Jason Keith Durham v. State ( 2004 )

11th Court of Appeals

Eastland, Texas

Opinion

Jason Keith Durham

            Appellant

Vs.            No. 11-03-00155-CR -- Appeal from Dallas County

State of Texas 

            Appellee

            After the trial court denied his motion to suppress evidence, appellant pleaded guilty to the misdemeanor offense of driving while intoxicated. In accepting appellant’s plea, the trial court granted appellant permission to appeal the adverse ruling on the motion to suppress. Pursuant to the plea bargain agreement, the trial court sentenced appellant to 365 days confinement, suspended the sentence, and placed appellant on community supervision for two years. Appellant complains of the trial court’s denial of his motion to suppress in his sole issue on appeal. Specifically, appellant argues that the arresting police officer did not have probable cause to arrest him for DWI. We affirm.

Background Facts

            Appellant was arrested during the early morning hours of January 1, 2002. Officer James Richardson of the Farmer’s Branch Police Department and Officer Billy Barnett of the Addison Police Department testified at the hearing on appellant’s motion to suppress. Officer Richardson testified that he was off duty at the time of the incident. The incident occurred on Marsh Lane. Marsh Lane has two northbound lanes and two southbound lanes. It is divided in the center by a curbed median.

            Officer Richardson testified that he saw a Jeep Cherokee traveling at a high rate of speed in the right northbound lane of Marsh Lane. Officer Richardson followed the Jeep. Officer Richardson said that the driver of the Jeep was unable to maintain the Jeep in a single lane of traffic. Officer Richardson saw the Jeep, on numerous occasions, swerve from the right lane into the left lane and then jerk back into the right lane. The driver did not make any signals during the lane changes. The Jeep almost struck the curb of the median a number of times. Officer Richardson testified that the Jeep’s speed fluctuated between 40 and 90 miles per hour.

            Officer Richardson thought that the driver of the Jeep was drunk. After following the Jeep for about half a mile, Officer Richardson called the police dispatcher and said that he was following an alleged drunk driver in a northbound direction on Marsh Lane. Officer Richardson testified that the Jeep made a U-turn and drove in the southbound lanes of Marsh Lane. The Jeep jumped the curb while making the U-turn. Officer Richardson made a U-turn and continued to follow the Jeep. He advised the police dispatcher of their location. The Jeep again got up to speeds of 80 to 90 miles per hour, swerved from lane to lane, and almost struck the curb. Officer Richardson testified that the Jeep then jumped the center median and then collided head-on with a vehicle that was traveling in the northbound lanes of Marsh Lane. After the vehicles came to rest, Officer Richardson saw the driver get out of the Jeep. Officer Richardson thought that the driver was trying to flee the scene. He advised the driver to get on the ground and said that police and an ambulance were on the way. Officer Richardson said that he held the driver on the ground until Officer Barnett arrived. Officer Richardson testified that Officer Barnett handcuffed the driver. Officer Richardson testified that, based on what he had observed, he believed that the driver of the Jeep was intoxicated.

            Officer Barnett testified that, during the early morning hours of January 1, 2002, he was dispatched to a suspected DWI on Marsh Lane. The dispatcher said that an off-duty police officer was following a vehicle and that the off-duty officer suspected that the driver of the vehicle was intoxicated. The dispatcher told Officer Barnett that the vehicles were northbound on Marsh Lane. Officer Barnett went to Marsh Lane and then proceeded in a northbound direction. He did not see the vehicles at that time. He received a radio message that the vehicles had turned and were now heading southbound on Marsh Lane. While he was still heading north, Officer Barnett saw the Jeep going south. Officer Barnett made a U-turn and saw the Jeep in the right lane. The Jeep strayed from the right lane, crossed the four or five-inch high median, and struck a vehicle that was in the northbound lanes of Marsh Lane head-on.

