                                                                            ACCEPTED
                                                                       03-14-00454-CR
                                                                              4252879
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                  2/23/2015 4:46:40 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                 NO. 03-14-00454-CR

                                                       FILED IN
                                                3rd COURT OF APPEALS
                       IN THE                       AUSTIN, TEXAS
                                                2/23/2015 4:46:40 PM
                COURT OF APPEALS                  JEFFREY D. KYLE
                                                        Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
    __________________________________________

              CLIFTON CREWS HOYT,

                                   Appellant.

                        VS.

               THE STATE OF TEXAS,

                               Appellee.
   __________________________________________

        From the 391ST Judicial District Court
             Tom Green County, Texas
       Honorable Tom Gossett, Judge Presiding

   __________________________________________

                 BRIEF OF STATE
   __________________________________________

          STATE WAIVES ORAL ARGUMENT

                              Richard Villarreal
                              Assistant District Attorney
                              51st Judicial District
                              124 W. Beauregard, Suite B
                              San Angelo, Texas 76903
                              (325) 659-6583
                              TSB #00797602
                              ATTORNEY FOR STATE
                                    TABLE OF CONTENTS

                                                                                                   PAGE

LIST OF AUTHORITIES ............................................................................. 2

STATEMENT OF THE FACTS ................................................................... 5

ISSUE ONE ................................................................................................ 8
    SUMMARY OF THE ARGUMENT ..................................................... 8
    ARGUMENT AND AUTHORITIES ..................................................... 8

ISSUE TWO ............................................................................................. 14
    SUMMARY OF THE ARGUMENT ................................................... 14
    ARGUMENT AND AUTHORITIES ................................................... 14

PRAYER ................................................................................................... 27

CERTIFICATE OF COMPLIANCE ............................................................ 28

CERTIFICATE OF SERVICE .................................................................... 28
                              LIST OF AUTHORITIES


Cases

Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.)                15, 16

Amores v. State, 816 S.W.2d 407 (Tex. Crim. App. 1991)                             9

Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979)                             17

Brinegar v. United States, 338 U.S. 160 (1949)                                     8

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)                            15

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)                              14

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)                           15

Compton v. State, 120 S.W.3d 375 (Tex. App.—Texarkana 2003, pet. ref’d).          25

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995)                        13

Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997)                              8

Emerson v. State, 880 S.W.2d 750 (Texas. Crim. App. 1994)                         20

Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988)                            19

Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001)                           9, 13

Jackson v. Virginia, 443 U.S. 307 (1979)                                       15, 16

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)                            15

Matthews v. State, No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, (Tex. App.—
 Austin Dec. 23, 2014)(mem. op., not designated for publication)               15

Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004)                              15

State v. Garrett, 22 S.W.3d 650 (Tex. App.—Austin [3rd Dist.] 2000, no pet.)       9

State v. Long, No. 03-11-00725-CR 2012 Tex. App. LEXIS 4402 (Tex. App.—Austin
  May 31, 2012) (mem. op., not designated for publication)                    20

Taylor v. State, No. 03-03-00624-CR 2006 Tex. App. LEXIS 5148 (Tex. App.—Austin
  June 16, 2006)(mem. op., not designated for publication)                      21


                                           2
Vaugn v. State, 493 S.W.2d 524 (Tex. Crim. App. 1972)      20

Statutes

Tex. Code Crim. Proc. Ann. art. 38.04.                     15

Tex. Penal Code Ann. § 49.01                               16

Tex. Penal Code Ann. § 49.01 (2)                           16

Tex. Penal Code Ann. § 49.04                            14, 16

Tex. Penal Code Ann. § 49.09                               16

Tex. R. Evid. 701                                          20

Tex. R. Evid. 702                                          20

Tex. Transp. Code Ann. § 545.101(a)                      9, 10

Tex. Transp. Code Ann. § 724.061                           19




                                         3
                          NO. 03-14-00454-CR

                                 IN THE

                          COURT OF APPEALS

      FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

           __________________________________________

                        CLIFTON CREWS HOYT,

                                              Appellant.

                                   VS.

                         THE STATE OF TEXAS,

                                              Appellee.

