COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-375-CR
GREGORY
WAYNE MANDRELL APPELLANT
V.
THE
STATE OF TEXAS STATE
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FROM
COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant
Gregory Wayne Mandrell appeals from his conviction of driving while intoxicated.
In two points, he contests the trial court’s overruling of his two motions to
suppress involving the legality of the stop of his vehicle and the accuracy of
the breath test. We affirm.
Legality Of The
Traffic Stop
In
his first point, Appellant contends the trial court erred when it “overruled
Mandrell’s Motion to Suppress, since the investigatory traffic stop by which
the state gathered evidence to charge Mandrell with DWI was not based on
reasonable suspicion under the totality of the circumstances.” Appellant
contends the stop was in violation of the United States and Texas Constitutions.
Preservation
of error:
To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1); Mosley v.
State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999). Preservation of error is a systemic
requirement that an intermediate level appellate court should ordinarily review
on its own motion. Martinez v. State, 22 S.W.3d 504, 507 n.7 (Tex.
Crim. App. 2000); Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App.
1997). Accordingly, although the State does not complain on appeal that
Appellant failed to preserve error, because Appellant did not file a written
motion to suppress the results of the traffic stop and the record is less than
clear about the preservation issue, we must initially determine whether
Appellant preserved the alleged error about which he complains.
Police
Officer Wayne Parker testified that shortly before midnight on January 11, 1999,
he saw Appellant driving his truck on a public roadway and as the truck moved
through an intersection and the vehicle shifted gears, it spun its rear tires,
accelerated, and made a loud squeal. Parker characterized this traffic
violation as an “exhibition of acceleration.” Although Parker
activated the red and blue overhead lights on his patrol car, Appellant did not
stop his truck until Parker turned on his patrol car siren. The officer
then approached the driver.
At
this point in Parker’s testimony Appellant objected and a bench discussion
occurred off the record, after which the court retired the jury, telling them,
“We’ll take up a legal matter.” The prosecutor then objected that
“this is not timely under Article 28.01 of the Code of Criminal Procedure.
This should have been raised at numerous other pretrial hearings that this case
was set for.” The court overruled the prosecutor’s objection, and
Appellant took the officer on voir dire examination and questioned him about his
statement that he saw the wheels spin on Appellant’s truck when it proceeded
through the intersection. The officer acknowledged that Appellant’s
truck was not exceeding the speed limit. The following ensued:
[DEFENSE
COUNSEL]: Judge, I’m going to object to any testimony beyond -- past this
since it’s based on this officer’s misconception of what the offense of
exhibition of acceleration is. There is no offense called spinning your
wheels, and what he has testified does not qualify as an exhibition of
acceleration, and the case law is fairly complete about that.
The
prosecutor proceeded to ask the officer about the tires spinning on
Appellant’s truck, the fact that the engine backfired as Appellant’s truck
accelerated through the intersection, and the officer’s conclusion that
Appellant’s action was in violation of section 545.420(a)(5) of the
transportation code.2 The prosecutor asked the court
to take judicial notice of section 545.420(a)(5). Appellant’s counsel
then confirmed with the officer that the intersection was empty except for
Appellant’s truck and the officer’s patrol car, and that Appellant was not
exceeding the speed limit. After Appellant’s counsel told the judge he
was finished questioning the officer, the court said, “I’ll overrule your
objection. Are you ready for the jury?”
We
must decide whether Appellant’s objection to Parker’s testimony can be
reasonably interpreted to apprise the trial judge that Appellant was in fact
stating an oral motion to suppress the results of the stop of Appellant’s
vehicle on the basis that the officer did not have reasonable suspicion under
either the United States or Texas Constitutions to stop the vehicle. See
Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994), cert. denied,
513 U.S. 1157 (1995) (holding that objection at trial must comport with argument
on appeal or no error is preserved and argument is waived).
In
its brief, the State does not complain that the prosecutor or the trial court
were unaware that Appellant was challenging the constitutionality of the
investigative stop, or that Appellant has not properly preserved error on this
issue. We have carefully reviewed the trial court proceedings.
Liberally construing Appellant’s objection at trial, we hold that Appellant
sufficiently apprised the trial court that he was making a constitutional
challenge to the legality of Officer Parker’s stop of Appellant’s vehicle.
Accordingly, we conclude Appellant preserved the error about which he complains
on appeal.
Standard of
review:
We
review the denial of a motion to suppress for abuse of discretion, giving almost
total deference to a trial court's determination of historical facts and
reviewing de novo the court's application of the law. Carmouche v.
