Allison Davis v. State ( 2006 )

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Opinion issued March 2, 2006



In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00233-CR

ALLISON DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1190975

MEMORANDUM OPINION

          We issued our opinion in this cause on June 30, 2005. Appellant has moved for rehearing. We deny appellant’s rehearing motion. However, we withdraw our opinion and judgment dated June 30, 2005 and issue this opinion and judgment in their place. Our ultimate disposition of the trial court’s judgment remains unchanged.

          A jury found Allison Davis, appellant, guilty of driving while intoxicated (“DWI”). The trial court assessed punishment at a $400 fine and 180 days’ confinement, suspended for one year of community supervision. In two points of error, appellant contends that the trial court erred in (1) overruling appellant’s motion to suppress and (2) overruling appellant’s objection to the State’s improper jury argument. We affirm.

                                                    BACKGROUND

          At approximately 2:27 a.m. on August 28, 2003, Houston Police Officer C. Green was checking speed by radar at the 9300 block of Westheimer when he observed appellant driving a car at 51 miles-per-hour in a 35-mile-per-hour zone. Green activated his emergency lights and pulled appellant over in the parking lot of a nearby gas station.

            When Green asked for appellant’s license and insurance, he noticed a strong odor of alcohol on appellant’s breath. Green also noticed that appellant’s eyes were red and glassy. When questioned by Green, appellant denied having anything to drink. When Green returned to his patrol car, he ran a computer check on appellant’s license plate number and turned off his emergency lights, which can interfere with field-sobriety tests. Green returned to appellant’s car, asked appellant to get out of her car, and conducted a horizontal gaze nystagmus (“HGN”) test. Appellant exhibited all six clues of intoxication during the HGN test. Green then placed appellant back in her car while he awaited the arrival of Houston Police Officer J. Aguilar, who could administer additional field-sobriety tests.

          Between five and ten minutes later, Aguilar arrived and noted appellant’s bloodshot and glassy eyes, the odor of alcohol on her breath, and her slurred speech. Appellant admitted that she had drunk four beers, but said her last drink was at 1:30 a.m. She told Aguilar that she never drives drunk and that, because of her job, she would be in serious trouble if she was arrested for DWI. Green videotaped while Aguilar administered field-sobriety tests. During administration of the Rhomberg test, appellant had a circular pattern of sway, but she was able to estimate the lapse of 30 seconds in 27 seconds, which is within the normal range.

          Before Aguilar administered the one-leg stand test, appellant complained that her knee was sore. Aguilar testified that during the one-leg-stand appellant had a sway, used her arms for balance, and dropped her foot twice. Although his offense report only indicated one clue of intoxication for this test, Aguilar testified that this was an error because there were three clues. However, he testified that he did not know if her performance of the one-leg-test was affected by intoxication or her knee injury.

          During the walk-and-turn test, appellant failed to maintain her balance during the instructional phase, stepped off the line, used her arms for balance, missed heel-to-toe, made an improper turn, and, when asked to take nine steps, she only took eight in one direction and took ten in the other direction. In order to fail the walk-and-turn test, one need only exhibit two clues of intoxication, but appellant exhibited seven clues on this test. Aguilar testified that, based on her poor performance on this test alone, he believed appellant had lost the normal use of her physical faculties due to her consumption of alcoholic beverages.

          The last test that Aguilar administered to appellant was the modified alphabet test in which Aguilar asked appellant to recite the alphabet beginning with the letter “G” and ending with the letter “X.” Appellant began with “H” and ended with “Z.” After Aguilar administered this test, appellant was arrested and brought to the police station where she received more field-sobriety tests. Appellant refused to give a breath sample for the intoxylizer.

DISCUSSION

Motion to Suppress Evidence

            In her first point of error, appellant asserts that the trial court erred in denying her motion to suppress evidence. Specifically, appellant contends that the scope of appellant’s detention exceeded the justification for the stop without a sufficient basis for expanding the scope of the speeding stop into a DWI investigation.

          We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). In reviewing a trial court’s ruling on a motion to suppress, we give almost total deference to a trial court’s determination of historical facts, and we review de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a hearing to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence; the trial court’s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). If the trial court did not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court’s ruling. See Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Consequently, we will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion.

          Circumstances short of probable cause may justify a temporary investigative detention. See Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879 (1968). A police officer may make a temporary investigative detention of an individual if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to a crime. Stone, 703 S.W.2d at 654. The test for reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the time of the stop. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has, is, or soon will be engaged in illegal conduct. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). After making a stop for a traffic violation, an officer may rely on all the facts ascertained during the course of his contact with a defendant to develop articulable facts that would justify a continued detention. Powell v. State, 5 S.W.3d 369, 377 (Tex. App.—Texarkana 1999, pet. ref’d). A detention must last no longer than is necessary to satisfy the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). Where the investigative detention is unlawful, any evidence obtained subsequent to such detention is inadmissible. See Garcia v. State, 43 S.W.3d 527, 529, 532 (Tex. Crim. App. 2001).

