Robbins v. State, No. 2-07-186-CR (Tex. App. 10/2/2008)

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Unpublished Opinion

WALTER RILEY ROBBINS, Appellant, v. THE STATE OF TEXAS, State.

No. 2-07-186-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: October 2, 2008.

Do Not Publish.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

Appeal from the 235th District Court of Cooke County.

Panel: HOLMAN, GARDNER, and WALKER, JJ.

MEMORANDUM OPINION¹

ANNE GARDNER, Justice.

I. Introduction

A jury convicted Appellant Walter Riley Robbins of driving while intoxicated. Appellant pleaded true to a habitual offender enhancement paragraph, and the jury assessed punishment at four years' incarceration and a $1,500.00 fine. In three points, Appellant argues that the trial court erred by denying his motion to suppress, and by denying his requested charge instruction regarding the arresting officer's stop of his vehicle and that the evidence is factually insufficient to prove that he was intoxicated. We affirm.

II. Factual and Procedural Background

On May 19, 2004, State Trooper Scott Meeks stopped the vehicle Appellant was driving. Appellant was arrested for DWI. Appellant filed a motion to suppress all evidence "seized or obtained" as a result of the stop, alleging that he "was seized without any reasonable suspicion that he was engaged in criminal activity." The trial court denied his motion.

A. Hearing on Motion to Suppress

At the suppression hearing, Meeks testified for the State. Meeks testified that on the evening of May 19, he was driving along Interstate 35 "enforcing traffic laws." Meeks stated that he observed a 2002 black Lincoln Continental attempting to pass him. He said that the vehicle caught his attention because it was "moving back and forth within [its] lane." After following the vehicle for roughly one-half mile, Meeks testified that he observed that the passenger was not wearing a seat belt. Meeks initiated a traffic stop.

Meeks said he activated his over-head lights, but the vehicle did not respond by pulling over. Meeks testified that he would have expected the vehicle to immediately pull over to the shoulder. Meeks continued to follow the vehicle for another one-half mile before activating his siren in an attempt to stop the vehicle. Meeks said that, after activating his siren, it took up to an additional thirty seconds for the vehicle to eventually pull over. Meeks said that the vehicle "actually started to pull over onto the shoulder and then pulled back onto the interstate and then he pulled back on the shoulder again."

Meeks testified that while he was attempting to pull the vehicle over he observed "a lot of movement, furtive movements inside the vehicle specifically by the passenger. [The passenger] was moving to the center of the vehicle, back to the passenger side, back to the center and looked like to me [like the passenger] was attempting to hide something under the front seat."²

Meeks stated that he used his public announcement ("PA") system to instruct Appellant to exit the vehicle and that he initially handcuffed Appellant,³ but later removed the handcuffs. Meeks testified that Appellant was not free to leave while he was handcuffed or after he had removed the handcuffs.

Appellant testified that he did not initially pull over for Meeks because he thought Meeks was attempting to pull over someone other than himself. Appellant stated, "[I]t was on the highway and there was lots of traffic and I knew I hadn't done anything to warrant being pulled over." When asked why he did not immediately pull over when Meeks activated his siren, Appellant stated, "I don't remember." Appellant testified that Meeks's attitude toward him was "scary" and intimidating.

The State then played the video tape from Meeks's patrol car's onboard video camera. The trial court denied Appellant's motion to suppress and called in the jury.

B. The Jury Trial

Meeks also testified before the jury. He testified to many of the same things he had stated during the suppression hearing. In addition, the state played the video from the onboard camera for the jury as Meeks described the events in the video.

While the jury watched the video, Meeks testified that he remained in his patrol car and used the PA system to instruct Appellant to get out of his car because "I thought there was a possibility that they might have been hiding a weapon" and "I don't know why [the vehicle occupants are] moving around a lot and I don't know why they're not stopping. So for my safety I'm not going to walk up to that car . . . ." Meeks stated that he found two half-full wine coolers in the front floorboard.⁴

While the video was still playing, Meeks testified that another officer arrived on the scene and explained to him that there had been a "call [in concerning Appellant's vehicle] for erratic driving and weaving in and out of traffic." Meeks was unaware of the call at the time he initiated the stop. Meeks also said that by this time he had arrested the passenger and placed her in the back of his vehicle.⁵ Meeks further stated that he had not yet made a determination whether to arrest Appellant for DWI but that he did have "a couple of clues of impairment." Meeks also testified that despite Appellant telling him of two different locations where Appellant's driver's license would be, Appellant never produced a driver's license and only had an identification card with him.

