Opinion
No. 05-18-00459-CR
06-19-2019
VERNON RAY MCCULLOUGH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 7 Dallas County, Texas
Trial Court Cause No. MA15-21016-H
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Nowell
Vernon Ray McCullough appeals the trial court's denial of his motion to suppress evidence and the jury's verdict finding him guilty of driving while intoxicated. McCullough argues the police officer lacked reasonable suspicion to stop his vehicle, the trial court should have dismissed the information because it was not file-stamped, and the evidence is insufficient to support the conviction. We affirm.
A. Motion to Suppress
At the suppression hearing, the trial court found that Detective Javier Acosta observed appellant's driving for approximately six minutes. Acosta saw appellant swerve across three lanes of traffic, change lanes without using a signal, drive erratically, and almost strike two cars. The trial court concluded Acosta had reasonable suspicion to stop and detain appellant for erratic driving, suspicion of DWI, and failure to signal the intent to change lanes. McCullough contends these findings are not supported by the record.
We review a trial court's ruling on the motion to suppress for an abuse of discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). The record will be viewed in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or "outside the zone of reasonable disagreement." Id.; Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1991). We uphold the judgment if it is correct on some theory of law applicable to the case, even if the trial judge made the judgment for a wrong reason. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Further, a trial court's ruling will not be reversed based on a legal theory not presented by the complaining party. Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002). Because the trial court is the sole trier of fact, we give almost total deference to its determination of historical facts. Story, 445 S.W.3d at 732. The trial court's application of the law to those facts, however, is reviewed de novo. Id.
Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer has reasonable suspicion if he has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). "This is an objective standard that disregards the subjective intent of the officer and requires only some minimal level of justification for the stop." Brodnex, 485 S.W.3d at 437. "However, the officer must have more than an inarticulable hunch or mere good-faith suspicion that a crime was in progress." Id. A determination of reasonable suspicion is made by considering the totality of the circumstances. Id.
An officer may lawfully stop and reasonably detain a motorist if the officer has a reasonable basis for suspecting the person has committed a traffic violation. Garcia v. State, 827 S.W.2d 937, 944-45 (Tex. Crim. App. 1992); State v. Gammill, 442 S.W.3d 538, 540 (Tex. App.—Dallas 2014, pet. ref'd). For a peace officer to stop a motorist to investigate a traffic infraction, "proof of the actual commission of the offense is not a requisite." Leming v. State, 493 S.W.3d 552, 561 (Tex. Crim. App. 2016) (quoting Drago v. State, 553 S.W.2d 375, 377 (Tex. Crim. App. 1977)). An officer may be justified in stopping a vehicle based upon a reasonable suspicion of driving while intoxicated, which is a penal offense. Curtis v. State, 238 S.W.3d 376, 379-80 (Tex. Crim. App. 2007); see TEX. PENAL CODE ANN. § 49.04(a). Specific facts about the operation of a vehicle, such as weaving in and out of a lane several times over a short distance, late at night, may raise a rational inference of intoxication sufficient to justify an officer's investigation of the incident. Curtis, 238 S.W.3d at 381.
Desoto Detective Acosta testified at the hearing that on December 19, 2015, he was returning to the police station at night when he noticed appellant's driving. Acosta observed appellant rapidly cross three lanes of traffic without signaling and nearly strike another vehicle. Appellant accelerated up to 90 miles per hour then decelerated to 40 or 50 miles per hour multiple times over a short period of time. According to Acosta, rapid acceleration and deceleration are indicators of possible intoxication. Appellant attempted to exit the highway at one point, but merged back onto the highway at the last second and nearly collided with another vehicle.
Acosta testified he observed appellant's driving for approximately six minutes before turning on his dashboard camera. During that time, Acosta observed appellant fail to maintain a single lane, change multiple lanes without signaling, disregard traffic control devices, and exceed the speed limit. Acosta contacted his supervisor about appellant's erratic driving and requested permission to stop the vehicle outside of his jurisdiction. His supervisor granted permission and advised Acosta he would notify the local authority of the stop. Acosta then activated his dashboard camera. The video recording shows appellant's vehicle weaving slightly within the lane, then rapidly accelerate. Acosta turned on his lights when appellant accelerated and stopped appellant's vehicle. Acosta approached appellant and requested his driver's license and proof of insurance. A short while later, Officer Joshua Ingle of the Duncanville Police Department responded to the scene. Acosta relayed his observations of appellant's driving to Ingle, then left the scene.
Appellant argues that the video from Acosta's vehicle shows that he maintained his lane before being stopped. However, Acosta testified he observed appellant's erratic driving for approximately six minutes before activating the dashboard camera. Based on the evidence at the suppression hearing, we conclude the trial court's findings are supported by the record and the court did not abuse its discretion by denying the motion to suppress. We overrule appellant's first issue.
B. Filing of the Information
In his second issue, appellant argues the trial court erred by denying his motion to dismiss the information. After announcing ready for trial, appellant made an oral motion to dismiss the information because the information in the court's file was not file-stamped by the clerk. He offered into evidence copies of the complaint and the information obtained from the court's online database. The complaint was file-stamped but the information was not. The trial court denied the motion.
