In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00098-CR __________________
KEVIN DUGAR, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from County Court at Law No. 3 Jefferson County, Texas Trial Cause No. 318255 __________________________________________________________________
OPINION
Kevin Dugar appeals from his conviction for driving while intoxicated (DWI),
a Class A misdemeanor. 1 Dugar raises two issues for our review. First, Dugar argues
the police officer who stopped his SUV lacked reasonable suspicion to conduct the
stop. Second, Dugar contends the trial court abused its discretion by admitting the
1 Tex. Penal Code Ann. § 49.04(d). 1 test results the State obtained from Dugar after seizing his blood. For the reasons
explained below, we conclude Dugar’s arguments seeking to overturn the final
judgment lack merit, so we will affirm.
Background
One morning around 1:40 a.m., Officer Christopher Pratt, a police officer
employed by the Beaumont Police Department, saw an SUV traveling south on
Martin Luther King Parkway (MLK). Officer Pratt was behind the SUV. From there,
he noticed the SUV being driven in a manner that allowed it to drift partially into
other marked southbound lanes on MLK. From footage taken from Officer Pratt’s
dashcam video, the SUV is seen drifting across the lane it was in when it is first seen
visible in the video. Officer Pratt, who testified in the trial, explained that no other
southbound traffic was on MLK near the SUV when he saw it straddling more than
one lane on MLK.
Shortly after Officer Pratt noticed the SUV’s driver had drifted from the lane
it was traveling in, he used his emergency lights to stop the SUV.2 Dugar was driving
the SUV and was the only person inside. At trial, Officer Pratt acknowledged that
2 See Tex. Transp. Code Ann. § 545.060(a) (providing that an operator on a roadway divided into two or more clearly marked lanes for traffic “shall drive as nearly as practical entirely within a single lane” and may not move from that lane unless the movement can be made safely). 2 when he spotted the SUV, no other vehicles were around it on MLK. The officer
also agreed that, given the lack of traffic that night, the fact Dugar’s SUV drifted
across his lane did not pose a danger to anyone traveling on MLK.
After stopping Dugar, Officer Pratt noticed Dugar smelled of alcohol, had
glassy eyes, slurred his speech, and had trouble following the officer’s directions.
Officer Pratt gave Dugar a horizontal gaze nystagmus test, a test he failed. According
to Officer Pratt, Dugar then refused to perform the rest of the standard field sobriety
test, a test police officers use to identify whether a driver is impaired. Based on what
the officer observed before stopping Dugar and the information gathered in the stop,
Officer Pratt arrested Dugar because he suspected Dugar of driving while impaired.
At trial, Dugar moved to suppress the evidence police obtained based on the
stop, arguing that Officer Pratt lacked reasonable suspicion to stop Dugar without
proof to show the movement of Dugar’s SUV between lanes endangered anyone on
the road. The trial court denied Dugar’s motion. Later, the State developed testimony
showing that after Officer Pratt arrested Dugar, he obtained a warrant authorizing
him to seize a specimen of Dugar’s blood. The State had the blood tested in the
Jefferson County Crime Lab. At trial, the testimony about the tests shows Dugar’s
3 blood had an alcohol concentration level of 0.15 or more based on testing done at
the Jefferson County Crime Lab. 3
At the end of the trial, the jury found Dugar guilty of DWI. Dugar appealed
and raises two issues in his brief. First, he argues Officer Pratt’s testimony fails to
show that Dugar violated the statute that requires a vehicle being driven on a
roadway with clearly marked lanes to maintain a single lane since Officer Pratt
acknowledged the movement of the SUV did not endanger anyone else on the road.
Second, Dugar argues the State failed to meet its burden to prove that an unbroken
chain of custody tied the blood specimens he gave the nurse to the specimen that
was later tested at the Jefferson County Crime Lab.
