GINGER RENEA WALLER, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-09-00097-CR

Case Date: 12/09/2009

Plaintiff: GINGER RENEA WALLER, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:GINGER RENEA WALLER, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND and Opinion Filed December 9, 2009

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-09-00097-CR ............................ GINGER RENEA WALLER, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the County Court at Law No. 2 Grayson County, Texas Trial Court Cause No. 2007-2-1358 ............................................................. MEMORANDUM OPINION Before Chief Justice Wright and Justices FitzGerald and Murphy Opinion By Justice Murphy Ginger Renea Waller brings three points of error in this appeal from a jury conviction for misdemeanor driving while intoxicated (DWI). In her first point, Waller asserts the traffic stop that led to her arrest was not justified and, as a result, the trial court erred in denying her motion to suppress. In her second and third points, she asserts the State's evidence concerning the intoxicant was legally and factually insufficient to support the conviction. The State did not file a responsive brief. We sustain the first point, reverse the trial court's judgment, and remand this cause for further proceedings. Background The trial was short and began with a hearing, outside the jury's presence, on the motion to suppress. Whitesboro police officer Aaron Kelly, the sole witness at the hearing, testified he was on patrol around 8:30 p.m. when dispatch advised that a concerned citizen had called to report "a possible intoxicated driver." The caller gave a description of the car-"gray passenger"-and the general location; the caller did not offer any facts or other details as to the basis for suspecting the driver was intoxicated. Although dispatch had the caller's name and telephone number, Kelly drove to the general area identified without contacting the caller to obtain more information. Moments later, he observed Waller driving a car matching the description. Waller turned into a parking lot, passed Kelly, and "attempted to get back out on the roadway going the opposite direction." Kelly did not see Waller commit any traffic violations but noticed she was driving "at an extremely slow rate of speed"-ten to fifteen miles-per-hour, which was below the posted thirty-five miles-per-hour limit. Kelly testified "it was pouring down rain" and "would be safe for people to drive slower in those kind of weather conditions," but he did not think it was necessary to drive that slow. When asked about the significance of Waller's attempt to go in the opposite direction on the roadway, Kelly testified that Waller "could have been lost, she could have been attempting to get away from [Kelly], it could have been a number of things." "Based on the totality of the circumstances"-the tip of a "possible intoxicated driver," Waller's "driving well below the posted speed limit," and Waller's "appear[ing] to possibly be avoiding [him]," Kelly conducted a stop. After Waller failed to respond to the
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flashing overhead lights, Kelly sounded his air horn approximately six times. Kelly approached Waller and noticed both rear windows were down despite the heavy rain. Kelly asked Waller for her driver's license and proof of insurance, but Waller had neither. Kelly testified Waller's speech was "extremely slurred" and her eyes appeared to be glassy. He returned to his car and learned from dispatch that Waller's license was suspended. He arrested her for "driving while license invalid." Based on the vagueness of the tip and Kelly's admission that he did not corroborate the caller's suspicion and did not personally observe any traffic violations, Waller argued Kelly lacked reasonable suspicion for the stop. The trial court denied the motion, and the trial continued. Testifying once more as the sole witness, Kelly recounted what led to the stop, what transpired during the stop, his observations of Waller, and his basis for the arrest. Kelly testified he had two years' experience at the time of the stop and was certified to administer field sobriety tests. He did not smell alcohol on Waller's breath or see any alcoholic beverages in her car, but had to assist her into his car after handcuffing her because she "was so unsteady on her feet." Kelly testified he believed Waller "was intoxicated by some drug or narcotic" but did not arrest her for DWI because he did not want to administer any field sobriety tests in the rain. Once at the jail, he attempted to administer the tests to Waller and also sought to obtain a blood and breath sample. Waller refused. Kelly believed that Waller had lost the normal use of her mental or physical faculties, but did not know what caused her condition. He also testified "that there are a lot of medical conditions that cause slurred speech and glassy eyes," and that he had no expertise in drug recognition. The jury was instructed on the legality of the stop pursuant to article 38.23 of the Texas Code of Criminal Procedure. They returned a verdict finding Waller guilty of DWI. Following evidence on punishment, the jury assessed a ninety-day sentence and a $1000 fine. Legal Sufficiency of the Evidence In reviewing a challenge to the legal sufficiency of the evidence, we apply the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) and examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2009). In conducting this review, we view all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). To establish Waller's guilt, the State had to prove beyond a reasonable doubt that Waller was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann.

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