No. 05-06-00787-CR.
January 23, 2007. DO NOT PUBLISH, Tex. R. App. P. 47 060787F.U05.
On Appeal from the County Criminal Court No. 5 Dallas County, Texas Trial Court Cause No. MA-0435215-F.
Before Justices Wright, Bridges, and Mazzant.
Opinion By Justice Mazzant.
Richard Lynn Harrod appeals his conviction for driving while intoxicated. In two related issues, he claims the trial court erred in denying his motion to suppress physical and testimonial evidence obtained at the scene of his warrantless arrest. We affirm the trial court's judgment.
Background
On the night of March 26, 2004, at approximately 7:00 p.m., Irving police officer Bret Behrends was dispatched to a hit-and-run accident in the parking lot of a Home Depot store. While en route to that location, he was informed by dispatch that the "suspect vehicle," a "blue four-door mid-size car," was seen leaving the parking lot. He was also given the vehicle's license plate number. While Behrends was on his way to the Home Depot, he saw "a blue mid-size four-door vehicle coming towards" him. He noticed it had the same license plate number as the vehicle described by the dispatcher. He turned his marked patrol car around and got behind the vehicle, notifying dispatch and activating his emergency lights. As he followed the vehicle, he noticed there was "some damage to the back bumper." He followed the vehicle for perhaps "three or four" minutes before it eventually pulled into the parking lot of a movie theater near the intersection of Walton and Ranchview. Behrends got out of his patrol car and approached the suspect's car. He identified himself to the driver — appellant — and asked him for his driver's license and insurance. Appellant complied. Behrends "could smell alcohol coming from" appellant and noticed he had red, bloodshot eyes. Behrends asked him if he had been involved in an accident "and he said at first no, but then he said yes he was." He did not ask appellant if he had been drinking. After appellant got out of the car, Behrends also noticed he was "kind of lethargic." Based on his training and experience, Behrends believed appellant could be intoxicated and decided to administer standardized field sobriety tests. Behrends administered three field sobriety tests. The first test was the horizontal gaze nystagumus (HGN) test for which appellant displayed the maximum number of six clues of intoxication. Behrends then asked appellant to perform the nine-step walk-and-turn test, but appellant could not follow the officer's instructions. When Behrends asked appellant to move away from the vehicle in order to begin the test, "he would fall over or almost fall over" and Behrends or another officer would have to catch him. After doing this "two or three" times, Behrends abandoned the effort and stopped the test for appellant's safety. Appellant also failed the one-leg stand test. As Behrends recalled, appellant "kept falling down and we had to steady him." These events were recorded by the video camera mounted in Behrends's patrol car. He did not tell appellant the field sobriety tests were being videotaped. Based on appellant's performance of the field sobriety tests, Behrends determined appellant was intoxicated and arrested him. He gave appellant Miranda warnings at the Irving police station. At the intoxilyzer room of the police station, he asked appellant to again perform the one-leg stand and walk-and-turn field sobriety tests on camera. Appellant testified that when he was stopped, the officer asked him to step out of the car. He did not ask any specific questions and did not give appellant Miranda warnings. The officer asked him to stand next to his vehicle, and he complied. He told appellant he was going to perform field sobriety tests. He did not advise appellant of his constitutional rights about "giving physical evidence." Appellant felt intimidated by the two officers, and he was nervous. When Behrends asked him to perform the field sobriety tests, appellant did not feel free to refuse. Appellant claims that if he had been advised of his constitutional rights, he would have refused to take any sobriety tests. At the police station, appellant was advised of his Miranda rights. He was asked to again perform the field sobriety tests, and, as before, he did not feel that he could refuse this request. During the suppression hearing, defense counsel argued appellant should have been informed of his rights before any field sobriety tests were requested and failure to do so violated the equal protection clause of the United State Constitution and the Texas Constitution as well as articles 1.06, See 38.22, See and 38.23 See of the Texas Code of Criminal Procedure. The defense also argued appellant's Fourth Amendment rights were violated because the stop constituted an illegal search and seizure. He claimed appellant's acquiescence to Behrends's request for field sobriety tests was not effective consent, and appellant should have been warned he was being videotaped and that anything he did could be used against him. Standard of Review
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). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Thus, we give almost total deference to the trial court's ruling 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). However, we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53. Where the trial court denies the motion and does not file findings of historical fact, as in this case, we view the evidence in the light most favorable to the trial court's ruling and assume the ruling is based upon implicit findings of fact supported by the record. Carmouche, 10 S.W.3d at 327-28. Furthermore, we will uphold the trial judge's decision so long as it is correct under any theory of law. Ross, 32 S.W.3d at 855-56. Physical Evidence
