Opinion
NUMBER 13-16-00116-CR
03-09-2017
THE STATE OF TEXAS, Appellant, v. ARMAND BOYD, Appellee.
On appeal from the County Court at Law No. 3 of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Contreras
In this appeal, the State of Texas argues that the trial court erred in granting a motion to suppress evidence filed by appellee Armand Boyd following Boyd's arrest for driving while intoxicated. We reverse and remand.
I. BACKGROUND
Boyd was arrested and charged by information with one count of driving while intoxicated, a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw through 2015 R.S.). He moved to suppress evidence on the basis that the officers lacked probable cause to arrest him.
At a suppression hearing, Corpus Christi police officers Pablo Hernandez Jr. and Andrew Carrizales testified that, at around 3:30 a.m. on March 8, 2014, they were dispatched to a major automobile accident on Greenwood Drive in Corpus Christi. Upon their arrival, the officers discovered two vehicles, one which was off to the side of the road and one which remained in the roadway. The driver of the vehicle that was still in the roadway told Hernandez that he had been struck from behind by the other vehicle, and he pointed to Boyd as the driver of that vehicle. Boyd's vehicle had severe front-end damage and its front and side airbags had deployed.
The officers approached Boyd, who was sitting beside his vehicle on the curb. Hernandez testified that Boyd "had injuries on him" and was "cut up from being in an accident." Carrizales stated that Boyd was "in kind of disarray" from the accident and had "some blood on his face and his hands." Paramedics were present and were also attempting to collect information from Boyd. Hernandez stated that he asked Boyd for his name "multiple times" but Boyd "just kept replying what." Hernandez decided to "let the medics take care of [Boyd]" and to search the vehicle for identification. He did not find identification, but he found a cold, closed can of beer on the passenger-side floorboard. Hernandez went back to Boyd, who was "still kind of not very coherent" and "was not really answering [his] questions." Hernandez stated that Boyd's eyes were "red and glassy" and he acknowledged that he wrote in his police report that Boyd's speech was "slow" and "slurred." Hernandez further testified that he could detect the odor of alcohol on Boyd's breath.
When asked what led him to believe that DWI had been committed, Hernandez replied: "Just the combination of everything, the time of the day, the—during that—during that time, Greenwood doesn't really have too many vehicles, so an accident like that at that time of day, what I smelled, and what I observed, kind of le[]d me to everything."
On cross-examination, Hernandez testified that the odor of alcohol he detected on Boyd was "moderate" and "not real immediate." Carrizales testified that he could detect a "slight" or "light" odor of alcohol from Boyd's breath and that "due to [Boyd] being confused and not knowing, you know, where he's at, it was just apparent maybe he was intoxicated or on some type of narcotic." Carrizales stated that, according to his experience, people who have been involved in accidents—even accidents worse than this one—are usually able to answer questions.
Defense counsel asked each officer on cross-examination whether they would be surprised to learn that airbags deploy at close to 200 miles per hour. The officers each replied that they would not be surprised. The officers each agreed with defense counsel that "dust" comes out of an airbag when it is deployed, and that the dust can affect a person's eyes. Hernandez also agreed that there are reasons besides intoxication or airbag deployment that someone's eyes could be red at 3:30 a.m., such as the person being tired.
Defense counsel showed the officers a lab report that was performed on a blood specimen taken from Boyd following his arrest, and she asked the officers if they would be surprised to learn that "no alcohol was detected" in Boyd's system. The officers each replied that it would surprise them, and that they still stood by their testimony that they smelled alcohol on Boyd. The lab report was not admitted into evidence.
On re-direct examination, Hernandez agreed with the prosecutor that, according to the lab report, "there were other substances in [Boyd's] system that would cause him to become intoxicated." Hernandez later stated that the substance found in Boyd's system was a metabolite of THC, which is found in marijuana. He agreed with defense counsel that there was no way to tell when Boyd may have used marijuana because "[i]t could have been a week ago. Could have been a month ago. And it would still stay in his system." The officers each testified that they did not detect the odor of marijuana on Boyd.
The officers acknowledged that Boyd eventually told them his name. They did not administer any field sobriety tests because Boyd had just been in a car accident.
The trial court granted Boyd's motion to suppress and this appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (permitting State to appeal order in criminal case granting a motion to suppress evidence). Upon the State's motion, we abated the appeal on June 8, 2016 and remanded to the trial court for findings of fact and conclusions of law. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The trial court later issued findings of fact, including the following:
The arresting officers, Hernandez and Carrizales, believed that Boyd may have been operating his vehicle while intoxicated due to the following circumstances of which they had knowledge prior to his arrest: the accident, the time of day, the location of the accident where traffic is usually light, Boyd's red and glassy eyes, his slow and slurred speech, his confusion—he did not know where he was or what had happened—which was unusual even when air bags deploy and the damage to the respective vehicles, the closed container of an alcoholic beverage in the vehicle, as well as the odor of alcohol on his breath.The trial court also issued the following conclusions of law:
1. Because Boyd's blood did not test positive for alcohol, the officer[s'] testimony that they smelled alcohol on his breath at the scene of the accident was not credible.