Standard of Review
We review rulings on motions to suppress using a bifurcated standard of
review. 4 In Dugar’s case, the parties never asked the trial court to provide them with
explicit oral or written findings to support the trial court’s ruling denying Dugar’s
motion. In a hearing on a motion to suppress, “the trial judge is the sole trier of fact
and judge of credibility of witnesses and the weight to be given to their testimony.”5
If the trial court did not make any explicit findings of fact in making its ruling, the
3 See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). 4 Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). 5 Id. at 190. 4 reviewing court “infers the necessary factual findings that support the trial court’s
ruling if the record evidence (viewed in the light most favorable to the ruling)
supports these implied fact findings.”6 For that reason, we afford almost total
deference to the ruling the trial court made on the motion when the trial court’s ruling
hinged on its findings of the historical facts, particularly when they turn on the trial
court’s decisions about matters concerning credibility and demeanor. 7 We apply this
highly deferential standard “regardless of whether the trial court has granted or
denied a motion to suppress[.]” By using this standard, we give the trial court’s
ruling the strongest legitimate view of the evidence, and in the absence of explicit
findings, we review the record to determine if the evidence supports the trial court’s
ruling denying the motion.8
According to Dugar, Officer Pratt violated his Fourth Amendment rights by
stopping him based on the circumstances described in the record of the stop.9 The
Fourth Amendment to the United States Constitution protects individuals from an
unreasonable search or seizure. 10 Under the Fourth Amendment, an arrest is a
6 Garcia-Cantu, 253 S.W.3d at 241. 7 Id. 8 Id. 9 See U.S. CONST. amend. IV. 10 Id.; see Lerma, 543 S.W.3d at 190. 5 “quintessential seizure” of the person. 11 Thus, traffic stops based on an officer’s
suspicion that the driver violated a traffic law “is a ‘seizure’ of the occupants of the
vehicle and therefore must be conducted in accordance with the Fourth
Amendment.”12
Should police obtain evidence based on the violation of a suspect’s Fourth
Amendment rights, the federal exclusionary rule usually prevents a state from using
the evidence in a criminal proceeding against the party whose rights were violated.13
The exclusionary rule prevents the State from using evidence that police obtained
directly or indirectly from an illegal seizure, evidence courts often refer to when
issuing an opinion discussing the exclusionary rule as the “fruit of the poisonous
tree.”14 There are, however, several exceptions to the exclusionary rule, and the
exception at issue in Dugar’s case involves whether evidence the police obtained
from Dugar based on the stop resulted from an objectively reasonable mistake about
what the maintain-a-single-lane statute means.15
11 California v. Hodari D., 499 U.S. 621, 624 (1991) (cleaned up). 12 Heien v. N. Carolina, 574 U.S. 54, 60 (2014). 13 Illinois v. Krull, 480 U.S. 340, 347 (1987). 14 See Wong Sun v. U.S., 371 U.S. 471, 488 (1963); Smith v. State, 542 S.W.2d 420, 422 (Tex. Crim. App. 1976). 15 Heien, 574 U.S. at 60. 6 The ruling denying Dugar’s motion implies the trial court found Dugar’s
motion lacked merit. While the trial court did not identify any specific reason for its
ruling, we must nonetheless “sustain [the ruling] if [we] conclude[] that the decision
is correct on any applicable theory of law.”16 “We review de novo whether the
totality of the circumstances is sufficient to support an officer’s reasonable suspicion
of criminal activity.”17
Analysis
The Initial Stop
In Dugar’s first issue, he argues Officer Pratt lacked reasonable suspicion to
stop his SUV based on his alleged failure to maintain his vehicle within a single lane.
