                                                                        ACCEPTED
                                                                    03-15-00228-CR
                                                                            8219113
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                             12/14/2015 11:37:51 AM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
                   NO. 03-15-00228-CR

                        IN THE                   FILED IN
                                          3rd COURT OF APPEALS
                                              AUSTIN, TEXAS
                  COURT OF APPEALS       12/14/2015 11:37:51 AM
                                            JEFFREY D. KYLE
FOR THE THIRD   SUPREME JUDICIAL DISTRICT OF TEXASClerk


      __________________________________________

                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
      __________________________________________

        APPELLEE WAIVES ORAL ARGUMENT

                                Richard Villarreal
                                Assistant District Attorney
                                119TH Judicial District
                                124 W. Beauregard, Suite B
                                San Angelo, Texas 76903
                                (325) 659-6583
                                TSB #00797602
                                ATTORNEY FOR APPELLEE
                                                 TABLE OF CONTENTS

                                                                                                                          PAGE

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


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


ISSUE ONE .....................................................................................................................................8
      SUMMARY OF THE ARGUMENT ..................................................................................8
      ARGUMENT AND AUTHORITIES ..................................................................................9


ISSUE TWO ..................................................................................................................................19
      SUMMARY OF THE ARGUMENT ................................................................................19
      ARGUMENT AND AUTHORITIES ................................................................................20


PRAYER ........................................................................................................................................30


CERTIFICATE OF COMPLIANCE .............................................................................................31


CERTIFICATE OF SERVICE ......................................................................................................31
                                             LIST OF AUTHORITIES



Cases

Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.) ............................................. 21

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) .............................................................. 24

Brinegar v. United States, 338 U.S. 160 (1949) ............................................................................. 9

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................... 20

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) ............................................................... 20

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................................................... 20, 21

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ...................................................... 18

Davis v. State, 947 S.W.2d 240 ...................................................................................................... 9

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ......................................................... 18, 19

Gaddis v. State, 753 S.W.2d 396 (Tex. Crim. App. 1988) ........................................................... 27

Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001) ....................................................... 10, 18

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................... 20, 21

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)............................................................. 20

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) ....................................................... 20

Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) ............................................................... 20

Railsback v. State, 95 w.w.3d 473, 484 (Tex. App.—Houston [1st Dist] 2002, pet. ref’d) .......... 28

State v. Garrett, 22 S.W.3d 650 (Tex. App. –Austin [3rd Dist.] 2000) ........................................... 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) ..................................................................... 23

Vaugn v. State, 493 S.W.2d 524 (Tex. Crim. App. 1972) ............................................................ 28


                                                                  2
Statutes

37 Tex. Admin. Code § 15.6 (1976) (Tex. Dept. of Public Safety, Motorcycle License) ............ 10

Tex. Code Crim. Proc. art. 38.04. ................................................................................................. 21

Tex. Penal Code § 49.01 ............................................................................................................... 22

Tex. Penal Code § 49.04 ......................................................................................................... 19, 21

Tex. Penal Code § 49.09 ............................................................................................................... 21

Tex. Transp. Code Ann. § 521.221 (c) ......................................................................................... 10

Tex. Transp. Code Ann. § 521.457 (a) ......................................................................................... 10

Tex. Transp. Code Ann. § 545.156 (a)(2), .................................................................................... 13

Tex. Transp. Code Ann. § 724.061 ............................................................................................... 27


Ordinances

SAN ANGELO, TEX. , CODE OF ORDINANCES, Sec. 10.01.001 (1959 Code, sec. 10-3-1; 1996 Code,
  sec. 10.101; ordinance adopted 5/3/05) .................................................................................... 11

SAN ANGELO, TEX., CODE OF ORDINANCES, Sec. 10.03.02 (1959 Code, sec. 10-3-12; 1996 Code,
  sec. 10.112) ......................................................................................................................... 10, 13




                                                                      3
                            NO. 03-15-00228-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 APPELLEE and in support thereof, the State

would show this Honorable Court as follows:

                                       4
                         STATEMENT OF THE FACTS

       San Angelo Police Department patrol Officer Antonio Aguilar was

patrolling in the area west of Bryant Boulevard and south of Loop 306 on February

11, 2013. (R.R. Vol. 2, pp. 12-13). At approximately 6:00 p.m., Officer Aguilar

received a broadcast message regarding a reckless driver in the area of

Knickerbocker and South Bryant. The broadcast message had also included a

license plate number and indicated the vehicle was a motorcycle. (R.R. Vol. 2, p.