          At a pretrial suppression hearing, appellant sought to suppress all evidence obtained after Officer Green converted the speeding investigation into a DWI investigation, including administration of the HGN test and all subsequent events. After hearing four witnesses called by appellant at the hearing, the trial court postponed ruling on appellant’s motion on the scope of the detention. The judge stated, “I’m going to withhold my ruling on that and I’ll just have to let my mind be refreshed by testimony tomorrow. And I’ll make a determination at that point.” After the close of evidence the next day, the trial court denied appellant’s motion to suppress the evidence.

          Green testified that he detected the strong odor of alcohol on appellant’s breath as soon as he walked up to her car after pulling her over. Green testified that because of this odor, he asked appellant if she had consumed any alcohol beverages and she answered that she had not. Because of this discrepancy, Green administered the HGN test, which appellant failed by exhibiting the maximum amount of clues of intoxication. Green also later testified that appellant’s eyes were red and glassy. However, Green did not arrest appellant for DWI even at this point. Rather, he sought the assistance of another officer whom he believed was competent to administer additional field-sobriety tests. These circumstances were enough to raise reasonable suspicion to detain appellant and further investigate the possibility of her involvement in the criminal act of DWI. See Reynolds v. State, No. 07-04-0497-CR, 2005 WL 1083234, at *1-2 (Tex. App.—Amarillo May 9, 2005, no pet. h.) (holding that an officer, after stopping appellant for operating vehicle without front license plate, may continue detention for DWI when appellant emitted moderate odor of alcohol, had red and glassy eyes, and told officer that he had drunk a few beers).

          In Domingo v. State, the court held that an officer’s investigation and detention of a person for public intoxication cannot be based solely on the odor of alcohol on that person’s breath. 82 S.W.3d 617, 622 (Tex. App.—Amarillo 2002, no pet.). Here, Green’s investigation of appellant for DWI was based on more than a mere odor of alcohol. In light of Green’s experience and general knowledge, the time of night and strong odor of alcohol from a person who has just denied consuming any alcohol was enough to warrant the intrusion on appellant’s freedom to conduct the DWI investigation. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994) (“To justify a temporary detention, the officer must have specific articulable facts which, in light of his experience and general knowledge taken, together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen.”). In reviewing the totality of the circumstances surrounding appellant’s detention, we find articulable facts that could have led Green to suspect appellant of DWI. Accordingly, we hold that the trial court did not err by denying the motion to suppress evidence.

          We overrule appellant’s first point of error.

Improper Closing Argument

          In her second point of error, appellant contends that the trial court erred in overruling her objection to the State’s comment during closing argument, which she believed was an improper comment on her right to a jury trial. Specifically, appellant complains about the following:

[State]: Does that sound like cops who are out just trying to make money? They let people go when they’re not intoxicated. What do you want them to do with her? Let me start by saying this, I’m in a precarious position and I got to get up here and I have got to attack her and I have got to attack her friends and family. They are nice people sitting here. I can tell by looking at them. I can tell by their responses. They care about her. I can tell she’s a nice person. But you know what? She put herself in this position, folks, she chose to drink and drive that night and she got intoxicated. And instead of coming here and taking responsibility for anything, all she has done---

[Defense]: Objection, Judge, that’s an improper comment on her decision to go to trial, exercise of her rights.

[Court]: Overruled.

[State]: All she’s done is blame them, she blamed her pants leg, she blamed her knee, you know, it’s going to take too much to write it all down. She blamed her knee, she blamed the instructions the officers gave her. She blamed her emotions. She blamed that she stood on the wrong foot at one time. She blamed that there was no portable breath test in the officer’s car. Would she have taken it anyway?

(emphasis added).           Generally, proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers to the opposing counsel’s argument, and (4) pleas for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Remarks of counsel during closing argument must be considered in the context in which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Counsel is allowed wide latitude without limitation in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Id.

          Here, the evidence offered at trial revealed that appellant did not attribute her poor performance on the field-sobriety tests to the alcoholic drinks she admitted to drinking, but to a number of other factors. The trial record reveals that appellant asserted that she failed the field-sobriety tests because of her sore knee, her emotional state, her lack of coordination, the difficulty of the instructions, and the arresting officers. In response to this evidence, the State began to comment on this evidence by stating that “instead of coming here and taking responsibility for anything, all she has done---.” But the State did not finish this statement. The State’s argument did not reference appellant’s decision to exercise her right to a trial by jury. Rather, the argument merely highlighted the fact that, when appellant did present her defense, she offered other causes for her failure of the field-sobriety tests. The State did not argue that appellant’s exercise of her constitutional right to a trial should subject her to additional punishment. See Villarreal v. State, 860 S.W.2d 647, 649 (Tex. App.—Waco 1993, no writ). Nor did the State make any suggestions about what would have happened if appellant had pleaded guilty. See Taylor v. State, 987 S.W.2d 597, 599-600 (Tex. App.—Texarkana 1999, pet. ref’d). The State’s argument was not impermissible. We hold that the trial court did not err in overruling appellant’s objection.

          Accordingly, we overrule appellant’s second point of error.

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).