Ogunnowo v. State

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OLAMIDE FEDAPO OGUNNOWO, Appellant v. THE STATE OF TEXAS, Appellee

No. 01-22-00174-CR

Court of Appeals of Texas, First District

November 30, 2023

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 19-DCR-086413

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.

MEMORANDUM OPINION

Veronica Rivas-Molloy Justice

A jury convicted Appellant Olamide Fedapo Ogunnowo of the felony offense of driving while intoxicated. The trial court assessed his punishment at ten years' confinement in the Texas Department of Criminal Justice-Institutional Division suspended the sentence, and placed Ogunnowo on community supervision for ten years. In two issues, Ogunnowo argues on appeal there is insufficient evidence he (1) was intoxicated or (2) operated his vehicle while intoxicated.

Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the jury's finding that Ogunnowo committed the offense of driving while intoxicated. We affirm the trial court's judgment.

Background

Ogunnowo was indicted for the felony offense of driving while intoxicated. Nora Garcia and Deputy Raybon Hastedt, IV testified at his trial.

A. Nora Garcia

On January 13, 2019, Fort Bend County Sheriff's Office 9-1-1 dispatcher Nora Garcia received a call for service for an automobile accident located at the corner of Bissonnet Street and Dora Meadows Drive. The caller, who provided Garcia with her complete name and phone number, reported seeing a new BMW SUV that had driven over a curb and was parked near the fence. The caller told Garcia that the SUV's engine was running and its lights were on. When asked if anyone was in the SUV, the caller told Garcia she saw no one in the SUV, but another person who stopped to help saw the SUV's driver, who appeared to be asleep, slumped over in the driver's seat. The caller told Garcia she needed to get to work, but that the other person who had stopped to help would stay at the scene until the police arrived.

B. Deputy Raybon Hastedt, IV

FBCSO Deputy Raybon Hastedt, IV testified that he was dispatched to the scene of the accident at 5:47 a.m. When he arrived at the scene, Deputy Hastedt saw a blue BMW SUV. The front end of the SUV was on a sidewalk and the rear end was "still in the roadway." After speaking to someone at the scene, Deputy Hastedt approached the driver's side of the SUV. Deputy Hastedt testified that Ogunnowo, the sole occupant, was asleep in the driver's seat with his seat belt attached and he was slouched down and leaning back in the seat.

Deputy Hastedt testified that the SUV's engine was running, and the transmission was in drive. Deputy Hastedt put the car in park and woke Ogunnowo up. According to Deputy Hastedt, Ogunnowo's speech was slow, and he immediately detected the odor of an alcoholic beverage on his breath. Ogunnowo told Deputy Hastedt that he was on his way home from a baby shower and he denied consuming any alcohol. Ogunnowo told Deputy Hastedt that he had left the baby shower at around 4 a.m. Ogunnowo told Deputy Hastedt that "he pulled over," but he never provided a definitive answer as to why the SUV was parked partially on the sidewalk with its rear still on the street. Ogunnowo told Deputy Hastedt that he believed he was somewhere near Highway 6, but he could not provide a cross street. Deputy Hastedt testified that Highway 6 was about a mile and a half from the scene of the accident. Ogunnowo told Deputy Hastedt he did not have his driver's license with him.

Based on the odor of alcohol on Ogunnowo's breath and the way he was positioned in the SUV, Deputy Hastedt decided to conduct a DWI investigation. Deputy Hastedt testified that Ogunnowo did not fall or stumble when he got out of the SUV, and although he was "kind of off balance a little bit," Ogunnowo was able to walk to the patrol car. Deputy Hastedt drove Ogunnowo to a side street where he administered three field sobriety tests.

Deputy Hastedt testified that he was certified to administer field sobriety tests after attending a three-day course in 2009 while in the training academy. According to Deputy Hastedt, the course instructors, who taught directly from the National Highway Traffic Safety Administration ("NHTSA") manual, taught him and the other participants "how to understand, interpret, and administer field sobriety tests" and identify intoxicated drivers. Deputy Hastedt testified he had conducted about 50 to 75 DWI investigations during his law enforcement career. He conducted field sobriety tests ("FSTs") during each of those investigations.

