                            NUMBER 13-16-00621-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                         Appellant,

                                           v.

JULIO VASQUEZ,                                                               Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

      In a single issue, appellant the State of Texas appeals the trial court’s grant of

appellee Julio Vasquez’s motion to suppress the breath test arising out of his warrantless

arrest for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw

through 2017 1st C.S.). We reverse and remand.
                                          I. BACKGROUND

      Vasquez was arrested for driving while intoxicated (DWI) after another driver

reported that Vasquez’s passenger1 threw a beer bottle out his car window. The beer

bottle broke a window of the other driver’s vehicle and struck his passenger in the back of

the head.

      Defense counsel filed multiple motions to suppress: a global Motion to Suppress

Evidence that alleged violations of the Fourth and Fourteenth Amendments of the United

States, and articles 38.23 and Chapter 14 of the Texas Code of Criminal Procedure; a

second Motion to Suppress; and a Motion to Suppress Breath Test Results that was heard

on June 16, 2016.

      Officer Adan Lopez, a patrol officer for the City of Edinburg, testified at the

suppression hearing. Officer Lopez was dispatched to a report of a mobile disturbance at

an intersection. The two vehicles were still moving, and he attempted to catch up to them.

When the vehicles finally stopped they were in McAllen outside the city limits of Edinburg.

The reporting vehicle was present near the house where the other vehicle was parked.

The reporting vehicle had a broken window.

      Officer Lopez contacted Vasquez at the house where he stopped. According to

Officer Lopez, Vasquez’s eyes were bloodshot, his speech was “blurred,” his balance was

unsteady, and his breath smelled of alcohol. Vasquez was uncooperative, refused to

provide his information, and he appeared to be intoxicated. Vasquez insisted he had been

at home for the previous two hours.




      1   The passenger was identified as Julio Vasquez’s brother, Victor Alfonso Vasquez.

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       Officer Lopez detained both brothers initially to determine the facts. Once Officer

Lopez obtained enough information to determine that the bottle throwing event took place

in the City of Pharr, Officer Lopez contacted the Pharr Police Department to take over

because the events happened in its jurisdiction. Heriberto Ortega, a Pharr police officer,

arrived.

       Officer Ortega testified that he was dispatched at 12:45 a.m. on February 16, 2015,

in response to a report of an aggravated assault. Officer Ortega described seeing two

vehicles traveling northbound on Jackson Street at a high rate of speed. He thought they

might be racing.   According to Officer Ortega, he spoke to the complainants at the

Vasquez’s house, a male driver and female passenger. The female passenger identified

Julio Vasquez as the driver and his brother as the passenger who threw the beer bottle.

The complainants told Officer Ortega that they followed the Vasquez brothers until they

stopped and then they waited to speak with the police.

       Officer Ortega testified that he also spoke to Vasquez and observed that Julio

Vasquez had red bloodshot eyes, slurred speech and “emitted alcohol from his breath.”

Vasquez admitted he was driving the vehicle earlier that morning. Ortega administered a

standard field sobriety test, the horizontal gaze nystagmus (HGN) test, to Vasquez, who

failed the test. Vasquez refused further field sobriety testing. When Vasquez refused

further field sobriety testing, Officer Ortega arrested him. On cross-examination, Officer

Ortega admitted that he was not totally certain that Vasquez was intoxicated to the point

he had lost the normal use of his mental and physical faculties, even after Vasquez failed

the HGN.




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       After Vasquez was taken to the City of Pharr police station, a different officer

administered an intoxilyzer test which furnished two results, .158 and .144. The intoxilyzer

was administered at 3:22 a.m. and 3:24 a.m. that morning, over two hours after Vasquez

was observed driving a vehicle.

       Defense counsel argued that Officer Ortega did not have probable cause to arrest

Vasquez for DWI and that the intoxilyzer test results should be excluded from trial based

upon the time that elapsed between Vasquez’s driving and the testing. The trial court

granted the motion to suppress and later issued Findings of Facts and Conclusions of

Law.2 The State appealed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West,

Westlaw through 2017 1st C.S.).

                                     II. MOTION TO SUPPRESS

       The State’s sole issue on appeal is that the trial court erred in granting Vasquez’s

motion to suppress. The State’s argument challenges the trial court’s grant of the motion

to suppress on two grounds: 1) that the trial court failed to consider the totality of the

circumstances for probable cause and 2) the State objects to the trial court’s alternate

grounds for suppression.

