                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00194-CR


CYNTHIA TYLER                                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                              I. INTRODUCTION

     Appellant Cynthia Tyler appeals from her conviction for possession of less

than one gram of methamphetamine. After the trial court denied her motion to

suppress, Appellant pleaded guilty pursuant to a plea agreement. She contends

in one point on appeal that the trial court erred by denying her motion to



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      See Tex. R. App. P. 47.4.
suppress because the search of her vehicle was illegal under Arizona v. Gant,

556 U.S. 332, 129 S. Ct. 1710 (2009). We affirm.

                                 II. BACKGROUND

      Ashley Chrisman testified at the suppression hearing that, on August 23,

2009, she called 911 and reported that a Lexus was swerving in and out of traffic

cones and had almost hit her as she drove westbound on Loop 820. She stated

that she believed that the driver was drunk. Chrisman continued following the

Lexus and witnessed it hit the side of a bridge. When she approached the Lexus

to make sure the driver was not injured, Chrisman noticed that the driver, whom

she identified in open court as Appellant, slurred her words and sounded drunk.

Chrisman testified that the police arrived approximately five to ten minutes later.

      Fort Worth Police Officer William Margolis testified that he made the initial

contact with Appellant and asked for her license. He then requested that she get

out of the car. Officer Margolis testified that he noticed that Appellant had a

slightly staggered walk and unsteady balance and that her speech became more

and more slurred over time. He also testified that he believed Appellant was

under the influence of something other than alcohol. He asked Appellant if she

was on any prescription medications, and Appellant said that she was not.

Based on these observations, Officer Margolis decided to call in a DWI

enforcement officer.

      Officer Jason Moss responded to Officer Margolis‘s call. He is an officer

with the Fort Worth Police Department DWI enforcement unit and has more than


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eleven years‘ experience as a peace officer. When he arrived, Appellant was

seated in the front passenger seat of her vehicle. At the suppression hearing,

Officer Moss testified that his initial observation was that Appellant‘s speech was

slurred as if her tongue were swollen. He asked Appellant whether she had been

drinking, and Appellant responded that she did not drink.         He then asked

Appellant if she had taken any drugs or prescription medication, and she replied

that she had taken her prescription for Xanax. Officer Moss asked Appellant to

exit the vehicle so that he could administer the horizontal gaze nystagmus (HGN)

test, which tests for the presence of alcohol, depressants, PCP, or inhalants in

the body. He observed that when she exited the vehicle, Appellant had difficulty

walking; she stumbled and needed to brace herself on the car in order to

maintain her balance. In addition, her pupils appeared to be highly constricted.

      Officer Moss testified that the HGN test exhibited no clues, which indicated

to him, in combination with Appellant‘s slurred speech and unsteady balance,

that she was under the influence of a stimulant such as cocaine or

methamphetamines.      He arrested Appellant for driving while intoxicated and

placed her in the back of his patrol car. He thereafter searched her purse, which

was in the passenger seat of the Lexus and easily accessible to Appellant while

she was driving and where she was seated when he arrived on the scene.

Officer Moss testified that he performed this search ―looking for evidence of her –

maybe Xanax in her purse and any other evidence that [he] might see that – to




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back up [his] investigation.‖     In the purse, he found a baggie containing a

substance that later tested positive for methamphetamine.

                              III. STANDARD OF REVIEW

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those




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questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court‘s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court‘s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      When the record is silent on the reasons for the trial court‘s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court‘s ruling if the evidence, viewed in the light most favorable

to the trial court‘s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court‘s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.

      We must uphold the trial court‘s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave


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the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

                                   IV. ANALYSIS

        The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

        Whether a search is reasonable is a question of law that we review de

novo.     Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances. Id.

at 63. It requires a balancing of the public interest and the individual‘s right to be

free from arbitrary detentions and intrusions. Id. A search conducted without a

warrant is per se unreasonable unless it falls within one of the ―specifically


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defined and well-established‖ exceptions to the warrant requirement. McGee v.

State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004

(2003); see Best, 118 S.W.3d at 862.

      Once an officer has probable cause to arrest, he may search a vehicle

incident to a recent occupant‘s arrest in two circumstances. Gant, 556 U.S. at––,

129 S. Ct. at 1723. The first of these arises when the arrestee is unsecured

within reaching distance of the passenger compartment of the vehicle at the time

of the search. Id. This exception does not apply in this case because Appellant

was seated in the back of Officer Moss‘s patrol car at the time of the search.