           __________________________________________

                From the 391ST Judicial District Court
                      Tom Green County, Texas
               Honorable Tom Gossett, Judge Presiding

           __________________________________________

                         BRIEF OF STATE
           __________________________________________

TO THE HONORABLE COURT OF APPEALS FOR THE THIRD
SUPREME JUDICIAL DISTRICT OF TEXAS:

     COMES NOW, The State of Texas, in the above entitled and

numbered cause, and files this the BRIEF OF STATE and in support

thereof, the State would show this Honorable Court as follows:

                                     4
                       STATEMENT OF THE FACTS

      San Angelo Police Department patrol officer Bruce Stewart was

patrolling in the southwest section of San Angelo on March 6, 2010. (R.R.

Vol. 2, p. 22). At approximately 2:21 a.m., Officer Stewart was dispatched

to a Whataburger restaurant on Sherwood Way in reference to an

intoxicated driver. (R.R. Vol. 2, p. 23).

      Officer Stewart obtained a description of the suspect’s vehicle from

the dispatcher. (R.R. Vol. 2, p. 23). No such vehicle was located at the

restaurant, but the vehicle was quickly located by the officer on Alexander

Street.   (R.R. Vol. 2, p. 23).     The vehicle was traveling north down

Alexander toward Houston Harte. (R.R. Vol. 2, p. 23). Officer Stewart

observed the vehicle make a wide right turn onto Houston Harte. (R.R. Vol.

2, p. 24). After observing this traffic offense, Officer Stewart turned on his

overhead emergency lights. (R.R. Vol. 2, p. 24). Officer Stewart then

observed the vehicle veer to the north side of the Houston Harte roadway

and strike the curb. (R.R. Vol. 2, p. 24). Officer Stewart then observed that

the vehicle started pulling to the south side, and as it came to a stop, it

struck the south side curb. (R.R. Vol. 2, p. 24).

      Officer Stewart then approached Appellant’s vehicle and spoke to

Appellant, who was the driver of the vehicle. (R.R. Vol. 2, pp. 24-25).

                                       5
Officer Stewart then asked Appellant if he had been drinking. Appellant

said he had not been drinking.          (R.R. Vol. 2, p. 26).   Officer Stewart

observed that Appellant’s eyes were red and bloodshot. (R.R. Vol. 2, p.

26). Officer Stewart smelled the odor of an alcoholic beverage coming

from Appellant’s person. (R.R. Vol. 2, p. 26).

      At this point, Officer Stewart decided to bring Appellant out of his

vehicle and administer standardized field sobriety tests. (R.R. Vol. 2, pp.

26-27).

      The first test administered by Officer Stewart was the horizontal gaze

nystagmus test. (R.R. Vol. 2, p. 28). This test has six possible clues.

(R.R. Vol. 2, p. 31). Officer Stewart observed six of the six possible clues.

(R.R. Vol. 2, p. 31).

      The next test administered by Officer Stewart was the walk and turn

test. (R.R. Vol. 2, p. 32). The walk and turn test is a divided attention test

consisting of an instruction stage, followed by the subject taking nine heel

to toe steps up a line, turning around and returning down the line with nine

heel to toe steps. (R.R. Vol. 2, pp. 32-33). This test has eight possible

clues.    (R.R. Vol. 2, p. 34).   Officer Stewart observed six of the eight

possible clues. (R.R. Vol. 2, p. 34).



                                         6
       The next test administered by Officer Stewart was the one leg stand.

(R.R. Vol. 2, p. 35). The one leg stand test involves a subject raising their

foot approximately six inches off the ground; once the foot is raised, it

should remain raised, and the subject should be counting out loud by one

thousands until told to stop by the officer. (R.R. Vol. 2, p. 35). This test

has four possible clues. (R.R. Vol. 2, p. 36). Officer Stewart observed

three of the four possible clues. (R.R. Vol. 2, p. 36).

       Officer Stewart then placed Appellant under arrest for driving while

intoxicated. (R.R. Vol. 2, p. 37). Officer Stewart then conducted a search

of Appellant’s person incident to the arrest. (R.R. Vol. 2, p. 37). Officer

Stewart located less than two ounces of marihuana in Appellant’s left back

pants pocket. (R.R. Vol. 2, p. 37). An inventory of Appellant’s vehicle

located a marihuana cigarette. (R.R. Vol. 2, p. 37).

