William Jeffery Wigington v. State ( 2005 )

Order filed December 8, 2005

Order filed December 8, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00030-CR

                                                     __________

                          WILLIAM JEFFERY WIGINGTON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR28876

                                                                     O R D E R

Our former opinion and judgment dated September 15, 2005, are withdrawn, and our opinion and judgment dated December 8, 2005, are substituted therefor.

JIM R. WRIGHT

CHIEF JUSTICE

December 8, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, C.J., and McCall, J.

W. G. Arnot, III, retired effective July 31, 2005, and is, therefore, not participating.

Opinion filed December 8, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00030-CR

                                                    __________

                          WILLIAM JEFFERY WIGINGTON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR28876

     O P I N I O N   O N P E T I T I O N   F O R   D I S C R E T I O N A R Y   R E V I E W

The trial court convicted William Jeffery Wigington, upon his plea of guilty, of felony driving while intoxicated and assessed his punishment at confinement for 10 years and a $1,000 fine. Pursuant to the plea bargain agreement, the imposition of the confinement portion of the sentence was suspended, and appellant was placed on community supervision for 5 years.  We affirm.

In three issues, appellant challenges the trial court=s denial of his motion to suppress.  In his motion to suppress, appellant contended that he was arrested without a lawful warrant, without probable cause, and without any lawful authority.  At the suppression hearing and on appeal, appellant specifically argues that the arresting officer exceeded his authority under the community caretaking doctrine. Appellant relies on the cases of Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Corbin v. State, 85 S.W.3d 272 (Tex.Cr.App.2002); Wright v. State, 7 S.W.3d 148 (Tex.Cr.App.1999); and Andrews v. State, 79 S.W.3d 649 (Tex.App. - Waco 2002, pet=n ref=d), to support his position. We disagree with appellant=s contentions that the arrest in this case comes under the purview of the community caretaking doctrine and find that the cases relied upon by appellant are factually distinguishable.

In reviewing a trial court=s ruling on a motion to suppress, an appellate court must uphold the trial court=s ruling if it is reasonably supported by the record and is correct under any applicable theory of law.  State v. Steelman, 93 S.W.3d 102, 107 (Tex.Cr.App.2002); Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Cr.App.1990).  Appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000).  We also give deference to the trial court=s rulings on mixed questions of law and of fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman v. State, supra.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App. - Eastland 1999, no pet=n).

At the suppression hearing, the State offered the videotape of the incident and the offense report.  No witnesses testified.  While the offense report states that the incident occurred at 11:59 a.m., the videotape clearly reflects that the incident occurred at night.  Both the offense report and the videotape reflect that appellant=s vehicle was parked on the shoulder of the highway.  Department of Public Safety Trooper Phillip Breeding stated in his offense report that, as he drove by appellant=s vehicle, he saw that the driver=s side door was open and that the male passenger was leaning over talking to appellant who was the driver.  Trooper Breeding stated that he turned his patrol car around and pulled up behind appellant=s vehicle to see if appellant was having car trouble. Trooper Breeding further stated that, as he approached appellant=s vehicle, the vehicle moved forward and then came to Aa sudden stop.@  Trooper Breeding approached the driver=s side of the car and asked appellant and his passenger if they were alright. The men answered that they had a low tire.  Trooper Breeding could smell a strong odor of alcohol coming from the car.  Trooper Breeding asked appellant if he had been drinking, and appellant answered that both of them had been drinking.

The videotape begins as Trooper Breeding pulled up behind appellant=s car which was parked on the shoulder. Trooper Breeding exited his patrol car and approached appellant=s car. Appellant=s car moved forward and then abruptly stopped. Trooper Breeding tapped on the trunk of the car and spoke to appellant.  Trooper Breeding then approached the driver=s side of the car and asked if everything was alright.  Appellant answered that they had a low tire.  When Trooper Breeding asked appellant if he had been drinking, appellant answered that both he and his passenger had.

In Cady v. Dombrowski, supra, the defendant=s vehicle was disabled as the result of an accident.  His vehicle was towed and then later searched.  In Corbin v. State, supra, Wright v. State, supra, and Andrews v. State, supra, a law enforcement officer stopped the defendant=s moving vehicle.  In the present case, appellant=s vehicle was neither towed and searched nor stopped by Trooper Breeding.

The court in Corbin stated:

To begin, it is well settled that not all encounters with the police implicate the Fourth Amendment=s protection against unreasonable seizures.  Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991);  Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997).  ASo long as a reasonable person would feel free to disregard the [officer] and go about his business,@ a police officer may approach and ask an individual questions, including whether that individual requires assistance, without implicating the Fourth Amendment. Bostick, 501 U.S. at 434, 111 S. Ct. 2382;  Hunter, 955 S.W.2d at 104.  (Footnote omitted)

Corbin v. State, supra at 276.

The record reflects that appellant=s initial encounter with Trooper Breeding was not unreasonable and did not violate any federal or state constitutional or statutory protections. When Trooper Breeding smelled a strong odor of alcohol and appellant told him that they had been drinking, Trooper Breeding had reasonable suspicion to detain and investigate.  Terry v. Ohio, 392 U.S. 1 (1968).  Upon investigation, Trooper Breeding concluded that appellant was intoxicated and had probable cause to place him under arrest without a warrant.  TEX. CODE CRIM. PRO. ANN. art. 14.01 (Vernon 2005).

We find that the trial court did not err in denying the motion to suppress.  Contrary to appellant=s contentions in his fourth issue, this court must uphold the trial court=s ruling if it is correct under any applicable theory of law.   State v. Steelman, supra; Romero v. State, supra.

All of appellant=s issues have been considered.  Each is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 8, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and McCall, J.

W. G. Arnot, III, retired effective July 31, 2005, and is, therefore, not participating.