State v. David Alvarez ( 2015 )

NUMBERS 13-14-00061-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
DAVID ALVAREZ, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
The State, as appellant, appeals the trial court’s order granting appellee David
Alvarez’s motion to suppress. Alvarez was charged by indictment with driving while
intoxicated, third offense, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04,
49.09 (West, Westlaw through Ch. 46 2015 R.S.). By a single issue, the State contends
that the trial court erred by granting Alvarez’s motion to suppress. We affirm.
I. BACKGROUND
Following his arrest and indictment for DWI, Alvarez filed a motion to suppress any
tangible evidence derived from the traffic stop, including his arrest.
At the suppression hearing, Trooper Nathan Brandley testified that he observed a
vehicle driven by Alvarez “go over the solid yellow line to its left, several times” and return
to its lane. After positioning his cruiser behind Alvarez’s vehicle, Trooper Brandley
noticed that “[Alvarez] was still having trouble maintaining a single lane.” According to
Trooper Brandley, Alvarez “was going over the solid center stripe close to the dump or
the landfill on [highway] 286” and “[crossed] over the white fog line and center stripe onto
oncoming traffic” over the course of several minutes and over a distance of several miles.
Trooper Brandley explained that he did not conduct a traffic stop when he first
observed Alvarez because he “wanted to see if maybe the person, you know, could have
possibly been texting on the phone” and wanted “to see if there was any other probable
cause along the way that would cause [Trooper Brandley] to want to stop [Alvarez’s]
vehicle.” Trooper Brandley stated that he ultimately stopped Alvarez’s vehicle after he
observed Alvarez “cross the center, dotted center stripe, centerline” and that all of the
traffic violations that predicated the stop were recorded on his dashboard camera video.
A video of the traffic stop and arrest was played at the hearing.
After arresting Alvarez, Trooper Brandley learned that he had two prior DWI
convictions. Based on Alvarez’s criminal history, Trooper Brandley issued statutory
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warnings to Alvarez for the purpose of obtaining a blood draw by reading both the DIC-
24 and “DIC-51.”1 Alvarez was sent to Spohn Shoreline Hospital for the blood draw.
After the hearing, the trial court ordered the following evidence suppressed:
1. any and all evidence seized by law enforcement officers or others in
connection with the detention and arrest of DAVID ALVAREZ in this case
or in connection with the investigation of this case, including but not limited
to any and all evidence seized by the arresting officers in this case, and any
testimony by the Texas Department of Public Safety or any other law
enforcement officers or others concerning such evidence;
2. the arrest of DAVID ALVAREZ at the time and place in question and any
and all evidence which relates to the arrest, and any testimony by the Texas
Department of Public Safety or any other law enforcement officers or others
concerning any action of DAVID ALVAREZ while in detention or under
arrest in connection with this case;
3. all written and oral statements made by DAVID ALVAREZ to any law
enforcement officers or others in connection with this case, and any
testimony by the Texas Department of Public Safety or any other law
enforcement officers or others concerning any such statements; and
4. any and all evidence obtained by the arresting officers or Texas Department
of Public Safety.
The trial court thereafter issued the following findings of fact:
1. On April 13, 2013, Texas Department of Public Safety Trooper Nathan
Brandley entered Crosstown Expressway, south bound at Leopard Street;
2. Brandley became suspicious of Defendant's vehicle and repositioned his
onboard camera to face forward;
3. Brandley videotaped Defendant's vehicle as it travelled south bound on
Crosstown Expressway, passed over the S.P.I.D. (Highway 358) overpass,
continued south to the area of the city dump, stopped at a stop sign,
1 Erroneously referred to as DIC-51, form THP–51 is used to document a mandatory blood draw
and allows an officer to specify that he is acting in accordance with Section 724.012(b)(3)(B) of the Texas
Transportation Code. Section 724.012(b)(3)(B) of the Texas Transportation Code requires a peace officer
to take a blood or breath specimen from a driver arrested for DWI who refuses to consent to the specimen
if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source
that the person” has, on two or more occasions, been convicted or put on community supervision for DWI.