       Officer Stewart read Appellant his statutory warnings. (R.R. Vol. 2, p.

38). Once Officer Stewart had read Appellant his statutory warning, he

asked Appellant to provide a sample of his breath or blood. (R.R. Vol. 2, p.

38). Appellant refused to provide a sample of either his breath or blood.

(R.R. Vol. 2, p. 39).

       Appellant was transported to jail by Officer Stuart. (R.R. Vol. 2, p.

39).

                                       7
                                ISSUE ONE

      Whether there was probable cause and reasonable suspicion to

initiate a traffic stop and detain Appellant for the purpose of conducting

Standardized Field Sobriety Tests?



                        SUMMARY OF THE ARGUMENT

     There was reasonable suspicion or probable cause to initiate a traffic

stop for violation of a traffic law.   Upon contact with the driver of the

stopped vehicle, the officer noted additional information which gave him

reasonable suspicion to conduct an intoxication investigation.



                       ARGUMENT AND AUTHORITIES

     In order to justify a traffic stop, there must be reasonable suspicion

that a traffic violation has occurred. Davis v. State, 947 S.W.2d 240, 242-

244 (Tex. Crim. App. 1997).

     Probable cause exists when the facts and circumstances within an

officer’s personal knowledge and of which he has reasonably trustworthy

information are sufficient to warrant a person of reasonable caution in the

belief that, more likely than not, a particular suspect has committed an

offense. Brinegar v. United States, 338 U.S. 160, 164 (1949). Probable

                                       8
cause must be examined in light of the totality of the circumstances

established by the evidence. Amores v. State, 816 S.W.2d 407, 413 (Tex.

Crim. App. 1991); State v. Garrett, 22 S.W.3d 650, 653-654 (Tex. App.—

Austin [3rd Dist.] 2000, no pet.).

      Reasonable suspicion exists when an officer observes specific

objective, articulable facts which, in light of the officer’s experience and

personal knowledge, together with inferences from those facts, would

warrant a reasonable person to believe a traffic violation had occurred.

See Davis v. State, 947 S.W.2d 240, 242-243 (Tex. Crim. App. 1997). This

standard is an objective one, there need only be an objective basis for the

stop; the subjective intent of the officer conducting the stop is irrelevant.

The reasonable suspicion determination is made by considering the totality

of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.

App. 2001).

      Tex. Transp. Code Ann. § 545.101(a) requires an operator making a

right turn to make both the approach and the turn as closely as practicable

to the right hand curb or edge of the roadway.

      The evidence in this case shows that Officer Stewart was dispatched

at approximately 2:21 in the morning to a Whataburger in reference to an

intoxicated driver. (R.R. Vol. 2, p. 22). That while in the area he got behind

                                      9
Appellant’s vehicle and followed it. Officer Stewart observed that as the

vehicle was going northbound on Alexander, it made a wide right turn onto

Houston Harte.     (R.R. Vol. 2, pp. 23-24). Officer Stewart described the

roadway onto which Appellant turned as a two lane access road with both

lanes going in one direction. Further testimony established that Appellant’s

turn was so wide that he wound up in the left hand lane of the two lane

roadway and then remained in that lane. (R.R. Vol. 2, pp. 45-46).

      At this point, Officer Stewart has personally observed a traffic

violation, namely a violation of Tex. Transp. Code Ann. § 545.101(a), and

would therefore not only have reasonable suspicion but probable cause to

stop the vehicle for this violation of the law.

      Officer Stewart did not observe a “slight” wide right turn, rather the

undisputed evidence at trial showed that Appellant made such a wide right

turn that he actually wound up in the left hand lane of a two lane road and

then remained in that lane.      Clearly, when a vehicle makes such a wide

turn as to wind up in the wrong lane there can be no question but that an

unlawful wide right turn has occurred.

