Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/11/2015 11:18:33 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00575-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/11/2015 11:18:33 PM CHRISTOPHER PRINE CLERK No. 01-14-00575-CR In the Court of Appeals for the First District of Texas at Houston ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ No. 1909929
In the County Criminal Court at Law No. 13, Harris County, Texas
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ VIBHA HARISH PATEL, Appellant v.
THE STATE OF TEXAS Appellee ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ APPELLANT’S BRIEF ON DIRECT APPEAL ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ P EYTON Z. P EEBLES , III C APITAINE , S HELLIST , P EEBLES & M C LISTER , LLP 405 Main Street, Suite 200 Houston, Texas 77002 Tel.: (713) 715-4500 Fax: (713) 715-4505 Email: peebles@texaslegalteam.net SBOT: 24013307 Attorney for Appellant, Vibha Harish Patel ORAL ARGUMENT REQUESTED
1 *2
IDENTITY OF PARTIES AND COUNSEL Pursuant to T EX . R. PP . P. 38.2(a)(1)(A), a complete list of the names of all interested parties is provided below:
Counsel for Appellant:
Peyton Z. Peebles, III ⎯ Appeal
Capitaine, Shellist, Peebles & McAlister, LLP 405 Main Street, Suite 200 Houston, TX 77002 Alexander Defrietas ⎯ Trial
2800 Post Oak Blvd. #4100 Houston, TX 77056 Steven D. Shellist ⎯ Trial
Capitaine, Shellist, Peebles & McAlister, LLP 405 Main Street, Suite 200 Houston, TX 77002 Appellant (Criminal Defendant):
Vibha Harish Patel
Counsel for the State:
Devon Anderson ⎯ District Attorney Alan Curry ⎯ Assistant District Attorney Kristena A. Glenn ⎯ Assistant District Attorney Kyle J. Watkins ⎯ Assistant District Attorney i
Harris County, Texas 1201 Franklin Street, Ste. 600 Houston, Texas 77002 Trial Judge:
Hon. Don Smyth ⎯ Presiding Judge Harris County Criminal Court at Law No. 13 Harris County, Texas Criminal Justice Center 1201 Franklin, 11th Floor Houston, Texas 77002 ii
STATEMENT REGARDING ORAL ARGUMENT Pursuant to T EX . R. PP . P. 9.4(g) and T EX . R. A PP . P. 39.1, appellant requests oral argument because the case presents
important issues that will affect future cases.
iii *5 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .................................... i
STATEMENT REGARDING ORAL ARGUMENT ....................... iii
INDEX OF AUTHORITIES .......................................................... v
STATEMENT OF THE CASE ...................................................... 1
STATEMENT OF FACTS ............................................................ 2
SUMMARY OF THE ARGUMENT ............................................... 7
ARGUMENT ............................................................................... 7
P OINT OF E RROR — T HE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING APPELLANT ’ S BREATH TEST RESULT (S TATE ’ S E XHIBIT 7) OVER HER OBJECTION . .............................................. 7 A. S TANDARD OF R EVIEW ....................................................... 7 B. A PPLICABLE L EGAL P RINCIPALS .......................................... 9 C. A RGUMENT —E RROR ........................................................ 10 D. A RGUMENT —H ARM ......................................................... 13
PRAYER ................................................................................... 15
CERTIFICATE OF COMPLIANCE ............................................. 16
CERTIFICATE OF SERVICE ..................................................... 17
iv *6 INDEX OF AUTHORITIES CASES
Atkinson v. State ,
923 S.W.2d 21 (Tex. Crim. App. 1996) .................................... 9 Carmouche v. State ,
10 S.W.3d 323 (Tex. Crim. App. 2000) ................................... 8 Dixon v. State ,
206 S.W.3d 587 (Tex. Crim. App. 2006) ............................ 8, 11 Morales v. State ,
32 S.W.3d 862 (Tex. Crim. App. 2000) ................................. 14 Motilla v. State ,
78 S.W.3d 352 (Tex. Crim. App. 2002) .............................. 9, 14 State v. Duran ,
396 S.W.3d 563 (Tex. Crim. App. 2013) ............................ 9, 11 State v. Story ,
445 S.W.3d 729 (Tex. Crim. App. 2014) ............................... 8, 9 Turrubiate v. State ,
