Appeal from the County Court Chambers County, Texas Trial
Court Cause No. 30348
consists of Chief Justice Frost and Justices Brown and
convicted appellant Craig Allen Neale of boating while
intoxicated. In four issues, appellant asserts the trial
court erred by: (1) denying his motion to suppress evidence
based on an allegedly illegal stop; (2) admitting testimony
concerning a horizontal gaze nystagmus test; (3) admitting
retrograde extrapolation testimony; and (4) admitting
appellant's blood test results. The State concedes error
as to the third and fourth issues, and the parties have filed
a joint motion to reverse and remand this case. However, our
review of the record reveals no reversible error.
Accordingly, we deny the parties' joint motion to reverse
and remand, and we affirm appellant's conviction.
early morning hours of September 15, 2013, on the Trinity
River near Anahuac, Texas, Parks & Wildlife Warden
Patricia Vannoy saw a boat approaching her marked patrol
vessel at a "fairly high rate of speed" as she
conducted a water safety check on another boat. Concerned
that the approaching boater had not seen her patrol vessel or
the boat on which she was performing the safety check, Vannoy
made a brief "sweeping motion" with her flashlight
towards the other vessel. Vannoy's boat was a marked
patrol vessel and was lit with navigation lights.
Vannoy's boat also was equipped with flashing blue police
lights, but they were not activated. After Vannoy shone her
flashlight at the oncoming boat, she continued with her water
safety inspection. Unbeknownst to Vannoy, appellant, who was
operating the oncoming boat, decelerated and approached her
patrol boat. Vannoy completed the safety inspection and
noticed appellant's boat drifting nearby. She decided to
perform a water safety inspection on appellant's boat and
approached. She introduced herself to appellant as a game
warden and performed a water safety inspection.
Vannoy was performing her inspection, she detected a
"strong smell of alcohol" emanating from appellant.
She asked appellant if he had been drinking, and he responded
that he consumed about five beers earlier in the evening. At
that point, her focus shifted from water safety to a boating
while intoxicated ("BWI")
investigation. She asked appellant to put on a life
preserver and remove a pocketknife. As he attempted to
comply, appellant stumbled over an anchor and tried to put on
the life preserver inside-out. Vannoy instructed appellant to
turn the life preserver around and fasten it correctly; then
she asked him to step onto her vessel.
Vannoy's request, appellant performed several
"afloat" field sobriety tests; based on
Vannoy's training and experience, appellant's
performance indicated possible intoxication. Vannoy then
conducted four standardized seated field sobriety tests,
including the horizontal gaze nystagmus ("HGN")
test, the finger-to-nose test, the palm pat test, and the
hand coordination test. While performing these tests,
appellant exhibited numerous signs of intoxication. Based on
her investigation, Vannoy arrested appellant for BWI. She
asked appellant to provide a breath or blood sample, and
appellant agreed. After they returned to shore, Vannoy
transported appellant to a nearby hospital where a medical
technician took a sample of appellant's blood. Vannoy
took the blood kit home with her and placed it in her
refrigerator for safekeeping before mailing it to the
Department of Public Safety ("DPS") crime lab for
appellant's trial,  Vannoy testified regarding her
interactions with appellant. Vannoy opined that, based on her
training and experience, appellant was intoxicated. The State
presented a videotape of Vannoy's BWI investigation.
Hospital technician Lee Sampson described the blood draw
procedures used to draw appellant's blood. DPS forensic
scientist Brian Nacu, who analyzed appellant's blood,
testified that appellant's blood alcohol concentration
was 0.169 grams of alcohol per 100 milliliters of blood,
which is above the legal limit of 0.08. Nacu also
testified regarding the average elimination rate of alcohol
and extrapolated that appellant's blood alcohol
concentration at the time of appellant's arrest was
likely "at least a .19."
hearing the evidence, a jury found appellant guilty of Class
B misdemeanor BWI. The trial court assessed punishment at 180
days' confinement, suspended imposition of the sentence,
placed appellant on community supervision for 18 months, and
assessed a $1, 000 fine. This appeal timely followed.
Motion to Suppress
first issue, appellant challenges the trial court's
denial of his motion to suppress evidence. Specifically, he
asserts that the trial court erred in denying his motion to
suppress evidence of his intoxication because the game warden
did not decide to perform a water safety check on
appellant's boat until after she had seized the boat.
According to appellant, a seizure unsupported by reasonable
suspicion occurred at the moment Vannoy shone her flashlight
in appellant's direction. Therefore, appellant contends,
the stop was illegal and all intoxication evidence adduced
after the inception of the seizure should have been excluded.
Standard of Review and Governing Law
defendant asserting a motion to suppress bears the initial
burden of producing evidence that rebuts the presumption of
proper police conduct. Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005) (citing Russell v.
State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986)). A
defendant can satisfy this burden by establishing that a
search or seizure occurred without a warrant. See
id. (citing Bishop v. State, 85 S.W.3d 819, 822
(Tex. Crim. App. 2002)). The burden then shifts to the State
to establish that the warrantless search or seizure was
review the trial court's ruling on a motion to suppress
under an abuse of discretion standard. Swain v.
State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005);
Thomas v. State, 297 S.W.3d 458, 460 (Tex.