14). Officer Aguilar ran the license plate and noted that it came back to Appellant.

(R.R. Vol. 2, p. 15).     Officer Aguilar had dealt with Appellant on previous

occasions and had knowledge that Appellant’s driver’s license was suspended and

that Appellant did not have a motorcycle endorsement.           (R.R. Vol. 2, pp.

15,16,17,31 and STATE’S EXHIBIT NO. 5, Video at 17:59:06 - 17:59:26,

AUDIO OUTPUT 1).          Officer Aguilar observed a motorcycle that matched the

broadcast description and license plate. Officer Aguilar also recognized Appellant

from previous incidents. (R.R. Vol. 2, p. 15). Officer Aguilar then activated his

lights and attempted to pull over Appellant for Driving While License Suspended,

operating a motorcycle without a license that had a motorcycle endorsement and

violation of a city ordinance against exhibition of acceleration. (R.R. Vol. 2, pp.

15-16). Officer Aguilar noted that it took appellant a few blocks before he pulled

over. (R.R. Vol. 2, p. 17).

                                         5
      Once Appellant had pulled over, Officer Aguilar made observations about

Appellant. Officer Aguilar noted that Appellant was not dressed for the weather

noting that Appellant was wearing shorts, was very agitated, fidgety and seemed to

be having a hard time holding still. (R.R. Vol. 2, pp.17-18).

      Officer Aguilar stated that he had dealt with Appellant on more than one

occasion in the past and it was his belief that on this occasion Appellant’s behavior

was outside the norm. (R.R. Vol. 2, p. 18).

      Officer Aguilar had regular SFST training and was at the time a Certified

Drug Recognition Expert. (R.R. Vol. 2, p.18).

      The first test administered by Officer Aguilar was the horizontal gaze

nystagmus test. (R.R. Vol. 2, p. 21). Officer Aguilar observed no clues on this

test. (R.R. Vol. 2, p. 21). Officer Aguilar stated that you would expect to see no

nystagmus if a person is under the influence of a drug such as Marihuana but

would expect to see it if a person is under the influence of alcohol. (R.R. Vol. 2,

pp.20-21).    Officer Aguilar did not smell the odor alcohol on Appellant. (R.R.

Vol. 2, p. 21).

      The next test administered by Officer Aguilar was the walk and turn test.

(R.R. Vol. 2, p. 21). This test has eight possible clues. (R.R. Vol. 2, p. 22).

Appellant attempted the test and was unable to maintain his balance during the

instructional stage, missed touching heel to toe a few times and had to use his arms

                                         6
to balance. Officer Aguilar observed three of the eight possible clues. (R.R. Vol.

2, p. 22).

       The next test administered by Officer Aguilar was the one leg stand. (R.R.

Vol. 2, p. 23).    The one leg stand test involves a subject raising their foot

approximately six inches off the ground, keeping it parallel to the ground and

keeping their arms down by their sides, loot at their toe and count out loud while

they were looking at their upraised toes. The subject would then be observed for

thirty seconds to see if they were able to maintain their balance. (R.R. Vol. 2, p.

23). This test has four possible clues. (R.R. Vol. 2, p. 23). Officer Aguilar

observed three of the four possible clues. (R.R. Vol. 2, p. 23). Appellant swayed,

used his arms for balance and put his foot down. (R.R. Vol. 2, p. 23).

       Officer Aguilar then placed Appellant under arrest for driving while

intoxicated. (R.R. Vol. 2, p. 25). Officer Aguilar then conducted a search of

Appellant’s person incident to the arrest. (R.R. Vol. 2, pp. 25-26). Officer Aguilar

located less than two ounces of marihuana in Appellant’s pocket. (R.R. Vol. 2, p.

26).

