DWI Appeal - Texas Arrest OK for Reckless Driving

In Schuring v. State of Texas, Not Reported in S.W.3d, 2011 WL 1331851 (Tex.App.-Fort Worth), the defendant was in a rollover accident, where he was given an HGN test while strapped to a backboard and arrested for DWI. He admitted that he was driving too fast and lost control. On appeal, he claimed that the officer lacked probable cause to arrest, arguing that the HGN test was invalid. On appeal, the Texas court did a "Texas two-step" around the defendant's claim:

"[T]he offense for which there is probable cause to arrest does not have to be the same offense for which the person is arrested.FN17 That is, the officer's testimony that he arrested Appellant for DWI “is inconsequential because we review whether the facts and circumstances known to the officer[ ] objectively constituted a lawful basis for [the] arrest, regardless of the officer['s] subjective understanding of the motivation or purpose of [his] actions.”

Footnote 17 stated: FN17. See Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim.App.1995) (“[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.”); Campbell v. State, 325 S.W.3d 223, 240 (Tex.App.-Fort Worth 2010, no pet.) (Dauphinot, J., concurring) (noting in DWI case that officer had probable cause to arrest Campbell for reckless driving)."

Concluding, the appeals court wrote:

"The facts known to Officer Moss at the time of Appellant's arrest gave the officer probable cause to arrest Appellant for reckless driving.FN20 Consequently, we do not address the validity of the trial court's conclusions that Officer Moss could have arrested Appellant for public intoxication or had probable cause to arrest him for DWI.FN21 Because Officer Moss had probable cause to arrest Appellant for reckless driving, we hold that the trial court did not err by denying Appellant's motion to suppress.

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DWI Appeal - Texas Rules Burden on Defense to Suppress Blood

In State of Texas v. Robinson, --- S.W.3d ----, 2011 WL 891294 (Tex.Crim.App.), the appeals court was called upon to determine who had the burden in a motion to suppress a blood test. The Defendant was arrested without a warrant for DWI and transported to a hospital, where blood was drawn. He filed a motion to suppress the results, claiming that the arrest was without a warrant and without consent. The trial court found that once there was proof that the arrest was without a warrant, then the burden of proving that the blood was drawn in conformance with the statutory provisions shifted to the State.

At the hearing, the officer testified that he could not recall whether the person who drew the blood was a nurse, chemist, or otherwise qualified under law to draw the blood sample. The trial court then suppressed the blood evidence based on the fact that “the State has not met the burden to prove that it was [a qualified person] that took it.” The State appealed, arguing that the defendant should have the initial burden of proving an actual violation, before the burden shifted to them to prove full compliance.

On appeal, the court agreed with the State. It held that the defendant has the initial burden, which shifts to the State only when the defendant has produced evidence of a statutory violation. Thus, the failure to recall who drew the blood, rather than proof that the person who drew the blood was not qualified, was insufficient to grant the motion to suppress.

NOTE: Oddly, this ruling is inapposite to the proof necessary at trial. At trial the state would have to prove actual compliance, and the lack of recall would be insufficient to admit the result. It seems like this ruling in essence would discourage a defendant from filing a pre-trial motion, knowing that doing so would transpose the burdens. The Dissenting opinion also suggests that the ruling was incorrect for the same reasons.


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DUI Appeal - Texas DWI Law Bars Refusal Instruction

In Huckabay v. Texas, Not Reported in S.W.3d, 2011 WL 915083 (Tex.App.-Beaumont), the defendant alleged that the trial court committed reversible error by instructing the jury that it could consider his breath and blood test refusals as evidence. The Texas court started out by stating that evidence of a defendant's refusal to submit is admissible:

"[T]he jury in this case could have inferred from Huckabay's refusal to take a breath or blood test that Huckabay believed he was intoxicated. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App.1988) (noting that “it was not improper to simply argue that appellant refused [testing] because he was intoxicated”); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (finding that a jury may consider refusal to provide breath or blood samples as evidence of guilt); see also Tex. Transp. Code Ann. § 724.061 (West 1999) (“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.”)."