      The evidence further shows that once Officer Stewart had activated

his emergency lights to stop Appellant’s vehicle for the traffic violation, he

observed that Appellant’s vehicle veered to the north side of Houston

                                        10
Harte, struck the curb, and then it started pulling to the south side, and as it

came to a stop, it struck the south side curb.” (R.R. Vol. 2, p. 24). Officer

Stewart also later testified that Appellant, “… hit the curb pretty hard on the

north side. Then, when he came back over to the right, as he was coming

to a stop, he hit the right curb.” (R.R. Vol. 2, p. 46).

      After making contact with Appellant, who was the driver of the

vehicle, Officer Stewart noted that Appellant’s eyes were red and bloodshot

and that he smelled the odor of an alcoholic beverage coming from

Appellant’s person. (R.R. Vol. 2, p. 26).

      Officer Stewart now has the following information: he has observed

Appellant commit a traffic offense, he has observed driving which is

commonly indicative of intoxicated driving namely a wide turn, turning into

the wrong lane, striking a curb, striking a curb on the other side of the

roadway, the odor of alcohol from Appellant, red blood shot eyes, and the

fact that the stop occurred at 2:20 in the morning, a time commonly known

to be when bars and nightclubs have just closed.

      Officer Stewart, who initially had justification to stop and detain

Appellant’s vehicle based on probable cause that a traffic violation had

occurred, now has sufficient reasonable suspicion to begin an intoxication

investigation.

                                        11
      And indeed only when all of this information, the totality of the

circumstances, is available to him does Officer Stewart have Appellant exit

the vehicle to begin his intoxication investigation. (R.R. Vol. 2, pp. 26, 51).

      Appellant spends a large portion of his argument dealing with the

initial dispatch and whether there was a reliable tip and whether Officer

Stewart had probable cause or reasonable suspicion to “initiate a DWI

traffic stop”, however none of those arguments are relevant in this case.

Officer Stewart did not initially stop Appellant based on a DWI traffic stop,

he stopped Appellant’s vehicle because Appellant violated the law by

committing a traffic violation. It was after pulling Appellant over for this

traffic violation that Officer Stewart was able to make additional

observations about Appellant sufficient to justify expanding the initial

detention into a reasonable suspicion investigation of intoxication.

      Appellant’s arguments are flawed because they do not consider

cases such as this, where an initial stop based on a traffic violation

expands into an intoxication investigation once an officer has made

additional observations. An officer would be severely hamstrung if he could

not expand an initial traffic stop into an intoxication investigation after

obtaining additional information and combining this additional information

with all the other facts known to him.

                                         12
        Appellant, through his argument, attempts to extrapolate Officer

Stewart’s alleged subjective beliefs to a legal argument.              Appellant’s

arguments are based on the proposition that Officer Stewart stopped this

vehicle solely because he believed the driver of the vehicle was intoxicated

and argues therefore that if there was no reasonable suspicion or probable

cause for a DWI traffic stop then there was no valid stop. However, it is

clear that a stop will not be invalidated based on the subjective motivation

of a police officer so long as there is an objectively valid basis for the stop.

Crittenden v. State, 899 S.W.2d 668, 673 (Tex. Crim. App. 1995). The

standard to justify a traffic stop is an objective one; there need only be an

objective basis for the stop; the subjective intent of the officer conducting

the stop is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.

2001).    Regardless of whether Officer Stewart initially and subjectively

believed that an intoxicated person was driving the vehicle he was

following, there was an objective traffic offense that justified the initial traffic

stop.

             Officer Stewart had probable cause to stop Appellant’s vehicle

for violation of a traffic offense. Once Officer Stewart stopped the vehicle,

he observed additional facts which when combined with all the other



                                        13
information available to him reached a sufficient level of reasonable

suspicion to allow him to expand the stop into an intoxication investigation.



                                  ISSUE TWO

         Whether the legal and factual evidence was sufficient at trial that the

Appellant was driving while intoxicated pursuant to Tex. Penal Code Ann. §

49.04.



                          SUMMARY OF THE ARGUMENT

      The evidence was sufficient to sustain a conviction for driving while

intoxicated.



                          ARGUMENT AND AUTHORITIES

      Due process requires that the State prove, beyond a reasonable

doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242,

246 (Tex. Crim. App. 2011).

