Todd Allen Gilley v. The State of Texas--Appeal from 194th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Todd Allen Gilley

Appellant

Vs. No. 11-01-00344-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant was convicted of felony DWI at a bench trial. TEX. PENAL CODE ANN. '' 49.04 & 49.09 (Vernon 2003). The trial court sentenced appellant to five years in the state penitentiary, probated for five years, and a $2,500 fine. TEX. PENAL CODE ANN. ' 12.34 (Vernon 2003). Appellant presents three points of error in this appeal. First, appellant argues that the trial court erred in denying his motion to suppress evidence. Next, appellant contends that the evidence is factually and legally insufficient to sustain the conviction. We affirm.

Background Facts

Jeffery Allen Butts was driving home from his parents= house when he observed appellant=s vehicle swerve and nearly collide with his car. Butts followed appellant and noticed that appellant crossed traffic lanes, straddled the right lane markers, and Abrush[ed]@ a curb once. Butts called the Rowlett Police Department on his cell phone and reported a possible drunk driver. He identified the vehicle by the make, model, color, and license plate. Officer Darren Dailey responded to the call, identified the vehicle from the description, and began following appellant. Officer Dailey noted that appellant was having a hard time keeping in his lane and nearly struck the curb a couple of times. Officer Dailey pulled appellant over and subsequently arrested him. The police dispatcher maintained contact with Butts and requested that Butts continue to follow appellant and the officer. Butts complied and stopped behind Officer Dailey when Officer Dailey performed the traffic stop on appellant.

Motion to Suppress

In his first point of error, appellant claims that the police did not have reasonable suspicion to warrant the traffic stop. 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 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed 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 Amixed 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 Aturns@ on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question Aturns@ 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. 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.

A police officer may stop and briefly detain persons suspected of criminal activity if the officer possesses a Areasonable 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. 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. Reasonable suspicion exists if the officer possesses specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that the driver of the vehicle has committed a violation. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Cr.App 2001); Woods v. State, supra at 35-38.

Officer Dailey responded to a call made by Butts of a possible drunk driver. The vehicle was identified by the make, model, color, and license plate. Officer Daily testified that he located the vehicle about five minutes after receiving the call. He followed the vehicle and made several observations that leant credence to Butts=s report, including having difficulty keeping a lane and nearly hitting a curb. Appellant failed to respond to Officer Dailey=s emergency lights, and Officer Dailey had to turn on his siren before appellant stopped. See Gilbert v. State, 874 S.W.2d 290, 295 (Tex.App. B Houston [1st Dist.] 1994, pet=n ref=d). Accordingly, Officer Dailey possessed a reasonable, articulable basis for suspecting that appellant was driving while intoxicated and was justified in detaining him to investigate this suspicion. Appellant=s first point is overruled.

Sufficiency of the Evidence

In appellant=s second and third points, he contends that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

Officer Dailey testified that he observed appellant struggling to keep the vehicle in one lane and that the vehicle nearly hit a curb. Officer Dailey also testified that appellant failed to respond when Officer Dailey activated his patrol car=s emergency lights and that appellant did not immediately pull over in response to the siren. Butts confirmed that appellant did not immediately pull over after the police signaled appellant to do so. Appellant appeared confused and had difficulty locating his driver=s license and insurance card. There was an open can of beer on the driver=s side floorboard, and the truck=s interior smelled of alcohol. Appellant admitted to Officer Dailey that he had had three or four beers that night. Officer Dailey administered three field sobriety tests to appellant. The first test was not admitted during trial. Appellant then passed the one-legged stand test, but exhibited two clues of intoxication on the walk-and-turn test. At the police station, appellant refused to submit to a breath test. When the evidence is viewed in the light most favorable to the verdict, a rational finder of fact could have found that appellant was intoxicated. We hold that the evidence is legally sufficient. The third point of error is overruled.

Appellant offered testimony that the pickup he was driving was 20 years old and had been driven 400,000 miles. As a result of this age and use, the steering was not as tight as the steering on a newer vehicle, and this contributed to the vehicle weaving on the road. Appellant also brought out in cross-examination of Officer Dailey that, when appellant failed the walk-and-turn test, it was possible that, while appellant=s feet did not touch heel-to-toe as mandated by the test, they may have been within the one-half inch allowed by the test. Also, appellant contends that he did not appear intoxicated on the videotape. However,the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992). The fact finder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.1986), cert. den=d, 488 U.S. 872 (1988). In balancing the evidence, the conviction is not clearly wrong and manifestly unjust. The evidence is also factually sufficient. Appellant=s second point is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 13, 2003

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

Panel consists of: Wright, J., and

McCall, J., and Dickenson S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.