App.-Houston [14th Dist.] 2009, pet. ref'd). We give
almost total deference to the trial court's determination
of historical facts but review de novo the trial court's
application of the law to those facts. State v.
Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000);
Thomas, 297 S.W.3d at 460. When the trial court does
not make explicit findings of fact, we infer the necessary
factual findings that support the trial court's ruling if
the record evidence supports these implied fact findings.
State v. Garcia-Cantu, 253 S.W.3d 236, 245 (Tex.
Crim. App. 2008); Ross, 32 S.W.3d at 855. The party
that prevailed in the trial court is afforded the strongest
legitimate view of the evidence and all reasonable inferences
that may be drawn from that evidence. Garcia-Cantu,
253 S.W.3d at 241.
are three distinct categories of interactions between peace
officers and citizens: (1) consensual encounters, (2)
investigative detentions, and (3) arrests. See Crain v.
State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). A
consensual encounter does not constitute a seizure and does
not implicate the Fourth Amendment. Id. A peace
officer is always free to approach citizens and ask for
information or their cooperation. Garcia-Cantu, 253
S.W.3d at 243. An investigative detention, however, triggers
the Fourth Amendment's protections against unreasonable
searches and seizures and therefore must be of limited scope
and duration and supported by a reasonable suspicion of
criminal activity. See Johnson v. State, 414 S.W.3d
184, 191-92 (Tex. Crim. App. 2013). An investigative
detention occurs when a person surrenders to a police
officer's show of authority, coupled with the
person's reasonable belief that he is not free to leave.
Crain, 315 S.W.3d at 49. Appellant's first issue
turns on whether a given set of historical facts amounts to a
consensual police-citizen encounter or a detention under the
Fourth Amendment, which is a legal question we review de
novo. Garcia-Cantu, 253 S.W.3d at 241. With this
framework in mind, we turn to appellant's assertions.
contends that Vannoy made a "show of authority"-by
shining her flashlight at his boat-to which he
"submitted, " thus establishing that Vannoy's
initial contact with appellant was a detention for Fourth
Amendment purposes. We disagree for the following reasons.
an interaction between a peace officer and a citizen amounts
to a "detention" or "seizure" depends on
specific facts as to the manner of the encounter, the degree
of authority displayed, and all other circumstances
surrounding the incident. Cf. id. at 244. Instances
when a citizen's interaction with police amounts to a
seizure, as opposed to a consensual encounter, include those
attended by the threatening presence of several officers, the
officer's display of a weapon, physical touching of the
citizen by the officer, the officer's words or tone of
voice indicating that compliance with the officer's
request might be compelled, or the officer's use of
flashing lights or blocking a suspect's vehicle. Cf.,
e.g., United States v. Mendenhall, 446 U.S.
544, 554 (1980); Garcia-Cantu, 253 S.W.3d at 243.
Absent this type of evidence, otherwise inoffensive conduct
between a citizen and a police officer cannot, as a matter of
law, amount to a seizure of that person. Mendenhall,
446 U.S. at 555.
evaluating whether Vannoy's use of her flashlight on this
occasion constituted a detention, we look first to precedent
from the Texas Court of Criminal Appeals, which has examined
whether officers' use of spotlights implicate the Fourth
Amendment. In Garcia-Cantu, for example, the court
distinguished the use of a patrol car spotlight from use of
its flashing emergency lights. Garcia-Cantu, 253
S.W.3d at 245; see also Crain, 315 S.W.3d at 50.
Considering numerous cases throughout the nation, the court
noted that, while emergency lights are often involved in
detention scenarios, spotlight use is often classified as
necessary during police-citizen encounters; thus, its use
will not necessarily convert a voluntary encounter into an
investigative detention. Garcia-Cantu, 253 S.W.3d at
245; see also Crain, 315 S.W.3d at 50. Instead,
courts must evaluate the specific facts of each situation,
including the degree of authority displayed.
Garcia-Cantu, 253 S.W.3d at 244. Intermediate
appellate courts in this state similarly have rejected the
mere use of overhead spotlights as triggering Fourth
Amendment protections. Franks v. State, 241 S.W.3d
135, 142 (Tex. App.-Austin 2007, pet. ref'd) ("Use
of the patrol car's overhead lights in an area that
appeared dark and unoccupied except for a single car does not
necessarily constitute a detention."); Martin v.
State, 104 S.W.3d 298, 301 (Tex. App.-El Paso 2003, no
pet.) (concluding that officer's use of overhead lights
did not necessarily cause encounter to become detention).
present case, it is undisputed that appellant was
approximately one hundred yards from Vannoy's boat at the
time she initially flashed her light in appellant's
direction. Vannoy testified that, in shining her flashlight
at appellant's boat, she simply was letting appellant
know that she was on the river for safety's sake. The
blue "takedown" lights on Vannoy's patrol boat
were not activated, nor is there any indication that Vannoy
directed her patrol boat's spotlights towards
appellant's boat before appellant approached her. Vannoy
did not attempt to call out verbally to appellant, nor did
she terminate the water safety inspection she was performing
to approach appellant's boat. Further, the record does
not indicate that any additional officers were nearby when
Vannoy first flashed her light in appellant's direction.
The trial court, as the finder of fact, was free to believe
Vannoy's testimony that her use of the flashlight on the
night in question was not a show of authority and was instead
an effort on Vannoy's part to warn ...