2. Because there was an innocent explanation for Boyd's red and glassy eyes, slow and slurred speech, and confusion and rambling at the scene of the accident—he had just been in a major accident—they do not support probable cause to arrest him for DWI.
3. The remaining circumstances of which the officers, who performed no field sobriety tests, had knowledge at the time they arrested Boyd were insufficient to establish probable cause to arrest Boyd for DWI.We reinstated the appeal on August 25, 2016.
II. DISCUSSION
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).
When a trial judge makes written findings of fact, as here, we examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We then proceed to a de novo determination of the legal significance of the facts as found by the trial court. Id. We will uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).
B. Applicable Law
"[E]vidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America" is inadmissible in a criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw through 2015 R.S.). A warrantless arrest is generally considered an unreasonable seizure under the Fourth Amendment to the United States Constitution. See U.S. CONST. amend. IV; Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (citing Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)); see also TEX. CONST. art. I, § 9. However, a warrantless arrest is reasonable under the Fourth Amendment where there is probable cause for the arresting officer to believe that a criminal offense has been or is being committed. Devenpeck v. Alford, 543 U.S. 146, 152 (2004); Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009).
At the suppression hearing, defense counsel emphasized that she was not seeking to suppress evidence obtained after Boyd's arrest, such as statements Boyd made while he was transported to the hospital. Indeed, all of the events testified to by the officers occurred prior to the arrest, and the arrest is the only act by the officers which Boyd argued was unlawful. It is therefore unclear from the record what evidence, exactly, is excluded by the trial court's order.
Under Texas law, a warrantless arrest must also fall under one of the statutory exceptions listed in chapter 14 of the Texas Code of Criminal Procedure. Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); see TEX. CODE CRIM. PROC. ANN. art. 14.01-.04 (West, Westlaw through 2015 R.S.); see also Milton v. State, 549 S.W.2d 190, 192 (Tex. Crim. App. 1977) (noting that chapter 14 "imposes greater restrictions on peace officers than does the federal constitution as interpreted by the United States Supreme Court"). Though Boyd generally alleged in his motion to suppress that the arrest was unlawful, defense counsel argued at the suppression hearing only that the officers lacked probable cause, and there was never a dispute as to whether the arrest fell under one of the statutory exceptions. The trial court did not make findings as to that issue and it is not raised on appeal. Accordingly, we do not address it. See TEX. R. APP. P. 47.1.
Probable cause for a warrantless arrest exists if, at the time the arrest is made, the facts and circumstances within the arresting officer's knowledge, or of which the officer has reasonably trustworthy information, are sufficient to warrant a prudent person to believe that the arrested person had committed or was committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); Torres, 182 S.W.3d at 901. The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer. Amador, 275 S.W.3d at 878; State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). A finding of probable cause requires more than bare suspicion but less than would justify conviction. Amador, 275 S.W.3d at 878 (citing Brinegar v. United States, 338 U.S. 160, 175 (1949)).
A person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). "Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Id. § 49.01(2) (West, Westlaw through 2015 R.S.).
C. Analysis
The State argues that the trial court "committed two legal errors" when it granted Boyd's motion to suppress: (1) it "disregarded several signs of intoxication known to the officers" merely because an "innocent explanation existed for them"; and (2) it found that "the totality of the circumstances known to the officers at the time they arrested Boyd" did not support probable cause.
We note first that it was the trial court's prerogative to disbelieve the officers' testimony that Boyd's breath smelled of alcohol. See Baird, 398 S.W.3d at 226 ("Because trial judges are uniquely situated to observe first hand the demeanor and appearance of a witness, they are the sole arbiter of questions of fact and of the weight and credibility to give testimony. In that capacity, a trial judge is free to believe or disbelieve any part of the testimony as he sees fit." (Quotations and footnotes omitted)). The State argues that the lab results showing no alcohol in Boyd's system are "irrelevant to whether the officers had probable cause" because they were not part of the circumstances facing the officers when they made the arrest. See O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000) (noting that "[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken"). But the State concedes that the lab results are "arguably relevant" to the officers' credibility. Here, the trial court determined that the officers' testimony that they smelled alcohol on Boyd was not credible. We may not disturb that determination. See Baird, 398 S.W.3d at 226.
Still, although the trial court disbelieved the officers' testimony regarding the odor of alcohol, it did not make any general credibility findings, and it appears to have found their testimony on other matters to be credible. In particular, the trial court believed the officers' testimony regarding Boyd's "red and glassy" eyes, his "slow and slurred speech," his "confusion and rambling at the scene of the accident," and the closed beer container. The trial court also appears to have believed Hernandez's testimony that traffic is ordinarily light at the place and time of the accident. The trial court concluded that these facts were not sufficient to establish probable cause.
