Jonathan Wiegand v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00303-CR

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Jonathan Wiegand, Appellant

v.

The State of Texas, Appellee

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FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 479463, HONORABLE DAVID CRAIN, JUDGE PRESIDING

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After entering a plea of nolo contendere to the offense of driving while intoxicated (DWI), ⁽¹⁾ the trial court assessed appellant's punishment pursuant to a plea bargain at confinement in county jail for 120 days, probated for two years, and a $2,000 fine, $1,400 of which was probated. Three of appellant's six points of error are based on alleged violations of the Fourth Amendment to the United States Constitution. The remaining three points of error mirror the first three points except they allege violations of Article I, section 9 of the Texas Constitution. Appellant contends the trial court erred by failing to suppress all fruits of appellant's seizure because the State did not meet its burden of proving reasonable suspicion or probable cause to justify: (1) the initial stop; (2) expanding the original detention to include a pat down search; and (3) expanding appellant's original detention to include a DWI investigation. We will overrule appellant's points of error and affirm the judgment of the trial court.

At the outset, we note that the Texas Court of Criminal Appeals has held that the Texas Constitution does not offer greater protection than the Fourth Amendment and may offer less. Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998). Defense counsel elicited the following evidence from Department of Public Safety trooper Jason Oakley relative to appellant's arrest at approximately 12:58 a.m. on April 11, 1997. The probable cause for appellant's initial detention was that "he was traveling 87 miles an hour in a 60 miles an hour zone; that the was clocked by radar." The first thing Oakley did was to pat down appellant for weapons for his safety. Appellant made no furtive gestures nor did Oakley see any bulges in appellant's clothing. Oakley was unable to tell about bulges because appellant's shirt was "untucked." Oakley's pat down of appellant's outer clothing failed to reveal anything. On the basis of an odor on appellant's breath and his manner of speech, Oakley initiated a Horizontal Gaze Nystogmus (H.G.N.) field sobriety test. Appellant was not free to leave at that time. Appellant did poorly on all of the tests. Oakley later explained in some detail his observations and findings. Appellant received oral and written DWI warnings which were followed by appellant's refusal to take an Intoxilyzer breath test. Appellant was then "Mirandaized." Oakley felt he had probable cause to arrest appellant for DWI based upon "the failure of the field sobriety tests, the odor, the manner of his speech, his admissions and the manner of his driving."

Under examination by the prosecutor, Oakley stated that in addition to the H.G.N. test, he had appellant perform several other field sobriety tests. Tests resulted in showing "he used his arms to balance--he swayed while standing." On the walk and turn test, "he stepped off the line at number six on the return trip, nearly falling over." On the head-tilt test, "while his head was tilted back with his eyes closed, he displayed approximately one-inch sway in all directions." Based on his observations and experience, Oakley formed the opinion that appellant was intoxicated. "He did not have the . . . normal use of his mental and physical faculties;" intoxication was attributed to "alcohol."

Although determinations of reasonable suspicion and probable cause are reviewed de novo on appeal, appellate courts should afford great deference to a trial court's determination of historical facts, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing a trial court on an application for law to fact question, the appellate courts should view the evidence in the light most favorable to the trial court's ruling. Id. In the instant cause it is undisputed that the initial stop of appellant was warrantless, but the State argues that neither the Fourth Amendment nor the Texas Constitution were violated because there was probable cause for the initial stop and subsequent arrest.

Appellant contends there are no facts in the record demonstrating the basis for Oakley's determination that appellant committed a traffic violation. An officer's testimony that a vehicle was speeding appears to constitute sufficient evidence to conclude there was a violation of a traffic law thereby justifying an initial stop. See Dillard v. State, 550 S.W.2d 45, 50 (Tex. Crim. App. 1977). In the instant cause, officer Oakley responded in the affirmative to defense counsel's question that appellant was clocked by radar traveling 87 miles an hour in a 60 mile zone and corrected the location suggested in appellant's question as to the street or highway where appellant was driving. The only reasonable and logical inference that can be concluded from Oakley's testimony is that Oakley was the person who clocked appellant by radar committing a traffic offense and stopped appellant's vehicle. We reject appellant's contentions that the original stop was not justified.

