The State of Texas v. Donna Lynn May--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION

No. 04-04-00639-CR

The STATE of Texas,

Appellant

v.

Donna Lynn MAY,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court No. 872275

Honorable Karen Crouch, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

The State appeals the trial court s order granting Donna Lynn May s motion to suppress. The State contends that the appeal should be abated for the entry of findings of fact and conclusions of law and that the trial court abused its discretion in granting the motion to suppress. We affirm the trial court s order.

Background

May was charged with the offense of driving while intoxicated. May filed a motion asserting that she was illegally arrested and that all evidence obtained as a result of the illegal arrest should be suppressed. The State stipulated that the arrest was warrantless.

Officer Gary Albrecht was following Officer Jose Limon, Jr. to a call when he heard tires squealing. Officer Albrecht observed a car swerve off the roadway onto a curb and then back onto the roadway where it struck another vehicle. Officer Albrecht identified May as the driver of the car. Officer Albrecht observed both vehicles pull into a restaurant after the collision. May was very angry and was verbally abusive to the other driver. The officers ordered May to stand back away from the other driver, and May complied. Officer Albrecht was unaware of whether the other driver had forced May s vehicle off of the roadway.

Officer Albrecht noted that May had a moderate odor of intoxicants on her breath, and she was very talkative. Officer Albrecht did not observe that May had any problem with her balance or that her speech was slurred. After May was transported to the police station, her intoxilyzer test results were .196 and .197.

Officer Limon observed May s car swerve to the right, hit a curb, and then swing and hit the other car. Officer Limon saw May exit her car and start yelling at the other driver. The officers separated May and the other driver. Officer Limon started conducting field sobriety tests on May. Officer Limon stated that Officer Albrecht made the decision to conduct the tests. Officer Albrecht told Officer Limon that the basis for conducting the tests was that May was unsteady on her feet and had an odor of intoxicants on her breath. Officer Limon also noticed the odor of intoxicants and characterized the odor as strong. Officer Limon testified that May hopped once and put her foot down three times on the one-leg stand test, did not touch heel to toe on the walk-and-turn test on four occasions, and had a one to two inch sway on the Rhomberg test. In addition, Officer Limon noted that May exhibited all six clues in the HGN test. Officer Limon also noted that during the field sobriety tests, May slurred her speech and was unsteady on her feet. May admitted to Officer Limon that she had a little bit to drink. During cross-examination, Officer Limon admitted that he did not notice May being unsteady prior to conducting the field sobriety tests.

Discussion

In its first issue, the State requests that this court abate the appeal and order the trial court to enter findings of fact and conclusions of law. We overrule the State s first issue for the reasons stated in State v. Cullen, No. 04-04-00583-CR, 2005 WL 1159087, at *2-3 (Tex. App. San Antonio May 18, 2005, no pet. h.).

In its second issue, the State asserts that the trial court erred in granting the motion to suppress. In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Cullen, 2005 WL 1159087 at *3. When reviewing a trial court s ruling on a motion to suppress, we afford almost total deference to a trial court s determination of the facts, especially when the court s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Cullen, 2005 WL 1159087 at *3.

The only evidence presented at the suppression hearing was the testimony of Officers Albrecht and Limon. Assuming that the State s legal arguments are sound, the only valid reason for the trial court to have granted the [motion] to suppress is that it didn t believe the State s version of the evidence. Cullen, 2005 WL 1159087 at *4 (quoting State v. Guo, 64 S.W.3d 662, 668 (Tex. App. Houston [1st Dist.] 2001, no pet.)). The trial court was free to disbelieve all or any part of the officers testimony during the suppression hearing. Id. In this case, a discrepancy existed between Officer Albrecht s testimony regarding his observations and Officer Limon s testimony regarding the observations he believed Officer Albrecht had made in determining that Officer Limon should perform the field sobriety tests. Because the trial court was not compelled to believe the officers testimony, the trial court was within its discretion in granting May s motion to suppress. Accordingly, the State s second issue is overruled. //

Conclusion

The trial court s order granting May s motion to suppress is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH