THE STATE OF TEXAS v. KATHRYN LYNN TURNER (2011)

OPINION

Opinion By Justice Lang-Miers

We deny the State's motion for rehearing and motion for rehearing en banc.   On the Court's own motion, we withdraw our opinion and vacate the judgment of September 16, 2010 in this case.   This is now the opinion of the Court.   This is an interlocutory appeal from an order granting Kathryn Lynn Turner's motion to suppress in a driving while intoxicated case.   See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.2009).   In two issues, the State contends that the trial court applied an improper standard to the facts of this case and abused its discretion by determining that the police lacked probable cause to arrest Turner for driving while intoxicated.   For the following reasons, we reverse the trial court's order granting the motion to suppress and remand for further proceedings.

Background

The evidence showed that at approximately 2:45 a.m. one morning, four Dallas police officers were conducting a traffic stop on Garland Road in Dallas, Texas.   Turner was traveling about 40 to 50 miles per hour in the opposite direction on Garland Road when her vehicle left the roadway and hit a telephone pole.   Three of the officers left the unrelated traffic stop and ran across the street to help Turner.   As the officers spoke with Turner to determine if she was injured, they noticed a strong odor of alcohol coming from her and her vehicle.   Turner seemed disoriented and unsteady and had bloodshot eyes and slurred speech.   She said she was not injured and refused medical assistance, but the paramedics insisted that she allow them to assess her condition.   One of the paramedics attended Turner while the other one prepared the report.   Their report stated that Turner's overall condition was “normal,” but the paramedics testified at the suppression hearing that “normal” referred to Turner's ability to answer questions and whether she had sustained injuries, not to a state of intoxication.   One of the paramedics recalled that Turner had to be helped to the ambulance because she was stumbling.   He also recalled that she smelled of alcohol.   The police officers concluded that Turner was intoxicated and asked her to perform field sobriety tests, which she refused to do.   They placed her under arrest for driving while intoxicated.   The police searched Turner's vehicle following the arrest and found marijuana in the console of her car and marijuana pipes in the glovebox and trunk.

The State charged Turner with driving while intoxicated and possession of marijuana.   Turner filed one motion to suppress for both cases.   At the hearing on the motion, she did not dispute the underlying facts, but she testified that she hit the telephone pole because her tire hit the curb as she was sending a text message to a friend.   She also said she had consumed two average-size drinks of whiskey and Coke between midnight and 1:30 a.m. and smoked marijuana about 12 hours before.   She said she was not intoxicated.   She also said she refused to submit to the field sobriety tests because she thought her balance was unsteady as a result of colliding with the telephone pole and the air bag, which deployed on impact with the pole.   She contended the police did not have reasonable suspicion to detain her or probable cause to arrest her.

In the motion, Turner asked the court to “suppress any and all evidence seized or obtained as a result of illegal acts on behalf of the government” because her arrest “was made without any reasonable suspicion that [s]he was engaged in criminal activity” and “the evidence that will be offered by the government in this cause was not pursuant to a reasonable investigate [sic] detention, not pursuant to an arrest warrant, was absent exigent circumstances, and made without probable cause to believe the accused was engaged in criminal activity.”   We interpret the motion in the DWI case as seeking to suppress all the evidence leading up to Turner's arrest, which would include her encounter with the police and paramedics.

After the suppression hearing, the trial court noted that the facts were mostly undisputed and made factual findings as we have related them above.   The court then concluded “that all witnesses testified truthfully to the best of their respective recollections regarding the relevant events and facts involved herein.”   But the court then concluded that the police lacked probable cause to arrest Turner

because of the [paramedic] report ․ that characterized [her] condition as normal.   In reaching this conclusion, the Court finds that it is apparent from the record that the airbag deployed and that could certainly account for Kathryn Lynn Turner's stumbling and unsteadiness.   Additionally, the smell of alcohol, even if “strong,” does not automatically lead to the conclusion that Kathryn Lynn Turner was intoxicated.   Accordingly, the Court concludes as a matter of law that the police lacked probable cause to arrest Kathryn Lynn Turner for DWI.

The court did not suppress the marijuana or drug paraphernalia found in the car during the search subsequent to the arrest.