See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West, Westlaw through Ch. 46 2015 R.S.).
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4. continued again travelling through the traffic light at Weber and County
Road 244, and finally stopped Defendant's vehicle approximately one fourth
of a mile north of the four way stop sign at Staples Street;
5. The video tape does not show clearly whether or not Defendant's tires ever
completely cross over the center stripe, although it does show instances of
appearing to touch the center stripe;
6. The distance Brandley followed Defendant was over five (5) miles
(according to Google maps it is approximately eleven (11) miles from
Leopard to Staples on that route of travel);
7. Brandley testified repeatedly that the reason for the traffic stop was for
failing to drive in a single lane and gave no other reason for the traffic stop;
8. No evidence was presented by the State of Texas as to the amount of traffic
on the road on April 13, 2013;
9. The State did not produce any evidence that Defendant was driving in an
unsafe manner;
10. Defendant was arrested for D.W.I., third offense after Brandley conducted
field sobriety tests (also on video); and
11. Defendant was taken to Christus Spohn Shoreline Hospital where a
"mandatory" blood draw was taken pursuant to Transportation Code Sect.
745.
In conjunction with these facts, the court issued the following conclusions of law:
1. Brandley’s testimony as to the basis of the traffic stop was not credible in
light of the video tape evidence.
2. The State did not meet its burden to show that a traffic violation had
occurred.
3. The State also produced no evidence that Defendant's driving created a
safety concern to any other motorist.
4. The blood draw and blood evidence was unlawfully obtained, in violation of
Defendant's constitutional and statutory rights afforded under the Texas and
United States Constitutions and pursuant to Missouri v. McNeely, 133 S. Ct.
1552 (2013).
II. SUPPRESSION OF EVIDENCE
The State claims the trial court erred in granting the Alvarez’s motion to suppress.
Specifically, the State argues Alvarez’s detention was justified because of: (1) Alvarez’s
alleged traffic infraction; and (2) the “community caretaker function” allowed Trooper
Brandley to check on the welfare of Alvarez. The State further argues that Alvarez
voluntarily consented to giving a blood specimen. We first consider the legality of
Alvarez’s detention.
A. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard
of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review
the trial court's factual findings for an abuse of discretion. Id. We give almost total
deference to the trial court's determination of historical facts, particularly when the trial
court's fact-findings are based on an evaluation of credibility and demeanor. Crain v.
State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). The same deference is afforded the
trial court with respect to its rulings on the application of the law to questions of fact and
to mixed questions of law and fact, if resolution of those questions depends on an
evaluation of credibility and demeanor. Id. For mixed questions of law and fact that do
not fall within that category, a reviewing court conducts a de novo review. Id.
At a suppression hearing, the trial court is the exclusive trier of fact and judge of
the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002) (en banc). A trial court may choose to believe or to disbelieve all or any part of a
witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en
banc). We must view the evidence in the light that is most favorable to the trial court's
ruling, and we are obligated to uphold the trial court's ruling on a motion to suppress if
that ruling is supported by the record and if it is correct under any applicable theory of
law. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011); Ross, 32 S.W.3d
at 855–56.
B. Traffic Offense
The State argues that Trooper Brandley had reasonable suspicion to initiate the
traffic stop because Alvarez committed numerous traffic infractions by crossing several
lines on each side of the three lane highway, two lane highway and divided highway.
See Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no
pet.) (holding that police officer who observed defendant's vehicle weaving between lanes
of traffic had reasonable suspicion of unusual activity related to criminal activity, thus
justifying investigative detention).
1. Applicable Law
A police officer may temporarily detain an individual for investigative purposes if
he reasonably suspects that the individual is involved in criminal activity. Foster v. State,
326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)).
