Crouse, Lawrence Frank v. State , 441 S.W.3d 508 ( 2014 )

Affirm and Opinion Filed March 27, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00863-CR
LAWRENCE FRANK CROUSE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-87861-2011
OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice FitzGerald
In a trial before the court, appellant was convicted of driving while intoxicated and
sentenced to thirty days in jail, suspended for eighteen months, and a $50 fine. In five issues on
appeal, appellant contends the evidence is insufficient to support his conviction and the trial
court erred in admitting evidence that was procured through an illegal search and seizure and not
properly authenticated. Concluding appellant’s arguments are without merit, we affirm the trial
court’s judgment.
Sufficiency of the Evidence
In his fourth and fifth issues, appellant challenges the sufficiency of the evidence to
support his conviction. Specifically, appellant contends there was insufficient evidence to
establish the reason appellant was intoxicated or that he was intoxicated in a public place.
At 1:30 a.m. on May 4, 2011, officers George White and Jennifer Larue spotted
appellant’s red Toyota sitting in a field with the lights on. Appellant began to drive around in a
circle, as if he did not know where he was going. The car then left the field and continued into a
parking lot for an industrial building. There were eighteen-wheelers and other work vehicles
parked in the parking lot. The officers turned on their lights to initiate a traffic stop, but
appellant’s car continued through another portion of the field and onto a gravel road leading to
the highway. Officer White pulled the police car in front of appellant’s car to block his path.
Although it was not raining, appellant had his windshield wipers on, as well as, his turn signal.
The officers questioned appellant about where he lived and where he was coming from.
Appellant seemed confused, disoriented, and unaware of where he was. When the officer asked
what date it was, appellant responded May 16th, not the true date of May 4th. Officer White
described appellant’s speech as slurred and thick-tongued. Appellant fidgeted, his pupils were
dilated, and he would not make eye contact with the officers. Every time the officers asked
appellant a question, he would look off in a different direction. Although the officers did not
smell alcohol, Officer Larue thought appellant appeared to be “on something.” Appellant had a
difficult time balancing when he walked around the vehicle, and he leaned up against the vehicle
with his body at a slant while he was answering the officers’ questions.
Appellant identified himself as “Junior Crouse” and told the officers he did not have his
driver’s license with him. He first claimed he had an Ohio driver’s license and then one from
Texas. The officers could not verify either license. Appellant was wearing a hospital band on his
wrist bearing the name “Lawrence Frank Crouse.” He told the officers that a guy told him to go
into the field, but no one else was around. Appellant also told the officers he was a registered
nurse and was coming from Dallas after getting some gas.
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The officers found some medical release papers on the front seat of appellant’s car. When
they asked appellant about the papers, he responded that he had been in the hospital that day for
chronic back pain and had daily checks for depression. The release papers listed all of appellant’s
medications, and they all had warnings about the possibility of dizziness that could affect
operating a motor vehicle or dangerous equipment. Specifically, the discharge summary showed
that the medications prescribed included Flexoril, a muscle relaxant, and Vicodin, a pain
medication. Both medications included the warnings: “DO NOT DRIVE, ride a bicycle or
operate heavy machinery until you know how it will affect you,” and “May cause drowsiness
when taken with alcohol, muscle relaxant, sedative or pain medication. Use with caution.”
Concerned appellant had some mental health issues, the officers unsuccessfully attempted to
contact his mother at the address listed on the insurance papers.
Officer Larue administered the standardized field sobriety tests. During the HGN test,
appellant’s eyes would not follow Officer Larue’s pen, he moved his head, and he swayed back
and forth. Officer Larue observed six clues, indicating intoxication. Officer Larue testified
alcohol and narcotics cause HGN. During the walk-and-turn test, appellant missed the heel-to-toe
position, raised his arms more than six inches, stepped off the line, turned improperly, and took
ten steps instead of the nine he was instructed to take. The officer observed six clues, indicating
intoxication. The officer also stated that during the testing process appellant tried to walk away
several times. Appellant told the officer that he had leg weakness from his back surgery. Before
taking the one-leg stand test, appellant told Officer Larue that he could not do a one-leg stand
“on a good day” but would try the test anyway. During the test, appellant swayed, put his foot
down, and did not count as instructed. Officer Larue observed three clues, indicating
intoxication. Based on her observations, Officer Larue arrested appellant for public intoxication.
