William Roy Kimball v. The State of Texas--Appeal from 410th District Court of Montgomery County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00236-CR

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WILLIAM ROY KIMBALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 410th Judicial District Court

Montgomery County, Texas

Trial Court No. 03-02-01485-CR

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

William Roy Kimball appeals his conviction for driving while intoxicated (DWI). A jury found him guilty and assessed his punishment at ten years' imprisonment and a $10,000.00 fine, but placed him on community supervision for ten years. The trial court ordered that he serve 180 days in jail as a condition of community supervision.

Kimball contends in his first point of error the trial court erred in denying his motion to suppress evidence, alleging there was no reasonable suspicion for the police to have made the stop. Second, he contends the evidence was legally and factually insufficient to support a conviction. We affirm the trial court's judgment.

I. Reasonable Suspicion for the Stop

Kimball contends that the police did not have a reasonable suspicion to stop him and that the trial court erred in denying the motion to suppress evidence. We review the trial court's ruling on a motion to suppress by an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). When reviewing an appeal from the trial court's denial of a motion to suppress, great deference is afforded to the trial court's decision on mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court must view the evidence in the light most favorable to the trial court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). For mixed questions of law and fact which do not fall within this category, an appellate court may conduct a de novo review of the trial court's ruling. Hernandez v. State, 957 S.W.2d 851, 852 (Tex. Crim. App. 1998). Hence, de novo review applies when the facts are undisputed. State v. Jennings, 958 S.W.2d 930, 932 (Tex. App. Amarillo 1997, no pet.). Additionally, questions involving reasonable suspicion and probable cause should be reviewed de novo on appeal. Ross, 32 S.W.3d at 856; Singleton v. State, 91 S.W.3d 342, 345 46 (Tex. App. Texarkana 2002, no pet.). Finally, if the trial court's decision is correct on any theory of law applicable to the case, we will uphold that decision. Ross, 32 S.W.3d at 855 56; Singleton, 91 S.W.3d at 346.

Trooper Caryn McAnarney stopped Kimball without a warrant; therefore, the State bore the burden at the suppression hearing of demonstrating the stop was reasonable within the totality of the circumstances. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); Russell v. State, 717 S.W.2d 7, 10 (Tex. Crim. App. 1986). To justify a traffic stop, the officer must have observed specific objective, articulable facts which, in light of the officer's experience and personal knowledge, together with inferences from those facts, would warrant a reasonable person to believe a traffic violation had occurred. See Davis v. State, 947 S.W.2d 240, 242 43 (Tex. Crim. App. 1997); Singleton, 91 S.W.3d at 346. This standard is an objective one: there need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Singleton, 91 S.W.3d at 346.

The objective standard is based on the reasoning that a reasonable officer in the same situation would have reasonable suspicion to execute the stop and, therefore, nothing objectively unlawful would have been done. See Singleton, 91 S.W.3d at 347; Whren v. United States, 517 U.S. 806 (1996) (the traffic violation itself constituted an objectively reasonable basis for the stop, so any ulterior motive on the part of the officers was irrelevant). In this case, Trooper McAnarney articulated that she observed Kimball's truck's rear license plate light was not working. Failure to have a light that illuminates the rear license plate is a traffic violation. See Tex. Transp. Code Ann. 547.322(f) (Vernon 1999).

Trooper McAnarney testified that, as Kimball passed her, she looked at the side of his vehicle and noticed that his license plate light was not working. McAnarney turned off her headlights to confirm her observation. After confirming that the license plate light was not illuminated, she turned on her emergency light. When Kimball pulled over, McAnarney told him the reason for stopping him. Kimball looked at the rear license plate and responded that it was not his truck. Kimball did not claim the light was working.

In contrast, Glenn Hoagland, the owner of the truck and Kimball's grade school friend, testified that the truck license plate light was working when he picked up the truck from the impound. Joshua Matthew Perez, a passenger with Kimball, also testified that the light illuminating the rear license plate was working. In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Hoagland was impeached by the State when he testified that he had been with Kimball the entire night and had not seen him have a single drink. Kimball admitted to having a couple of drinks that night. Further, Perez admitted he was intoxicated on the night of the arrest. The trial court could have determined Trooper McAnarney's testimony to be more credible than that of Hoagland or Perez.

Based on the totality of the circumstances, the specific objective, articulable facts of McAnarney, in light of her experience and personal knowledge, together with inferences from those facts, were sufficient to support the trial court's finding of reasonable suspicion that a traffic violation had occurred. This point of error is overruled.

II. Sufficiency of the Evidence

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). This calls on the court to view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which we may find the evidence to be factually insufficient. Id. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484 85. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. at 485. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

Kimball argues the evidence is legally and factually insufficient to support the conviction because the videotape of the arrest from the police car showed Kimball had no signs of intoxication, because of the testimony of Hoagland and Perez that Kimball was not intoxicated, and because Kimball was not allowed to perform the sobriety tests after his arrest.

The definition of intoxication as provided in the jury charge was "not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, and a combination of at least two of these substances into the body." Trooper McAnarney testified Kimball smelled strongly of alcohol, had very thick, slurred speech, and was very unsteady on his feet. She testified that the strong smell of alcohol was coming from Kimball's breath and his person. Kimball admitted he had been drinking. While Kimball was looking for his insurance card, McAnarney noticed "an 18-pack of beer sitting behind . . . the driver's seat." She also observed

a Bud light can that was half full, cold to the touch, sitting upright next to the passenger seat as if it was trying to be pushed underneath it. There was an open, approximately half full, cold to the touch, Budweiser beer can that was pushed back in the same manner on the driver's seat.

Further, Kimball became argumentative and uncooperative when McAnarney attempted to conduct the field sobriety test. McAnarney asked Kimball three or four times if he would cooperate to do the field sobriety tests, to which he replied "no," while balling up his fist. Finally, Kimball refused to submit a breath specimen. In the light most favorable to the verdict, the evidence is legally sufficient to support a conviction for DWI.

Next, we review the entire record for factual sufficiency. The jurors also heard the testimony of Hoagland, who testified Kimball had not drunk any alcohol the entire night, even though Kimball admitted to having a couple of drinks earlier that night. Perez testified that he was intoxicated, not Kimball. Trooper McAnarney testified regarding Kimball's thick, slurred speech, unsteady balance, and failure to cooperate with the field sobriety test. Also, the jurors were shown the videotape of the arrest. The jurors are in the best position to assess the credibility of the witnesses. Singleton, 91 S.W.3d at 350. Contravening evidence the testimony of Hoagland and Perez is sufficiently impeached and not strong enough that the State could not have met its burden of proof. McAnarney acknowledged that, after she arrested Kimball and placed him in handcuffs, he requested to take the field sobriety tests. By that time, a crowd of fifteen to twenty people had gathered and McAnarney was concerned about "safety issues." Due to safety concerns, it is not the Department of Public Safety's policy to uncuff suspects after an arrest. The fact that McAnarney refused Kimball's request for sobriety tests, after he had previously declined them, does not render the evidence factually insufficient. We find the evidence is factually sufficient to support the conviction.

For the above stated reasons, we affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: September 28, 2004

Date Decided: December 1, 2004

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