No. 05-08-01546-CR
Opinion Filed November 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court of Criminal Appeals No. 2 Dallas County, Texas, Trial Court Cause No. MB0623520M.
Before Justices MORRIS, BRIDGES, and MURPHY.
Opinion By Justice MURPHY.
Jared Lee Snowdy appeals his jury conviction for misdemeanor driving while intoxicated, claiming in two points of error that the arresting deputies' testimony was not trustworthy and could not support the trial court's denial of his suppression motion or his conviction. We modify the judgment to correct typographical errors and, as modified, affirm.
Background
Deputies Terry Trout and Gary Aven stopped Snowdy after observing him slide or fishtail through a four-way intersection, almost hit a light pole, accelerate, cut through three lanes of traffic to turn into an apartment complex, try to enter the complex through an exit, and hit the gate of the complex. Aven and Trout found Snowdy smelling of alcohol, with glassy eyes and slurred speech, "disoriented," and just "not making much sense." Aven asked Snowdy for identification, but when Snowdy repeatedly pulled cards other than his driver's license from his wallet, Trout decided to administer two field sobriety tests — the horizontal gaze nystagmus (HGN) and the one-leg stand. Based on Snowdy's performance on the tests, his disorientation and appearance, and after Snowdy admitted he had "drunk seven quarts of stuff," Trout arrested Snowdy and subsequently administered a breath test. Snowdy's alcohol content registered greater than .20. Prior to trial, Snowdy moved to suppress the evidence obtained after he was stopped, arguing Aven and Trout lacked reasonable suspicion to stop him. The hearing on the motion was held during trial, outside the jury's presence, and consisted of the testimony of Aven, Trout, and Snowdy. Aven testified he had graduated from the sheriff's academy, had two-and-a-half months' experience in patrol, and was still "in training" when the stop-his "only DWI"-occurred. According to Aven, Snowdy was stopped at a red light and then "fishtailed" through the intersection as he turned southbound. Aven did not hear any tires squealing as Snowdy accelerated towards the apartment complex. Other than the cars stopped at the intersection, no cars were "actually" around Snowdy as he turned. Aven testified he stopped Snowdy to make sure he was all right and because of his unsafe lane change. He also described Snowdy's driving as reckless. Trout's observations of Snowdy's driving were generally similar to Aven's, but Trout testified he heard Snowdy's tires squeal as he slid. He characterized the turn as a four-wheel slide and "then his back end fishtailed back to his left and he regained control and took off." Trout's testimony also differed slightly as to the basis for the stop. In Trout's opinion, Snowdy's turn constituted the traffic offense of "failure to maintain single lanes." Snowdy denied being stopped at the intersection, fishtailing, sliding, almost hitting a light pole, speeding, and driving recklessly. According to Snowdy, the traffic light was red as he approached the intersection but turned green before he reached it. He turned right heading south and got in the far left lane so he could turn into his apartment complex, which was about a quarter-of-a-mile from the intersection. Snowdy explained he drove towards the exit gate because his apartment was close to that gate and a car was exiting. Based on this evidence, and without explanation or specific findings, the trial judge denied the motion. After the trial continued, Aven and Trout described in more detail their observations of Snowdy, his performance on the field sobriety tests, details about the intoxilyzer room and breath test, and the belief by each that Snowdy was intoxicated and had lost "the normal use of his mental or physical faculties." See Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003) (defining "intoxicated" to include "not having the normal use of mental or physical faculties by reason of the introduction of alcohol"). Both testified the stop and intoxilyzer room proceedings had been recorded, the recording of the stop could not be located, and the quality of the breath test video was poor. As to the video of the stop, Aven speculated based on a conversation with a supervisor that the videotape had been destroyed in accordance with office policy of destroying tapes after six months. The videotape of the breath test was introduced into evidence and played for the jury. In his brief, Snowdy asserts the tape "was inexplicably made indecipherable." The testimony shows, however, that the video equipment in the intoxilyzer room at the time was in poor condition and was subsequently replaced with new digital equipment. Also, prior to the jury viewing the tape, Trout testified as to the protocol for recording in the intoxilyzer room and for storing tapes. He testified he followed the protocol, had reviewed the tape before trial, and saw no alterations to the tape. Alvin Finkley, a Southwest Institute of Forensic Science technical supervisor responsible for teaching officers how to use the intoxilyzer machines and maintaining the machines, testified he inspected the machine Trout used to administer the breath test to Snowdy six days prior to Snowdy's arrest as well as the day after the arrest. Both times the machine was "operating correctly and very capable of giving valid test results." Finkley also testified he reviewed Snowdy's test results and found them to be valid because nothing had been presented to him showing Trout did not use proper procedure when administering the test. In addition to Trout's testimony regarding the traffic stop and the tests he administered, Trout testified that two years prior to the arrest he had filed an internal affairs complaint against Snowdy's father, a Dallas police officer. Trout described the complaint stemming from the father's conduct in court and outside the courtroom while appearing in support of Snowdy on a different matter. Trout also testified that he did not recognize Snowdy at the time of the stop and it was not until they were in the intoxilyzer room that he realized the connection. Snowdy did not testify before the jury nor did he call any witnesses. Following the jury's conviction, the trial judge assessed punishment at 180 days' confinement, suspended for twenty-four months, and a $600 fine. Suppression of the Evidence
Snowdy's first point of error is a challenge to the trial court's denial of his suppression motion. Snowdy argues the stop was illegal, and all evidence seized during the stop should have been suppressed, because the deputies had no factual basis for stopping him. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (evidence seized illegally must be suppressed); see also Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005) (evidence obtained in violation of the United States or Texas Constitution or laws may not be admitted at trial). As part of his argument that Aven and Trout had no factual basis to stop him, Snowdy argues this is the type of case requiring the appellate court to engage in a factual review of the evidence. He asserts the testimony should be "very, very carefully scrutinized" because of the missing in-car video, Trout's prior complaint against Snowdy's father, and the difference in testimony regarding the observations of Trout and Aven leading to the traffic stop. A traffic stop is an investigative detention and, to be lawful, must be justified by reasonable suspicion that a traffic violation or other crime has occurred or is occurring. See State v. Guzman, 240 S.W.3d 362, 366 (Tex. App.-Austin 2007, pet. ref'd); Garcia v. State, 3 S.W.3d 227, 233, 241 (Tex. App.-Houston [14th Dist.] 1999), aff'd, 43 S.W.3d 527 (Tex. Crim. App. 2001). The "reasonable suspicion" standard is an objective one and the burden of demonstrating reasonable suspicion falls on the State. Guzman, 240 S.W.3d at 366, 367; Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.-Houston [14th Dist.] 2006, no pet.). In assessing reasonableness, we look at the totality of the circumstances. Garcia, 3 S.W.3d at 234. We must ask whether a person of reasonable caution, looking at the facts available to the officer at the moment of the investigation, would believe that a traffic violation occurred. Goudeau, 209 S.W.3d at 716. We review de novo a ruling on a suppression motion based on the legality of the stop. State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim. App. 2008). We will sustain the ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). In conducting our review, we do not engage in our own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Rather, we view the evidence in the light most favorable to the ruling. Iduarte, 268 S.W.3d at 548. We give almost complete deference to the determination of historical facts by the trial judge, who sits as the sole trier of fact and judge of the credibility of the witnesses and the weight of their testimony. St. George, 237 S.W.3d at 725. In challenging the deputies' factual basis for stopping him, Snowdy relies on Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990), and Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990), and argues appellate courts may engage in their own factual review in "very narrow circumstances." Snowdy urges, based on his own testimony at the suppression hearing and (1) Aven's lack of experience, (2) Trout's history with Snowdy's father, (3) the missing tape of the stop, and (4) the "significant differences" between Aven and Trout's observations of Snowdy, that "[t]he instant cause is the type of case that requires" such review. Snowdy maintains such a review will show that no factual basis for the stop existed and the trial court erred in denying his motion. Snowdy's reliance on Romero and Meraz is misplaced. Those cases recognize an appellate court's authority to engage in its own factual review, but only in the context of determining the factual sufficiency of the evidence. See Romero, 800 S.W.2d at 543 n. 6 (citing Meraz for the proposition that appellate courts engage in their own factual review "in very narrow circumstances" only); Meraz, 785 S.W.2d at 154 (noting that appellate courts are "constitutionally given the authority to determine if a jury finding [of guilt] is against the great weight and preponderance of the evidence"). They do not recognize an appellate court's authority to engage in its own factual review in any other context. The trial judge, in denying Snowdy's suppression motion, necessarily found the evidence supporting the stop credible, and we must give deference to that determination. See St. George, 237 S.W.3d at 725. Regarding the stop, no evidence was offered at the suppression hearing related to the missing videotape or Trout's history with Snowdy's father. That testimony was offered only at trial, following the denial of the suppression motion. In determining whether a trial court's ruling is supported by the record, we consider only the evidence from the suppression hearing, unless the motion was relitigated during trial. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). This is because the trial court can rule only based on the evidence before it. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). Snowdy's argument that his own testimony at the suppression hearing is proof no factual basis existed for the stop is not supported by the law. The applicable standard requires us to view the evidence in the light most favorable to the court's ruling. See Iduarte, 268 S.W.3d at 548. Although the trial judge did not provide a basis for its ruling, the State, through Trout and Aven, offered two bases for the stop: "reckless driving" and "failure to maintain single lanes." In its brief, the State also offered the basis of "making an unsafe turn." Viewing the evidence here in the light most favorable to the trial court's ruling and looking at the totality of the circumstances, we conclude the State satisfied its burden of demonstrating the reasonableness of the stop. Under section 545.401(a) of the Texas Transportation Code, a person commits the offense of reckless driving if he drives a car "in wilful or wanton disregard for the safety of persons or property." Tex. Transp. Code Ann.