Carley Renee Potts v. State of Texas--Appeal from County Criminal Court of Appeals No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Carley Renee Potts

Appellant

Vs. No. 11-01-00246-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant was convicted of the offense of driving while intoxicated. The trial court assessed her punishment at confinement for 180 days in the Dallas County Jail, probated for 24 months, and imposed a fine of $900. Appellant brings one issue on appeal. She alleges that the trial court erred in overruling her motion to suppress evidence obtained as the result of her arrest. We affirm.

In reviewing a trial court's ruling on a motion to suppress, 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). 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. 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 always enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court's ruling and sustain the trial court's ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.

The trial court heard appellant=s motion to suppress at the same time as the trial on the merits. The arresting officer was the only witness to testify at the proceeding. He was sitting inside his patrol car in the parking lot of a convenience store on the night in question. As he was about to exit his patrol car to go inside the store, the officer observed appellant=s vehicle make a sudden, hard turn into the convenience store=s parking lot without signaling the turn. Appellant parked her vehicle in between two marked parking spaces, stopping about eight feet from where she should have parked. Upon exiting her vehicle, appellant slammed the door and walked briskly into the convenience store. An unidentified motorist who had been following appellant then pulled into the parking lot beside the officer=s vehicle. The motorist pointed to appellant and stated to the officer: AThere is something wrong with that girl. I have been following her since the freeway, and she [was] all over the road.@ The officer then approached appellant inside the store and asked her to step outside and speak with him.

The officer first asked appellant if she had been drinking which she initially denied. He then asked why he smelled the odor of an alcoholic beverage on her breath. She responded by stating that

she was a bartender and that he was probably smelling her clothes. The officer proceeded with conducting field sobriety tests after smelling alcohol on appellant. He first performed the horizontal gaze nystagmus test. He determined that appellant exhibited all six clues of intoxication during the test. He then asked appellant to recite the alphabet. Appellant began giggling when she reached As@ and could not continue. Appellant subsequently informed the officer that she had consumed two or three beers. The officer next attempted to perform a stationary balance test. He preceded this test by asking appellant if the high heeled boots she was wearing were comfortable. Appellant became angry in response to this question. Without responding to the officer=s question, she jerked her boots off and threw them down on the pavement. The officer placed appellant under arrest at that point.

The trial court made the following finding on the record:

As to the Motion to Suppress, I will deny your Motion to Suppress. I think on all of the evidence presented, the driving factors, how she parked, the person following her to the police officer to give him some information to check intoBshe was already out of the car, and it was appropriate for him to approach her and investigate. It was a reasonable and temporary detention.

Appellant attacks the trial court=s ruling on two bases. First, she contends that the act of turning into the convenience store=s parking lot without signaling did not constitute the commission of a traffic violation offense permitting the officer to make a traffic stop.[1] Second, she argues that the tip provided by the unidentified motorist did not provide a sufficient basis for the officer to detain her.[2] A police officer may stop and briefly detain persons suspected of criminal activity if the officer possesses a reasonable suspicion to justify the investigative detention. Terry v. Ohio, 392 U.S. 1 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex.Cr.App.1997). In determining the reasonableness of the investigative stop, we examine the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997). We look to the facts available to the officer at the time of the stop to determine if a reasonable suspicion existed. Davis v. State, supra at 243.

Appellant attacks the trial court=s determination by viewing the facts in isolation. However, the trial court obviously made its determination based on the totality of the circumstances which were presented to the officer. Appellant operated her vehicle in an erratic manner and in violation of the traffic laws within the officer=s view. Moments after this observation, the officer was informed by a motorist who had been following appellant that appellant had been driving all over the road. These circumstances constituted specific articulable facts which reasonably indicated that appellant was driving while intoxicated, permitting the officer to investigate the matter further. See Terry v. Ohio, supra. Appellant had already exited her vehicle when the officer contacted her. He detected the smell of alcohol on her breath when he began questioning her. These facts provided sufficient reason for the officer to further detain and investigate appellant for driving while intoxicated. Appellant=s performance on the field sobriety tests administered by the officer was sufficient to provide probable cause for her arrest. Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

June 27, 2002 W. G. ARNOT, III

Do not publish. See TEX.R.APP.P. 47.3(b). CHIEF JUSTICE

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

Wright, J., and McCall, J.

[1]Appellant cites Trahan v. State, 16 S.W.3d 146 (Tex.App. - Beaumont 2000, no pet=n), for the proposition that she was not required to signal her entry into the convenience store=s parking lot because she did not make a Aturn@ in doing so. TEX. TRANSP. CODE ANN. ' 545.104(a) (Vernon 1999). Trahan is factually distinguishable because it involved a vehicle moving over onto a freeway=s exit ramp. The officer in the instant case testified that appellant made a Ahard@ turn into the parking lot of the convenience store. Moreover, TEX. TRANSP. CODE ANN. ' 545.103 (Vernon 1999) indicates that a motorist makes a turn when entering a private road or driveway.

[2]An anonymous tip alone will not generally establish the level of suspicion required to justify a detention. Florida v. J.L., 529 U.S. 266 (2000).