The Fourth Amendment requires some minimal level of objective justification for making
the stop. See United States v. Sokolow, 490 U.S. 1, 7 (1989). “Reasonable suspicion
exists if the officer has specific, articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably conclude that a particular
person actually is, has been, or soon will be engaged in criminal activity.” Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005). It requires more than an “inchoate and
unparticularized suspicion or ‘hunch.’” Terry, 392 U.S. at 27. “A reasonable-suspicion
determination is made by considering the totality of the circumstances.” Ford, 158
S.W.3d at 492–93.
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2. Discussion
The State’s argument presumes Trooper Brandley actually witnessed a traffic
violation before he initiated a traffic stop. The trial court, not the appellate court,
determines what a witness actually sees. See State v. Duran, 396 S.W.3d 563, 571
(Tex. Crim. App. 2013). Trooper Brandley testified that at one point he witnessed
Alvarez drive over the solid center stripe and then later cross the white “fog line” and the
center stripe into oncoming traffic. After reviewing the video of the traffic stop, the trial
court concluded that contrary to Trooper Brandley’s testimony, “the video does not show
clearly whether or not [Alvarez’s] tires ever completely cross over the center stripe.”
Although Trooper Brandley testified that Alvarez crossed into the oncoming lane, the trial
court concluded that “Trooper Brandley’s testimony as to the basis of the traffic stop
was not credible in light of the video tape evidence.”
Additionally, the trial court noted that “Trooper Brandley testified repeatedly that
the reason for the traffic stop was for failing to drive in a single lane and gave no other
reason for the traffic stop.” Trooper Brandley states in his probable cause affidavit—
signed the day of Alvarez’s arrest—that “I observed a vehicle in front of me swerving and
failing to drive in a single lane.” Such a maneuver is not a per se violation of any law,
and as noted by the trial court, there is no evidence that Alvarez was driving unsafely.
See State v. Cerny, 28 S.W.3d 796, 800 (Tex. App.—Corpus Christi 2000, no pet.) (citing
TEX. TRANSP. CODE ANN. § 545.060(a) (West, Westlaw through Ch. 46 2015 R.S.)); see
also Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref'd)
(concluding that a violation of section 545.060 occurs only when a vehicle fails to stay
within its lane and such movement is not safe or is not made safely); State v. Tarvin, 972
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S.W.2d 910 (Tex. App.—Waco 1998, pet. ref'd) (“Although mere weaving in one's own
lane of traffic can justify an investigatory stop when that weaving is erratic, unsafe, or
tends to indicate intoxication or other criminal activity, there is nothing in the record to
show that [the officer] believed any of the above to be the case.”).
The trial court found that Trooper Brandley’s testimony was not credible, and in
light of this finding, that Trooper Brandley lacked reasonable suspicion to justify a stop.
The trial court’s findings reflect a credibility determination—specifically, that Trooper
Brandley did not have a reasonable basis for believing that appellant committed a
traffic offense. The trial court was entitled to disbelieve Trooper Brandley’s
testimony that he made the stop after seeing Alvarez cross the centerline. See
Duran, 396 S.W.3d at 572. We give almost total deference to the trial court’s
credibility determination and conclude that the trial court’s findings support a
reasonable conclusion that Trooper Brandley did not see Alvarez commit a traffic
offense sufficient to warrant reasonable suspicion to justify a stop. See Crain, 315
S.W.3d at 48.
C. Community Caretaker Function
The State argues, alternatively, that Alvarez’s stop was justified because of
Trooper Brandley’s community caretaking function.
1. Applicable Law
Even without reasonable suspicion or probable cause that an offense has been
committed, a police officer may reasonably seize an individual through the exercise of his
community caretaking function. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App.
2002) (citing Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999) (en banc)). As
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part of the duty to “serve and protect,” a police officer may stop and assist an individual
whom a reasonable person—given the totality of the circumstances—would believe is in
need of help. Id.
