      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00087-CR



                                Johnnie Louis Brdecka, Appellant

                                                   v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
       NO. 2005-189, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Johnnie Louis Brdecka of the felony offense of driving

while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b) (West Supp. 2006).

The district court assessed punishment at ten years’ confinement. In two issues on appeal, Brdecka

asserts that the district court abused its discretion in denying his motion to suppress and in admitting

hearsay testimony. We will affirm.


                                          BACKGROUND

               The jury heard evidence that on the evening of March 29, 2005, Brdecka and his

girlfriend, Angelita Neal, arrived at a convenience store in a blue Chevy Camero. Neal was driving

the vehicle. Sheila Hastings and Linda Newman, who were both working at the convenience store

on the night in question, testified that Brdecka and Neal were arguing loudly outside the store and

that Brdecka was using “foul language.” According to Newman, Brdecka was “screaming and
hollering” for “[p]robably five minutes or more” and Newman was “scared they were going to start

a fight or something.” Hastings and Newman testified that the two appeared to be fighting over who

was going to drive. Hastings and Newman observed Brdecka grab the car keys from Neal and walk

into the convenience store and into the restroom. Both Hastings and Newman testified that they

were not close enough to Brdecka to observe any signs that he may have been intoxicated.

               Hastings also testified that Neal followed Brdecka into the store and “apologized for

the way [Brdecka] was acting outside.” When the State asked Hastings what Neal had told her about

the reasons for Brdecka’s behavior, Brdecka objected on the basis of hearsay. See Tex. R. Evid.

801(d), 802. In response, the State argued that Neal’s statement was admissible under the present-

sense impression exception to the hearsay rule. See id. 803.1. The State also provided the

district court with case law on the subject. The district court stated that “right now it’s not

coming in” but added that it would “make a further decision on this later on” after reviewing

the cases the State provided.

               Hastings continued her testimony. She explained that Brdecka came out of the

restroom, exited the store, and got into the driver’s seat of the car. Hastings observed Neal run out

of the store and tell Brdecka, “Oh, no, you’re not driving.” Brdecka “proceeded to back up” and

Neal got into the car on the passenger side. Brdecka “spun off real fast” and the two drove away.

Hastings called the police, reported that there had been a disturbance at the store, and informed the

police that there was a possibility that Brdecka was intoxicated.

               Newman, the other store employee present during the incident, testified to essentially

the same facts to which Hastings testified. After Newman finished her testimony, the district court



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took a recess and reviewed the cases the State had provided on the issue of present-sense impression.

After review, the district court ruled that the testimony it had previously excluded as hearsay was

admissible as a present-sense impression. The State then recalled Hastings and Newman. Over

further objection by Brdecka, both witnesses testified that when Neal came into the store and

apologized for Brdecka’s behavior, Neal told them that the reason for Brdecka’s behavior was that

it was his birthday and that “he had been drinking all day.”

               The jury also heard evidence from the two police officers who responded to

Hastings’s call. Officer David Villanueva testified that he was on the lookout for Brdecka’s vehicle

because he had received a report that the driver had engaged in disorderly conduct—“cursing and

possibly starting a fight.” When Villanueva spotted Brdecka’s vehicle, he noticed that the driver was

speeding just above the speed limit. Although Villanueva testified that he was unsure exactly how

fast Brdecka was driving, he was certain that he was speeding. Villanueva followed the vehicle and

initiated a traffic stop. On cross-examination, Villanueva explained that he did not pull Brdecka

over for speeding but for the report of disorderly conduct. Villanueva also testified that he suspected

Brdecka was intoxicated when he noticed that Brdecka had “glossy eyes” that were a “little red” and

“bloodshot,” and that he had a “smell of alcohol” about him.

               The officer who conducted the DWI investigation was Adam Boyd. Boyd testified

that when he began talking to Brdecka, Boyd “could smell alcohol on his breath and see that his eyes

were bloodshot and he was slightly swaying.” According to Boyd, Brdecka had “a really strong

smell of beer, very fresh.” Boyd also observed that Brdecka’s speech was slurred. Suspecting

that Brdecka was intoxicated, Boyd conducted the standardized field sobriety tests: the HGN, the



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walk-and-turn, and the one-leg-stand. Boyd testified that Brdecka exhibited six out of six possible

“clues,” or signs of intoxication, during the HGN test. Boyd also testified that Brdecka had difficulty

maintaining his balance during the “instruction phase” of the walk-and-turn test. However, Boyd

further testified that Brdecka was able to successfully perform both the walk-and-turn and one-leg-

stand tests. Nevertheless, based on his training as a police officer and the “totality of the

circumstances,” Boyd determined that Brdecka was intoxicated and arrested him. Boyd also

testified that after he transported Brdecka to the Caldwell County jail, Brdecka refused to allow

his breath to be tested for the presence of alcohol.

