William Jeffery Wigington v. State

11th Court of Appeals Eastland, Texas Opinion William Jeffery Wigington Appellant Vs. No. 11-04-00030-CR -- Appeal from Midland County State of Texas Appellee After the trial court overruled his motion to suppress evidence, William Jeffery Wigington made a plea agreement with the State which was approved by the trial court and which preserved his right to appeal the ruling on his motion to suppress evidence. Appellant waived his right to trial by jury and entered a plea of guilty to the indictment which charged him with operating a motor vehicle while intoxicated on August 5, 2003, after prior convictions of operating a motor vehicle while intoxicated in 1987 and in 1993. After discussing the agreement with appellant and his lawyer in open court, the trial court found that appellant was guilty of the felony offense of driving while intoxicated and assessed his punishment at confinement for 10 years and a fine of $1,000. The trial court then suspended the period of confinement and placed appellant on community supervision for a period of 5 years.[1] We affirm. Issue Presented for Review The issue is whether the trial court erred in overruling appellant=s motion to suppress evidence. Appellant argues in his brief that the police report shows that his vehicle was legally parked on the shoulder of Interstate Highway 20 at 11:59 a.m. and that the facts did not support the Acommunity caretaking doctrine@ exception for warrantless arrests. Background Facts During the hearing on the motion to suppress evidence, the prosecuting attorney told the trial court that he and appellant=s attorney had agreed that the trial court could review the videotape in this case and Abase its decision on the trooper=s report, the video, and the arguments of counsel.@ Appellant=s attorney said that this was correct and that he and his client did not object to the court viewing the videotape and the police report. The typewritten copy of the offense report shows the date of the offense as A8-5-03@ and the time of the offense as A11:59 AM.@ (Emphasis added) The date and time notations on the videotape show that the trooper turned on his video machine at A23:55:29@ on A08-05-03@ and that the last time notation on the videotape was at A00:05:44@ on A08-06-03.@ The videotape shows that it was dark, and it seems clear that the interactions between the trooper and appellant started just before midnight. The videotape also shows that appellant=s car was parked on the shoulder which was adjacent to the two lanes of traffic on his side of the interstate highway. The offense report reads in relevant part as shown: 1. I was on patrol in Midland County on IH-20 near mile post 147. I was returning from Stanton, TX after assisting Texas Rangers on a traffic stop. 2. Lieutenant Chris Cherry, with the Midland Police Department, was in my patrol vehicle with me. 3. I was going back to Midland to drop Lt. Cherry off at his vehicle when I observed a vehicle parked on the shoulder of IH-20 near mile post 147. 4. As I drove by the vehicle I observed that the driver side door was open and that a male subject was leaned over talking to the driver. 5. I turned around and pulled in behind the vehicle, a silver 2004 Nissan TX l.p. T61-YGF, to see if the[y] were having vehicle trouble. As I walked up to the vehicle it drove forward a few feet and came to a sudden stop. 6. I approached the driver side door and observed two males in the vehicle. I asked if they were ok and they stated that they had a low tire that they were checking on. While speaking to them I could smell a strong odor of an alcoholic beverage coming from within the vehicle. 7. I asked the driver, later identified by TX driver license #09150295 as William Wigington, if he had been drinking and he replied that both of them had. I then asked Mr. Wigington to step out of the vehicle. 8. Mr. Wigington sat in the vehicle and did not respond to my request. He sat in the car and talked to the passenger so I as[k] him to put the car in park and step out. The passenger stepped out after being told to stay in the vehicle and was later arrested for public intoxication. 9. Mr. Wigington got out of his car as Lt. Cherry and I were arresting the passenger. I had him stay at the rear of his car while I dealt with the passenger. 10. When I went back to speak to Mr. Wigington he asked if he could make a plea to me. He told me that his job counted on all this. While I spoke to him I could smell a strong odor of an alcoholic beverage coming from his breath as he spoke. His speech was also very slurred as he spoke. (Emphasis added) The offense report which was prepared by Trooper Phillip Breeding of the Texas Department of Public Safety also described the Horizontal Gaze Nystagmus Test which he administered and shows that it was the opinion of Trooper Breeding that appellant was intoxicated. The report shows that appellant was placed under arrest for driving while intoxicated. Appellant was handcuffed, and he stayed at the scene until the arrival of a wrecker to impound his vehicle. Appellant was put in the front seat of the patrol unit after he almost fell while standing. Community Caretaking Doctrine Appellant discusses the Acommunity caretaking doctrine,@ citing Cady v. Dombrowski, 413 U.S. 433 (1973); Corbin v. State, 85 S.W.3d 272 (Tex.Cr.App.2002); and Wright v. State, 7 S.W.3d 148 (Tex.Cr.App.1999). Appellant argues that the facts of this case would not permit a law enforcement officer to stop and investigate an individual who was not in need of assistance. Appellant argues that his Avehicle was parked legally on the shoulder of the roadway@ and that it was Aclear from the Trooper=s report it was daytime.