The community caretaking function, however, is “totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Corbin, 7 S.W.3d at 276-276 (quoting Cady v. Dombrowski, 413 U.S. 433, 441
(1973)). As a result, a police officer may not properly invoke his community caretaking
function if he is primarily motivated by a non-community caretaking purpose. See
Wright, 7 S.W.3d at 151 (“we must determine if [the officer] acted reasonably when he
stopped the vehicle out of concern for the welfare of the appellant ...”) (emphasis added).
Only in the most unusual circumstances will warrantless searches of private, fixed
property, or stops of persons located thereon, be justified under the community caretaking
function, given the greater expectation of privacy inherent with respect to residences and
other private real property." Id. at 152.
2. Discussion
Trooper Brandley testified that the reason for the stop was Alvarez’s purported
“traffic violations,” his straddling or crossing the lines on the freeway. Nowhere did he
testify that the stop was predicated on a concern that Alvarez needed help. Although
Trooper Brandley explained that he continued to follow Alvarez to determine whether he
was texting, Trooper Brandley also testified that he followed and recorded Alvarez’s
driving behavior to “see if there was any other probable cause along the way that would
cause [Trooper Brandley] to want to stop” Alvarez. The entirety of Trooper Brandley’s
interaction and observation of Alvarez was predicated on law enforcement. Compare
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Dombrowski, 413 U.S. at 433 (holding that arresting officer properly exercised community
caretaking function by searching disabled vehicle to recover vehicle owner’s service
revolver) with Eichler v. State, 117 S.W.3d 897, 902. (Tex. App.—Houston [14th Dist.]
2003, no pet.) (finding no community caretaking exception where defendant was stopped
based on traffic violation and officer could not reasonably believe defendant needed
assistance).
Even if Trooper Brandley was operating in his community caretaker capacity, his
determination that Alvarez was in need of help must be reasonable. In determining
whether an officer acted reasonably in stopping an individual to determine if he needs
assistance, we consider the following four non-exclusive factors: (1) the nature and level
of the distress exhibited by the individual; (2) the location of the individual; (3) whether or
not the individual was alone and/or had access to assistance other than that offered by
the officer; and (4) to what extent the individual, if not assisted, presented a danger to
himself or others. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 152.
The first factor, nature and level of distress, is given the greatest weight. The
record provides little evidence that Alvarez was in distress. Although Trooper Brandley
expressed concern that Alvarez may have been texting, and swerving as a result, texting
is not indicative of any level of distress. Aside from Alvarez’s alleged driving infractions,
there is no evidence that he behaved erratically. See, e.g., Wright, 7 S.W.3d at 151
(finding officer acted reasonably in stopping vehicle out of concern for welfare of
defendant when defendant was leaning out of open rear window and vomiting at 4:00
a.m.). Alvarez’s driving behavior does not appear to constitute a driver in distress.
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The second factor is driver location. See Corbin, 85 S.W.3d at 278. Trooper
Brandley stopped Alvarez in between the Weber and Staples intersections of Chapman
Ranch Road. There is no evidence in the record that describes this area, much less that
it is isolated with no businesses or houses nearby. At best, this is a neutral factor.
The third factor—whether or not the individual was alone and/or had access to
assistance other than that offered by the officer—likewise does not weigh in favor of a
stop. Alvarez was traveling with his wife, who could have presumably assisted Alvarez
if needed.
Lastly, the fourth factor weighs against a stop. Even assuming that Trooper
Brandley followed Alvarez out of concern that he was texting, and therefore distracted
from his driving, there is no evidence in the record that Alvarez was actually texting.
Moreover, we can find no authority to support the conclusion that texting is a condition
that requires assistance.
We conclude that the State cannot justify Alvarez’s detention based upon a
community caretaking function. Trooper Brandley was clearly motivated to stop Alvarez
based on a pursuit of law enforcement rather than to render aid and assistance.
Applying the Wright factors, Trooper Brandley’s stop cannot be justified under the
community caretaking function. See Wright, 7 S.W.3d at 151.
D. Blood Evidence
The State argues that the blood evidence should not be suppressed because
Trooper Brandley gave the proper statutory warnings to Alvarez, and who expressly
consented to the request for a blood sample.