       A.      Probable Cause

               1. Standard of Review

       A trial court’s ruling on a motion to suppress is reviewed under a mixed standard.

A trial court’s determination of historical facts is entitled to “almost total deference,”

especially when those fact findings are based on an evaluation of credibility and

demeanor. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); see also


       2The appeal was abated pending receipt of the trial court’s Findings of Fact and Conclusions of
Law. The appeal was reinstated after the supplemental clerk’s record was received.

                                                      4
Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The trial court’s application

of the law is reviewed de novo. Torres, 182 S.W.3d at 902.

              2. Applicable Law

       Probable cause for a warrantless arrest requires that the officer have a reasonable

belief that based on the facts and circumstances within the officer’s personal knowledge,

or of which the officer has “reasonably trustworthy information,” an offense has been

committed. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). “[T]he

detaining officer need not be personally aware of every fact that objectively supports a

reasonable suspicion to detain; rather, the cumulative information known to the

cooperating officers at the time of the stop is to be considered in determining whether

reasonable suspicion exists.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.

App. 2011) (internal quotations omitted); see Woodward v. State, 668 S.W.2d 337, 344

(Tex. Crim. App. 1982). A detaining officer may rely on a known citizen informant.

Derichsweiler, 348 S.W.3d at 914–15.

       The test for probable cause is an objective one, unrelated to the subjective beliefs

of the arresting officer, and it requires a consideration of the totality of the circumstances

facing the arresting officer. Maryland v. Pringle, 540 U.S. 366, 371 (2003). “A finding of

probable cause requires ‘more than bare suspicion’ but ‘less than . . . would justify . . .

conviction.’” Amador, 275 S.W.3d at 877 (quoting Brinegar v. United States, 338 U.S. 160,

175 (1949).




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              3. Discussion

       The trial court reached the following conclusions of law related to probable cause:

       1. It is established in the case law that an officer must have probable cause
          to arrest a defendant without a warrant. See Anderson v. State, 932
          S.W.2d 502, 506 (Tex. Crim. App. 1996) (citing New York v. Harris, 495
          U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990)). Probable cause for an
          arrest exists where, at that moment facts and circumstances within the
          knowledge of the arresting officer, and of which he has reasonably
          trustworthy information, would warrant a reasonably prudent person in
          believing that a particular person has committed or is committing a crime.
          See Smith v. State, 739 S.W.2d 848, 851 (Tex. Crim. App. 1987).

       2. Intoxicated means: (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. State v. Villarreal, 476 S.W.3d 45,
          56 (Tex. App.[sic]), aff'd, 475 S.W.3d 784 (Tex. Crim. App. 2014); Tex.
          Penal Code Ann. § 49.01(2).

       3. In assessing demeanor and credibility, Officer Ortega (the arresting
          officer), was equivocal at best on the issue of being intoxicated as defined
          by law. Probable cause was not shown and thus, the arrest was unlawful.
          The breath test was the fruit of the unlawful arrest in violation of the
          Fourth and Fourteenth Amendments to the United States Constitution,
          Article 1 section 9 of the Texas Constitution, and Texas Code of Criminal
          Procedure Article 38.23.

The trial court’s findings and conclusions indicate that the trial court placed considerable

weight on Officer Ortega’s uncertainty as to the ultimate conclusion that Vasquez had lost

the normal use of his physical and mental faculties.

       The facts and circumstances known to Officer Ortega included: Vasquez was the

driver (both by his admission and the identification by the other vehicle’s passenger);

Vasquez travelled through three jurisdictions at a high rate of speed; Vasquez’s statement

that he had been home for two hours was contradicted by the observations of the

witnesses; Vasquez failed the field sobriety test for HGN; he refused further field sobriety



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testing; and Officers Ortega and Lopez both observed that Vasquez’s eyes were red and

bloodshot, Vasquez’s balance was unsteady, his speech was slurred, and he smelled of

alcohol.3

        The trial court’s conclusion that there was no probable cause appears to rest solely

on Officer Ortega’s uncertainty, rather than consideration of the totality of the facts and

circumstances as required. See e.g. Woodward, 341 S.W.3d at 414;4 Kirsch v. State, 306