399 S.W.3d 147 (Tex. Crim. App. 2013) .......................... 8, 9, 11 Valtierra v. State ,
310 S.W.3d 442 (Tex. Crim. App. 2010) ................................. 8 Worku v. State ,
No. 14-13-00047-CR, 2014 WL 1330278 (Tex. App.— Houston (14th Dist.) April 3, 2014, no pet.) .......................... 12 v
STATUTES
37 T EX . A DMIN . C ODE § 19.4(c) (2014) ........................................ 10
37 T EX . A DMIN . C ODE § 19.4(c)(1) (2014) ................................ 9, 10
T EX . C ODE C RIM . P. A NN . art. 38.23 (Vernon 2005) ...................... 7
T EX . P ENAL C ODE A NN . § 49.04 (Vernon 2011) ............................. 1
T EX . T RANS . C ODE A NN . § 724.016 (Vernon 2011) ........................ 9
RULES
T EX . R. A PP . P. 38.2(a)(1)(A) ........................................................ i
T EX . R. A PP . P. 39.1 .................................................................... iii
T EX . R. A PP . P. 44.2(b) ............................................................... 13
T EX . R. PP . P. 9.4(g) ................................................................. iii
vi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE The State charged appellant by information with driving while intoxicated in violation of T EX . P ENAL C ODE NN . §
49.04(a) and (d) (Vernon 2011) (CR at 14). [1] Appellant pled not
guilty, but a jury returned a guilty verdict (CR at 72-74; RR3 at
10). The judge then assessed her punishment at confinement
for 5 days in the Harris County Jail (CR at 73-74).
Appellant properly noticed her intent to appeal and the trial court certified her right to do so (CR at 76-78). This appeal
follows.
*9 STATEMENT OF FACTS In July, 2013, Tomball Police Department Officer Johnny Sampson answered a distress call regarding a car stranded in a
ditch (RR3 at 17-22). He arrived between 3:30 and 4:00 a.m.
and found appellant inside the vehicle (RR3 at 22-23). The
vehicle was running and its brake lights were on, suggesting
that appellant’s foot was pressing the brake pedal (RR3 at 22-
23).
Appellant was upset and said her GPS had misdirected her to turn and she followed its directions, thinking she was
turning into her driveway despite being miles from her house
(RR3 at 28-31, 45, 67). Sampson smelled alcohol; appellant said
she had consumed about two beers between 11:00 p.m. and
12:00 a.m. (RR3 at 29, 54-55). Sampson also noted that
appellant’s eyes were red, bloodshot, and glassy and that her
speech seemed slurred (RR3 at 45). Appellant performed field
sobriety tests wearing no shoes because her feet were blistered
and hurting (RR3 at 45, 62-63). She displayed 6 of 6 clues on
the HGN test, 4 of 6 clues [2] on the walk and turn test, and 3 of 4
clues on the one-leg-stand test (RR3 at 41-46, 53). Sampson
believed these clues indicated intoxication (RR3 at 41-46, 53).
He arrested appellant at around 4:20 a.m. (RR3 at 84).
Corporal Brandon Patin was supervising the Tomball patrol officers and arrived at Sampson’s scene (RR3 at 88-92). He did
a secondary HGN test on appellant and thought that appellant
smelled of alcohol and suffered slurred speech, although he
noted that she had no problem getting out of her car or
navigating the ditch in bare feet (RR3 at 107-10). Patin left to
visit another scene and then returned and took appellant to the
Tomball jail (RR3 at 92). Sampson stayed behind at the scene
for another 5-10 minutes (RR3 at 81-82).
Patin, a certified breath test operator, ultimately adminis- tered a breath test to appellant (RR3 at 95-150). He testified
that a breath test subject must be monitored for 15 minutes
leading up to the breath test to ensure that the subject does not
belch, vomit, or cough because those things could invalidate
the test (RR3 at 96-99). Thus, a breath test operator’s failure to
*11 honor the 15-minute observation period renders any breath test
invalid (RR3 at 144). Patin testified that his typical procedure is
to watch the person for 15 minutes, unlock the Intoxilyzer 5000
cabinet, verify that the Intoxilyzer sample temperature is
within tolerance, and then push the green button to activate it
(RR3 at 97-99).