Having acknowledged that the evidence of the refusal was admissible, the defendant still argued that a jury instruction regarding the refusal was still an illegal highlighting of the evidence. The appeals court agreed:

A person's refusal to take a breath or blood test may be introduced into evidence at the person's trial. Tex. Transp. Code Ann. § 724.061. However, “a jury instruction informing the jury that it may consider evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of the evidence.” Bartlett v. State, 270 S.W.3d 147, 154 (Tex.Crim.App.2008); FN1 see Hess v. State, 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). While the instruction given to the jury did not misstate the law in this case, trial courts are not authorized to highlight the defendant's refusal to submit to alcohol testing from the other evidence in the case by instructing the jury to consider the refusal as evidence. Hess, 224 S.W.3d at 515. “By singling out that evidence, the trial court violate[s] Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and commit[s] a jury-charge error.” Bartlett, 270 S.W.3d at 154.; see Tex.Code Crim. Proc. Ann. § 36.14 (West 2007) (specifying that the judge shall not express any opinion as to the weight of the evidence in the charge of court), § 38.04 (West 1979) (specifying that the jury is the exclusive judge of the facts proved except where the law directs that a certain degree of weight is to be attached to a certain species of evidence), § 38.05 (West 1979) (recognizing that the judge shall not comment upon the weight of the evidence or make any remark calculated to convey to the jury his opinion of the case).

Even though the introduction of a jury instruction regarding the refusal was an illegal highlighting of the evidence, and an error, the appeals court nevertheless found the error harmless and affirmed the conviction. It found that the following conduct by the State in their closing arguments did not overly emphasize the erroneous instruction:

In the State's closing argument, the prosecutor briefly reviewed each paragraph of the charge with the jury. With respect to paragraph three, which is the paragraph containing the instruction about Huckabay's refusal to test, the prosecutor read the instruction and then said: “That's here in your charge.” The prosecutor later argued that a finding of not guilty would reward drivers who drank and then refused to be tested, and that Huckabay refused to be tested because he knew he would not pass the tests. Finally, the prosecutor asked the jury not to award Huckabay for hiding the evidence by refusing to submit to the tests. However, the prosecutor did not mention paragraph three of the charge during this portion of the closing argument. In summary, the prosecutor referred to the trial court's instruction only once during closing argument. We conclude the record demonstrates that the prosecutor did not emphasize the court's instruction, focus the jury on the court's instruction, or exploit the instruction by placing the weight of the trial court behind it.


NOTE: The use of a pre-trial motion in limine, with supporting caselaw, to prevent this instruction from ever becoming an issue, would have been a helpful tactic. of course, it is also possible that defense counsel did so in this case and that the trial judge still committed error.


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DUI Appeal - Texas DWI Failure to Signal Lane Change

In Brown v. State of Texas, Not Reported in S.W.3d, 2011 WL 915087 (Tex.App.-Beaumont) the defendant was stopped after entering a right-hand turn only lane, and then changing his mind and re-entering a through lane without signaling. On appeal, the issue was whether the failure to signal the movement was illegal. The Texas vehicle code states that “[a]n operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.” Brown argued that no signal was required when he moved from the right-turn-only lane back to the left lane on his side of the road. Brown relied on Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010) and Trahan v. State, 16 S.W.3d 146 (Tex. App .-Beaumont 2000, no pet.). In Trahan, the driver failed to signal his exit from the freeway. The Court concluded there was no evidence that Trahan ‘ “turned” ‘ or changed lanes in order to exit the freeway, and there was no basis for the traffic stop. In Mahaffey, two lanes on Mahaffey's side of the road merged into a single lane. A sign on the road said ‘ “Lane Ends-Merge Left[.]” ‘The officer stopped Mahaffey for failing to signal when he merged into the single lane. Id. The Court found there was no “turn” and Mahaffey was “simply following the ‘direct course’ of the road and of the traffic on that winding road.”

The appeals court herein found that the stop was proper, and the failure to use a signal was illegal. "Without a signal, Brown then crossed the solid white line between the two lanes and made a lane change from the right-turn-only lane back into the left lane." Hence, the movement constituted a 'change of lanes' that in the court's opinion required use of a turn signal.

Although this defendant lost, the case itself contained helpful precedent for defense counsel.


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