      In Texas, evidence to support a verdict is legally sufficient if viewed in

a light most favorable to the verdict, the evidence, and all reasonable

inferences there from would allow a rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt. Brooks v. State, 323

                                        14
S.W.3d 893, 912 (Tex. Crim. App. 2010). The Court will review all the

evidence in the light most favorable to the verdict and assume that the trier

of fact resolved conflicts in testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Jackson v.

Virginia, 443 U.S. 307, 318 (1979); Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009); Matthews v. State, No. 03-13-00037-CR, 2014

Tex. App. LEXIS 13722, at 8,9 (Tex. App.—Austin Dec. 23, 2014)(mem.

op., not designated for publication).

      In determining the legal sufficiency of the evidence, the Court must

consider all the evidence in the record, whether direct or circumstantial,

properly or improperly admitted, or submitted by the prosecution or the

defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen

v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.). The

trier of fact, as the exclusive judge of the facts, is entitled to weigh and

resolve conflicts in the evidence and draw reasonable inferences

therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. Ann.

art. 38.04. Thus, when faced with a record of historical facts that supports

conflicting inferences, a reviewing court must presume that the trier of fact

resolved any such conflicts in favor of the verdict and defer to that

                                        15
resolution. Jackson v. Virginia, 443 U.S. 307, 326 (1979); Padilla v. State,

326 S.W.3d 195, 200 (Tex. Crim. App. 2010). Every fact does not need to

point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to

support the conviction. Allen, 249 S.W.3d at 689. The role of a court

reviewing a sufficiency argument is not that of a fact finder but rather as a

due process safeguard, ensuring only the rationality of the trier of fact's

finding of the essential elements of the offense beyond a reasonable doubt.

Allen, 249 S.W.3d at 688.

      Appellant was found guilty of the offense of felony driving while

intoxicated. The elements of the offense of driving while intoxicated under

Tex. Penal Code Ann. § 49.04 are that Appellant was operating a motor

vehicle in a public place while intoxicated. Further under Tex. Penal Code

Ann. § 49.09, to be punished as a felony offense, the State had to show

that Appellant had two prior convictions for driving while intoxicated.

      Appellant limits his sufficiency argument to the element of

intoxication. Intoxication is defined in Tex. Penal Code Ann. § 49.01 (2) as

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



                                      16
combination of two or more of those substances, or any other substance

into the body or by having an alcohol concentration of 0.08 or more.

      Appellant attempts to limit Apellee’s evidence of intoxication to two

items: 1) Officer Stewart’s observations of Appellant in the immediate

moments after the officer initiated the traffic stop and Appellant’s

performance of the SFST. (Appellant Brief, p.14). Appellant’s argument is

flawed from the beginning, because he incorrectly limits the scope of the

State’s evidence of intoxication. Officer Stewart made his determination

that Appellant was intoxicated not just on the two items Appellant has

chosen to argue but based on his observations from beginning to end, on

the totality of the entire incident. (R.R. Vol. 2, pp. 72-73).

      As a general rule, the testimony of a peace officer that a person is

intoxicated provides sufficient evidence to establish the element of

intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App.

1979).

      The fact finder in this case, when considering the element of

intoxication, under the totality of the circumstances would have had the

following information: That Officer Stewart observed Appellant commit a

traffic offense. This traffic offense consisted of making a wide right turn.

Officer Stewart testified that the turn was so wide that Appellant turned into

                                       17
the left lane of a two lane roadway and remained in that lane. (R.R. Vol. 2,

pp. 45-46).   Officer Stewart observed Appellant’s vehicle strike a curb

pretty hard. Appellant’s vehicle then crossed the roadway and struck the

curb on the other side of the roadway as he pulled over. (R.R. Vol. 2, pp.

24,46). Officer Stewart noted the odor of alcohol from Appellant and that

Appellant had red blood shot eyes. (R.R. Vol. 2, p. 26). The stop occurred

around 2:21 a.m. (R.R. Vol. 2, p. 22), a time commonly known to be when

bars and nightclubs have just closed. Further Officer Stewart had been

dispatched to the area in reference to an intoxicated driver. (R.R. Vol. 2, p.