               The State indicted Brdecka for the offense of driving while intoxicated. The offense

was classified as a felony because of Brdecka’s two prior convictions for driving while intoxicated.

The jury convicted Brdecka as charged in the indictment and the district court assessed punishment

at ten years’ confinement. This appeal followed.


                                           DISCUSSION
Motion to suppress

               In his first issue, Brdecka asserts that the district court abused its discretion in

overruling his motion to suppress. In his motion, Brdecka alleged that, at the time he was pulled

over, the officers did not have reasonable suspicion or probable cause to believe that Brdecka “was

about to commit, committing, or had committed any criminal act.” Therefore, according to Brdecka,

his detention was unlawful and the evidence obtained as a result of the detention violated the Fourth

Amendment. See U.S. Const. amend. IV. In response, the State argued that the report of disorderly




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conduct by a possibly intoxicated driver and the fact that Brdecka was speeding provided sufficient

information for the officers to detain Brdecka.

               An officer conducts a lawful temporary detention when he has reasonable suspicion

to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion

exists if the officer has specific, articulable facts that, when combined with rational inferences from

those facts, would lead him to reasonably conclude that a particular person actually is, has been, or

soon will be engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.

2001). This is an objective standard that disregards any subjective intent of the officer making the

stop and looks solely to whether an objective basis for the stop exists. Id. A reasonable-suspicion

determination is made by considering the totality of the circumstances. Id.

               In evaluating the totality of the circumstances, we use a bifurcated standard of review.

Ford, 158 S.W.3d at 493. We give almost total deference to the trial court’s determination of

historical facts and review de novo the trial court’s application of law to facts not turning on

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

               The factual basis for stopping a vehicle need not arise from the officer’s personal

observation, but may be supplied by information acquired from another person. Adams v. Williams,

407 U.S. 143, 147 (1972); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). When

the person reporting the information to the police is a concerned citizen rather than a paid

government informant, and the witness allows herself to be identified, the information bears

sufficient indicia of reliability. See Brother, 166 S.W.3d at 258 n.3.



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               The district court confronted such a case here. Hastings was a concerned citizen who

identified herself and reported to the police that Brdecka had created a disturbance at her store by

using foul language and that he was driving a vehicle while possibly intoxicated.1 Thus, the

authorities received the following information from an identifiable citizen informant: (1) a report of

an individual engaged in disorderly conduct; (2) a detailed description of the vehicle driven by the

individual, including the license plate number; and (3) a report that the individual driving the vehicle

was possibly intoxicated. Those are specific, articulable facts from which Officer Villanueva

could reasonably conclude that Brdecka “actually is, has been, or soon will be engaged in

criminal activity.” Garcia, 43 S.W.3d at 530; see also State v. Fudge, 42 S.W.3d 226, 232

(Tex. App.—Austin 2001, no pet.) (upholding detention based solely on cab driver’s unsolicited

in-person report to officer about erratic driving); Glover v. State, 870 S.W.2d 198 (Tex. App.—Fort

Worth 1994, pet. ref’d) (upholding stop based on general description of possibly intoxicated driver

from anonymous EMS technician). Hastings testified at trial, so the district court was able to

directly assess her credibility as an informant. Furthermore, the information Hastings provided

to the authorities was corroborated by Newman’s testimony.




       1
          Brdecka argues in a footnote that “there is no way to determine whether the ‘foul language’
being used . . . was truly the type of language prohibited” by the disorderly conduct statute. See Tex.
Penal Code Ann. § 42.01 (West Supp. 2006). However, our inquiry is not whether Brdecka actually
engaged in disorderly conduct, but whether the officer had specific, articulable facts to reasonably
conclude that Brdecka actually is, has been, or soon will be engaged in criminal activity. In addition
to the report of disorderly conduct, Hastings reported that Brdecka was possibly intoxicated. These
reports may not be sufficient to prove beyond a reasonable doubt that Brdecka had violated any law.
However, they are specific, articulable facts that justify an investigatory detention.