@ However, the videotape clearly shows that the incident began just before midnight and that appellant=s vehicle was on the shoulder of an interstate highway. The facts which were considered by the trial court show that the trooper did not stop appellant=s car. The trooper pulled up behind the car which was already stopped. Then appellant drove forward and stopped again. At that time, the trooper conducted his investigation. Opinion We review a ruling on a motion to suppress evidence with a bifurcated standard of review. We give almost total deference to the trial court=s express or implied findings of historical facts. We review Ade novo@ the application of the law to those facts. See, e.g., State v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App.2000). The law of search and seizure[2] involving police-civilian interactions can be divided into three categories: (1) encounters, (2) temporary detentions, and (3) arrests. See Florida v. Royer, 460 U.S. 491, 497 (1983). In an encounter, police are not required to possess any particular level of suspicion because there has been no intrusion on the suspect=s liberty. See United States v. Mendenhall, 446 U.S. 544, 555 (1980). An encounter becomes a detention if the police officer=s words or conduct would cause a reasonable person to believe that he is not free to deny the officer=s requests or to believe that he is not free to terminate the encounter. See State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Cr.App. 1999). An investigative detention is permitted when it is supported by reasonable suspicion. Citizen v. State, 39 S.W.3d 367, 370 (Tex.App. - Houston [1st Dist] 2001, no pet=n). Reasonable suspicion is evaluated in the light of all the existing circumstances; and a temporary detention is justified when the detaining officer has knowledge of specific, articulable facts, which taken with rational infer-ences from those facts, lead him to conclude that the detained person is, has been, or soon will be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968). When Trooper Breeding pulled behind appellant=s car, the police-civilian interaction fell into the first category, an encounter. When appellant started his car and moved away from the trooper=s patrol vehicle and then stopped again, the officer had the right to make a temporary detention. During that detention, the officer smelled the alcohol; and appellant said that he and his passenger had been drinking. The officer then had probable cause for the warrantless arrest. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997), where the court said: We hold that the reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Appellant=s points of error are overruled. The historical facts support the trial court=s implied finding that the trooper=s first interaction with appellant was a permissible encounter while he was checking on a vehicle which was parked close to the traffic lanes of an interstate highway near midnight; that, after the vehicle drove forward a few feet and came to a sudden stop, those facts would justify a temporary investigative detention; and that, during that investigation, the trooper smelled the strong odor of an alcoholic beverage and appellant said that he and his passenger had been drinking. The cases which have been cited by appellant in support of his appeal are factually distinguishable. See and compare Eichler v. State, 117 S.W.3d 897 (Tex.App. - Houston [14th Dist.] 2003, no pet=n); Andrews v. State, 79 S.W.3d 649 (Tex.App. - Waco 2002, pet=n ref=d); State v. Boyle, 807 A.2d 1234 (N.H. 2002); State v. Burgess, 657 A.2d 202 (Vt. 1995); Barrett v. Commonwealth of Virginia, 462 S.E.2d 109 (Va. 1995); see also and compare Wiede v. State, 157 S.W.3d 87 (Tex.App. - Austin 2005, pet=n filed); Chilman v. State, 22 S.W.3d 50 (Tex.App. - Houston [14th Dist.] 2000, pet=n ref=d). All three of appellant=s points of error are overruled. This Court=s Ruling The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE September 15, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Wright, J., and McCall, J., and Dickenson, J.[3] [1]The order of community supervision required appellant to pay the fine and to serve 10 days in jail; it also provided that his driver=s license would be suspended for 365 days. [2]See U.S. CONST. amend. IV & TEX. CONST. art. 1, ' 9. [3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.