When Officer Larue called her sergeant, he told her to charge appellant with DWI and ask for a
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blood test. The officer further testified that at one point, appellant was so off balance that Officer
Larue had to grab his handcuffs to prevent him from falling down.
Appellant agreed to provide a blood specimen. His blood was drawn at a hospital. The
lab results showed the following drugs in appellant’s system: Alprazolam, 0.006 milligrams per
liter; Lorazepam 0.02 milligrams per liter; Cyclobenzaprine (no quantification performed); and
Mirtazapine (no quantification performed).
Both officers testified appellant did not have normal use of his mental and physical
faculties. The record also contains the videotape showing the traffic stop and testing process and
appellant’s medical records and discharge summary.
Appellant testified he had been diagnosed with “Bipolar I with rapid cycling” and saw a
psychiatrist and counselor every month. Appellant explained that he went to the doctor for severe
back pain at around 5:00 p.m. the day before he was stopped. Just after 8:00 p.m., he received
intravenous morphine. He was discharged approximately two hours and twenty minutes later.
The hospital records indicated appellant was discharged with a family member, but appellant
claimed he drove himself. He remembered driving away, having a horrible headache, opening his
door to vomit, and an officer pounding on his window with a flashlight. He was so disoriented,
scared, and confused that he did not understand what the officers were asking him. He told
Officer Larue that he had taken Depakote, a mood stabilizer, early the day before, that he had leg
problems, and that the tumor surgery on his back had a significant effect on his ability to stand
and walk due to chronic numbness and weakness from his mid thigh down. According to
appellant, there was no way he could perform the tests correctly, but he tried the tests to be
cooperative. He also claimed he had taken his bipolar medications regularly for years and had
never been told not to drive or had his ability to drive affected. However, he missed his evening
doses of Depakote and Remeron (sleep aid/antidepressant) the day he was stopped and believed
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it was possible for his ability to drive to be affected by the missed doses. Appellant further
testified that he was currently taking medication for a seizure disorder. Appellant admitted he
had never experienced such an event before and claimed his current condition must have been
caused by his first seizure, which he believed occurred when he was stopped by the officers.
Appellant had no memory of events between the time he claimed he left the hospital and the time
he was stopped by police at around 1:00 a.m. Appellant admitted his bipolar condition did not
cause intoxication and thus played no part in this case.
During his testimony, appellant referred to Defendant’s Exhibit 2, which was an email
from Collin County Medical Examiner Dr. William Rohr. In the email, Rohr stated that he could
not give a medical opinion that the combination of Lorazepam and Alprazolam in appellant’s
blood would cause a “loss” of the normal use of mental and physical faculties when the level of
Lorazepam in appellant’s blood was at a therapeutic level and the level of Alprazolam was
subtherapeutic.
A defense expert witness, Dr. Virginia Neal, testified she was a psychologist and
registered nurse. She reviewed the State’s information, police records, the DPS toxicology
report, appellant’s counseling records, and the email from Rohr. She did not interview appellant
or his family, did not make the bipolar disorder diagnosis, and did not view the video. According
to Neal, the combination, timing, and level of medications appellant had taken the day of the stop
would not cause appellant to not have the normal use of his mental or physical faculties. She
opined appellant was not intoxicated. She acknowledged several of the drugs were not
quantified, that is, measured in the lab report. There were no opiates in appellant’s toxicology
screen, and probably only traces of morphine would have remained in his system by the time his
blood was drawn. She acknowledged the warnings associated with the use of morphine—not to
operate machinery or drive a car when taking the medication. She agreed that the morphine drip
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(approximately four milligrams) was strong because on a scale of 0 to 10, it reduced his pain
from 9 out of 10 at admission to 0 out of 10 when discharged. She also testified the morphine
could have affected appellant, but she did not know whether the prescription medications also
affected him.
Neal further testified the Depakote and Neurontin that appellant took the morning before
the test could have caused nystagmus and negatively affected his performance on the HGN
portion of the field sobriety test. His inability to keep his balance and walk a straight line for the
heel-to-toe and walk-and-turn tests could have been caused by numbness and weakness in his leg
from his spinal tumor surgery. Appellant might have had a seizure the day he was stopped
because his doctor was transitioning him from Xanax, which is a fast-acting benzodiazepine, to
Alprazolam, a slower one, or because he missed doses of his medications. A person waking up
from a seizure might experience fatigue, confusion, difficulty with gross motor skills such as
walking, dilated pupils, flushing, retrograde amnesia, and thick-tongued speech. The symptoms
observed by the officers could have been caused by appellant coming out of a seizure, which can
mimic intoxication. And bipolar patients are susceptible to seizures.