Patin testified that his best estimate of the timing in appel- lant’s case is as follows:
• Patin left the scene with appellant at 4:29 a.m. accord- ing to his patrol car video (RR3 at 143-44); • Patin transported appellant to the Tomball police sta- tion, taking about 10 minutes (RR3 at 130, 140-42); • Removed appellant from his car, scanned his ID card, and entered the station with her (RR3 at 131-32, 140- 42);
• Took appellant with him to secure his gun in the gun locker before entering the jail, taking about 5 minutes (RR3 at 134, 140-42);
• Entered the jail and handcuffed appellant to a bench (RR3 at 134-35);
• Waited for Sampson to arrive, which took more than 5 minutes and probably closer to 20 minutes (RR3 at 136, 140-42);
• Walked to a different part of the jail, used the re- stroom, and returned to appellant and Sampson about 5 minutes later (RR3 at 135-36, 140-42); *12 • Upon returning, learned that Sampson had read ap- pellant her statutory warnings and she’d agreed to provide a breath sample (RR3 at 136-37); • Watched appellant for 15 minutes in accordance with Texas statutes, using a timer on his watch (RR3 at 137, 147);
• Took appellant into the Intoxilyzer room and turned on the Intoxilyzer, taking 3-4 minutes (RR3 at 140- 42); and
• Inputted appellant’s personal information, taking 5 minutes (RR3 at 142).
It took a little over an hour from the time Patin left the scene until appellant began her breath test (RR3 at 142-43).
Thus, Patin estimated that appellant would have begun her
breath test at approximately 5:29 a.m. (RR3 at 144).
Texas Department of Public Safety (“DPS”) employee Carly Davies testified that she was a technical supervisor over the
department’s breath alcohol testing program (RR3 at 154). She
confirmed that a breath test is invalid if the testing subject was
not monitored for a minimum of 15 minutes leading up to the
test (RR3 at 166). Davies testified that appellant began her
breath test at 4:57 a.m. and, therefore, Patin’s estimated
timeline is impossible (RR3 at 167-69). She also testified that it
would have been impossible for Patin to have left the scene at
4:29 a.m. and begin the 15-minute observation period at the
station at 4:42 a.m. given Patin’s recollection of the events (RR3
at 169).
The trial judge admitted appellant’s breath test results over her objection. The testing showed that appellant’s alcohol
concentration was over twice the legal limit (RR4 at 15-20; RR5
at State’s Exhibit 7).
The jury convicted appellant of driving while intoxicated, and further determined that her test result showed an alcohol
concentration of at least 0.15 grams of alcohol per 210 liters of
breath (CR at 72-74; RR4 at 83-84).
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ *14 SUMMARY OF THE ARGUMENT The trial court clearly abused its discretion in denying appellant’s motion to suppress the breath test results in her
DWI case. The evidence overwhelmingly shows that the breath
test operator failed to perform the 15-minute observation
period required by DPS and the Texas Administrative Code,
yielding the resulting test inadmissible at appellant’s trial.
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
ARGUMENT
P OINT OF E RROR — T HE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING APPELLANT ’ S BREATH TEST RESULT (S TATE ’ S E XHIBIT 7) OVER HER OBJECTION .
Appellant challenges the trial court’s decision to admit her breath test result over her objection that the government
violated the 15-minute observation requirement.
A. S TANDARD OF R EVIEW
Any evidence obtained in violation of the law must be sup- pressed, i.e. excluded, from a criminal trial. T EX . C ODE C RIM . P. NN . art. 38.23 (Vernon 2005). The trial judge, as evidentiary
gatekeeper, has the duty to determine whether evidence was
legally obtained, which includes the duty to make credibility
determinations on factual issues relevant to its decision.
Appellate courts review a trial court’s ruling on a motion to suppress evidence using a bifurcated standard of review.
Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
The standard requires almost total deference to the trial court’s
factual determinations that depend on a credibility assessment,
but allows for de novo review of legal determinations and the
application of the law to those factual determinations. Valtierra
v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
When a trial court does not make explicit factual findings, an appellate court must “assume that the trial court made
implicit findings of fact supported in the record that buttress its
conclusion.” Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim.