       Officer Aguilar read Appellant his statutory warnings. (R.R. Vol. 2, p. 26).

Once Officer Aguilar had read Appellant his statutory warning he asked Appellant

to provide a sample of his breath. (R.R. Vol. 2, p. 26). Appellant refused to

provide a sample of his breath. (R.R. Vol. 2, p. 26).

                                         7
      Appellant was transported to jail by Officer Aguilar. (R.R. Vol. 2, p. 26).

Officer Aguilar noted that during the time that he was reading Appellant the

statutory warnings through the time that he was transporting Appellant to jail,

Appellant’s behavior continued to be outside the norm. (R.R. Vol. 2, p. 26).

Appellant was raging, yelling, cursing at Officer Aguilar and then seemed to crash

and pass out, actually falling asleep. (R.R. Vol. 2, p. 26). Officer Aguilar stated

that it was the wild fluctuation of behavior that was out of the norm. (R.R. Vol. 2,

p. 27). Officer Aguilar testified that he had observed Appellant on occasions when

he was not intoxicated and Appellant’s behavior on this date was different. (R.R.

Vol. 2, p. 27).

                                   ISSUE ONE

       Whether the Trial Court erred when it denied Appellant’s motion to

suppress.

                          SUMMARY OF THE ARGUMENT

      The Trial Court correctly denied Appellant’s motion to suppress. There was

reasonable suspicion or probable cause to initiate a traffic stop for violation of a

traffic law and upon contact with the driver of the stopped vehicle the officer noted

additional information which gave him reasonable suspicion to conduct an

intoxication investigation.



                                         8
                         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, 242-44 (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 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).

      Reasonable suspicion exists when 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-

43 (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



                                         9
the totality of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.

App. 2001).

      Tex. Transp. Code Ann. § 521.457 (a) makes it an offense if a person

operates a motor vehicle on a highway during a period that the person’s driver’s

license or privilege is suspended or revoked.

      Tex. Transp. Code Ann. § 521.221 (c) makes it an offense if a person

operates a motor vehicle in violation of a restriction imposed or without the

endorsement required on the license issued to that person.

      37 Tex. Admin. Code § 15.6 (1976) (Tex. Dept. of Public Safety,

Motorcycle License) describes the necessary endorsements required on a motor

cycle operator’s driver’s license in order to legally operate a motorcycle under Tex.

Transp. Code Ann. § 521.221.

      SAN ANGELO, TEX., CODE OF ORDINANCES, Sec. 10.03.02 (1959 Code, sec.

10-3-12; 1996 Code, sec. 10.112), makes it unlawful to make an exhibition of

acceleration while driving a motor vehicle on a public street in the city. There are

three separate ways of proving exhibition of acceleration as it is defined under the

San Angelo city code of ordinances.             One way of proving exhibition of

acceleration is “Accelerating a motor vehicle so as to move rapidly ahead of or out

of a group of other motor vehicles which are traveling at approximately the

officially posted speed limit in the area.”        SAN ANGELO, TEX. , CODE        OF

                                         10
ORDINANCES, Sec. 10.01.001 (1959 Code, sec. 10-3-1; 1996 Code, sec. 10.101;

ordinance adopted 5/3/05).

      The evidence in this case shows that Officer Aguilar received a broadcast

message regarding a reckless driver in the area of Knickerbocker and South

Bryant. The broadcast message also included a license plate number and indicated

the vehicle was a motorcycle. (R.R. Vol. 2, p. 14). Officer Aguilar ran the license

plate and noted that it came back to Appellant. (R.R. Vol. 2, p. 15). Officer

Aguilar had dealt with Appellant on previous occasions and had knowledge that

Appellant’s driver’s license was suspended and that Appellant did not have a

motorcycle endorsement on his driver’s license that would allow him to lawfully

operate a motorcycle. (R.R. Vol. 2, pp. 15, 16, 17, 31). (STATE’S EXHIBIT NO.

5, Video at 17:59:06 - 17:59:26, AUDIO OUTPUT 1). Officer Aguilar observed a

motorcycle that matched the broadcast description and license plate number.