      Officers are also justified in conducting a warrantless search pursuant to

arrest when it is reasonable to believe that the vehicle contains evidence of the

offense of arrest. Id. at –––, 129 S. Ct. at 1719 (citing Thornton v. United States,

541 U.S. 615, 632, 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring in

judgment)). Discussing this exception in Gant, the Court stated,


      In many cases, as when a recent occupant is arrested for a traffic
      violation, there will be no reasonable basis to believe the vehicle
      contains relevant evidence. But in others, including Belton and
      Thornton, the offense of arrest will supply a basis for searching the
      passenger compartment of an arrestee‘s vehicle and any containers
      therein.

Id. (citations omitted) (referencing New York v. Belton, 453 U.S. 454, 456, 101 S.

Ct. 2860, 2862 (1981) (defendant arrested for unlawful possession of marijuana),

and Thornton, 541 U.S. at 618, 124 S. Ct. at 2129 (defendant arrested for

possession of marijuana and crack cocaine)).         In his concurring opinion in


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Thornton, on which the Gant Court relied for this exception, Justice Scalia wrote,

―[I]t is not illogical to assume that evidence of a crime is most likely to be found

where the suspect was apprehended.‖ Thornton, 541 U.S. at 630, 124 S. Ct. at

2136. Specifically, the Gant Court held that ―circumstances unique to the vehicle

context justify a search incident to a lawful arrest when it is ‗reasonable to believe

evidence relevant to the crime of arrest might be found in the vehicle.‘‖ 556 U.S.

at –––, 129 S. Ct. at 1719 (quoting Thornton, 541 U.S. at 632, 124 S. Ct. at 2137

(Scalia, J., concurring in judgment)).     When it is reasonable to believe that

evidence of the offense of arrest may be found in the vehicle, the officer may

search ―the passenger compartment of [the] arrestee‘s vehicle and any

containers therein.‖ Id.

      Because Appellant was arrested for DWI, we must determine whether it

was reasonable for Officer Moss to believe he might find evidence of Appellant‘s

offense in her vehicle. At least one court has suggested after Gant that certain

offenses establish the reasonableness of a warrantless search incident to arrest

of an automobile. See United States v. Oliva, No. C-09-341, 2009 WL 1918458,

at *6 (S.D. Tex. Jul. 1, 2009) (suggesting that it is per se reasonable for an officer

to search the vehicle for evidence of the crime of arrest when defendant is

arrested for DWI).     Common knowledge also suggests that either a Xanax

prescription or a sufficient amount of stimulants could have been concealed in

Appellant‘s purse because Texas courts routinely decide cases in which a

controlled substance is discovered in an individual‘s purse following an officer‘s


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observation that the individual is intoxicated. See, e.g., Ashton v. State, 931

S.W.2d 5, 6 (Tex. App.––Houston [1st Dist.] 1996, pet. ref‘d) (intoxicated

arrestee‘s purse contained cocaine); see also Broadus v. State, No. 03-03-

00189-CR, 2004 WL 34879, at *1 (Tex. App.––Austin 2004, no pet.) (mem. op.,

not designated for publication) (intoxicated arrestee‘s purse contained cocaine

and drug paraphernalia); Weaver v. State, No. 05-03-00225-CR, 2003 WL

22462575, at *1 (Tex. App.––Dallas 2003, no pet.) (not designated for

publication) (DWI arrestee‘s purse contained a pouch with drug paraphernalia

and marijuana); Diaz v. State, No. 05-98-01936-CR, 1999 WL 711089, at *1, 2

(Tex. App.––Dallas 1999, no pet.) (DWI arrestee‘s purse contained marijuana).

Indeed, the trial judge observed at the hearing that ―it is absolutely common

experience [that p]eople who use drugs and drive have drugs in the car.‖

      In the instant case, testimony at the suppression hearing established that

Appellant (1) was driving erratically; (2) was involved in a single-car accident in

which she struck a bridge; (3) had slightly slurred speech that became steadily

more slurred; (4) had a slightly staggered walk and had difficulty maintaining her

balance; (5) had initially denied using prescription medication but later admitted

taking Xanax; (6) had highly constricted pupils; (7) exhibited no clues on the

HGN test, indicating that she was under the influence of a stimulant; and (8)

denied drinking. Based on the totality of the circumstances, we hold that it was

reasonable for Officer Moss to believe that a search of Appellant‘s vehicle and

the containers therein might yield evidence of Appellant‘s driving while


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intoxicated and that the trial court did not err by denying Appellant‘s motion to

suppress. We overrule Appellant‘s sole point.

                                 V. CONCLUSION

   Having overruled Appellant‘s sole point, we affirm the trial court‘s judgment.



                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 4, 2011




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