App. 2000). This requires the appellate court to view the
evidence in the light most favorable to the trial court’s ruling
and reverse the judgment “only if it is arbitrary, unreasonable,
or ‘outside the zone of reasonable disagreement.’” State v. Story ,
445 S.W.3d 729, 732 (Tex. Crim. App. 2014) ( quoting State v.
Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). The court
affords the prevailing party the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn
therefrom. State v. Duran , 396 S.W.3d 563, 571 (Tex. Crim. App.
2013). The appellate court will uphold the trial court’s ruling if
it is reasonably supported by the record and is correct on any
theory of law applicable to the case. Story , 445 S.W.3d at 732;
Turrubiate , 399 S.W.3d at 150.
B. A PPLICABLE L EGAL P RINCIPALS
Applicant objected to her breath test results’ admission on the basis that the government failed to honor the 15-minute
observation period required by 37 T EX . A DMIN . C ODE § 19.4(c)(1)
(2014) (Dep’t of Pub. Safety, Approval of Techniques, Methods,
and Programs) (RR3 at 170-78; RR4 at 5-11). The judge denied
appellant’s motion (RR4 at 111).
Breath test results are inadmissible if secured in violation of DPS’s rules: “A breath specimen taken at the request or order
of a peace officer must be taken and analyzed under the rules of
the department [of public safety]....” T EX . T RANS . C ODE NN . §
724.016 (Vernon 2011); see also Atkinson v. State , 923 S.W.2d
21, 23 (Tex. Crim. App. 1996), abrogated on other grounds by
Motilla v. State , 78 S.W.3d 352 (Tex. Crim. App. 2002). The
rules for breath-alcohol-testing procedures are set forth in the
Texas Administrative Code. See 37 T EX . A DMIN . C ODE § 19.4(c)
(2014). Those rules require an operator to continuously observe
the person tested for at least 15 minutes before administering
the test:
an operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. Direct observation is not neces- sary to ensure the validity or accuracy of the test result....
37 T EX . DMIN . C ODE § 19.4(c)(1) (2014) (Dep’t of Pub. Safety,
Approval of Techniques, Methods, and Programs). Thus, a
judge must suppress a breath test if the operator failed to
honor the 15-minute observation period.
C. A RGUMENT —E RROR
Appellant went to great lengths to show that the govern- ment failed to honor the 15-minute observation period prior to
her breath test, and then moved to suppress the results on that
basis. The State’s contrary argument was that: (1) Patin
testified that he watched appellant for 15 minutes using his
watch; (2) Patin testified that his timeline of events were
merely estimated times; and (3) Patin testified that the patrol
car video clock was not synchronized with the clock on the
Intoxilyzer machine (RR3 at 145-50).
Although Patin did testify as outlined above, the trial court’s decision to give it credence was unreasonable ( Dixon ,
206 S.W.3d at 590), was not a legitimate view of the evidence
( Duran , 396 S.W.3d at 571), and is not reasonably supported by
the record ( Turrubiate , 399 S.W.3d at 150).
Patin’s best, good-faith estimate of the timeline leading to appellant’s breath test placed her breath test at about 5:29 a.m.
based upon the following:
• Left the scene with appellant at 4:29 a.m. according to his patrol car video;
• Spent about 10 minutes driving appellant to the police station;
• Removed appellant from his car, scanned his ID card, and entered the station with her; • Spent about 5 minutes taking appellant with him to secure his gun in the gun locker; • Entered the jail and handcuffed appellant to a bench; • Waited more than 5 and closer to 20 minutes for Sampson to arrive;
• Spent about 5 minutes using the restroom; *19 • Began the 15-minute observation period; • Took appellant into the Intoxilyzer room and turned on the Intoxilyzer, taking 3-4 minutes; and • Inputted appellant’s personal information, taking 5 minutes, before her test began.
Appellant’s first breath sample took place at 4:57 a.m. based on the Intoxilyzer printout. Therefore the 15-minute observa-
tion period would have to have begun no later than 4:42 a.m.
and remained continuous until her test. But according to Patin,
roughly 40 minutes expired from the time he left the scene
until the time he began the observation period. The patrol
video showed, and Patin confirmed, that he left the scene with
appellant at 4:29 a.m.—a mere 13 minutes before the observa-
tion period was required to begin in order to comply with the
statute.