Officer Aguilar also recognized Appellant from previous incidents. (R.R. Vol. 2,

p. 15). From Officer Aguilar’s patrol video, which the trial court viewed, Officer

Aguilar’s patrol vehicle is seen approaching Appellant while he is stopped at a red

light signal. Officer Aguilar does not immediately activate his emergency lights

and siren as he drives up behind Appellant instead the light turns green and both

Officer Aguilar’s testimony and the video show that appellant clearly accelerated

his motorcycle so as to move rapidly ahead of the other vehicles that had been

                                        11
initially grouped with Appellant and Officer Aguilar’s patrol vehicle and all of

which had initially left the light at the same time as Appellant.        (STATE’S

EXHIBIT NO. 5, Video at 18:02:56 to 18:04:14, AUDIO OUTPUT 1). The speed

limit on the roadway being traveled is 40 m.p.h. This speed limit is clearly posted

on signage that is visible on the video both before and after the traffic light from

which Appellant accelerates. (STATE’S EXHIBIT NO. 5, Video at 18:02:42,

18:03:07, AUDIO OUTPUT 1). The patrol video viewed by the trial court also

displayed information about Officer Aguilar’s patrol vehicle, such as vehicle speed

and when the lightbar or siren is activated. (STATE’S EXHIBIT NO. 5, Video).

The video indicates that when Officer Aguilar activates his light bar to pull

Appellant over, his patrol vehicle is traveling at approximately 33 m.p.h. and

quickly accelerates to 37 m.p.h. and yet Appellant’s vehicle is significantly ahead

of Officer Aguilar’s vehicle and the other group of vehicles with whom Appellant

had initially been traveling. (STATE’S EXHIBIT NO. 5, Video at 18:03:07,

AUDIO OUTPUT 1). (R.R. Vol. 2, p.15-16).              All of this information was

available to the trial court to assist it in determining whether Officer Aguilar had

reasonable suspicion that Appellant had committed or was about to commit the

offense of exhibition of acceleration. Officer Aguilar noted that it took appellant a

few blocks before he pulled over. (R.R. Vol. 2, p. 17). Officer Aguilar activated

his siren on two occasions due to the extraordinarily long period of time it took

                                         12
Appellant to pull over.      (STATE’S EXHIBIT NO. 5, Video at 18:03:11 and

18:03:20).    Officer Aguilar also noted that when Appellant did finally pull his

vehicle over, Appellant ended up making a left turn off of Bryant, which left turn

would have required him to cross three lanes of oncoming traffic and then pulling

off on a side street versus going immediately to the right-hand side of the roadway

and pulling over.     (R.R. Vol. 2, p. 17).     Appellant’s actions in failing to

immediately pull over the right hand side of the roadway are in clear violation of

Tex. Transp. Code Ann. § 545.156 (a)(2), which instructs a driver of a vehicle

approached by authorized emergency vehicle to immediately drive to a position

parallel to and as close as possible to the right-hand edge or curb of the roadway

clear of any intersection.

      At this point, Officer Aguilar has personally observed a traffic violation,

namely a violation of CODE OF ORDINANCES, CITY OF SAN ANGELO,

TEXAS SEC. 10.03.02 exhibition of acceleration, and would therefore not only

have reasonable suspicion but probable cause to stop the vehicle for this violation

of the law. In addition Officer Aguilar has a reasonable suspicion that Appellant’s

driver’s license is suspended and that Appellant does not have a driver’s license

endorsement to operate a motorcycle, testifying that “it hadn’t been too long before

that that I run his license and from what I recall he had multiple suspensions. It

didn’t seem reasonable to me that every single one of them had been lifted.” (R.R.

                                        13
Vol. 2, p. 31). “I recognized Mr. Hoyt, and I previously dealt with him regarding

driving with license invalid and I knew his license was invalid at the time.” (R.R.

Vol. 2, p. 15). “It hadn’t been too long before that that I had run his license, and

from what I recall, he had multiple suspensions. It didn’t seem reasonable to me

that every single one of those had been lifted.” (R.R. Vol. 2, p. 31). “I was going

on the belief from all of my past dealing with him that the license was still invalid

at that point.” (R.R. Vol. 2, p.31). The fact that Appellant’s license is invalid and

that he does not have a motorcycle endorsement is verified by Appellant himself.