Standard of Review

We review a trial court's ruling on a motion to suppress for an abuse of discretion.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000);  Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999).   The court abuses its discretion when its ruling was so clearly wrong as to be outside the zone within which reasonable persons might disagree.  Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).   We must view the evidence in the light most favorable to the trial court's ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007);  State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).   We apply a bifurcated standard of review to the trial court's ruling on a motion to suppress evidence.  Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App.2010);  Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010).   We afford almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to the facts.  Hubert, 312 S.W.3d at 559;  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   The trial court is the sole trier of fact and the judge of witness credibility and weight to be given to witness testimony.  Valtierra, 310 S.W.3d at 447.

Discussion

The State does not contend that the trial court erred in its factual findings.   Indeed, the State agrees with the court's factual findings and argues that the trial court abused its discretion in applying the law to the facts because the factual findings support a conclusion that the police officers had reasonable suspicion to detain Turner and probable cause to arrest her.   We agree.

A law enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion that the individual is violating the law.  Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007).   Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to conclude reasonably that a particular person actually is, has been, or soon will be engaged in criminal activity.  Id. In making a reasonable suspicion determination, we consider the totality of the circumstances.  Id.

Article 14.01(b) authorizes a peace officer to “arrest an offender without a warrant for any offense committed in his presence or within his view.”   Tex.Code Crim. Proc. Ann. art. 14.01(b) (West 2005).  “ ‘Probable cause’ for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he had reasonable trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.”  Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009).   The test is objective, “unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer.”  Id.

The trial court concluded that the officers lacked probable cause to arrest Turner because the air bag could have caused Turner's unsteady balance, the paramedic report characterized Turner as “normal,” and even a “strong” smell of alcohol does not automatically lead to the conclusion that Turner was intoxicated.   Even though the trial court found the officers' testimony to be truthful, the court appears to have based its decision on the “as consistent with innocent activity as with criminal activity” test for reasonable suspicion, which has been rejected, instead of the totality of the circumstances test.   See Foster v. State, No. PD-0001-10, 2010 WL 5023067, at *2 (Tex.Crim.App. Dec. 8, 2010);  Amador, 275 S.W.3d at 878;  Curtis v. State, 238 S.W.3d 376, 378 (Tex.Crim.App.2007).   Or, as the State argues, the trial court used the prohibited “divide and conquer” approach.   See State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex.Crim.App.2008) (rejecting reviewing court's reliance on one single fact as dispositive of whether seizure occurred and reinforcing court's obligation to consider all circumstances surrounding the incident).

As the trial court noted, the facts leading up to Turner's arrest were mostly undisputed.   The police did not conduct a traffic stop of Turner's vehicle.   She had a one-car accident in the police officers' view and they ran to see if she was injured.   The police noticed evidence that made them believe Turner was intoxicated:  the strong odor of alcohol about her person and car and her unsteady balance, slurred speech, and bloodshot eyes.   Under the totality of the circumstances, we conclude the police had reasonable suspicion to detain Turner for further investigation.   See Castro v. State, 227 S.W.3d at 741;  Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002);  Carrasco v. State, 712 S.W.2d 120, 121-22 (Tex.Crim.App.1986);  Tex. Dep't of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 879-80 (Tex.App.-Fort Worth 2009, no pet.) (en banc).

Additionally, we conclude that the police officers had probable cause to arrest Turner because, at the time of her arrest, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information included:  Turner was involved in a one-vehicle accident at 2:45 a.m.;   she was not injured;  there was a strong odor of alcohol about her person and vehicle;  she had unsteady balance, slurred speech, and bloodshot eyes;  and she refused to perform field sobriety tests.   These facts and circumstances are sufficient to warrant a prudent man in believing that Turner had committed the offense of driving while intoxicated.   See Carrasco, 712 S.W.2d at 121-22;  Gilfeather, 293 S.W.3d at 880;  Elliott v. State, 908 S.W.2d 590, 592 (Tex.App.-Austin 1995, pet. ref'd).

We conclude that the trial court's factual findings support one conclusion only:  the police officers had reasonable suspicion to detain and probable cause to arrest Turner for driving while intoxicated.   Consequently, the trial court did not correctly apply the law to the facts of this case when it determined that the officers lacked probable cause to arrest her.   Because the evidence relating to the DWI case was obtained prior to Turner's arrest, the trial court must have intended to suppress the officers' and paramedics' testimony when it granted the motion to suppress in the DWI case.   We conclude this was an abuse of discretion and sustain the State's two issues.

Conclusion

We reverse the trial court's April 15, 2010 order granting Turner's motion to suppress in the driving while intoxicated case and remand this cause to the trial court for further proceedings.

ELIZABETH LANG-MIERS JUSTICE