                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-17-00372-CR


                             VICTOR OLIVARES, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                       On Appeal from the County Court at Law No. 2
                                   Lubbock County, Texas
               Trial Court No. 2015-485,385, Honorable Drue Farmer, Presiding

                                       January 25, 2019

                              MEMORANDUM OPINION
                      Before CAMPBELL and PIRTLE and PARKER, JJ.


       Victor Olivares, appellant, appeals his conviction for driving while intoxicated, his

second DWI offense.1 In his sole issue, appellant contends that the trial court erred in

denying his motion to suppress evidence. We affirm.




       1 See TEX. PENAL CODE ANN. § 49.09(a) (West Supp. 2018) (a second DWI offense constitutes a
Class A misdemeanor).
                                            Background


       In the early morning hours of June 27, 2015, appellant drove his SUV into several

vehicles parked in a Lubbock car sales lot.               An officer from the Lubbock Police

Department responded to the accident. When asked by the officer whether he had

anything to drink before driving, appellant reported that he had “one shot of a margarita”

earlier in the evening. After smelling alcohol on appellant’s breath and observing that

appellant had bloodshot, watery eyes and slurred speech, the officer began field sobriety

testing. The officer began to administer the horizontal gaze nystagmus test. Before the

testing was complete, appellant informed the officer that he was not going to be able to

complete the testing. The officer had observed four clues on the test at that point.

Appellant further advised that he was not able to perform the walk and turn test as

requested by the officer, due to having bad knees.


       Appellant was arrested on suspicion of DWI. He agreed to provide a sample of his

blood, which revealed an alcohol concentration of .028, below the statutory presumption

amount (.08) for alcohol impairment.2 The blood test also showed several drugs in

appellant’s system, including THC metabolite, alprazolam, a cocaine metabolite, and

Delta-9 THC. Appellant was charged with DWI, second offense. The complaint and

information alleged that appellant had “operate[d] a motor vehicle in a public place while

intoxicated.”


       Prior to trial, appellant filed a motion to suppress and requested a hearing under

article 28.01 of the Texas Code of Criminal Procedure. Appellant’s motion asserted that



       2   See TEX. PENAL CODE ANN. § 49.01(2) (West 2011).

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“evidence of drugs found on or about the person of a Defendant accused in a DWI trial

violates Texas Rules of Evidence 403 and 702 unless it is shown that the drugs

contributed to the Defendant’s intoxication.” Appellant noted that the arresting officer did

not administer a drug recognition evaluation (DRE) and maintained that an officer who

lacked training and experience to identify drug impairment should not be allowed to testify

about the presence of drugs. Appellant’s motion repeatedly claimed that the only issue

in this case is intoxication by alcohol and that, “in a case that is an alcohol-only intoxication

case,” it would be erroneous to permit the jury to hear that appellant may have been

intoxicated on drugs or a combination of alcohol and drugs. Additionally, the motion

alleged that the evidence of drugs should be excluded under Rule 403 because it was

more prejudicial than probative.


       At the hearing on the motion to suppress, neither appellant nor the State presented

any witnesses. The police report, alcohol content lab report, and toxicology lab report

were admitted into evidence. Appellant’s counsel argued that there was no certified drug

recognition expert, appellant was not given any test under the drug recognition guidelines,

and it would be prejudicial for the jury to speculate about the effect of the drugs without

any testimony about those effects. He asserted that the State “should have to show that

at the time of the driving that [the drugs] affected [appellant], and he lost his normal use

of mental or physical faculties. And there’s just not going to be any evidence of that.”

The State stipulated that the arresting officer was not a DRE expert. The State then

argued that case law supported its position that drugs in the system, alone or in

combination with alcohol, could cause impairment, and that the State intended to call

forensic lab scientists to testify on that matter at trial.


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       After hearing the parties’ arguments and reviewing the case law brought to her

attention, the trial judge observed, “A lot of it does turn on the additional evidence that the

State would put on in order to make it admissible.” She further stated, “I can rule at this

point, but I kind of agree that it may be premature.” Appellant’s counsel pressed for a

ruling, and the trial judge denied the motion. Appellant then pleaded guilty. He was

sentenced to 180 days in jail, pursuant to a plea agreement. This appeal followed. The

record contains no findings of fact or conclusions of law.