As noted, the trial court found the officers' testimony regarding the odor of alcohol not to be credible. The remainder of its factual findings are supported by evidence.
The State cites several cases where each of these facts is cited as an indicium of intoxication. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (noting that slurred speech and bloodshot eyes, among other things, "would logically raise an inference that the defendant was intoxicated"); Foley v. State, 327 S.W.3d 907, 915-16 (Tex. App.—Corpus Christi 2010, pet. ref'd) (finding evidence sufficient to support DWI conviction where: (1) appellant's eyes were red and glassy; (2) his speech was slurred; (3) his breath smelled strongly of alcohol; (4) he had to hold on to the door of his pickup truck to stand upright; (4) he admitted that he had been driving; (5) he was geographically disoriented; (6) there was an open can of beer in his pickup truck; (7) there was an unopened can of beer and a partially full bottle of wine in his pickup; and (8) his blood had .26 grams of alcohol per 100 milliliters of blood); Vargas v. State, 271 S.W.3d 338, 341 (Tex. App.—San Antonio 2008, no pet.) (finding the following to be "a plethora of evidence upon which the jury could have assessed guilt": (1) appellant "swerving within his own lane; (2) a strong smell of intoxicants; (3) slurred speech; (4) apparent confusion; (5) failing two field sobriety tests; and (6) refusing to submit to the requested breath test"); see also State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649, at *7 (Tex. App.—Tyler Oct. 16, 2013, pet. dism'd) (noting that "Texas courts have consistently held that probable cause to arrest exists where the defendant is involved in a collision and a law enforcement officer detects the strong odor of alcohol on his breath" and collecting cases).
None of the cited cases involve the exact same combination of facts that was found by the trial court here. Nevertheless, reviewing the legal significance of those facts de novo, we conclude that the totality of the circumstances gave the officers probable cause to arrest Boyd for DWI. We emphasize that a finding of probable cause requires less evidence than would justify conviction. Amador, 275 S.W.3d at 878. It requires only a "fair probability" or "a substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim. App. 2006) ("[P]robable cause is the accumulation of facts which, when viewed in their totality, would lead a reasonable officer to conclude, with a fair probability, that a crime has been committed or is being committed by someone."). Thus, although a jury may eventually conclude that there was an "innocent explanation" for each of the facts upon which the officers relied to justify the arrest, the trial court in evaluating Boyd's motion to suppress was required to determine only whether those facts showed a "fair probability" or "substantial chance" that DWI had been committed. See Dromgoole v. State, 470 S.W.3d 204, 217 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) ("The fact that there might be an innocent explanation for failing the field sobriety test does not disprove probable cause."); Garcia v. State, 327 S.W.3d 243, 248 (Tex. App.—San Antonio 2010, no pet.) ("That there may be an innocent explanation for the set of facts does not defeat a finding of probable cause . . . ."); see also Pennsylvania v. Dunlap, 555 U.S. 964, 129 S. Ct. 448, 448-49 (2008) (Roberts, C.J., dissenting from denial of certiorari) ("[A]n officer is not required to eliminate all innocent explanations for a suspicious set of facts to have probable cause to make an arrest."); State v. Castleberry, 332 S.W.3d 460, 468 (Tex. Crim. App. 2011) (noting, in the context of an investigatory stop, that "[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain reasonable suspicion of criminal conduct. Indeed, the principal function of [an] investigation is to resolve that very ambiguity . . . ."); State v. Downs, No. 13-13-00358-CR, 2015 WL 5654990, at *4 (Tex. App.—Corpus Christi Sept. 17, 2015, no pet.) (noting that the trial court was incorrect to the extent it determined that the officer's testimony, in which stated he was "unsure whether Downs's slurred speech, bloodshot eyes, and unsteadiness resulted from intoxication or the trauma and injuries from the collision," precluded a showing of probable cause to arrest).
Here, the undisputed facts showed that that Boyd's vehicle had just been in a major accident at 3:30 a.m. where traffic is usually light; that he had slow, slurred speech and red, glassy eyes; that he was incoherent and unable to answer simple questions; and that he had a cold, closed beer container in his car. These facts alone would allow a prudent person to believe that Boyd had committed DWI. See State v. Villarreal, 476 S.W.3d 45, 50 (Tex. App.—Corpus Christi 2014) (noting that there was no dispute that officer had probable cause to arrest where officer testified that the defendant "appeared to be intoxicated based on his red watery eyes, slurred speech, and swaying back and forth"), aff'd, 475 S.W.3d 784 (Tex. Crim. App. 2014). Accordingly, there was probable cause to arrest and the trial court erred in granting the motion to suppress.
We sustain the State's issue on appeal.
III. CONCLUSION
The trial court's judgment is reversed and we remand for further proceedings consistent with this opinion.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 9th day of March, 2017.