S.W.3d 738, 745 (Tex. Crim. App. 2010) (noting that slurred speech and bloodshot eyes,

among other things, “would logically raise an inference that the defendant was

intoxicated”); Amador, 275 S.W.3d at 879 (detailing evidence of intoxication including

unsteadiness, smell of alcohol, poor performance on field sobriety tests).5


        3The trial court’s Findings of Fact and Conclusions of Law include these facts in the Background
section. The only finding of fact related to probable cause is as follows:

        Viewing Officer Ortega’s demeanor and assessing his credibility, he did not have probable
        cause to arrest Julio Vasquez for driving while intoxicated. This is especially true in light of
        his testimony that he decided to arrest Julio Vasquez even though he was “not
        sure”/equivocal as to whether Vasquez was intoxicated to the extent that he had lost his
        mental or physical capacities. Viewing his demeanor and assessing his credibility, Ortega
        did not have probable cause that Vasquez was intoxicated to the extent of (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.

        4 Defendant voluntarily confirmed his involvement in the accident and then confessed to
        driving while intoxicated when he stated that he was drunk and should not have been driving.
        Officer Warner noticed that Woodard smelled of alcohol, staggered when he walked, and
        had blood shot, glazed eyes. Arguably, the totality of this information, obtained first-hand
        and through a trustworthy source, provided Officer Warner with probable cause to arrest
        Woodard for DWI. . . . Woodard’s performance on the tests, as well as the information
        obtained during the preceding interaction, undoubtedly provided Officer Warner with
        probable cause to believe that Woodard had driven the now-wrecked car while intoxicated.

Woodward v. State, 341 S.W.3d 404, 414 (Tex. Crim. App. 2011).

         5 See also Cotton v. State, 686 S.W.2d 140, 142–43 & n. 3 (Tex. Crim. App. 1985) (listing signs of

intoxication); Markert v. State, No. 13-10-00061-CR, 2011 WL 2937428 at *3 (Tex. App.—Corpus Christi
July 21, 2011) (mem. op., not designated for publication) (holding deputy had probable cause for arrest
where defendant had strong odor of alcohol on his breath, his eyes were glassy and bloodshot, speech was
slurred, he could not maintain his balance, an open alcoholic beverage was found in the car, and he refused
to perform field sobriety tests); State v. Garrett, 22 S.W.3d 650, 654 (Tex. App.–Austin 2000, no pet.) (finding

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       In State v. Downs, this Court held that under similar circumstances to those before

the trial court, the trial court was “incorrect to the extent it determined that Officer Cantu’s

uncertainty [at the motion to suppress] precluded a showing of probable cause to arrest.”

No. 13-13-00358-CR, 2013 WL 5654990 at *4 (Tex. App.—Corpus Christi Sept. 17, 2015)

(mem. op., not designated for publication).

       After reviewing the trial court’s conclusions of law de novo, we conclude that the

trial court applied the wrong legal standard to the facts.

       B.      Alternate Grounds for Suppression of Breath Test

       The State objects to the trial court’s alternate grounds for suppressing the breath

test: 1) test was taken approximately over two hours after Vasquez was seen operating

his vehicle, and 2) the State failed to lay the proper predicate. The State argues that the

trial court’s suppression on these grounds was not supported by the record and that the

State was not given fair notice that these grounds would be heard.

               1. The Trial Court’s Findings and Conclusions

       The trial court made the following findings of fact on this issue:

       Pharr police officer Heriberto Ortega was not the intoxilyzer 5,000 operator
       and he did not see Vasquez blow into the intoxilyzer 5,000. He could not
       say what Vasquez’s blood alcohol concentration was at the time it was said
       he was driving.

       A breath test was not administered until approximately 3 hours after Vasquez
       was said to be driving a motor vehicle.

       The trial court made the following Conclusions of Law related to this issue:

       The predicate for breath analysis testimony established by Harrell v. State is
       typically met by testimony of two witnesses. 725 S.W.2d 208 (Tex. Crim.
       App. 1986). As the Court of Criminal Appeals has made clear, the
       Department of Public Safety's certification framework distinguishes between

probable cause to arrest the defendant for DWI when he smelled of alcohol, had watery eyes, was unsteady
on his feet, and drove illegally).