                                    Standard of Review


       We review the trial court’s ruling on a motion to suppress under a bifurcated

standard. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We must

give almost total deference to the trial court’s determination of historical facts. Id. When

we review an application-of-law-to-facts question not turning on the credibility and

demeanor of witnesses, we review the trial court’s rulings de novo. See Wiede v. State,

214 S.W.3d 17, 25 (Tex. Crim. App. 2007). When the record is silent as to the reasons

for the trial judge’s ruling, or when there are no explicit fact findings and neither party

timely requested findings and conclusions, we imply the necessary findings that would

support the trial court’s ruling if the evidence, when viewed in the light most favorable to

the trial court’s ruling, supports the findings. See State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008).


                                          Analysis


       Appellant argues that the trial court erred in denying his motion to suppress

because the State failed to provide scientific evidence establishing that the drugs in his


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system contributed to his intoxication. Appellant maintains that the arresting officer was

not qualified to testify as a drug recognition expert, and the State did not provide any other

scientific evidence to support admission of the drug evidence. Additionally, appellant

asserts that even if the evidence was relevant and reliable, it should have been excluded

under Rule 403 because of its prejudicial nature.


       A motion to suppress is a specialized objection regarding the admissibility of

evidence. Hall v. State, 303 S.W.3d 336, 342 n.9 (Tex. App.—Amarillo 2009, pet. ref’d).

The trial court’s pretrial ruling on a motion to suppress is subject to reconsideration and

revision during trial. TEX. R. EVID. 104; Black v. State, 362 S.W.3d 626, 633 (Tex. Crim.

App. 2012). On a motion to suppress, the “burden of proof is initially on the defendant to

raise the exclusionary issue” and to prove facts to support his assertion. Pham v. State,

175 S.W.3d 767, 772 (Tex. Crim. App. 2005) (criminal defendant claiming right to

protection under an exclusionary rule of evidence has task of proving his case); see

Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005) (in motion to suppress

context, State has no burden to show compliance with procedural safeguards until

defendant establishes that statements he seeks to exclude were the product of custodial

interrogation).


       In his motion to suppress, appellant argued that “[a]dmitting evidence of drugs

found on or about the person of a Defendant accused in a DWI trial violates Texas Rules

of Evidence 403 and 702 unless it is shown that the drugs contributed to the Defendant’s

intoxication.” Appellant alleged that this case is an “alcohol-only” case and maintained

that the State was required to present expert testimony about the effects of the drugs on

him for the evidence of the drugs to be admissible.           The motion then recited the

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requirements for admissibility of scientific evidence under Rule 702. However, appellant

did not contest the scientific reliability of the blood test itself or point to a deficiency in the

qualifications of the forensic scientists the State identified as its expert witnesses. See

Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)

(noting that three requirements of expert testimony—qualification, reliability, and

relevance—raise distinct questions and issues).


        Both in his motion to suppress and on appeal, appellant relies heavily on Layton

v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). In Layton, the defendant was

charged specifically with alcohol intoxication.3 Id. at 240-41. The defendant therefore

sought to suppress video evidence which captured his and the arresting officer’s

statements regarding his consumption of Xanax and Valium. The trial court denied the

motion to suppress. At trial, before the video was entered into evidence, the defendant

again objected to the portions referencing his use of Xanax and Valium. The trial court

overruled his objection. The Court of Criminal Appeals held that, “to be relevant in this

specific case, the evidence needed to influence the jury’s determination of whether

Appellant was intoxicated by alcohol, not another substance combined with alcohol.” Id.

at 241. Because the State presented no evidence at trial showing that the defendant’s

use of Xanax and Valium was relevant to his intoxication, the trial court erred in allowing

the evidence to be introduced to the jury. Id. Analogizing the instant case with Layton,

appellant concluded that the “admission of evidence that [he] possessed drugs on or




         3 See TEX. PENAL CODE ANN. § 49.01(2) (defining intoxication as “(a) 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 (b) having an alcohol concentration of 0.08 or more.”).

                                                    6
about his person to prove intoxication, without a sufficient showing under Rule 702 and

the Kelly test for reliability, would be error that would clearly prejudice [him] at trial.”


       This case is distinguishable from Layton. In Layton, the charge was limited to

intoxication by use of alcohol, so expert testimony was needed to establish a connection

between the defendant’s use of controlled substances and their effect on his intoxication.

