State v. Evans

500 S.W.3d 528, 2016 Tex. App. LEXIS 7647, 2016 WL 3944828
Court of Appeals of Texas·Decided July 20, 2016·No. No. 04-15-00614-CR·Published·Cited by 7 cases

Opinion

OPINION

Opinion by:

Karen Angelini, Justice

The State appeals the trial court’s order granting Preston Mitchell Evans’s motion to suppress, arguing that the trial court erred because Evans’s detention and war-rantless arrest was reasonable under the United States Constitution, the Texas Constitution, and other statutes raised in Evans’s suppression motion. We affirm the order of the trial court.

Background

In the trial court, Evans filed a motion to suppress, arguing that he was illegally detained and subsequently arrested without a warrant and without probable cause in violation of the U.S. Constitution, and the laws and constitution of the State of Texas. Evans argued in his motion that there was no reasonable suspicion or probable cause to administer field sobriety tests and that he was unlawfully detained. Further, Evans argued the totality of the circumstances did not give the officer probable cause to arrest him for DWI. Evans thus requested that all evidence obtained after his detention and arrest, whether it be in the form of statements, conduct, testimony or actual physical evidence obtained by officers, be suppressed.

At the suppression hearing, the State stipulated that Evans was arrested without a warrant. The State then called State Trooper Anthony Aragonés to testify. Trooper Aragonés testified that he had worked for the Department of Public Safety for twelve years, was TCLEOSE certified, and was certified in field sobriety. He testified that on August 31, 2014, he was [531] stopped on the side of Highway 173 in Bandera County'when he saw a vehicle approach, After determining that the vehicle was traveling 46 miles per hour in a 36 miles per hour speed zone, he stopped the vehicle.

Trooper Aragonés testified that the driver of the vehicle, Preston Mitchell Evans, was speeding. According to Trooper Aragonés, when he approached the vehicle, in which two passengers were also seated, he could smell the odor of alcohol emanating from the vehicle. Trooper Aragonés asked Evans to exit his vehicle and come to the back of his vehicle. He asked Evans where he was going. Evans replied, “Right here.” Evans pointed to a driveway twenty feet away and explained that he and his friends had been at a rodeo and were coming back to his friend’s home. Trooper Aragonés testified that, he did not end the encounter and give Evans a speeding ticket because he could smell alcohol on Evans’s breath. Trooper Aragonés asked Evans if he had been drinking. Evans replied that he had had two whiskey drinks.

Trooper Aragonés testified that he then performed a horizontal gaze nystagmus (“HGN”) test on Evans. Trooper Aragonés asked Evans if he had any head injuries and whether he was wearing contacts. Evans replied that he had an astigmatism in his eye. Trooper Aragonés explained that during the HGN test, the officer looks for the jerking of the subject’s eyes as they move side to side. According to Trooper Aragonés, the jerking of the eyes is an involuntary movement when alcohol is introduced into your system. He testified that nystagmus is present all the time, but cannot be seen with the naked eye until alcohol enhances its effects. Trooper Ara-gonés testified that Evans’s “pupil size were fine” and that Evans “had equal tracking.” However, according to Trooper Aragonés, Evans showed all six clues during the HGN test.

■ Trooper Aragonés then asked Evans if he had any ankle, knee, or leg problems because the next field sobriety test would involve walking arid standing. Evans said that he had left leg problems' from an injury in high school and that he had injured his right ankle in college. Trooper Aragonés testified that because of these injuries reported by Evans, he decided not to proceed with those field sobriety tests. So, Trooper Aragonés did not request that Evans perform the walk-and-turn or the one-leg stand- tests. Trooper Aragonés then asked Evans if he would recite the alphabet. Evans replied that he could not perform that test because he was dyslexic. Trooper Aragonés then asked Evans to blow into his portable breath tester, and Evans refused. Trooper Aragonés arrested Evans for DWI.

On cross examination, defense counsel quizzed Trooper Aragonés about the phases of DWI detection. Trooper Aragonés agreed that during the first phase, observing the vehicle in motion, there were no signs of intoxication. Trooper Aragonés did not observe the vehicle driven by Evans straddling a lane, swerving, or crossing lines. Further, Trooper Aragonés agreed that Evans was not slow to respond to the patrol car’s lights. Evans stopped properly and pulled over safely. Trooper Aragonés admitted that he did not observe anything wrong with Evans’s driving.

During the second phase of DWI detection, personal contact, Trooper Aragonés agreed that Evans was not argumentative and when asked to produce his driver’s license, Evans did not fumble with it. Trooper Aragonés admitted that he only had to ask Evans once for him to comply with instructions. After Trooper Aragonés asked Evans to exit his vehicle, Evans did so without difficulty. Trooper Aragonés [532] then asked Evans to go to the back of his vehicle. Trooper Aragonés admitted that Evans did .not stumble and was not unsteady on his feet. Trooper Aragonés also admitted that Evans’s speech was not slurred, and Evans’s eyes were not bloodshot. Evans answered every question and was polite. Evans did not use his vehicle to balance himself. Trooper Aragonés conceded that the odor of alcohol was the only observation he made that Evans was intoxicated.

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State v. Evans, 500 S.W.3d 528, 2016 Tex. App. LEXIS 7647, 2016 WL 3944828 (Tex. Ct. App. 2016).

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