(R.R. Vol., p. 60). Appellant is also heard on Officer Aguilar’s patrol video

acknowledging that his license was not valid that that he did not have a motorcycle

endorsement on his driver’s license.      (STATE’S EXHIBIT NO. 5, video at

18:04:34 to 18:05:33, 18:07:19 to 18:07:34, AUDIO OUTPUT 1).

      Once Appellant has finally stopped, Officer Aguilar is able to make contact

with Appellant.    Officer Aguilar’s testimony about his initial observations of

Appellant note that Appellant, who was wearing shorts, was not dressed for the

weather. (R.R. Vol. 2, pp. 17-18). Weather which Officer Aguilar, as already

discussed, described as “chilly” “cold” “wind blowing”. Officer Aguilar testified

that based on his training and experience people who are under the influence of a

drug may not feel heat and cold the same as a sober person. (R.R. Vol. 2, p. 51).

In addition, Officer Aguilar described Appellant as being very agitated, fidgety,

                                         14
was scratching, seemed to have a hard time holding still, and that he just seemed

off, outside the norm. (R.R. Vol. 2, pp. 17-18, 51). Officer Aguilar further

testified that “There were times when his hands were moving around, when he was

incapable of holding his entire body still, which was another indication to me that

is very common with somebody who is under the influence of certain drugs.

They’re unable to hold their entire body still for any length of time.” (R.R. Vol. 2,

p. 67). Officer Aguilar stated that he had dealt with Appellant on more than one

occasion in the past and it was his belief that on this occasion Appellant’s behavior

was outside the norm. (R.R. Vol. 2, p. 18).

      Officer Aguilar now has the following information, he has received

information regarding reckless driving by a person driving the motorcycle that

Appellant is operating, he has observed Appellant commit a traffic offense, he has

observed Appellant take an extraordinarily long time to pull over, he has observed

Appellant’s behavior which to him based on his training and experience is

indicative of possible drug use. Additionally Officer Aguilar, who has interacted

with Appellant on other occasions, observes that Appellants behavior on this day

seems off and outside the norm.

      Officer Aguilar, who initially had justification to stop and detain Appellant’s

vehicle based on reasonable suspicion and probable cause that a traffic violation

had occurred, at this point based on the totality of the circumstances now has

                                         15
sufficient reasonable suspicion to begin an intoxication investigation.

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

circumstances, is available to him does Officer Aguilar begin his intoxication

investigation. (R.R. Vol. 2, p. 18).

      Appellant’s attempt to discredit Officer Aguilar’s testimony by arguing

multiple times that this incident occurred on “a mild winter day” is misleading.

(Appellant Brief, p. 10). Appellant makes this statement of “a mild winter day”

with no supporting cite from the record to show a basis for such a statement.

Officer Aguilar, the only witness to testify, stated “I know I was very cold out

there.”, “Honestly, sir, to me, I was wearing a jacket and I was wearing long pants.

It was near sundown, and I was cold.” (R.R. Vol. 2, p. 53). Officer Aguilar further

stated in response to the question of how the weather was on that date, February

the 11th of 2013, “It was pretty chilly” and “From what I remember there was wind

blowing.” (R.R. Vol. 2, p. 53). There is absolutely no evidence in the record

except for Officer Aguilar’s uncontradicted testimony that the weather was cold on

that day.

      Appellant also attempts to argue that that Officer Aguilar’s observation of

Appellant’s exhibition of acceleration offense was made after he initiated a traffic

stop by activating his lights and pulling appellant over for a suspected driver’s

license. (Appellant Brief, pp. 6-7). Again Appellant makes this argument without

                                         16
any support from the record and this argument is clearly repudiated as has

previously been shown, from Officer Aguilar’s patrol video, which the trial court,

viewed during the trial, Officer Aguilar’s patrol vehicle is seen approaching

Appellant while he is stopped at a red light signal. Officer Aguilar does not

immediately activate his emergency lights and siren as he drives up behind

Appellant instead the light turns green and both Officer Aguilar’s testimony and

the video show that appellant clearly accelerated his motorcycle so as to move

rapidly ahead of the other vehicles which had initially left the light at the same

time as Appellant and which were traveling at approximately the speed limit.