According to Dugar, the maintain-a-single-lane statute is not violated unless the
driver is shown to both cross a clearly marked lane and to make the movement when
the movement is unsafe. 18
In the trial, Officer Pratt testified that when he saw Dugar’s SUV, it did not
pose a danger to any other vehicle “during this particular time[.]” 19 The trial court
16 Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013). 17 Crain v. State, 315 S.W.3d 43, 48-49 (Tex. 2010). 18 Tex. Transp. Code Ann. § 545.060(a). 19 Dugar did not file a pretrial motion questioning the validity of the stop. Instead, he raised his complaint for the first time at trial when Officer Pratt began describing the circumstances leading to the stop. 7 denied Dugar’s motion based solely on Officer Pratt’s description of the
circumstances that led to the stop. At trial, the State never established that Officer
Pratt had a warrant for Pratt’s arrest that authorized the stop. Even so, a police officer
may stop a vehicle if its driver violated a traffic law while in the officer’s presence
without obtaining a warrant if the reasonable suspicion standard is satisfied. 20
“Reasonable suspicion exists if the officer has specific articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has engaged or is (or soon will be)
engaging in criminal activity.”21 This test “is an objective one that focuses solely on
whether an objective basis exists for the detention and disregards the officer’s
subjective intent.”22 A court determines whether reasonable suspicion exists based
on “the totality of the circumstances” leading to the stop.23 “This is an objective
standard that disregards any subjective intent of the officer making the stop and looks
solely to whether an objective basis for the stop exists.” 24
Since Dugar was stopped without a warrant, the State bore the burden to
establish that what Officer Pratt saw would lead a reasonable police officer to believe
20 Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015). 21 Id. (cleaned up). 22 State v. Kerwick, 393 S.W.3d 270, 274 (Tex. Crim. App. 2013). 23 Id. 24 Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 8 a driver violated the maintain-a-single-lane traffic law based on the movement of the
SUV Officer Pratt described in the trial. 25 In its brief, the State raises three arguments
to support its claim that a police officer would have a reasonable suspicion to believe
the maintain-a-single-lane statute had been violated in the officer’s presence. First,
the State argues the maintain-a-single-lane statute is violated by movement across
lanes “regardless of whether [the movement] was unsafe.”26 To support that
argument, the State suggests this Court should follow the reasoning in a plurality
opinion by the Texas Court of Criminal Appeals in Leming v. State, a case in which
that Court determined section 545.060, when properly interpreted “makes it an
actionable offense to either fail to maintain a single lane or to change lanes when
conditions are not safe to do so.”27 Second, the State argues the movement of
Dugar’s SUV created a danger to others had anyone tried to pass Dugar when he
moved from his clearly marked lane. Third, the State suggests “[t]he objective
danger of straddling lanes poses not only the danger of hitting a vehicle in the other
lane, but also poses the danger of hitting following vehicles that will be uncertain
25 See id. 26 Tex. Transp. Code Ann. § 545.060(a). 27 Leming v. State, 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016) (plurality opinion) (“Thus, it is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.”). 9 which lane the swerving vehicle intends to occupy and thus will be unable to safely
pass.”
To resolve Dugar’s appeal, we need not choose between the competing
interpretations of the maintain-a-single-lane statute on which the parties rely in their
respective briefs. Instead, we must decide whether an objective police officer could
have formed a reasonable suspicion that Dugar violated the maintain-a-single-lane
statute in Officer Pratt’s presence based on his description explaining why he
stopped Dugar based on the movement of the SUV the officer described he saw
before conducting the stop.
That the interpretation of section 545.060 is not yet settled is apparent from
examining the intermediate courts of appeals cases discussing Leming. Simply
stated, the intermediate courts are now split about what proof is required to establish
a driver violated the maintain-a-single-lane statute, section 545.060. 28 Before the
