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Ashby v. State

Court of Appeals of Texas, First District

May 23, 2017

DAVID ROWE ASHBY, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 6 Harris County, Texas Trial Court Case No. 1864067.

          Panel consists of Justices Jennings, Massengale, and Huddle.

          OPINION

          Rebeca Huddle Justice

         Appellant David Rowe Ashby was charged by information with and, during a jury trial, pleaded guilty to the misdemeanor offense of driving while intoxicated. There was no plea bargain or punishment recommendation by the State. The trial judge released the jury and sentenced Ashby to 180 days' confinement, probated for one year, and a $1, 000 fine. In two issues, Ashby contends that the trial court erred in (1) denying his motion to suppress the traffic stop and (2) admitting expert testimony regarding the presence of a controlled substance in Ashby's blood. We affirm.

         Background

         The State introduced testimony at trial from the arresting officer, Deputy T. Gossett. At approximately 7:40 a.m., the Toll Road Dispatch received a call reporting that a black SUV traveling northbound struck a wall while crossing the toll bridge over the Ship Channel and continued driving. Deputy Gossett was already at a nearby toll plaza. According to Deputy Gossett, dispatch informed him that the vehicle had stopped at the toll plaza, and at that point, he observed a black SUV leaving the toll plaza. Deputy Gossett began following the black SUV-Ashby's SUV-with his dash cam recording. Gossett testified that he observed the vehicle weaving within the lanes, crossing the shoulder line, and nearly striking a concrete barrier.

         Deputy Gossett initiated a traffic stop, and the driver identified himself as David Ashby. Deputy Gossett testified that Ashby wore a soiled gray sweater, and Gossett believed the sweater was likely soiled by vomit. Deputy Gossett testified that he believed he smelled an odor of alcohol on Ashby. He noted that Ashby's eyes appeared glassy. As Ashby tried to get his driver's license out of his wallet, Deputy Gossett noted that Ashby's movements were slow and deliberate. Suspecting that Ashby was intoxicated, Deputy Gossett asked him to step out of the vehicle. In response to Deputy Gossett's questioning, Ashby explained that he had not eaten since the previous day and had been awake all night. Ashby denied drinking alcohol prior to driving, and Deputy Gossett did not find any alcoholic containers in Ashby's vehicle.

         Deputy Gossett proceeded to administer three standardized field sobriety tests: Horizontal Gaze Nystagmus ("HGN"), Walk and Turn, and One-Legged Stand. Deputy Gossett explained at trial that in administering the HGN test, he looks for a jerking motion of the eye, which, if present, indicates the presence of "a central nervous system depressant-type drug, alcohol, or brain stem injury." Deputy Gossett repeatedly attempted to administer the HGN test, but was unable to complete the test because Ashby was unable to focus on the focal stimulus. Overall, he noted that Ashby was unsteady and appeared to sway during the HGN test.

         Next, Deputy Gossett administered the Walk and Turn and One-Legged Stand tests. Both tests are "divided attention tests, " meaning that they are designed to test whether an individual is capable of physically performing an action while also having to think about it. Deputy Gossett testified that Ashby performed poorly on the Walk and Turn test and was unable to follow the instructions-he failed to respond to instructions to walk or stop walking and to put his arms by his side.

         Deputy Gossett testified that, before administering the One-Legged Stand test, he both provided instructions and demonstrated the test. He explained at trial that he looks for four clues during the One-Legged Stand test: returning a foot to the ground; swaying; using arms for balance; and hopping to maintain balance. Deputy Gossett testified that he observed three clues as Ashby attempted the test: returning a foot to the ground, swaying, and using arms for balance.

         Deputy Gossett acknowledged that sleep deprivation could affect an individual's performance on each of these tests and that the tests were not administered on a flat surface, which is ideal. Nevertheless, based on Ashby's slow, deliberate movements, his poor performance on the field sobriety tests, and his inability to follow instructions, Deputy Gossett determined that Ashby did not have his normal mental and physical faculties, and he placed Ashby under arrest for driving while intoxicated. Deputy Gossett testified that he suspected Ashby was intoxicated due to alcohol consumption.

         Deputy Gossett asked Ashby to submit to a blood sample, and Ashby agreed. A voluntary blood sample was collected at Bayshore Medical Center, and Deputy Gossett personally delivered the blood sample to the Medical Examiner's Office. Analysis of the blood sample showed the presence of Trifluoromethylphenylpiperazine ("TFMPP"), a controlled substance. Tex. Health & Safety Code § 481.103(a)(1).

         Ashby objected to the admission of the State's blood analysis. The trial court proceeded to hold a gatekeeper hearing outside the presence of the jury, determined that the State's blood analysis evidence was admissible, and ultimately denied Ashby's objection. Following that ruling and without an agreement as to punishment, Ashby changed his plea to guilty, the jury was excused, and the trial court sentenced Ashby to 180 days in the Harris County Jail, probated for one year's probation, and assessed a $1, 000 fine.[1]

         Reasonable Suspicion

         In his first issue, Ashby contends that the trial court erred in denying his motion to suppress evidence resulting from the traffic stop. Ashby argues that the stop was not supported by reasonable suspicion because Deputy Gossett never observed Ashby commit a traffic violation and the anonymous call to dispatch was not sufficiently corroborated to justify the stop.

         A. Standard of Review

         In reviewing a trial court's ruling on a motion to suppress, we use a bifurcated standard of review to evaluate the totality of the circumstances and determine whether reasonable suspicion exists. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). First, we must give "almost total deference to a trial court's determination of the historical facts that the record supports, " and second, we review de novo the trial court's application of the law to facts, which do not turn on credibility and demeanor. Id. (citations omitted).

         B. Applicable Law

         If supported by reasonable suspicion, an officer may make a warrantless traffic stop. Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). Reasonable suspicion exists if the officer has "specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity." Abney, 394 S.W.3d at 548 (quoting Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). "The State does not have to establish with absolute certainty that ...


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