Bryant v. The State Of Tex. State

SUSAN LEA BRYANT APPELLANT

v.THE STATE OF TEXAS STATE

NO. 2-08-294-CR

Court of Appeals of Texas

DELIVERED: July 15, 2010

OPINION

I. INTRODUCTION

Appellant Susan Lea Bryant challenges her conviction for driving while intoxicated. In three issues, Bryant contends the trial court erred by denying her motion to suppress the results of her horizontal gaze nystagmus (HGN) test administered while she was seated and that the evidence was legally and factually insufficient to support Bryant's conviction. We will affirm.

II. BACKGROUND

A. Factual Background

At approximately 11:30 p.m., Denton Police Officer Jason Snailer responded to a dispatch call regarding a specific vehicle1traveling southbound on Interstate 35. After spotting the vehicle, Officer Snailer followed it and observed it swerve onto the right shoulder at least twice and almost hit a bridge guardrail. Because of the heavy rain that evening, Officer Snailer testified that he considered such driving to be dangerous and activated his overhead lights to stop the driver. As the vehicle pulled over, it cut off another car entering the highway from an entrance ramp.2

Because the vehicle pulled to the side of the highway, Officer Snailer contacted the driver, Bryant, through the passenger side window. Officer Snailer testified that Bryant could not locate her driver's license or insurance and told him she was driving back from Norman, Oklahoma. Officer Snailer said he did not smell any alcohol, but that he never leaned into the vehicle and was too far from Bryant to smell anything when he spoke with her.

Shortly after Officer Snailer stopped Bryant, Denton Police Officer Lisa Martin arrived on the scene in response to the dispatch call. After speaking with Officer Snailer about his observations of Bryant's vehicle on the highway, Officer Martinleaned in Bryant's passenger window to speak with Bryant because it was raining heavily and the highway noise was loud. Officer Martin said that when she first walked up to Bryant's car, Bryant was continuing to search for her license. Officer Martin testified that she noticed a moderate odor of alcohol while talking with Bryant and noticed that Bryant wore a paper wristband on her right wrist that indicates a person is over age 21 in a bar or casino. Officer Martin also testified that Bryant had glassy eyes and that her speech was a little slurred.

Officer Martin asked Bryant how many drinks it took for her to feel the effects of alcohol. Bryant replied that she did not know, that she did not drink very often, but that she had two glasses of wine at a casino about three hours before being stopped. Bryant recited her name, age, date of birth, and driver's license number without any difficulty. Bryant denied feeling any effects of alcohol and said she was just tired. Officer Martin also testified that Bryant admitted to taking Effexor, an antidepressant, that day and that the medication's label warned not to consume alcohol while taking the medication.

Officer Martin explained that she conducted the first of three standardized field sobriety tests, the HGN, while Bryant was seated in the car because it was raining heavily, Bryant appeared elderly, and she did not want to ask Bryant to step out in the rain if Bryant was not intoxicated. Officer Martin explained that the HGN is a valid way to help determine if a person is intoxicated by observing a certain number of clues as a person's eyes track a stimulus. Officer Martin said she observed sixout of six clues in Bryant's eyes, that it was likely Bryant was intoxicated, and that she needed to further investigate whether Bryant was intoxicated.

Because Officer Snailer's patrol car was directly behind Bryant's car, Officer Martin removed the videotape from her car's camera and placed it in Officer Snailer's camera so that they could record the rest of the field sobriety tests. By this time the rain had subsided, and Officer Martin asked Bryant to step out and move to the rear of Bryant's car. Officer Martin testified she asked Bryant to stand in a certain spot and Bryant stumbled; but Officer Martin did not recall seeing anything on which Bryant might have tripped.3As Officer Martin began to explain the next standardized field sobriety test, Bryant responded that she did not want to do any field sobriety tests. Officer Martin testified she inquired a second time if Bryant would like to try and Bryant refused. At that point, Officer Martin placed Bryant under arrest because she believed Bryant was intoxicated from alcohol or medication or both.

After reading Bryant her statutory warnings, Officer Martin explained that she asked for a blood sample because she knew Bryant had consumed alcohol and taken medication, "so [with] a blood specimen you can get both, and a breath specimen you can only get the alcohol." Bryant declined to give a blood specimenand the record does not reflect an attempt by Officer Martin to obtain a search warrant for such a specimen.

B. Procedural Background

Bryant was charged by indictment with her second offense of driving while intoxicated. Bryant filed a motion to suppress evidence obtained as a result of her detention and arrest. At the pre-trial hearing, Bryant sought to suppress the results of the HGN test because it was not administered in a standardized manner. After permitting the parties to submit briefs on whether the HGN results were admissible, the trial court denied Bryant's motion. At trial, Bryant entered a plea of not guilty to the offense, but entered a plea of true to the enhancement paragraph alleging that she had been convicted of the previous misdemeanor of driving while intoxicated. A jury found Bryant guilty. The trial court assessed punishment at 365 days in jail with a $700 fine, but suspended the jail sentence and placed her on community supervision for eighteen months. Bryant timely filed a notice of appeal.

III. ISSUES

Bryant raises three points: (1) the trial court erred by denying her motion to suppress and by allowing Officer Martin's testimony regarding her results of the HGN testing; (2) the evidence is legally insufficient to support Bryant's conviction for driving while intoxicated; and (3) the evidence is factually insufficient. We will therefore apply the abuse of discretion standard of review and the legal and factual sufficiency standards of review set forth below where they are applicable.

IV. ANALYSIS

A. Motion to Suppress

In her first issue, Bryant contends the trial court erred by denying her motion to suppress evidence of the HGN results because Officer Martin did not administer the test in accordance with the National Highway and Transportation Safety Administration (NHTSA) protocol as outlined in the NHTSA instructor's manual. Specifically, Bryant contends that conducting an HGN test on a seated individual is an invalid technique and that Officer Martin did not properly administer the HGN test because she did not ask Bryant to stand with her feet together and with her hands at her side.

1. Abuse of Discretion Standard

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App. Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and of the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost totaldeference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

Stated another way, when reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

2. Application of Law to Facts

In Emerson v. State, the court of criminal appeals examined the underlying scientific...