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1. Applicable Law and Standard of Review
Notwithstanding an illegal arrest or detention, consent to search, freely and
voluntarily given, is still one of the recognized exceptions to the requirement of both a
warrant and probable cause for a valid search. Schneckloth v. Bustamonte, 412 U.S.
218, 222 (1973); Kolb v. State, 532 S.W.2d 87, 89 (Tex. Crim. App. 1976). While an
illegal arrest, detention, or stop does not automatically invalidate a consent to search,
neither will a voluntary consent automatically validate a search which follows an illegal
arrest, detention, or stop. See Florida v. Royer, 460 U.S. 491 (1983). If the consent to
search is found to have been voluntarily given, that is only one step in the determination
of the propriety of the search. Howe v. State, 874 S.W.2d 895, 902 (Tex. App.—Austin
1994, no pet.). The consent may have been obtained by the exploitation of an illegal
arrest or detention. Id. (citations omitted). The question then becomes whether the
consent to search was obtained by the exploitation of an illegal arrest or detention or “by
means sufficiently distinguishable to be purged of the primary taint.” Brown v. Illinois,
422 U.S. 590, 599 (1975) (quoting Wong Sun v. United States, 371 U.S. 471, 487–88
(1963)).
To establish the validity of consent after an illegal search or seizure, the State must
prove by clear and convincing evidence that the taint inherent in the illegality had
dissipated by the time consent is given. See Stone v. State, 279 S.W.3d 688, 694 (Tex.
App.—Amarillo 2006, pet. ref’d) (citing Brick v. State, 738 S.W.2d 676, 678 (Tex. Crim.
App. 1987) (en banc)). In determining whether the State has met its burden, we give
almost total deference to the trial court’s determination of historical facts. See id. (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Relevant here, we
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consider (1) the temporal proximity between the unlawful entry and the given consent;
(2) whether the consent was volunteered or requested; and (3) whether defendant was
made fully aware of the right to refuse consent. See Stone v. State, 279 S.W.3d 688,
693 (Tex. App.—Amarillo 2006, pet. ref’d) (citing Brick, 738 S.W.2d at 680–81).
2. Discussion
The duration between Alvarez’s detention until his consent was short, a matter of
minutes. Thus, the first factor weights against the dissipation of the taint of illegality.
Next, the second factor favors suppression because Alvarez gave consent only after
Trooper Brandley requested a blood specimen. Regarding the third factor, although
Alvarez was informed that he had a right to refuse, immediately after he received the
statutory warning, he was also informed that because of his two previous DWI
convictions, Trooper Brandley was required “by law” to obtain a blood sample. This final
factor weighs in favor of suppression since Alvarez was told that he could consent, but
that the officer did not need his consent based on his prior criminal history. Given his
situation, Alvarez’s ability to refuse consent seems irrelevant.
We have reviewed the record to determine whether the trial court abused its
discretion by finding that the State failed to prove by clear and convincing evidence that
Alvarez had voluntarily given consent. Having conducted an analysis under the Brick
factors, we cannot say that the trial court’s finding was outside the zone of reasonable
disagreement. See Brick, 738 S.W.2d at 680–81.
E. Summary
Because, we give almost total deference to the trial court’s credibility determination
that Trooper Brandley did not see Alvarez commit a ticketable traffic offense, we conclude
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that Trooper Brandley did not have reasonable suspicion to conduct a traffic stop. See
Duran, 396 S.W.3d at 572. Furthermore, since his stop was motivated purely by law
enforcement, Trooper Brandley was not exercising his community caretaker function.
See Wright, 7 S.W.3d at 151. Lastly, even if Alvarez consented to a blood draw, the taint
from the illegal stop had not dissipated when the consent was obtained. See Stone, 279
S.W.3d at 694. Therefore, we overrule the State’s sole issue.
III. CONCLUSION
The order of the trial court is affirmed.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of July, 2015.
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