23). Officer Stewart observed that Appellant denied drinking any alcohol

even though Officer Stewart could smell the odor of an alcoholic beverage

coming from his person. (R.R. Vol. 2, p. 26). Office Stewart’s observations

of Appellant’s performance on the field sobriety tests including six out of six

possible clues on the Horizontal Gaze Nystagmus test. (R.R. Vol. 2, p. 32).

During the Walk & Turn test, Officer Stewart observed Appellant step out of

the starting position during the instruction phase, observed him start the

test before being told to start, observed him miss heel to toe steps during

the test, observed him use his arms for balance, observed him step off the

line and observed him make an improper turn. Officer Stewart observed six

out of eight possible clues on the Walk & Turn test. (R.R. Vol. 2, pp. 32-

                                      18
34). During the One Leg Stand test, Officer Stewart observed Appellant

use his arms for balance, observed him put his foot down and observed

him sway with his body. Officer Stewart observed three out of four possible

clues on the One Leg Stand test. (R.R. Vol. 2, pp. 35-36). Appellant

refused to provide a sample of his breath or blood after his statutory

warnings were read to him. (R.R. Vol. 2, pp. 38-39). Texas courts have

held that intoxication is a legitimate deduction from a defendant’s refusal to

take a breath test. Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim.

App. 1988). A person’s refusal of a request by an officer to submit to the

taking of a specimen of breath or blood, whether the refusal was express or

the result of an intentional failure to give the specimen, may be introduced

into evidence at the person’s trial. Tex. Transp. Code Ann. § 724.061.

      Appellant argues that the odor of alcohol alone is insufficient to prove

intoxication and that the presence of bloodshot eyes alone is insufficient to

prove intoxication. However, as the State has already said, Officer Stewart

did not rely on any one particular piece of evidence to make his

determination of intoxication rather he looked at his observations from

beginning to end. Appellant attempts to make a “piecemeal” argument

stating that a particular piece of evidence by itself is not sufficient proof of

intoxication. However, when looking at the sufficiency of evidence, this

                                      19
Court should not use a “divide-and-conquer” or “piecemeal” approach to

the evidence. Evidence should be reviewed in totality not in isolation. State

v. Long, No. 03-11-00725-CR 2012 Tex. App. LEXIS 4402 at 18-19 (Tex.

App.—Austin May 31, 2012) (mem. op., not designated for publication).

     Appellant next cites Emerson v. State, 880 S.W.2d 750, 769 (Texas.

Crim. App. 1994) for the proposition that “a properly administered SFST is

admissible scientific evidence under Tex. R. Evid. 702.” (Appellant Brief, p.

15). Appellant improperly attempts to extend the scope of the holding of

Emerson.    Emerson dealt only with the horizontal gaze nystagmus test

(HGN) which is only one of the three standardized field sobriety tests.

Further, the lay opinion of a police officer is admissible as to the officer’s

observations and to prove a defendant’s intoxication.         Emerson, 880

S.W.2d at 763; Vaugn v. State, 493 S.W.2d 524, 525 (Tex. Crim. App.

1972). Therefore, it is possible that a psychomotor field sobriety test such

as the one leg stand (and by extension the walk and turn test) would be

admissible as lay testimony under Tex. R. Evid. 701 and relevant as

testimony about a suspect’s coordination, balance and mental agility

problems exhibited during the psychomotor field sobriety test grounded on

an officer’s common knowledge. Taylor v. State, No. 03-03-00624-CR 2006

Tex. App. LEXIS 5148 at 16-18 (Tex. App.—Austin June 16, 2006)(mem.

                                     20
op., not designated for publication). Therefore, even if Appellant’s next

argument that Officer Stewart “violated most of the SFST protocols” and

that these were not “slight variations” but rather “went to the very reliability

of the intoxication determination” and any observations from these SFSTs

should be excluded from consideration as unreliable scientific evidence

was a valid argument, the trial court could still have considered Officer

Stewart’s observations as lay testimony.

      However, the State does not agree that Officer Stewart “violated most

of the SFST protocols”. Appellant makes the broad, sweeping argument

that Officer Stewart: “violated most of the SFST protocols”, that they were

not “slight variations”, that Officer Stewart’s administration of the SFST was

completely flawed and finally that the tests were “ horrifically flawed SFST”.