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persons certified to administer breath tests — operators of breath testing
devices — and those certified to function in a supervisory capacity —
technical supervisors. See French v. State, 484 S.W.2d 716, 719 (Tex. Crim.
App. 1972) (“an officer may administer a breath test even though he is not
otherwise qualified to interpret the results, and the standards required to
qualify one to administer the test are far less than those qualifying to interpret
the test results”); 37 Tex. ADC § 19:4 (operator certification); 37 Tex. ADC §
19:5 (technical supervisor certification). Certification in the latter capacity
requires “knowledge and understanding of the scientific theory and principles
as to the operation of the instrument and reference sample device.” 37 Tex.
ADC § 19:5(a)(4). Thus, a person certified as a technical supervisor is
generally required to meet the second and third requirements of the Harrell
predicate. First, the officer who administers the test testifies that he is
certified as an intoxilyzer operator, that he administered the test to the
defendant and did so in accordance with the Department's regulations, and
that the results are contained in a data readout that the State offers as an
exhibit. As part of this testimony, the operator testifies that he ran a reference
test on the intoxilyzer and what results were produced by this reference test.
Second, an officer who was the technical supervisor with supervisory
responsibility for the machine used in the test testifies that he is certified by
the Department as a technical supervisor, the machine used was certified by
the Department for testing purposes, the machine used was checked
periodically to assure that it operated properly, and that the reference sample
used by the officer administering the test was properly prepared. This
witness generally asserts that he understands the scientific theory of the
device and interprets the numbers on the data readout. He may also explain
the reference test and what is meant by the results of this process. [In a
footnote, the Conclusions of Law noted,] Julio Vasquez filed a Motion to
Suppress attacking the breath test results on the basis of their reliability,
accuracy, that they should be excluded because its probative value is
substantially outweighed by the danger of unfair prejudice, Kelly v.
State/Kelly predicate, Rule 702 of the Texas Rules of Evidence, and the
Texas Transportation Code.)

The State did not meet the necessary requirements. Instead, the testimony
showed that police officer Heriberto Ortega was not the intoxilyzer 5,000
operator; that he did not see Vasquez blow into the intoxilyzer 5,000; that
some “anybody” conducted the test; that Ortega could not say what
Vasquez’s blood alcohol concentration was at the time he was said to be
driving; and that approximately three hours passed from the time it was said
that Vasquez was driving and the time the breath test was conducted. Thus,
this was another ground to suppress/exclude the breath test results.




                                           9
                 2. Discussion

        Vasquez’s Motion to Suppress Breath Test Results argued that Vasquez’s arrest

was made without a warrant, reasonable suspicion or probable cause, and sought to

suppress “[a]ll statements made, either oral or written, and any acts performed after said

seizure of Defendant . . . .” The motion also argued that the breath test was performed “2

1/2 hours after the defendant was stopped” and there is no way to ascertain what his

breath alcohol was at the time he was operating the vehicle. Finally, the motion argues

that the breath specimen was not preserved. These are the sole grounds raised in the

motion. The motion does not challenge the propriety of the State’s administration of the

test.

        Months earlier, Vasquez filed two previous motions to suppress. The second

motion argued thirty-three issues, including challenges based upon: relevance of the

intoxilyzer results, unfair prejudice resulting from the delayed test, defective design of the

intoxilyzer, failure to pre-test the intoxilyzer for accuracy,6 and a challenge to the

intoxilyzer’s reliability pursuant to Rule 702 and Kelly v State.7 Although Vasquez argues



        6 To introduce intoxilyzer results into evidence, the State must establish: (1) that the
        machine functioned properly on the day of the test as evidenced by a reference sample
        having been run through it; (2) the existence of periodic supervision over the machine and
        operation by one who understands the scientific theory behind it; and (3) proof of the results
        of the test by a witness or witnesses qualified to translate and interpret such results.

Harrell v. State, 725 S.W.2d 208, 209 (Tex. Crim. App. 1986); see Rhyne v. State, 387 S.W.3d 896, 902
(Tex. App.—Fort Worth 2012, no pet.).

        7    This issue has already been resolved in favor of admission. “[T]he Legislature has already
determined that the underlying science [regarding the Intoxilyzer 5000] is valid and the technique applying
it is valid as long as it is administered by individuals certified by and using methods approved by the rules of
the Texas Department of Public Safety.” Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App. 2006)
(citing TEX. TRANSP. CODE ANN. § 724.064 (West 2011) (providing that evidence of alcohol concentration, as
shown by analysis of a specimen of the person's breath taken at the request of a peace officer, is admissible
at trial in a driving while intoxicated case)). When the results of a breath test are challenged, “all the trial
court need do to satisfy its ‘gate-keeping’ function is to determine whether the technique was properly applied
in accordance with the rules of DPS on the particular occasion in question.” Reynolds, 204 S.W.3d at 390.