(STATE’S EXHIBIT NO. 5, Video at 18:02:56 to 18:04:14, AUDIO OUTPUT 1).

It only after observing this additional traffic offense that Officer Aguilar activates

his lightbar to stop Appellant’s vehicle.

      Appellant also attempts to establish that Appellant’s commission of the

traffic offense of exhibition of acceleration was not “reckless” nor did it endanger

any other motorists. As neither “recklessness” nor “endangering others” is an

element of the offense of exhibition of acceleration this line of argument is not

relevant to determining whether Officer Aguilar had a reasonable suspicion that a

traffic offense had occurred.

      Appellant through his argument attempts to extrapolate Officer Aguilar’s

alleged subjective beliefs to a legal argument. Appellant’s arguments are based on

                                            17
the proposition that Officer Aguilar stopped this vehicle solely because he believed

the driver of the vehicle was intoxicated and argues therefore that Officer Aguilar’s

reasonable suspicion for stopping Appellant’s vehicle “was merely a pretext to

conduct what he described as an intoxication investigation.” (Appellant Brief, p.

7). 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 Aguilar 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.

       Appellant spends a large portion of his argument attempting to fit the facts

of this case under the holdings of Ford v. State, 158 S.W.3d 488 (Tex. Crim. App.

2005) arguing that “the officer’s testimony and the video introduced into evidence

by the State did not support the alleged acceleration.” (Appellant Brief, p. 10).

Appellant’s case however, is distinguishable in that that unlike Ford, the trial

court in Appellant’s case had the benefit of additional evidence of the traffic

violation in the form of the video recording from Officer Aguilar’s patrol car. The

                                             18
fact finder in this case unlike that in Ford had the benefit of viewing the actual

incident, the actual traffic offense in determining whether Officer Aguilar had a

reasonable suspicion to stop Appellant’s vehicle.   In addition in this case, unlike

Ford, Officer Aguilar, objectively, had multiple violations of the law that he was

working with, including investigating a reckless driver call, driving while license

suspended, operating a motorcycle without the proper license endorsement, and

exhibition of acceleration.

      Officer Aguilar had probable cause to stop Appellant’s vehicle for violation

of a traffic offense.   Once Officer Aguilar stopped the vehicle, he observed

additional facts which when combined with all the other 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 § 49.04.

                          SUMMARY OF THE ARGUMENT

      The evidence was sufficient to sustain a conviction for driving while

intoxicated.




                                           19
                         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 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.

                                         20
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. 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 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 § 49.04 are that Appellant was operating a motor vehicle in a public

place while intoxicated. Further under Tex. Penal Code § 49.09, to be punished

as a felony offense Appellee had to show that Appellant had two prior convictions

for driving while intoxicated.

                                         21
      Appellant limits his sufficiency argument to the element of intoxication.

Intoxication is defined in Tex. Penal Code § 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 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 first argues that since there was no evidence that Officer Aguilar

obtained a search warrant for a breath or blood sample or conducted a background

check and that there was no evidence as to why Officer Aguilar did not seek a

mandatory blood draw these omissions should be evidence of insufficiency.

(Appellant Brief, pp. 12-13). However, the Court when determining sufficiency

will consider the totality of the circumstances. Therefore the Court will examine

every piece of evidence that was available to the trial court. What additional

evidence could have been presented to the trial court is not relevant. The fact that

Appellant argues that other evidence could have been presented at trial in no way

furthers his argument that the evidence that was available to the trial court was

insufficient.

      Appellant next attempts to limit the State’s evidence of intoxication by

stating that Officer Aguilar made his intoxication determination, “solely on the fact

that appellant wore shorts on a mild winter day while driving a motorcycle and that

                                         22
he exhibited agitation and fidgetiness during the investigation period.” (Appellant

Brief, p. 13). Appellant’s argument is flawed, because he incorrectly limits the

scope of the State’s evidence of intoxication.          Officer Aguilar made his

determination that Appellant was intoxicated not just from the specific 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. 25, 38, 51). 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 you 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).