(Appellant Brief, pp.15-16,18).    Appellant did not present any evidence at

trial, did not cite any legal authority, did not call any expert witnesses, did

not present any documentation, did not introduce any version of the

NHTSA SFST Student Manual to support his broad allegations that these

were “horrifically flawed SFST.”

      Appellant’s first example of Officer Stewart’s violation of Standardized

Field Sobriety Testing procedures is that “Officer Stewart could not state

how many SFSTs he had conducted or even place an estimate on the

                                      21
number.”    (Appellant Brief, p. 15).      This statement is very misleading

because it implies that Officer Stewart could not tell us how many of the

three standardized field sobriety tests he gave to Appellant on the date of

this particular incident. The question that had been put to Officer Stewart,

however, dealt with the number of occasions on which he had administered

the standardized field sobriety tests to other individuals and then released

them. (R.R. Vol. 2, p. 55). The exact or estimated number of individuals

that Officer Stewart had released on other occasions after administering

the standardized field sobriety tests and determining they were not

intoxicated has absolutely nothing to do with the procedure or protocol for

any of the three standardized field sobriety tests.

      Appellant next argues that “distractions”, such as the patrol vehicle’s

emergency lights, passing traffic, and allowing another officer to walk by

and around Appellant resulted in a “completely flawed” SFST, specifically

the HGN test. Appellant again makes this allegation without any actual

evidence, documentation, or case law to support Appellant’s argument.

Appellant in no way makes any showing that these “potential” distractions

did in fact distract Appellant and therefore affect the tests. A potential

distraction is in fact a hypothetical distraction unless and until evidence is

presented that Appellant was in fact affected by the distraction. Even if

                                      22
there had been any evidence showing that Appellant was, in fact, in any

manner “distracted”, then Appellant would still only be able to argue that

this should affect the weight a fact finder would give the evidence.

      Officer Stewart was asked during cross examination, “..what I am

asking you is, the environment that you put him in which would have

allowed for some of these distractions was not the ideal situation for you to

perform these nystagmus tests, correct?” (R.R. Vol. 2, p. 59).          Officer

Stewart replies, “I guess there could have been a better environment, but I

worked with what I had...” (R.R. Vol. 2, p. 59). Standardized Field Sobriety

Tests such as the HGN test are field tests.       They are used by Officer

Stewart and other law enforcement officers not in a laboratory environment

but out in the field. Officers are expected to give these tests in a variety of

locations; from the side of a roadway to a parking lot and at a variety of

times from the middle of the day to the middle of the night. An officer must

not only observe and analyze the behavior of the person being tested but

must also insure the safety of the officer himself of the person being tested

as well as the general public. When an officer is in the field there will

always be possible or potential distractions. Standardized field sobriety

tests are field tests designed to be used in such an environment.



                                      23
     Officer Stewart was certified to administer the Horizontal Gaze

Nystagmus test. (R.R. Vol. 2, p. 29). Officer Stewart testified that during

the HGN test he had his stimulus 12 to 15 inches from Appellant, was very

close to Appellant, was looking in his eyes while performing the test, and

that Appellant’s eyes were fixated on the pen that was held in front of him.

(R.R. Vol. 2, pp. 74, 75). If there had been a distraction that affected the

test, certainly an officer looking directly at Appellant’s eyes from 12 to 15

inches would have been able to recognize that there was a problem.

Testifying as an expert witness in regards to the HGN test, Officer Stewart

testified that the HGN testing of Appellant, “was reliable as far as I am

concerned, just from my observations.”       (R.R. Vol. 2, p. 61). Further,

Officer Stewart, after being asked, “okay. and it’s your testimony that all

these distractions didn’t have, as far as you are concerned, they didn’t have

any impact on the nystagmus tests at all?” states “Not from what I

observed, no sir.”   (R.R. Vol. 2, p. 63).

     Appellant continues his “distractions” argument with the walk and turn

test. Appellant argues that Officer Stewart gave further instructions during

the walk and turn test and that these instructions invalidated the results of

the test. (Appellant Brief, p. 16). Officer Stewart testified he believed he

had given Appellant clear instructions for performing the walk and turn test.