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               Additionally, the district court heard evidence that Officer Villanueva personally

observed Brdecka violating the speed limit. Although Villanueva testified that this was not the

reason he pulled Brdecka over, the subjective intent of Villanueva in making the stop is

irrelevant. See Garcia, 43 S.W.3d at 530. We look solely to whether an objective basis for the stop

exists. Id. Speeding is a traffic violation. See Tex. Transp. Code Ann. § 545.351 (West 1999).

A traffic violation alone justifies an initial stop. See Dillard v. State, 550 S.W.2d 45, 50

(Tex. Crim. App. 1977); Icke v. State, 36 S.W.3d 913, 916 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d); Brown v. State, 659 S.W.2d 499, 503 (Tex. App.—Fort Worth 1983), aff’d, 672 S.W.2d

487 (Tex. Crim. App. 1984).2

               Based on the totality of the circumstances in this case, we conclude that the district

court did not abuse its discretion in overruling Brdecka’s motion to suppress. We overrule

Brdecka’s first issue.

Hearsay

               In his second issue, Brdecka asserts that the district court erred in admitting Neal’s

statement to Hastings and Newman that Brdecka “had been drinking all day.”

               “In determining whether a trial court erred in admitting evidence, the standard for

review is abuse of discretion.” McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

“A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.” Id.




       2
         See also Bilsing v. State, No. 03-98-00016-CR, 1999 Tex. App. LEXIS 2575, at *8
(Tex. App.—Austin 1999, pet. ref’d) (not designated for publication).

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                The district court admitted Neal’s statement under the present-sense impression

exception to the hearsay rule. A present-sense impression is a “statement describing or explaining

an event or condition made while the declarant was perceiving the event or condition, or immediately

thereafter.” Tex. R. Evid. 803.1. The present-sense impression exception to the hearsay rule is

based upon the underlying premise that the contemporaneity of the event and the declaration ensures

reliability of the statement. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

The closer the declaration is to the event, the less likely there will be a calculated misstatement. Id.

                The event in this case is not, as Brdecka contends, his drinking on the day in question.

Rather, the contemporaneous event is the argument outside the convenience store between Brdecka

and Neal which, according to the testimony of Hastings and Newman, lasted approximately five

minutes and involved much “foul language” and “screaming and hollering.” This argument

concluded moments before Neal entered the store and made her statement. Neal was seeking to

explain the reason for Brdecka’s behavior, which Hastings and Newman had both observed, when

she apologized and stated that Brdecka “had been drinking all day long.” We conclude that

the district court’s decision to admit this statement as a present-sense impression was not “so

clearly wrong as to lie outside the zone within which reasonable persons might disagree.”

McDonald, 179 S.W.3d at 576.

                Furthermore, any error in admitting the statement was harmless in light of the other

evidence in the record establishing Brdecka’s intoxication. Although Brdecka may have passed two

out of three of the standardized field sobriety tests, Brdecka did not pass the HGN test, which Boyd

testified was, in his opinion, the most reliable of the three tests. Although there is some evidence

in the record that Boyd may have made a mistake in administering the HGN test, the results of this

                                                   8
test were admitted for the jury’s consideration. Additionally, both Boyd and Villanueva testified to

observing signs that Brdecka was intoxicated, including: slurred speech; swaying; difficulty

maintaining balance; glossy, red, and bloodshot eyes; and a strong and “very fresh” smell of alcohol

on Brdecka’s breath and person. Finally, Brdecka refused to take a breath test, which the jury may

consider as evidence of intoxication. See Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App.

2001) (citing Tex. Transp. Code Ann. § 724.015 (West Supp. 2006)); Hartman v. State, 198 S.W.3d

829, 834 (Tex. App.—Corpus Christi 2006, pet. dism’d). Because there was other evidence in

the record to establish Brdecka’s intoxication, we hold that any error in the admission of

Neal’s statement did not affect Brdecka’s substantial rights and must be disregarded. See Tex. R.

App. P. 44.2(b). We overrule Brdecka’s second issue.


                                         CONCLUSION

                Having overruled Brdecka’s issues on appeal, we affirm the judgment of

the district court.




                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: March 13, 2007

Do Not Publish



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