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Foster v. State

Court of Appeals of Texas, Sixth District, Texarkana

June 27, 2017

ROBERT RITER FOSTER, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: April 26, 2017

         On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 45, 550-A

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice

         After the trial court denied Robert Riter Foster's motion to suppress the fruits of a search warrant, Foster entered a plea of guilty to the offense of possession of a controlled substance in an amount more than one gram but less than four grams, this having been the subject of a plea agreement. Pursuant to that plea agreement, the trial court deferred a finding of guilt, and placed Foster on deferred adjudication community supervision for ten years.[1] In his sole issue on appeal, Foster contends that the trial court erroneously denied his motion to suppress the evidence obtained pursuant to a search warrant. We affirm the trial court's judgment.

         I. Background

         The trial court held two hearings on Foster's motion to suppress, where the following facts were established. On February 24, 2015, Gina Villarreal, a detective with the Longview Police Department, was on patrol in mid-afternoon when she observed a tan truck that appeared to be stuck in the median of a busy, four-lane highway. According to Villarreal, the weather had been inclement for several days, and the streets were icy. Villarreal stated that the median was "just mushy dirt and grass, " and the tires on the truck were spinning in an attempt "to get unstuck." Villarreal exited her vehicle and asked if the driver, Foster (who correctly identified himself to Villareal as an attorney and former district attorney), was in need of assistance. Foster informed Villarreal "that they were fixing to get unstuck, " but after a few more unsuccessful attempts to do so, Foster exited the truck. When Villarreal asked Foster to provide her with his driver's license, Foster gave her a credit card and, in the process, dropped other credit cards. Foster then began searching for his driver's license inside his vehicle while Villarreal attempted to contact a wrecker service.

         Villarreal stated that Foster seemed to be unsteady on his feet and that she was having difficulty understanding what Foster was saying. Villarreal stated that she noticed a glass in Foster's hand and that when she moved closer to him, she could smell the odor of alcohol. Considering that Foster had a glass containing what Villarreal believed to be an alcoholic beverage and that Foster stumbled when he exited his truck, Villarreal contacted dispatch and asked for assistance at the scene. While waiting for assistance, Villarreal asked Foster where he had been and his intended destination. Foster responded that he had been at his residence and that he was traveling to the Hampton Inn.

         Shortly afterward, Longview police officers Turner and Bray[2] arrived at the scene, whereupon Villarreal made an effort to begin the process of conducting field sobriety tests on Foster. The dash cam video recording of the incident shows that after Villarreal informed Foster that she would be administering the sobriety tests, Foster asked Villarreal, "I don't suppose you have a lighter, do you?" Villarreal informed Foster that he could not smoke during the testing, to which Foster replied, "Oh, I can't?" Villarreal then proceeded to give Foster instructions regarding the Horizontal Gaze Nystagmus (HGN) Test. Villarreal stated that Foster was unable to comply with many of her instructions regarding the HGN Test. Villarreal testified that she noted four out of six clues, which were the lack of smooth pursuit in both eyes and distinct and sustained nystagmus at maximum deviation in both eyes.[3] Next, Villarreal instructed Foster to perform the "walk and turn" test. According to Villarreal, Foster showed eight out of eight clues indicating intoxication. Villarreal asked Foster to perform the one leg stand, which resulted in Foster exhibiting four out of four clues of intoxication. Foster also failed the heel-to-toe walking test. The next test Foster attempted (but failed to perform satisfactorily) was the finger count test. Villarreal also asked Foster to recite the alphabet, which Foster successfully did.

         Several times during the field sobriety testing, Foster told Villarreal that he suffered from Parkinson's disease and that he was unable to perform the sobriety tests in a successful manner due to the effects of the disease.[4] According to Villarreal, Foster informed her that "[h]e had taken a handful of medications but did not know which ones." Foster also asked Villarreal if he could retrieve his medication from his vehicle, presumably in an attempt to substantiate his assertion that he suffered from Parkinson's disease. In addition, Foster explained to the officers during the testing, "I feel like I'm drunk, but I'm not."

         After concluding the testing, Villarreal contacted her supervisor, explaining that Foster had failed the majority of the sobriety tests and that Foster had informed her that he suffered from Parkinson's disease. Turner's supervisor explained to Villarreal that if Foster failed the sobriety tests and showed clues during the HGN test, she should proceed with a driving while intoxicated (DWI) arrest. When Villarreal informed Turner of her supervisor's advice, Turner stated, "Here's the deal. From what we're seeing, you don't need to be driving. So that's intoxicated. Whether it's medical, alcohol, or whatever, he's in a state that he doesn't need to be driving." Turner continued, "As far as I'm concerned, that's intoxication." Shortly thereafter, Villarreal placed Foster under arrest for the offense of DWI.

         The trial court also admitted the offense report of the incident, which was written by Turner. According to Turner, after Foster was placed under arrest, he conducted a search of Foster's person. Pursuant to the search, Turner located a cell phone and cash that appeared to be covered in a white, powdery substance. Turner also found a small plastic bag containing a white, powdery substance and a "rolled up bill, " which was also covered in the same thing. Based on his training and experience, Turner believed the white, powdery substance was cocaine. Turner placed Foster in the back of his patrol vehicle, and then obtained a small sample of the substance from the baggy for use in a field test. The test indicated that the substance was, in fact, cocaine. Turner subsequently conducted an inventory of Foster's vehicle and found an empty beer can on the driver's side floorboard of the vehicle. He also found an empty beer bottle in the backseat floorboard and a firearm in the center console of the vehicle. After completing the inventory search, Turner obtained a search warrant for the purpose of obtaining a blood specimen from Foster. Shortly thereafter, Foster's blood was drawn in accord with the warrant.[5] Foster was then transported to the Gregg County Jail, where he was booked for the offenses of DWI, possession of a controlled substance of more than four grams but less than twenty grams, and unlawfully carrying a weapon.

         Prior to trial, Foster filed a motion to suppress arguing that there was no probable cause to arrest him for the charge of DWI and that any evidence seized as a result of the search of his person or vehicle following his warrantless arrest was illegally obtained. Specifically, Foster argued that Villarreal was aware he suffered from Parkinson's disease, that having Parkinson's disease explained his poor performance on the field sobriety tests, and that without considering the results of the sobriety tests, there was insufficient evidence to support a finding that Foster was intoxicated.[6] After two hearings on the matter, the trial court concluded, among other things, that (1) "there [was] insufficient evidence to find probable cause for [Foster]'s warrantless arrest solely based upon alcohol induced loss of normal use of faculties, " and (2) "there [was] sufficient evidence to find probable cause on non-alcohol statutory grounds to sustain [Foster's] warrantless arrest."[7]

         In his sole point of error on appeal, Foster contends the trial court's order denying his motion to suppress was reversible error. In other words, Foster maintains that his arrest was made solely on the assumption that he was intoxicated by liquor and that his symptoms of intoxication may have been caused by Parkinson's disease. Because the officer's belief of Foster's alcohol intoxication was not proven, Foster maintains that the arrest itself was erroneous and that any fruits obtained from a subsequent search of his vehicle should have been suppressed. Foster asks this Court to vacate the ...


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