In an effort to determine if Appellant was intoxicated, Meeks said that he first performed the portable breath test on Appellant.⁶ Meeks testified that the portable breath test indicated the presence of alcohol in Appellant's system. Meeks then testified that he is certified to administer and did administer a number of standard field sobriety tests including the horizontal gaze nystagmus test, the nine-step and turn test, and the one-legged stand test. Meeks also testified that Appellant displayed six of six possible clues for the horizontal gaze nystagmus test. Meeks stated that he "assigned" two clues to Appellant on the nine-step and turn test, but "if you want to really go by the manual, that's — you know, most officers would probably assign him five clues, and I only assigned him two." Meeks testified that he observed three of four possible clues when he conducted the one-legged stand test on Appellant. Meeks then stated that he conducted a nonstandardized field sobriety test, a "divided attention test," but Meeks never testified specifically whether Appellant failed the test.⁷ Meeks also stated that during his encounter with Appellant, Appellant said he drank "one margarita" that evening. Meeks testified that he ultimately placed Appellant under arrest for DWI.

Three witnesses, other than Appellant himself, testified before the jury on Appellant's behalf—Ira Sherrill, Charley Rodden, and Elaine Hudnall,⁸ who was the passenger in the vehicle the night Appellant was arrested. Sherrill and Rodden both testified that Appellant had only one margarita that evening and that Appellant was asked to drive Hudnall home because Hudnall was intoxicated and unable to drive and Appellant was not intoxicated.

Hudnall testified that she had asked to be driven home because she was unable to drive and that when she and Appellant had stopped to buy gas, she purchased a four-pack of wine coolers. She testified that after getting gas she "opened the wine cooler[s], one for me . . . one for him. And we left to go on home." But she said that Appellant did not drink his wine cooler.

Appellant testified that earlier in the evening he had attended a retirement party for a friend. Appellant said he initially ordered a margarita that was not satisfactory. He said that he asked the waiter to bring him a new one and that after more than twenty minutes the waiter did. But Appellant testified that he did not consume the entire drink. Appellant testified that roughly an hour passed between when the waiter brought him the replacement drink and when he volunteered to drive Hudnall home. Appellant admitted that when Meeks asked him when and how much he had to drink that night, he told Meeks an incorrect time because he wasn't "thinking clearly" and simply wanted to give Meeks "an answer so [he would stop questioning him]." Appellant said he drove Hudnall home because "she was drunk" and had asked someone to drive her home. He testified that he did not ask Hudnall to purchase the wine coolers when they stopped for gas. And Appellant testified that he had not consumed any alcohol between the time he drank the one margarita earlier in the evening and when Meeks pulled him over.

Appellant again said that he did not initially pull over for Meeks because he "knew he hadn't done anything [wrong]" and that he thought Meeks was attempting to signal to him to slow down so that Meeks could pass him. Appellant said that he did not fully comply with Meeks's instructions when asked to exit the vehicle because he was "confused" by Meeks's having stated at first to"keep your hands where I can see them" and then later stating "put your hands on top of your head."⁹

Appellant testified that when he was brought to jail he refused to provide a sample of his breath for testing. He also said that he had previously had his license suspended for refusing a breath test. He then testified that he had three prior convictions for DWI in Texas and one prior arrest for DWI in New Mexico. Appellant stated he did not remember if the New Mexico arrest ever resulted in a conviction.

C. The Jury Charge

Appellant submitted to the trial court an additional instruction to be included in the jury charge. The court denied the submission. The requested instruction explained a person's rights under the Fourth Amendment to the United States Constitution and article 1, section 9 of the Constitution of the State of Texas. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. It further describes the warrant requirement and a number of exceptions to the warrant requirement and then ends with this excerpt:

Therefore, you are...