                                                          10
that his earlier motion was set for hearing, the hearing notice (which was prepared by

defense counsel and attached to his motion to suppress the breath test) states only that

the Motion to Suppress Breath Test was set for hearing.

       At the end of the motion to suppress hearing, defense counsel tendered to the trial

court a copy of McCafferty v. State, a 1988 case in which the reviewing court held the

evidence of DWI was insufficient in part because the breath test administered to a driver

was performed more than two hours after the call to police. 748 S.W.2d 489, 492 (Tex.

App.—Houston [1st Dist.] 1988, no writ). Defense counsel argued that the delay in

McCaffrey supported suppression in this case. The McCafferty case did not address

suppression but instead held that the evidence of DWI was insufficient under a no longer

used standard in circumstantial evidence cases.8 More recent authority is to the contrary.

       “The results of a test for alcohol concentration taken within a reasonable period of

time after the defendant was driving and showing that he was above the legal limit are

probative evidence of intoxication at the time of driving.” Stewart v. State, 129 S.W.3d 93,

96 (Tex. Crim. App. 2004) (reversing the court of appeals holding that test result eighty

minutes after driving was inadmissible without retrograde analysis). In State v. Mechler,

the court held that the trial court abused its discretion when it suppressed breath analysis

pursuant to Rule 403, even though the breath test was taken more than ninety minutes

after the driver was out of the car. 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also

Giglioblanco v. State, 210 S.W.3d 637, 642–43 (Tex. Crim. App. 2006) (holding the trial

court did not abuse its discretion in admitting a breath test taken eighty minutes after

defendant was stopped for traffic violation); State v. Esparza, 353 S.W.3d 276, 283 (Tex.


       8 See Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by
Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

                                                     11
App.—El Paso 2011, no. pet.) (noting “breath test results are generally admissible at trial

even if the breath test was administered several hours after the alleged offense . . .

because breath test results show that the defendant drank alcohol in the day in question”);

Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no writ)

(distinguishing McCafferty and holding evidence sufficient to support conviction for DWI).9

       Before the State is put to its proof that the intoxilyzer test was administered in

accord with the required protocol, the defendant must make his objection known. In this

case, although Vasquez had filed a motion raising thirty-three different issues, that motion

was not set for hearing. Accordingly, the State could not have known that it needed to

prove up the reliability of the intoxilyzer procedures the day of the hearing.

       We conclude that the trial court abused its discretion in suppressing the breath test

based upon the delay between Vasquez’s driving and the intoxilyzer test. We hold that

the State was not notified of its obligation to provide the required basis for admission of

the intoxilyzer testing. Accordingly, the trial court abused its discretion by excluding the




       9  While the time of [defendant’s] driving was not specifically fixed in the record, it was
       sometime between 11:00 or 11:30 p.m., when appellant testified he drank an alcoholic
       beverage, and 3:40 a.m., at which time the police were dispatched to the accident site.
       Appellant was asked by Officer Gibbs after the accident whether he had had any alcoholic
       beverages and indicated none aside from the one he claimed he drank between 11:00 and
       11:30 p.m. Thus, any intoxication under which appellant was laboring at the time of the
       arrest and at the intoxication center, by his own admission, must have had its origin in the
       drink, or drinks, which he had no later than 11:30 p.m. Hence, there is no possibility that
       appellant could have gotten intoxicated after the accident. Therefore, since appellant’s
       intoxicated state at the time of his arrest could only have arisen from his drinking at around
       11:00 to 11:30 p.m. the night before, it follows that appellant must have been intoxicated
       between those time periods, which would have included the time of the accident. Thus the
       evidence is sufficient to establish that, whatever time the accident occurred, it occurred at a
       time during which he was intoxicated [approximately four hours before HGN and other field
       sobriety tests administered].

Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no writ).

                                                         12
testing on that basis. We express no opinion as to the merits of such a challenge based

upon a proper record.

       Based upon the above discussion, we sustain the State’s sole issue.

                                       III. CONCLUSION

       We reverse the order of the trial court suppressing the breath test evidence and

remand for proceedings consistent with this opinion.


                                                            GINA M. BENAVIDES,
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
26th day of July, 2018.




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