                                       24
(R.R. Vol. 2, pp. 34, 64). The alleged distraction Appellant complains of

consisted of Officer Stewart reinstructing Appellant after Appellant has

failed to follow Officer Stewart’s initial instructions. (R.R. Vol. 2, pp. 64-65).

Appellant makes no actual showing that Appellant was in fact distracted,

presents no documentation, no expert testimony, no case law stating that

reminding Appellant of the original instructions is anything other than a

slight variation in the administration of the test that would not render the

evidence unreliable. It would seem that if anything reminding Appellant of

the original instructions after he has failed to follow instructions would

actually help him perform the test. As Appellant admits in his brief, slight

variations in the administration of portions of the SFST does not render the

evidence unreliable but may affect the weight of the testimony and certainly

it is up to the fact finder listening to the testimony to determine the weight to

give such evidence. Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—

Texarkana 2003, pet. ref’d).

      As a continuation of his “distractions” argument, Appellant argues that

Officer Stewart “interfered” with the one-leg stand.               The alleged

interference, which Appellant does not specify in his brief, is Officer Stewart

telling Appellant to point his toes several times. (R.R. Vol. 2, p. 70). Again

Appellant makes no actual showing that Appellant was in fact distracted,

                                       25
presents no documentation, no expert testimony, no case law supporting

the position that telling a person to point his toes during the test is anything

other than a slight variation in the administration of the test that would not

render the evidence unreliable.      As Appellant admits in his brief, slight

variations in the administration of portions of the SFST does not render the

evidence unreliable but may affect the weight of the testimony and certainly

it is up to the fact finder listening to the testimony to determine the weight to

give such evidence.

      Appellant again in an attempt to limit the State’s evidence of

intoxication argues that, “Officer Stewart stated that the incidents of the

traffic stop--wide right turn, brushing a curb, bloodshot eyes, and an odor of

alcohol were not indicators of intoxication.” (Appellant Brief, p. 18). This is

clearly a mischaracterization of what Officer Stewart said. Officer Stewart

agreed that any one of these events by themselves would not necessarily

be indicators of intoxication. However, he also went on to testify that he did

not rely on any one particular event to determine that Appellant was

intoxicated rather he looked at, “my observations from beginning to end,

that’s what I based the arrest on.”         (R.R. Vol. 2, p. 72).   “Right, from

beginning to end, that’s what I based it on.          The totality of the entire

incident.” (R.R. Vol. 2, p. 73).

                                       26
      The evidence presented to the trial court was sufficient to sustain

Appellant’s conviction for driving while intoxicated. The trial court as trier of

fact was the arbitrator of credibility and weight given to evidence. The trial

court held that Officer Stewart’s testimony was uncontradicted and credible.

(R.R. Vol. 2, p. 88).

      For the foregoing reasons, the State respectfully requests this Court

overrule the Appellant’s Issues Presented.



                                   PRAYER

      WHEREFORE, the State prays this Court overrule all issues

presented by Appellant and Affirm the Judgment of the trial court for the

reasons stated herein.

                                            Respectfully Submitted,

                                            ALLISON PALMER
                                            51ST DISTRICT ATTORNEY


                                            ___________________________
                                            Richard Villarreal
                                            Assistant District Attorney
                                            51ST & 119th Judicial District
                                            124 W. Beauregard, Suite B
                                            San Angelo, Texas 76903
                                            (325) 659-6583
                                            TSB# 00797602
                                            ATTORNEY FOR STATE

                                       27
                      CERTIFICATE OF COMPLIANCE


   Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,

based upon the computer program used to generate this brief, that this

brief contains 4,974 words, excluding words contained in those parts of the

brief that Rule 9.4(i) exempts from inclusion in the word count. I further

certify that this brief is in a conventional 14-point typeface.



                                            ___________________________
                                            Richard Villarreal
                                            Assistant District Attorney


                         CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the foregoing Brief of

State was electronically served on John T. Floyd (jfloyd@johntfloyd.com)

and Christopher M. Choate (choate@johntfloyd.com), The Kirby Mansion,

2000 Smith Street, Houston, TX 77002, counsel for Appellant on the 23rd

day of February, 2015.




                                            ___________________________
                                            Richard Villarreal
                                            Assistant District Attorney

                                       28