28 The following seven cases, decided after Leming, illustrate the fact that most appellate courts have followed the plurality view of the maintain-a-single-lane statute articulated by the plurality of justices in Leming: Reyes v. State, 603 S.W.3d 543, 549 (Tex. App.—El Paso 2020, no pet. h.); State v. Meras, No. 10-18-00345- CR, 2020 WL 103805, at *2 (Tex. App.—Waco Jan. 8, 2020, pet. filed) (not designated for publication); State v. Virginia South, No. 12-17-00176-CR, 2018 WL 636085, at *4 (Tex. App.—Tyler Jan. 31, 2018, pet. ref’d) (not designated for publication); Shrout v. State, No. 02-16-00443-CR, 2017 WL 2871686, at *3 (Tex. App.—Fort Worth July 6, 2017, no pet.) (not designated for publication); Tex. Dep’t of Pub. Safety v. Ardoin, 515 S.W.3d 910, 915 (Tex. App.—Eastland 2017, no pet.);
10 Court of Criminal Appeals decided Leming, the Beaumont Court of Appeals had
stated that the statute requires the State to prove the driver crossed a marked lane
and to prove the movement “was unsafe or dangerous[,]” holding that, without such
evidence, “an actual traffic violation did not occur.”29 While this Court, since
deciding Ehrhart, has cited Leming in several unpublished opinions, none of this
Court’s post-Leming jurisprudence addresses whether we agree or disagree with the
plurality view adopted by a plurality of justices on the Court of Criminal Appeals in
Leming.30 In a single unpublished opinion decided after Leming, however, we did
Flores v. State, No. 10-16-00128-CR, 2017 WL 952178, at *3 (Tex. App.—Waco Mar. 8, 2017, no pet.) (not designated for publication); Wilde v. State, No. 07-15- 00432-CR, 2016 WL 3180290, at 3 (Tex. App.—Amarillo June 3, 2016, no pet.) (not designated for publication). Two of our sister courts, the Corpus Christi Court and the Fourteenth Court of Appeals, have refused to adopt the plurality view espoused in Leming: State v. Hardin, No. 13-18-00244-CR, 2019 WL 3484428, at *3 (Tex. App.—Corpus Christi Aug. 1, 2019, pet. granted) and State v. Bernard, 503 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2016), judgment vacated on other grounds, 512 S.W.3d 351 (Tex. Crim. App. 2017). 29 Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.—Beaumont 2000, no pet.). 30 See Tex. Transp. Code Ann. § 545.060(a); Tex. R. App. P. 47.7 (providing that unpublished opinions have “no precedential value”); Williams v. State, No. 09- 19-00299-CR, 2021 WL 1010956, at *5 (Tex. App.—Beaumont Mar. 17, 2021, no. pet.) (not designated for publication); State v. Adrian, No. 09-20-00041-CR, 2021 WL 358395, at *4 (Tex. App.—Beaumont Feb. 3, 2021, no pet.) (not designated for publication); Collier v. State, 2020 WL 2046152, at *3 (Tex. App.—Beaumont Apr. 29, 2020, no pet.) (not designated for publication); Hatton v. State, 2019 WL 453188, at *3 (Tex. App.—Beaumont Feb. 6, 2019, pet. ref’d); Jeffries v. State, No. 09-17-00262-CR, 2019 WL 362016, at *3 (Tex. App.—Beaumont Jan. 30, 2019, no pet.) (not designated for publication). 11 state (without citing Leming) that proving a violation of section 545.060 requires the
State to prove the driver failed to stay within a single lane and moved between lanes
under circumstances that made the movement unsafe. 31 Thus, whether the view this
Court adopted in 2000 about the meaning of the maintain-a-single-lane statute was
a matter subject to reasonable disagreement as of April 16, 2016, the date that a
plurality of justices in Leming explained that a driver could violate the statute simply
by failing to maintain a single lane when it was practical for the driver to do so. 32
Given that reasonable differences of opinion exist about how the maintain-a-
single-lane statute applies under circumstances like those involved in Officer Pratt’s
stopping Dugar, we conclude a reasonably objective police officer could have
interpreted section 545.060 just like Officer Pratt did when he decided to stop
Dugar’s SUV. Consequently, because the Fourth Amendment tolerates reasonable
mistakes—whether the mistake is one of law or of fact—we cannot say the trial court
erred by denying Dugar’s motion to suppress on a record that shows that if the officer
was mistaken, the mistake is one that was objectively reasonable.33 Accordingly,
Dugar’s first issue is overruled.
31 Allen v. State, No. 09-13-00476-CR, 2015 WL 6521690, at *4 (Tex. App.— Beaumont Oct. 28, 2015, no pet.) (mem. op., not designated for publication). 32 Leming, 493 S.W.3d at 559-60 33 Heien, 574 U.S. at 60. 12 Seizing Blood Specimens for Testing
In issue two, Dugar argues the State failed to establish that the nurse drew his
blood in a proper and reasonable manner and failed to establish a regular chain of
custody existed between the specimens Dugar gave to the nurse and the specimens
that were later tested at the Jefferson County Crime Lab. At trial, the State
established that Officer Pratt obtained a warrant to seize specimens of Dugar’s blood
before the nurse drew the specimens. The search-warrant affidavit, which Officer
Pratt signed, states Dugar told the officer he had been drinking, the officer noticed
Dugar was slurring his speech, Dugar smelled of alcohol, and he had glassy eyes.
In his appeal, Dugar argues there are three reasons the trial court abused its
discretion by admitting evidence related to the tests performed on Dugar’s blood.