§ 545.401(a) (Vernon 1999). Under section 545.103 of the transportation code, a person may not "turn . . . from a direct course[] or move right or left on a roadway unless movement can be made safely." Id. § 545.103. Based on both Aven's and Trout's observations of Snowdy, a "person of reasonable caution" would have believed Snowdy committed either or both of those traffic violations. See, e.g., Singleton v. State, 91 S.W.3d 342, 347-48 (Tex. App.-Texarkana 2002, no pet.) (concluding officer's testimony that turning in manner causing tires to squeal is unsafe and appellant made tires "spin out" while turning supported finding of reasonable suspicion that appellant had violated transportation code section 545.103); State v. Kibler, 874 S.W.2d 330, 333 (Tex. App.-Fort Worth 1994, no pet.) (concluding officer's testimony that appellant "pull[ed] in front of him coming close to his patrol car" and this "amounted to reckless driving" provided reason for officer to stop appellant for traffic safety violations). First, the record supports Aven's testimony that Snowdy's "reckless driving" provided a basis for stopping him. We also conclude the evidence supports the State's position that the stop was justified based on Snowdy's "making an unsafe turn." See Iduarte, 268 S.W.3d at 548 (appellate court may sustain trial court's ruling on suppression motion under any theory applicable to case). We conclude the record supports an objective basis for the stop, and the trial court therefore did not err in denying Snowdy's motion to suppress. We overrule Snowdy's first point of error. Factual Sufficiency of Evidence
In his second point, Snowdy asserts the evidence is factually insufficient to support the conviction. Our inquiry in a factual sufficiency challenge begins with the assumption that the evidence is legally sufficient. See Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We then determine whether the evidence is factually sufficient to support the conviction. We will conclude the evidence is factually insufficient if (1) the supporting evidence is "too weak" to support the factfinder's verdict or (2) considering conflicting evidence, the factfinder's verdict is against the great weight and preponderance of the evidence. Id. In making this determination, we consider all the evidence in a neutral light. Id. Although we defer to the jury's findings, we may override the verdict to "`prevent manifest injustice.'" Id. (quoting Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id. In arguing the evidence is factually insufficient, Snowdy does not cite any portion of the record that shows he was not intoxicated, and we find none. Instead, Snowdy argues that, because Aven's testimony was based in part on Trout's administration of the field sobriety tests and breath test and Finkley's testimony was also based on Trout's administration of the breath test, "the entire basis for finding" him guilty was Trout's testimony. Snowdy claims that Trout was untrustworthy, that his testimony could not be independently corroborated with the tapes of the stop and intoxilyzer room, and his testimony therefore could not support the conviction. The jury, however, returned a verdict of guilty based on evidence that included the very evidence upon which Snowdy relies to assert Trout was not trustworthy: (1) that Trout had filed a complaint against Snowdy's father; (2) that the tape of the stop was missing and the tape of the intoxilyzer room was indecipherable and neither could independently corroborate Trout's testimony; and (3) that the testimony of both Aven and Finkley relied in part on Trout's testimony. Additionally, and contrary to Snowdy's argument that Trout provided the "entire basis" for the State's case, the jury had before it Aven's own observations of Snowdy. Aside from his observations concerning the administration of the tests, Aven testified as to Snowdy's driving. He also testified that Snowdy's speech was slurred, his breath smelled of alcohol, his eyes were glassy, he was "not making much sense," he produced several cards other than his license when asked for identification, and he admitted he had been drinking. This evidence alone was enough to support the jury's finding that Snowdy drove while intoxicated. See Tex. Pen. Code Ann. §§ 49.01(2)(A), (B), 49.04(a); see also, e.g., Scott v. State, 914 S.W.2d 628, 629-30 (Tex. App.-Texarkana 1995, no pet.) (evidence showing defendant's car swerved and crossed center lane and defendant admitted to drinking, smelled of alcohol, had "slight slur in his speech," and was unsteady factually sufficient to support DWI conviction). By finding Snowdy guilty, the jury made its own determination of the credibility of the witnesses and evidence. Based on this record, we cannot conclude the supporting evidence is too weak to support the verdict or that the verdict, considering the conflicting evidence, is against the great weight and preponderance of the evidence. Nor can we conclude the verdict is manifestly unjust, and we will not disturb the jury's finding. We overrule Snowdy's second point of error. Modification of Judgment
We note the judgment lists the offense date as October 25, 2008 instead of 2006 and the sentencing date as October 25, 2006 instead of August 15, 2008. Accordingly, we modify the judgment to correct these errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). As modified, we affirm the trial court's judgment.