Appellant contends that the pat down of appellant was illegal because of the State's failure to show that a reasonably prudent man in the officer's circumstances would be warranted in the belief that his safety or that of others was in danger. Appellant points to Oakley's denial of any furtive gesture or sudden movements by appellant. Nor were any bulges visible under appellant's clothing. Oakley stated that his reason for the pat down was appellant's "untucked" shirt that would prevent him from seeing any bulges. Assuming the pat down was illegal, the odor of appellant's breath, his slurred speech, his failure to pass field sobriety tests, and his refusal to take a breath test cannot be characterized as fruits of the pat down. From the record, we cannot identify any fruits of the alleged unlawful pat down that were used by the State. See Gonzales v. State, 977 S.W.2d 189, 191 (Tex. App.--Austin 1998, pet. ref'd.) (on remand).

In his last contention, appellant urges that there was no basis for expanding the scope of the alleged search of a DWI investigation. Appellant directs our attention to Oakley's failure to demonstrate the content of appellant's speech and failure to establish anything about appellant's breath that is probative on intoxication. We believe it would be unusual to expect a witness to define slurred speech or expand on its meaning. Another of the reasons Oakley gave for feeling he had to give appellant field sobriety tests was an odor on appellant's breath. Oakley listed the odor on appellant's breath as one of the reasons he concluded that appellant was intoxicated. Oakley attributed appellant's intoxication to "alcohol." The foregoing uncontroverted testimony of the officer, none of which could be considered as fruits of the pat down, coupled with the reasonable inferences that trial court could draw from the testimony, demonstrate that the officer had the basis for expanding the scope of the DWI investigation. Appellant's last contentions are overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice

Before Justices Kidd, Patterson and Davis^*

Affirmed

Filed: July 29, 1999

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. See Tex. Penal Code Ann. §§ 49.04(a), .09(a) (West 1994 & Supp. 1999).

ld view the evidence in the light most favorable to the trial court's ruling. Id. In the instant cause it is undisputed that the initial stop of appellant was warrantless, but the State argues that neither the Fourth Amendment nor the Texas Constitution were violated because there was probable cause for the initial stop and subsequent arrest.

Appellant contends there are no facts in the record demonstrating the basis for Oakley's determination that appellant committed a traffic violation. An officer's testimony that a vehicle was speeding appears to constitute sufficient evidence to conclude there was a violation of a traffic law thereby justifying an initial stop. See Dillard v. State, 550 S.W.2d 45, 50 (Tex. Crim. App. 1977). In the instant cause, officer Oakley responded in the affirmative to defense counsel's question that appellant was clocked by radar traveling 87 miles an hour in a 60 mile zone and corrected the location suggested in appellant's question as to the street or highway where appellant was driving. The only reasonable and logical inference that can be concluded from Oakley's testimony is that Oakley was the person who clocked appellant by radar committing a traffic offense and stopped appellant's vehicle. We reject appellant's contentions that the original stop was not justified.

Appellant contends that the pat down of appellant was illegal because of the State's failure to show that a reasonably prudent man in the officer's circumstances would be warranted in the belief that his safety or that of others was in danger. Appellant points to Oakley's denial of any furtive gesture or sudden movements by appellant. Nor were any bulges visible under appellant's clothing. Oakley stated that his reason for the pat down was appellant's "untucked" shirt that would prevent him from seeing any bulges. Assuming the pat down was illegal, the odor of appellant's breath, his slurred speech, his failure to pass field sobriety tests, and his refusal to take a breath test cannot be characterized as fruits of the pat down. From the record, we cannot identify any fruits of the alleged unlawful pat down that were used by the State. See Gonzales v. State, 977 S.W.2d 189, 191 (Tex. App.--Austin 1998, pet. ref'd.) (on remand).

In his last contention, appellant urges that there was no basis for expanding the scope of the alleged search of a DWI investigation. Appellant directs our attention to Oakley's failure to demonstrate the content of appellant's speech and failure to establish anything about appellant's breath that is probative on intoxication. We believe it would be unusual to expect a witness to define slurred speech or expand on its meaning. Another of the reasons Oakley gave for feeling he had to give appellant field sobriety tests was an odor on appellant's breath. Oakley listed the odor on appellant's breath as one of the reasons he concluded that appellant was intoxicated. Oakley attributed appellant's intoxication to "alcohol." The foregoing uncontroverted testimony of the officer, none of which could be considered as fruits of the pat down, coupled with the reasonable inferences that trial court could draw from the testimony, demonstrate that the officer had the basis for expanding the scope of the DWI investigation. Appellant's last contentions are overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice

Before Justices Kidd, Patterson and Davis^*

Affirmed

Filed: July 29, 1999

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeal