trooper Windham stopped him.
Trooper Windham testified that when he approached Appellant's window, he detected the smell of alcohol and noticed that Appellant's eyes were bloodshot. He asked Appellant if he had been drinking, and Appellant responded that he had had four gins at the Palms Restaurant in Dallas. Trooper Windham then gave Appellant a written warning for failing to drive in a single lane and asked him to step behind his Suburban to perform several field sobriety tests. Appellant performed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand. Trooper Windham testified that Appellant performed poorly on all three of the tests; therefore, Trooper Windham arrested him.
Trooper Windham stated that after he had taken Appellant to the sheriff's office, he asked Appellant to submit to a breath test. Trooper Windham testified that Appellant refused and instead asked for a blood test. The State called Deborah Wolf, an emergency medical technician, level paramedic, and certified phlebotomist, who testified that she drew a sample of Appellant's blood to be sent for analysis.
At the conclusion of the hearing, the trial court granted Appellant's motion to suppress his refusal of the breath test and all statements Appellant made after his arrest in response to custodial interrogation; however, the trial court denied the motion as to the blood test and any evidence regarding the stop and subsequent arrest. The trial court made findings of fact and conclusions of law. In its findings of fact, the trial court found in pertinent part that "Trooper Windham observed the defendant's vehicle driving on the improved shoulder while approaching Trooper Windham's vehicle" and that "Trooper Windham observed the defendant's vehicle cross the center lines multiple times in what Trooper Windham believed to be an unsafe lane change or failure to maintain a single lane." In its conclusions of law, the trial court held in pertinent part that "based on the totality of the circumstances . . . Trooper Windham had reasonable suspicion to stop the Defendant's vehicle and was permitted to make a temporary investigative detention of the defendant and probable cause to arrest the Defendant . . . for . . . Driving While Intoxicated."
In his first point, Appellant contends that the trial court abused its discretion in denying his motion to suppress because the traffic stop violated article 1, section 9 of the Texas Constitution and the Fourth Amendment of the United States Constitution. More specifically, Appellant argues that because Trooper Windham believed that failure to drive in a single lane was a traffic violation, he needed to have probable cause for the stop, and he did not. In the alternative, Appellant claims that if Trooper Windham did not need probable cause for the stop, he at least needed reasonable suspicion, which he also lacked here.
Appellant does not distinguish between his rights under the Texas Constitution and the United States Constitution. Therefore, we will address only whether the trial court's denial of his motion to suppress violated his rights under the United States Constitution. See, e.g., Dewberry v. State, 4 S.W.3d 735, 743-44 (Tex. Crim. App. 1999) (), cert. denied, 529 U.S. 1131 (2000); Hale v. State, 139 S.W.3d 418, 421 (Tex. App.-Fort Worth 2004, no pet.) (analyzing defendant's contention under the United States Constitution only because defendant did not point out any distinction between his rights to confrontation under the United States Constitution and the Texas Constitution); see also Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Guzman, 955 S.W.2d at 89; Best, 118 S.W.3d at 861-62. However, when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005);Johnson, 68 S.W.3d at 652-53.
When the sole witness at the motion to suppress hearing is the arresting officer and the trial court files findings of fact and conclusions of law, the only question before us is whether the trial court properly applied the law to the facts it found.2 State v. Ballman, 157 S.W.3d 65, 69 (Tex. App.-Fort Worth 2004, pet. ref'd) (citing Carmouche, 10 S.W.3d at 327-28); Guzman, 955 S.W.2d at 86-87, 89; James v. State, 102 S.W.3d 162, 169-79 (Tex. App.-Fort Worth 2003, pet. ref'd)). Because the trial court entered findings of fact and conclusions of law and because those findings make clear that the trial court accepted virtually all of Trooper Windham's testimony, we must give that court almost total deference in reviewing those historical facts found but review de novo the application of the law to those facts. See Ross, 32 S.W.3d at 856-58; Ballman, 157 S.W.3d at 69.
While a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968). Because a temporary detention is considered a lesser intrusion than a custodial arrest, a police officer may stop an individual if the officer has a reasonable suspicion that the person is engaged in criminal activity. Id. at 22; 88 S. Ct. at 1880; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). The officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
In support of his contention that the issue is one of probable cause rather than reasonable suspicion, Appellant relies on State v. Rivenburgh, 933 S.W.2d 698 (Tex. App.-San Antonio 1996, no writ)...
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