The first FST Deputy Hastedt administered to Ogunnowo was the horizontal gaze nystagmus ("HGN") test. Deputy Hastedt testified that "nystagmus is the uncontrollable jerking of the eye [that] naturally happens to everybody." According to Deputy Halstead, a person's nystagmus becomes more pronounced when they consume alcohol or depressants.^[1] Before administering the HGN test to Ogunnowo, Deputy Hastedt asked Ogunnowo if he had any medical conditions or head trauma because a person with head trauma or certain medical conditions is not a good candidate for the HGN test. Deputy Hastedt testified that Ogunnowo did not indicate he had any condition that would disqualify him from taking the HGN test.

Deputy Hastedt testified that the HGN test looks for six clues to indicate intoxication. He observed that Ogunnowo showed all six clues. According to Deputy Hastedt, four clues on the HGN test would have been enough to indicate intoxication. When asked if he observed any other signs of intoxication when he administered the HGN test to Ogunnowo, Deputy Halstead testified that Ogunnowo, who was standing directly in front of him, had "a slight sway to and from towards me and away from me." During the HGN test, Deputy Hastedt repositioned Ogunnowo due to the wind. Deputy Hastedt testified that the wind does not affect the quality of the HGN test. Deputy Halstead testified that based on Ogunnowo's performance on the HGN test, he believed Ogunnowo's nystagmus was caused by his consumption of alcohol.

Deputy Hastedt then administered the walk-and-turn test. According to Deputy Hastedt, Ogunnowo's performance on the test suggested he was intoxicated. Deputy Hastedt testified that he looks for eight clues when administering the walk-and-turn test, but he listed only seven clues: (1) inability to maintain balance when receiving instructions, (2) starting to walk before being instructed to do so, (3) stepping off the line, (4) improper number of steps, (5) turning incorrectly, (6) using arms to balance, and (7) not walking heel to toe.

According to Deputy Hastedt, a person needs to exhibit only two of the eight clues on the "walk-and-turn" test to indicate intoxication. He testified Ogunnowo exhibited five clues. Ogunnowo was unable to balance during the instructional portion of the test, he started too soon, and he missed some heel-to-toe steps within a half inch of each other. He also exhibited other clues, but Deputy Hastedt said he would have to refer to his offense report to identify the clues. Deputy Hastedt testified that he reviewed the dash cam video and his offense report before trial, and there were some discrepancies between the video and his report with respect to the walk-and-turn test.

According to Deputy Hastedt, two of the walk-and-turn test clues he included in his offense report were different from those depicted in the dash cam video. Deputy Hastedt testified the video showed only five clues, including balancing during the instructional phase, missing heel-to-toe steps, stepping off the line, improper turn, and starting the test too soon. He listed five clues in his report. But two of the clues listed in the report were not supported by the dash cam video, and the video supports two other clues not included in the report.^[2] Either way, Deputy Hastedt testified that Ogunnowo showed five clues of intoxication on the walk-and-turn test.

Deputy Hastedt testified that during the FSTs, he allowed Ogunnowo to retrieve his jacket from his car because he was cold and shaking. Deputy Hastedt, who told Ogunnowo the cold would not affect his performance on the FSTs, testified that according to research, "field conditions" will not affect someone's performance on an FST unless the conditions are extreme. Deputy Hastedt testified he was wearing a jacket and hat when he administered the FSTs to Ogunnowo, but he did not recall the temperature that night. Based on the dash cam video, Deputy Hastedt testified that he Ogunnowo exhibited five out of eight clues on the walk-and-turn test.

Deputy Hastedt also administered the one-leg-stand test. He explained there are a maximum of four clues on the one-leg-stand test and that the minimum number of clues necessary to indicate intoxication is two. Deputy Hastedt testified that although he stated in his offense report that Ogunnowo had shown all four clues of intoxication on the one-leg-stand test, after watching the dash cam video, he determined Ogunnowo had shown only three clues total: swaying, using his arms for balance, and putting his foot down.

Based on his observations, including Ogunnowo's performance of the FSTs, Deputy Hastedt arrested Ogunnowo for being intoxicated while driving a motor vehicle. Deputy Hastedt read Ogunnowo the statutory warnings included in the DIC-24 form.^[3] He asked Ogunnowo to submit to a breath or blood test, but Ogunnowo refused. The DIC-24 form was admitted into evidence as State Exhibit 6.

On cross examination, Deputy Hastedt testified that the DIC-23 form "is a sworn statement [that] has the information pertaining to . . . the offense...