First, Dugar claims the State presented no evidence to prove the blood Dugar gave
the nurse “was properly preserved or collected for forensic analysis.” Second, Dugar
contends the State failed to show the nurse followed the “procedures to establish a
reasonable and proper blood draw” occurred since the nurse did not testify in
Dugar’s trial. Third, Dugar argues the State failed to prove that Officer Pratt took
the vials containing Dugar’s blood directly to the lab. Dugar concludes that without
evidence showing how the blood got from a locked refrigerator to the lab, the State
13 failed to establish a proper chain of custody exists between the blood Dugar gave the
nurse and the blood tested four months later in the lab.
Dugar’s complaints concern rulings admitting this evidence. We review
rulings admitting evidence to determine whether an abuse of discretion occurred.34
We turn first to Dugar’s argument claiming the evidence fails to show the nurse
followed proper procedures when he drew Dugar’s blood. We disagree the record
contains insufficient evidence describing the circumstances of the draw. Officer
Pratt described how the nurse drew Dugar’s blood during the trial. For instance, the
officer testified that after obtaining a blood warrant, he took Dugar to a hospital
where a registered nurse drew his blood. According to Officer Pratt, the nurse wiped
Dugar’s arm, drew his blood, and after the nurse completed the draw, the nurse gave
the vials containing Dugar’s blood to him. Officer Pratt sealed the vials with a
stopper and placed his initials on the seals. After that, Officer Pratt placed the vials
in the blood kit that the nurse used when he drew Dugar’s blood. Officer Pratt
explained he took the blood kit to the police department, where he placed it in a
locked refrigerator in the evidence room to preserve the kit so that it could be tested
later by the lab.
34 Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en banc). 14 The State also called the Director of the Jefferson County Crime Lab, Emily
Esquivel, to testify in Dugar’s trial. Esquivel is a forensic scientist. She explained
that, along with her duties as the lab director, she sometimes analyzes evidence that
comes into the lab. Esquivel described the normal procedures the lab follows to
preserve a sample of a person’s blood. She explained the vial containing Dugar’s
blood contained preservatives, a solution of potassium oxalate and sodium fluoride,
substances that act as a preservative and anticoagulant on blood. Esquivel also
testified that from the lab’s paperwork, she had no reason to believe the normal
procedures were not followed in the handling of the specimen she tested of Dugar’s
blood.
The record does not, however, show that Officer Pratt is the person who
removed the blood from the locked refrigerator and took it to the lab. But “gaps in
the chain of custody go to the weight of the evidence, not admissibility” when the
testimony in the trial shows what happened with evidence at the beginning and end
of the chain.35 The lab paperwork in evidence identifies the specimen tested in the
lab as the specimen drawn from Dugar by the nurse.
35 Hartsfield v. State, 200 S.W.3d 813, 818 (Tex. App.—Texarkana 2006, pet. ref’d). 15 To prove an item of evidence is authentic, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
is.”36 Trial courts have great discretion in deciding whether an item is what the
proponent claims it to be. 37 Here, there is evidence showing where the chain of
custody began, with the nurse, and where it ended in the lab.38 Dugar presented no
evidence to show that anyone tampered with the vials that contained his blood. We
conclude the record allowed the trial court to reasonably infer that jurors could
resolve Dugar’s claim questioning whether the specimen tested in the lab was a test
done on his blood.39
We conclude Dugar’s complaints about gaps in the chain of custody are
matters that go to the weight of the testimony about the blood tests, not its
admissibility. Dugar’s second issue is overruled. Having overruled both of Dugar’s
issues, the trial court’s judgment is
36 Tex. R. Evid. 901(a); see Druery v. State, 225 S.W.3d 491, 503 & n.30 (Tex. Crim. App. 2007). 37 See Druery, 225 S.W.3d at 503 (explaining that “[a] trial judge has great discretion in the admission of evidence at trial” when deciding whether the evidence being offered has been authenticated by the party offering the evidence in the trial); accord Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (holding appellate courts apply liberal standards ensuring a trial court’s determination is within the zone of reasonable disagreement). 38 See Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San Antonio 2013, pet. ref’d). 39 See Druery, 225 S.W.3d at 503. 16 AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on January 25, 2021 Opinion Delivered April 7, 2021 Publish
Before Golemon, C.J., Horton and Johnson, JJ.