        In addition to attempting to limit Appellee’s evidence of intoxication,

Appellant’s incomplete list of evidence is also misleading in that it states that this

day was “a mild winter day.” (Appellant Brief, p.13). Appellant makes this

statement of evidence with no supporting cite from the record to show a basis for

such a statement. Officer Aguilar, the only witness to testify, stated “I know I was

very cold out there.”, “Honestly, sir, to me, I was wearing a jacket and I was

wearing long pants. It was near sundown, and I was cold.” (R.R. Vol. 2, p. 53).

                                         23
Officer Aguilar further stated in response to the question of how the weather was

on that date, February the 11th of 2013, “It was pretty chilly” and “From what I

remember there was wind blowing.” (R.R. Vol. 2, p.53). The only evidence

available to the trial court was Officer Aguilar’s uncontradicted testimony that the

weather was cold that day.

      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 Aguilar had initially begun his investigation after receiving a

broadcast message in regards to a reckless driver in the area driving a motorcycle

and having a license plate that matched the vehicle Appellant was operating. (R.R.

Vol. 2, p. 14). That Officer Aguilar observed Appellant commit a traffic offense.

This traffic offense consisted of a violation of a city ordinance against exhibition of

acceleration. (R.R. Vol. 2, pp. 15-16). After Officer Aguilar activated his lights,

Appellant took several blocks to stop.         (R.R. Vol. 2, p. 15).    From Officer

Aguilar’s patrol video the trial court was able to observe that Appellant did not

immediately pull to right side of the roadway and stop as is required when

approached by an emergency vehicle with emergency lights activated. Appellant

                                          24
instead continues for several blocks, crossing an intersection that was controlled by

traffic signals and which had a left turn lane.         Appellant continues to an

intersection controlled by a stop sign where he and Officer Aguilar must turn left

and cross three lanes of oncoming traffic. This turn was made directly in front of a

parking lot for a convenience store which would have required simply driving into

the lot. (State’s Exhibit #5, Video at 18:02:56 - 18:04:14).     The trial court also

had Officer Aguilar’s initial observation s about Appellant noting that Appellant,

who was wearing shorts, was not dressed for the weather. (R.R. Vol. 2, pp. 17-18).

Weather which Officer Aguilar, as already discussed, described as “chilly” “cold”

“wind blowing”. Officer Aguilar testified that based on his training and experience

people who are under the influence of a drug may not feel heat and cold the same

as a sober person. (R.R. Vol. 2, p. 51). In addition, Officer Aguilar described

Appellant as being very agitated, fidgety, was scratching, seemed to have a hard

time holding still, and that he just seemed off. (R.R. Vol. 2, pp. 17-18, 51).

Officer Aguilar further testified that “There were times when his hands were

moving around, when he was incapable of holding his entire body still, which was

another indication to me that is very common with somebody who is under the

influence of certain drugs. They’re unable to hold their entire body still for any

length of time.” (R.R. Vol. 2, p. 67). Officer Aguilar stated that he had dealt with

Appellant on more than one occasion in the past and it was his belief that on this

                                         25
occasion Appellant’s behavior was outside the norm. (R.R. Vol. 2, p. 18). Officer

Aguilar had received training in Standardized Field Sobriety Testing with the San

Angelo Police Department and was also a certified drug recognition expert. (R.R.

Vol. 2, p.18).   Officer Aguilar’s observations of Appellant’s performance on the

field sobriety tests including the Horizontal Gaze Nystagmus test. (R.R. Vol. 2, p.

20). The fact that Officer Aguilar did not observe any nystagmus which would be

consistent with impairment by drugs such as marihuana. (R.R. Vol. 2, p.21).

During the Walk & Turn test, Officer Aguilar observed Appellant unable to

maintain his balance during the instructional stage, observed him miss heel to toe

steps during the test, observed him use his arms for balance. Officer Aguilar

observed three out of eight possible clues on the Walk & Turn test. (R.R. Vol. 2,

p. 22). During the One Leg Stand test, Officer Aguilar observed Appellant sway,

observed him use his arms for balance, observed him put his foot down. Officer

Aguilar observed three out of four possible clues on the One Leg Stand test. (R.R.