The trial court merely dismissed his gatekeeping duty by noting that the patrol car clock and the Intoxilyzer clock were
not synchronized, and saying that “non-synchronized clocks”
are a fact issue for the jury to decide pursuant to Worku v. State ,
No. 14-13-00047-CR, 2014 WL 1330278 (Tex. App.—Houston
(14th Dist.) April 3, 2014, no pet.) (RR4 at 10). This conclusion,
however, is completely unreasonable, illegitimate, and illogical
given the entire record. First, it requires the gatekeeper to
conclude that the police patrol car clock and the Intoxilyzer
clock might reasonably be out of sync by 32 minutes. [3] This is
simply not reasonable. Second, the trial court wholly ignored
Davies’ testimony that it was impossible for Patin to comply
with the 15-minute observation period given Patin’s best, good-
faith timeline estimate.
The trial court’s suppression ruling was simply outside the zone of any reasonable disagreement. The Court erred.
D. A RGUMENT —H ARM
A trial court’s erroneous suppression ruling is subject to harmless error review. When the error involves a statutory,
non-constitutional violation, the appellate court will not
reverse the case unless the error affected an accused’s substan-
tial rights. T EX . R. PP . P. 44.2(b). In making this determina-
tion, the court reviews the record as a whole, including any
testimony or physical evidence admitted for the jury’s consid-
eration, the nature of the evidence supporting the verdict, and
the character of the error and how it might be considered in
*21 connection with other evidence in the case. Motilla , 78 S.W.3d
at 355 ( citing Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000)).
This Court can be 100% sure that the trial court’s error affected appellant’s substantial rights because the breath test
slip was the only source of evidence upon which the jury could
have found the 0.15 breath concentration applicable and
convicted her of a Class A misdemeanor. Moreover, the jury
almost certainly placed great weight on the breath test in light
of Sampson’s and Patin’s testimony of appellant’s behavior that
was consistent with sobriety, and with a young lady misled by
her GPS and subject to an accident after dark ( see Statement of
Facts, supra ).
This Court should sustain appellant’s point of error, reverse her judgment and sentence, and order a new trial.
⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ *22 PRAYER
This Court should sustain appellant’s point of error, reverse her judgment and sentence, and remand her case to the trial
court for a new trial.
/s/ Peyton Z. Peebles III ______________________________ P EYTON Z. P EEBLES , III C APITAINE , S HELLIST , P EEBLES & M C LISTER , LLP 405 Main Street, Suite 200 Houston, Texas 77002 Tel.: (713) 715-4500 Fax: (713) 715-4505 Email: peebles@texaslegalteam.net SBOT: 24013307 Attorney for Appellant, Vibha Harish Patel *23 CERTIFICATE OF COMPLIANCE (a) This brief complies with the type-volume limitation of T EX .
R. A PP . P. 9.4(i) because it was produced on a computer and contains 2,459 words, including headings and footnotes but excluding the parts of the brief exempted by T EX . R. A PP . P. 9.4, according to the computer software’s word count func- tion.
(b) This brief complies with the typeface requirements of T EX .
R. PP . P. 9.4(e) because it has been prepared in a propor- tionately spaced typeface using Ingeborg 14-point font in text and Ingeborg 12-point font in footnotes.
/s/ Peyton Z. Peebles III ______________________________ P EYTON Z. P EEBLES , III 16
CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument has been delivered to Assistant District Attorney Alan Curry at the
following address on February 11, 2015:
Assistant District Attorney Alan Curry Harris County District Attorney’s Office 1201 Franklin, Suite 600
Houston, Texas 77002
(Service by e-file)
/s/ Peyton Z. Peebles III ______________________________ P EYTON Z. P EEBLES , III
[1] The record is cited as follows: CR Clerk’s record RR# CR Reporter’s record (with # corresponding to the volume Clerk’s record number) RR# Reporter’s record (with # corresponding to the volume number)
[2] Sampson incorrectly testified that the walk and turn test had a total of 6
[2] Sampson incorrectly testified that the walk and turn test had a total of 6 clues and, further, was unable to remember what all the clues were (RR3 at 46, 60-61).
[3] Patin’s best estimate for when he gave the breath test was 5:29 a.m., whereas the actual test slip says that appellant first blew at 4:57 a.m.