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Neale v. State

Court of Appeals of Texas, Fourteenth District

June 1, 2017


         On Appeal from the County Court Chambers County, Texas Trial Court Cause No. 30348

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.


          Kevin Jewell, Justice

         A jury 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.


         In the 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.

         As 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.[1] 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.

         At 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 analysis.

         At appellant's trial, [2] 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.[3] 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."

         After 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.


         A. Motion to Suppress

         In his 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.

         1. Standard of Review and Governing Law

         A 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 reasonable. Id.

         We 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.

         There 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.

         2. Application

         Appellant 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.

         Whether 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.

          In 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).

         In the 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 ...

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