            Officer Barnett said that, after making sure that the driver of the other vehicle was okay, he found Officer Richardson holding appellant on the ground. Officer Barnett said that appellant would have believed that he was under arrest at that time. Officer Barnett placed appellant in handcuffs. Officer Barnett said that the handcuffs were removed temporarily when the medics arrived so that they could provide medical treatment to appellant. After the handcuffs were removed, Officer Barnett observed a strong odor of alcohol on appellant’s breath and a glassy look in appellant’s eyes. Officer Barnett said that the look in appellant’s eyes, appellant’s emotional state, and the odor of alcohol on appellant’s breath gave him probable cause to arrest appellant. Officer Barnett also said that, without the odor of alcohol on appellant’s breath and the glassy look in appellant’s eyes, he would not have had probable cause to believe that appellant was driving while intoxicated.

Issue Presented

            Appellant argues that Officer Barnett did not have probable cause to arrest him because the arrest occurred “before” Officer Barnett observed the glassy look in his eyes and the odor of alcohol on his breath. Appellant relies on Officer Barnett’s testimony that: (1) Officer Barnett did not make these observations until after the handcuffs were removed and (2) without these observations, Officer Barnett would not have had probable cause to arrest appellant for DWI.

Standard of Review

            At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Cr.App.2002); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Cr.App.1991), cert. den’d, 510 U.S. 831 (1993). In reviewing a trial court’s ruling on a motion to suppress, appellate courts 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, 89 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court’s rulings on “mixed questions of law and fact,” such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, supra at 89. Appellate courts, however, review de novo “mixed questions of law and fact” not falling within the previous category. Guzman v. State, supra. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling “turns” on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question turns on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is enough to decide the substantive issue. Loserth v. State, supra.

Probable Cause

            Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, are sufficient to warrant a reasonable person to believe that a particular person is committing a crime. Guzman v. State, supra at 87. When several officers are involved in investigating a crime, the sum of information known to cooperating officers at the time of the arrest is to be considered in determining whether probable cause to arrest existed. Garrison v. State, 726 S.W.2d 134, 137 (Tex.Cr.App.1987); Woodward v. State, 668 S.W.2d 337, 344 (Tex.Cr.App.1984).

            We find that the facts and circumstances within Officer Barnett’s knowledge, and of which he had reasonably trustworthy information, were sufficient to warrant a reasonable person to believe that appellant was committing the crime of driving while intoxicated. The evidence established that Officer Richardson observed appellant’s Jeep for about half a mile before calling the police dispatcher to report a suspected drunk driver. During that half-mile period, appellant swerved from lane to lane and drove up to 90 miles per hour. Appellant continued to drive in the same manner after Officer Richardson called the dispatcher. Officer Richardson saw appellant run over the median curb when appellant made a U-turn. Officer Barnett received information from the dispatcher about the suspected drunk driver – appellant. Officer Richardson testified that he thought that appellant was intoxicated. The police dispatcher relayed Officer Richardson’s belief to Officer Barnett. Officer Barnett arrived on the scene. He and Officer Richardson both saw appellant’s Jeep swerve from the right southbound lane of Marsh Lane, jump the curb of the median, and cross over the median into the northbound lanes of Marsh Lane causing a head-on collision. The sum of the information known to Officer Barnett and Officer Richardson at the time of the arrest led to a reasonable belief that appellant was intoxicated. Therefore, probable cause existed to arrest appellant for DWI.

            In arguing that there was no probable cause at the time of the arrest, appellant relies on Officer Barnett’s subjective belief that he did not have probable cause to arrest appellant for DWI until after he observed appellant’s glassy eyes and the odor of alcohol on appellant’s breath. However, when determining whether probable cause existed for an arrest, we review whether the facts and circumstances known to the officer “objectively” constituted a lawful basis for the arrest, regardless of the officer’s “subjective” understanding of the motivation or purpose of his actions. Blount v. State, 965 S.W.2d 53, 55 (Tex.App. - Houston [1st Dist.] 1998, pet’n ref’d)(citing Garcia v. State, 827 S.W.2d 937, 944 (Tex.Cr.App.1992), and Williams v. State, 726 S.W.2d 99, 100-101 (Tex.Cr.App.1986)). As stated above, the facts known to Officer Barnett at the time of the arrest objectively constituted probable cause for the arrest. Appellant’s sole issue is overruled.

This Court’s Ruling

            The judgment of the trial court is affirmed.

                                                                                                TERRY McCALL

                                                                                                JUSTICE

February 5, 2004

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.