State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles v. State, 993
S.W.2d 103, 106 (Tex. Crim. App. 1999). At a suppression hearing, the
trial judge is the sole trier of fact and 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); Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990). Thus, the trial court may disbelieve any
portion of a witness' testimony, even if the testimony is not controverted.
Ross, 32 S.W.3d at 855.
Legality
of the stop of Appellant’s vehicle:
A
police officer can stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts that
criminal activity “may be afoot,” even if the officer lacks probable cause.
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968); Brother
v. State, 85 S.W.3d 377, 382 (Tex. App.—Fort Worth 2002, no pet.).
While reasonable suspicion is a less demanding standard than probable cause, the
Fourth Amendment requires “some minimal level of objective justification”
for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109
S. Ct. 1581, 1585 (1989); see U.S.
Const. amend. IV. The justification for making the stop must amount
to more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d
240, 244 (Tex. Crim. App. 1997).
Reasonable
suspicion exists if the officer has specific articulable facts which, when
combined with rational inferences from those facts, would lead the officer to
reasonably suspect that a particular person has engaged in, or will soon be
engaging in, criminal activity. Garcia v. State, 43 S.W.3d 527, 530
(Tex. Crim. App. 2001). The reasonableness of a given detention will turn
on the totality of the circumstances in that particular case. See Woods
v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); State v. Sailo,
910 S.W.2d 184, 188 (Tex. App.—Fort Worth 1995, pet. ref'd).
Appellant
argues that the initial stop was not justified because the evidence failed to
show that Officer Parker had a reasonable suspicion to stop Appellant’s
vehicle. Specifically, Appellant relies on Parker’s testimony that
Appellant was not exceeding the speed limit, it is not illegal to spin the tires
of a vehicle, there were no other cars on the road, and Appellant was not
engaged in a contest of speed with anyone.
A
police officer has the authority to stop and temporarily detain a driver who has
violated a traffic law. Armitage v. State, 637 S.W.2d 936, 939
(Tex. Crim. App. 1982); Santos v. State, 822 S.W.2d 338, 341 (Tex.
App.—Houston [1st Dist.] 1992, pet. ref'd). Additionally, a peace
officer may arrest an offender without a warrant for any offense committed in
his presence or within his view. Tex.
Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). The
transportation code provides, in pertinent part:
§ 545.420. Racing on Highway
(a)
A person may not participate in any manner in:
.
. . .
(5).
. . an exhibition of vehicle speed or acceleration or to make a vehicle speed
record.
Tex. Transp. Code Ann. § 545.420(a)(5).
Officer
Parker testified that he saw Appellant driving his truck on a public roadway and
as the truck moved through the intersection and the vehicle shifted gears, it
spun its rear tires, accelerated and made a loud squeal, and backfired.
Appellant claims these facts are undisputed. Parker further testified that
these actions were a violation of the exhibition of acceleration statute,
section 545.420(a)(5). Reviewing the trial court’s determination of this
matter, we hold that these facts constitute sufficient evidence that Appellant
violated the exhibition of acceleration statute in Parker’s presence and view.
Therefore, Parker was authorized to stop Appellant’s vehicle for violation of
a traffic offense. See Evers v. State, 576 S.W.2d 46, 47-49 &
n.4 (Tex. Crim. App. [Panel Op.] 1978) (holding that accelerating quickly from
stopped position where vehicle squealed tires and threw mud and gravel was
violation of exhibition of acceleration statute); Bice v. State, 17
S.W.3d 354, 355-56 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that
squealing of truck tires when leaving traffic light was violation of section
545.420, which conduct provides probable cause for stop of vehicle); Harris
v. State, 713 S.W.2d 773, 775 (Tex. App.—Houston [1st Dist.] 1986, no
pet.) (holding spinning of tires at a red light when the vehicle “came off the
light” was sufficient probable cause to stop vehicle for offense of exhibition
of acceleration). Accordingly, we hold the trial court did not abuse its
discretion in denying Appellant’s motion to suppress. We overrule
Appellant’s first point.
The Breath Test
In
his second point, Appellant challenges the denial of his motion to suppress the
results of the breath test. Appellant asserts that his motion to suppress
was based upon facts indicating that the officer administering the breath test
failed to observe Appellant for the statutory fifteen-minute observation period
prior to giving the test. See 37 Tex. Admin. Code § 19.3(c)(1) (last
amended 1998) (Tex. Dep’t of Pub. Safety, Certification of Techniques,
Methods, and Programs).3
Preservation
of error:
Appellant
filed an extensive pre-trial motion to suppress the breath test. The
motion is fifteen pages in length and contains numerous legal authorities.