See id. at 241-42. Additionally, the defendant in Layton did not provide a blood sample

showing how much of the controlled substance was in his system. Id. at 237. Unlike the

defendant in Layton, appellant’s charge of driving while intoxicated did not limit the

definition of intoxication to the introduction of alcohol into the body. Evidence of drugs in

appellant’s system was shown through a blood test and was relevant to assist the jury in

determining whether appellant was intoxicated by any substance. See, e.g., Armstrong

v. State, No. 05-10-01214-CR, 2012 Tex. App. LEXIS 2041, at *8-9 (Tex. App.—Dallas

Mar. 15, 2012, no pet.) (not designated for publication) (blood test showing Xanax in

defendant’s system was relevant because it assisted the jury in determining whether

intoxication was due to Xanax).        And indeed, appellant’s contention is not that the

evidence of drugs in his blood is per se not relevant, but that its relevance is conditional

upon a showing that the drugs contributed to his intoxication.             The issue we must

determine is whether the trial court erred by denying appellant’s motion to suppress

appellant’s blood test results in the absence of such a showing by the State in a

suppression hearing.


       It is well established that the burdens of production and persuasion generally rest

upon the movant in a suppression hearing. See State v. Robinson, 334 S.W.3d 776, 782

(Tex. Crim. App. 2011) (Cochran, J., concurring) (on a motion to suppress, the burden is

                                                7
on the party who opposes the use of the evidence to establish that the evidence should

not be admitted). By arguing that the blood test results are inadmissible because the

State failed to come forward with evidence of their relevance, appellant seeks to impose

the general rule regarding who has the burden to establish admissibility at trial, rather

than follow the rule regarding who has the burden of proof in a motion to suppress

hearing. Sustaining appellant’s challenge in the context of a motion to suppress would

require a shift of the initial burden of production to the State, which is at odds with the

ordinary course of a suppression hearing. We do not find appellant’s scheme of shifting

burdens applicable in the context of deciding a pretrial motion to suppress, particularly

under the circumstances presented here, where the grounds for appellant’s motion to

suppress was the proposition that this is an “alcohol-only” case.


       We agree with the trial judge’s observation that a relevancy determination could

best be made in the context of trial. Suppressing the evidence on the grounds raised by

appellant, before the State sought to introduce the evidence and before the trial court

could fully assess, in context, its relevance, would have been premature. Evidence

should not be suppressed merely because its relevance might depend on other evidence

being produced later in the trial. See State v. Esparza, 413 S.W.3d 81, 93 (Tex. Crim.

App. 2013) (Keller, J., concurring) (noting pretrial ruling on motion to suppress is not a

final determination and “some bases for admitting or excluding the evidence in question

may yet turn on events occurring at the trial level”); Jordan v. State, 928 S.W.2d 550, 555

(Tex. Crim. App. 1996) (while reliability concerns the scientific basis for expert testimony,

relevance concerns the “fit” of proffered evidence or testimony to the case).




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       Appellant did not carry his burden of establishing a basis for his motion to

suppress; i.e., he did not produce any evidence concerning the scientific unreliability or

irrelevancy of his blood test. See State v. Huse, No. 07-12-00383-CR, 2014 Tex. App.

LEXIS 2657, at *22 (Tex. App.—Amarillo Mar. 6, 2014) (mem. op., not designated for

publication), aff’d, 491 S.W.3d 833 (Tex. 2016) (“By finding the evidence inadmissible

because the State failed to come forward with evidence of its reliability and relevancy in

the context of a pretrial suppression proceeding, the trial court impermissibly shifted the

burden of production and persuasion from Appellee to the State.”). Therefore, the burden

did not shift to the State to establish admissibility.


       Moreover, we find no error in the trial court’s failure to grant the motion to suppress

based on Texas Rule of Evidence 403. Appellant’s arguments in his Rule 403 analysis

all hinge on the premise that this is an alcohol-only intoxication case. This is not an

alcohol-only intoxication case. Evidence of drugs in appellant’s system is probative and

needed by the State to prove intoxication; the evidence is not distracting, misleading, or

cumulative.


                                          Conclusion


       We conclude that the trial court did not err by denying the motion to suppress. We

affirm the trial court’s judgment.


                                                         Judy C. Parker
                                                            Justice


Do not publish.




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