An information is "a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted." TEX. CODE CRIM. PROC. ANN. art. 21.20. No information shall be presented until an affidavit has been made by a credible person charging the defendant with an offense. Id. art. 21.22. The affidavit or complaint shall be filed with the information. Id. An information is considered as "presented," when it has been filed by the proper officer in the proper court. Id. art. 12.07. A document or instrument is filed when it is left with clerk, regardless of whether a file-mark is placed on it. See Williams v. State, 767 S.W.2d 868, 871 (Tex. App.—Dallas 1989, pet. ref'd) ("In civil cases, an instrument is generally deemed filed when it is left with the clerk regardless of whether a file mark is placed on the instrument. [citation omitted.] We see no reason why the same rule should not apply in criminal cases, and we hold that it does."); Perkins v. State, 7 S.W.3d 683, 686 (Tex. App.—Texarkana 1999, pet. ref'd) ("An information is filed when it is delivered to or left with the clerk, despite the absence of a file stamp on the document.").
Appellant's issue is based on his oral motion to dismiss in the trial court. However, all motions to set aside an indictment or information must be in writing. TEX. CODE CRIM. PROC. ANN. art. 27.10; see Faulks v. State, 528 S.W.2d 607, 609 (Tex. Crim. App. 1975) (ruling on oral motion to quash preserves nothing for review); State v. York, 31 S.W.3d 798, 803 (Tex. App.—Dallas 2000, pet. ref'd). Because appellant failed to present his complaint to the trial court in a written motion as required by law, he failed to preserve error for appeal. See TEX. R. APP. P. 33.1(a). We overrule appellant's second issue.
C. Sufficiency of the Evidence
In his third issue, appellant argues the evidence is insufficient to support the jury's verdict convicting him of DWI.
We review a challenge to the sufficiency of the evidence on a criminal offense for which the State has the burden of proof under the sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). Under this standard, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011). This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Therefore, in analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination. Id. Direct and circumstantial evidence are treated equally: circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id.
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or having an alcohol concentration of 0.08 or more. Id. § 49.01(2).
Acosta testified before the jury to the same facts about appellant's driving as he did in the suppression hearing. When Acosta approached appellant and requested his drivers license and proof of insurance, appellant could only locate his drivers license. Appellant seemed slow and fumbled with items in his glove box as he attempted to locate his proof of insurance. Appellant did not turn down his radio as a typical driver would do and did not appear affected by the loud music. Acosta testified these observations and appellant's erratic driving were signs of possible intoxication based on his training and experience. Acosta relayed his observations Duncanville Officer Ingle before leaving the scene. Acosta testified that based on his observations appellant had lost the normal use of his mental and physical faculties.
Ingle testified he has training and experience with DWI investigations. He arrived at the scene and learned from Acosta that appellant was driving erratically, speeding, and swerving within his lane of travel. Ingle described appellant as "very disheveled" and his clothing was wrinkled and not well kept. Ingle observed that appellant's eyes were watery and bloodshot, and appellant had slurred speech and smelled of alcohol. Appellant admitted he had consumed two glasses of wine, but could not recall when he consumed the wine or where he was traveling from. Ingle's observations of appellant and the erratic driving relayed to him by Acosta were "obvious signs of intoxication."
Ingle attempted to conduct standardized field sobriety tests. He explained the horizontal gaze nystagmus (HGN) test for the jury and testified that appellant would not cooperate with the instructions during the test. Appellant repeatedly moved his head despite instruction not to do so. Ingle admitted there were errors in his administration of the test, but that during his repeated attempts to administer the test, he observed HGN in both of appellant's eyes. HGN in the eyes is an indication of intoxication. Ingle also attempted to perform the walk-and-turn test with appellant, but he was unable to complete the test. Ingle admitted he made some errors in his instructions for the test, but appellant failed to perform the instructions given. After several attempts, Ingle concluded appellant was not willing to cooperate with the test. Based on his observations and the erratic driving relayed by Acosta, Ingle arrested appellant for DWI.
Ingle transported appellant to the Dallas County Jail intoxilyzer room to perform a breath test. After appellant refused to provide a breath specimen, Ingle obtained a warrant to obtain a blood sample from appellant for the purpose of blood alcohol testing. Appellant's blood was drawn at 3:38 a.m. He was stopped by Acosta at approximately 12:27 a.m.
Toxicologist Terry Robinson testified that appellant's blood alcohol concentration was .217 grams of ethanol per 100 milliliters of blood. Although Robinson lacked sufficient information to give an opinion as to appellant's blood alcohol concentration at the time of his driving, Robinson testified that the observations made by Acosta and Ingle were consistent with a central nervous system depressant such as alcohol. Robinson testified that a person with a .217 blood alcohol concentration would not have the normal use of their mental and physical faculties to safely operate a motor vehicle.
Appellant contends the evidence is insufficient because Acosta did not write a report of his observations of appellant's driving, failed to activate his camera to record appellant's driving, and did not see appellant's eyes were bloodshot or smell alcohol on his breath after the stop. Appellant argues that Ingle was inexperienced and failed to properly conduct field sobriety tests and that the toxicologist was unable to give an opinion that appellant was intoxicated at the time he was driving. These contentions, however, go to the credibility of the witnesses and the weight of their testimony, which are matters for the jury to resolve. See Clayton, 235 S.W.3d at 778.
Viewing all the evidence in the light most favorable to the jury's verdict, and deferring to the jury's reasonable inferences and resolution of any conflicts in the evidence, we conclude any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We overrule appellant's third issue.
D. Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180459F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 7, Dallas County, Texas
Trial Court Cause No. MA15-21016-H.
Opinion delivered by Justice Nowell. Justices Bridges and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of June, 2019.