In his first issue, appellant claims the protections of the Fourth Amendment and article one section nine of the Texas Constitution apply to searches for signs of intoxication through the use of field sobriety tests. Appellant claims he was subjected to an unreasonable search and seizure when Behrends asked him to perform the standardized field sobriety tests. Both the Fourth Amendment and article one, section nine of the Texas Constitution protect individuals from unreasonable searches and seizures. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. Article 1.06 of the code of criminal procedure also codifies this right. See Tex. Code Crim. Proc. Ann. art. 1.06 (Vernon 2005). The Fourth Amendment, however, does not forbid all searches and seizures, only unreasonable searches and seizures. Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App. 1997). Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968); Davis, 947 S.W.2d at 244. To justify the intrusion, 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. Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989). A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987). The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime. Id. In the present case, Behrends stopped appellant's car because it matched the description and license plate number of a vehicle that was allegedly involved in a hit-and-run accident. After stopping appellant's car, Behrends noticed appellant had red, bloodshot eyes. Appellant also smelled of alcohol. When he asked appellant whether he had been involved in an accident, appellant initially said no but then admitted he had been involved in an accident. Based on his observations of appellant's vehicle prior to the stop and appellant's physical condition and demeanor, the trial court could have concluded Behrends had reasonable suspicion to further detain appellant in order to administer field sobriety tests. The field sobriety tests were the least intrusive means by which Behrends could verify or dispel his suspicion that appellant may have been driving while intoxicated. See Florida v. Royer, 460 U.S. 491, 500 (1983) ("an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."). Behrends asked appellant to perform three standardized field sobriety tests. Appellant failed the HGN test and was unable to perform either the walk-and-turn or one-leg stand tests. Based on these circumstances, Behrends had probable cause to believe appellant had committed the offense of driving while intoxicated, and he made a lawful warrantless arrest of appellant. See Tex. Code Crim. Proc. Ann. art. 14.01 ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."). We therefore conclude appellant's rights under the Fourth Amendment, article 1.06, and article one, section nine of the Texas Constitution were not violated by the officer's temporary detention of appellant and his request that appellant perform field sobriety tests. Citing the equal protection clause of the Fourteenth Amendment, appellant also contends the treatment of DWI suspects places "a burden on a suspect class and in particular, that his right to privacy in his person for unreasonable searches and seizures is a fundamental right." We disagree. The purpose of the equal protection clauses of both the United States and Texas Constitutions is to prevent the government from discriminating against any person or class of persons. See U.S. Const. amend. XIV; Tex. Const. art. I, § 3; Ingram v. State, 124 S.W.3d 672, 677 (Tex.App.-Eastland 2003, no pet.). Absent an interference with the exercise of a "fundamental" right or burden on a "suspect" class, classifications will not be set aside on equal protection grounds if they are rationally related to a legitimate state interest. See Cannady v. State, 11 S.W.3d 205, 215 (Tex.Crim.App. 2000). No suspect classifications or fundamental rights are implicated in this case. See Miller v. Reed, 176 F.3d 1202, 1205-06 (9 th Cir. 1999) (while a fundamental right to travel exists, there is no fundamental right to drive a motor vehicle on the public highways); Dinkins v. State, 894 S.W.2d 330, 342 (Tex.Crim.App. 1995) (criminal defendants are not a suspect class); Graham v. State, 710 S.W.2d 588, 593 (neither Texas nor federal constitutions give a DWI defendant the right to a chemical intoxication test or any specific type of test); Clark v. State, 665 S.W.2d 476, 480-481 nn. 3-4 (Tex.Crim.App. 1984) (fundamental rights include the right to privacy, the right to vote, the right to procreate, the right to travel, and those rights guaranteed by the First Amendment; and suspect classifications are classifications based upon race, national origin, gender, or illegitimacy). Carrying his equal protection argument a step further, however, appellant also contends the State had "no rational basis in treating suspects of DWI investigations any differently than any other citizen of a crime." The rational-basis test provides that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Ingram, 124 S.W.3d at 677. Because protection of public health, safety, morals, or some other phase of the general welfare is a legitimate state interest, asking a defendant to perform field sobriety tests in order to determine whether he is intoxicated is rationally related to a legitimate state interest. See id. at 677. Appellant's first issue is overruled. Testimonial Evidence
In his second issue, appellant claims the trial court erred in denying his motion to suppress testimonial evidence he alleges was obtained in violation of the Fifth Amendment and articles 38.22 and 38.23 of the Texas Code of Criminal Procedure because he was subjected to custodial interrogation. Appellant claims that when Behrends asked him to get out of the vehicle and perform the field sobriety tests in order to determine whether he was intoxicated, he was in custody; therefore, his "statements" should have been suppressed because Behrends did not provide appellant with Miranda warnings. The Fifth Amendment applies only to incriminating evidence that is testimonial in nature. Williams v. State, 116 S.W.3d 788, 791 (Tex.Crim.App. 2003). A defendant may be compelled to submit physical evidence of intoxication. Jones v. State, 795 S.W.2d 171, 175 (Tex.Crim.App. 1990); Oguntope v. State, 177 S.W.3d 435, 438 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Martin v. State, 97 S.W.3d 718, 720 (Tex.App.-Waco 2003, pet. ref'd). Unlike a confession, the performance of a field sobriety test is not testimonial in nature, but rather is physical evidence of a motorist's mental and physical faculties. See Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App. 1997); Jones, 795 S.W.2d at 175. The court of criminal appeals has reasoned field sobriety tests are not testimonial evidence that implicates the Fifth Amendment because their results do not create "an express or implied assertion of fact or belief." See Gassaway, 957 S.W.2d at 51. As he did in the trial court, appellant cites Jordy v. State, 969 S.W.2d 528, 531-32 (Tex.App.-Fort Worth 1998, no pet.), where the court of appeals concluded the appellant was subjected to a custodial interrogation following a traffic accident when, in response to the officer's question regarding how much he had to drink, he stated, "A lot." However, Jordy is distinguishable from the instant case because asking appellant to get out of his vehicle and perform standardized field sobriety tests to determine whether he was intoxicated is not "testimonial" evidence that implicates the Fifth Amendment. See Gassaway, 957 S.W.2d at 51; Jones, 795 S.W.2d at 175. We overrule appellant's second issue. We affirm the trial court's judgment. AMOS L. MAZZANT JUSTICE