Vol. 2, p. 23). Officer Aguilar located a baggy in Appellant’s pocket which based

on Officer Aguilar’s training and experience he believed to be marihuana.

Appellant, without questioning from Officer Aguilar, stated that the substance was

marihuana. (R.R. Vol. 2, p. 26). Appellant refused to provide a sample of his

breath 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

                                        26
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. Officer Aguilar

also testified that as he was transporting Appellant to jail, he made further

observations about Appellant’s behavior, stating, “his behavior was -- It continued

to be outside of the norm. He was raging, yelling, cursing at me, but then he

seemed to crash and passed out, actually fell asleep. I had to wake him up.

Whenever I woke him up he immediately shot back up to that extremely agitated

state of yelling and cursing.” (R.R. Vol. 2, pp. 26-27).      Officer Aguilar also

testified that Appellant’s behavior of going back and forth between sleep and rage

can be indicative of drug use. (R.R. Vol. 2, p. 69).       Officer Aguilar further

testified that it was not common for an individual to fall asleep in his patrol

vehicle. (R.R. Vol. 2, p. 71).

      Officer Aguilar was able to offer the trial court a unique perspective.

Officer Aguilar had dealt with Appellant on other occasions. He had seen him

when Appellant was not intoxicated. Officer Aguilar had given Appellant

Standardized Field Sobriety Tests in the past and had determined that Appellant

was not intoxicated on another occasion. (R.R. Vol. 2, pp. 27, 44). Officer

                                        27
Aguilar testified that he had also dealt with Appellant when he was quite clearly

under the influence of a drug and that appellant’s behavior during this incident was

similar to Appellant’s behavior under the influence of a drug. (R.R. Vol. 2, p. 40).

This is unique because when he is forming an opinion as to whether or not

Appellant has lost the normal use of his mental or physical faculties, Officer

Aguilar has actual knowledge of Appellant’s non impaired behavior. He can

compare Appellant’s use of his faculties not only against the manner in which a

hypothetical normal non-intoxicated person would be able to use his faculties but

he can go one step further and compare Appellant’s use of his faculties against the

manner in which a normal non-intoxicated Appellant would be able to use his

faculties. Railsback v. State, 95 w.w.3d 473, 484 (Tex. App.—Houston [1st Dist]

2002, pet. ref’d). 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).

      Appellant in an attempt to limit Appellee’s evidence of intoxication argues

that Officer Aguilar “made this intoxication determination based solely on the fact

that appellant wore shorts on a mild winter day while driving a motorcycle and that

he exhibited agitation and fidgetiness during the investigation period.”

(Appellant’s Brief, p. 13). This is clearly a mischaracterization of the evidence

available to the trial court. Officer Aguilar testified that he did not rely on any one

                                          28
particular event to determine that Appellant was intoxicated rather he looked at

“the totality of the circumstances, just everything all put together…” (R.R. Vol. 2,

pp. 38, 51). Officer Aguilar when asked if there was one particular thing that led

to his opinion of intoxication states “With intoxication investigations, it’s always

the totality of the circumstances. You never base your decision off of just one

single test. You have to look at everything--basically from the moment you first

observe the person all the way up until you make that decision to arrest them.

Their driving, their mannerisms, in the DRE world was call clinical indicators as

well as the psychophysical indicators that you observe whenever they’re actually

performing the field sobriety tests. You take all that in combination and make a

determination based off the whole totality of it.” (R.R. Vol. 2, p. 25).

      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

based on the evidence before it that it was satisfied that Appellant was guilty of

driving while intoxicated beyond a reasonable doubt. (R.R. Vol. 2, p. 79).

      For the foregoing reasons, the State respectfully requests this Court overrule

the Appellant’s Issues Presented.




                                         29
                                     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,

                                              GEORGE MCCREA
                                              119TH 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 APPELLEE




                                         30
                      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

6,085 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 14th day of

December, 2015.




                                             ______________________________
                                             Richard Villarreal
                                             Assistant District Attorney

                                        31