The sole basis of the motion was that Appellant’s due process rights were
violated under both the United States and Texas Constitutions because his
request for the taking of a blood sample was refused. On the date of
trial, Appellant filed a supplemental brief in support of his motion to suppress
the breath test, again based solely upon the fact that the police denied
Appellant’s request to have a blood test performed. Neither motion to
suppress makes any mention of suppressing the breath test results because the
operator did not comply with the fifteen-minute observation period.
During
trial, the court and the parties discussed the presentation of evidence
regarding Appellant’s motion to suppress the breath test results and it was
decided that because the same witnesses would testify regarding the motion to
suppress as would testify at the trial, the motion would be taken up during
trial. After subsequent testimony, the judge denied the motion to suppress
the breath test.
During
the course of the trial Appellant did not make any specific oral or written
motion to suppress the breath test results due to an improper observation
period. Although Appellant states in his brief on appeal that he
“renewed” his motion to suppress the breath test results on the basis that
the State had not compiled with the fifteen-minute observation period, this is
inaccurate. Appellant’s lengthy argument to the trial court dealt solely
with his contention that the motion to suppress the breath test results should
be granted because his due process rights were violated when Appellant’s
consent to take the breath test was induced by false information.
Nonetheless,
when the State sought to introduce the written results of the breath test,
Appellant objected that the fifteen-minute observation period was not followed.
The court overruled Appellant’s objection and admitted State’s Exhibit No.
2, the printout from the breath test machine showing the starting time of the
test and the test results. Accordingly, although Appellant did not raise
the issue in a motion to suppress during pre-trial or trial, he did object to
the introduction of the evidence on the basis of an alleged lack of compliance
with the fifteen-minute observation period. Therefore, Appellant has
preserved the evidentiary error about which he complains.
Standard
of review:
A
trial court's admission or exclusion of evidence is subject to an abuse of
discretion standard. Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim.
App.), cert. denied, 124 S. Ct. 511 (2003). If the trial court's
decision was within the bounds of reasonable disagreement we will not disturb
its ruling. Id.
Compliance
with Texas Administrative Code section 19.3(c)(1):
Upon
arrival at the police station, Appellant consented to a breath test. The
breath test was administered by public service officer Kevin Daniels, who
testified that before he administered the test to Appellant, he observed him for
at least fifteen minutes, which time period started at 1:05 a.m. and ended at
1:20 a.m., according to the clock on the breath test machine, which does not
show seconds.4 The breath test started at 1:21
a.m.
The
Texas Administrative Code provides:
[A
breath test] operator shall remain in the presence of the subject at least 15
minutes before the test and should exercise reasonable care to ensure that the
subject does not place any substances in the mouth. Direct observation is
no longer necessary to ensure the validity or accuracy of the test result.
37
Tex. Admin. Code § 19.3(c)(1).
Upon
cross-examination, Daniels acknowledged that because the clock on the breath
test machine does not show seconds, he does not know more precisely when the
observation period began and ended, except that it began at 1:05 a.m. and ended
at 1:20 a.m. State’s Exhibit No. 2 reflects that Appellant’s first sample of
breath was recorded at 1:21 a.m.
Having
reviewed all the evidence regarding the fifteen-minute observation period, we
conclude the trial court's decision to overrule Appellant’s objection to the
breath test results was within the bounds of reasonable disagreement.
Accordingly, we will not disturb the court’s ruling, and we hold the trial
court did not abuse its discretion in admitting State’s Exhibit No. 2.
We overrule Appellant’s second point.
Conclusion
Having
overruled both of Appellant’s points, we affirm the judgment of the trial
court.
PER
CURIAM
PANEL B: HOLMAN,
DAUPHINOT, and GARDNER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
June 24, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
Tex. Transp. Code Ann. §
545.420(a)(5) (Vernon Supp. 2004) (prohibiting an exhibition of vehicle speed or
acceleration).
3.
See also Tex. Transp. Code Ann.
§ 724.016 (Vernon 1999) (providing that Department of Public Safety may adopt
rules approving satisfactory analytical methods for taking of breath specimen).
4.
After Appellant spit out a quarter that was in his mouth, the observation period
was restarted. Daniels explained that there was a “wives’ tale” that
if you put a quarter in your mouth “you’re supposed to beat the machine.”
Appellant admitted that was why he put the quarter in his mouth.