When reviewing the sufficiency of the evidence, we view the evidence in the light most
favorable to the verdict to determine whether any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).
A person commits the offense of driving while intoxicated if the person is intoxicated
while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West
2012). The term “intoxicated” means (1) not having the normal use of mental and physical
faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous
drug, a combination of those substances, or any substance into the body, or (2) having an alcohol
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concentration of 0.08 or more. Id. § 49.01(2)(A)–(B) (West 2011). Thus, section 49.01(2)
provides two alternative methods for the state to prove intoxication. These are referred to as the
impairment theory (loss of normal use of physical or mental faculties) or the per se theory
(alcohol concentration of .08 or more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim.
App. 2010). The impairment theory of intoxication is at issue here.
Intoxication is statutorily defined. Ouellette v. State, 353 S.W.3d 868, 869 (Tex. Crim.
App. 2011). There are six possible definitions of intoxication. They are not mutually exclusive
but rather overlap. They include alcohol, a controlled substance, a drug, a dangerous drug, a
combination of those substances, or any substance. TEX. PENAL CODE ANN. § 49.01(2)(A).
While the specific substance is not an element of the offense, it is an evidentiary matter
which may be proved by circumstantial evidence. Gray v. State, 152 S.W.3d 125, 132 (Tex.
Crim. App. 2004). The State is required to prove appellant did not have the normal use of his
mental or physical faculties “by reason of the introduction” of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of those substances, or any substance. See TEX. PENAL
CODE ANN. § 49.01(2)(A); Kuciemba v. State, 301 S.W.3d 460, 462 (Tex. Crim. App. 2010).
Most of the reported DWI decisions involve evidence of alcohol with and without
“drugs.”1 Some cases involve only “drugs.” Delane is one such case and is instructive. See
Delane v. State, 369 S.W.3d 412, 418 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). In
Delane, the defendant was observed driving dangerously (running a stop sign, almost striking
another car, and hitting a curb). The defendant had no odor of alcohol on his person so the officer
concluded intoxication was due to ingestion of some type of drug. Id. The defendant’s pupils
showed signs consistent with intoxication by a drug. He had trouble standing and following
1
We use the term “drugs” in the generic sense to include controlled substances, a drug, a dangerous drug, a combination of these drugs, or
any substance.
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directions. Two prescription medications were in the defendant’s car and he had taken them
before driving. The defendant told an officer he was not supposed to drive while on medication.
Id. He testified that after taking his medications he noticed that he was lightheaded and dizzy as
he began driving from his house and the dizziness came out of nowhere. On videotape he said
that he was under the influence of his medication and that it was making him drowsy. Id. One of
his prescription bottles contained a warning label cautioning against driving. The court
concluded the driving facts, the sobriety tests, the defendant’s admissions, and the evidence
about drug usage proved “intoxication.” Id.
In the case at bar, the evidence shows appellant did not have the normal use of his mental
or physical faculties. Appellant was observed driving in a circle in a field late at night. His turn
signal and windshield wipers were on, and it was not raining. When the officers first made
contact with appellant, he appeared disoriented and confused. Both officers testified that
appellant did not have normal use of his physical and mental faculties. Officer Larue testified
that appellant performed poorly on the field sobriety tests. She observed six clues of intoxication
on both the HGN test and the walk and turn test, and three clues of intoxication on the one-leg
stand test. Appellant told the officers “a guy” had instructed him to go into the field, but there
was no one else present. Appellant was unable to follow instructions, as evidenced by the field
sobriety tests, and his failure to turn off his windshield wipers when told to do so. When asked
the date, appellant provided a date twelve days in the future from the actual date. Appellant
appeared to be unaware of where he was, and the officers became concerned that he had mental
health issues. The officer also observed that appellant’s balance and speech were impaired, and
formed the opinion that appellant was “on something.”2 Notwithstanding medical records stating
2
The videotape of the officers’ roadside encounter with appellant, which includes his performance on the field sobriety tests, was admitted
into evidence for the court to view.
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a family member picked appellant up at the hospital, appellant claimed he drove himself to and
from the hospital. He was unable to explain what happened from the time he left the hospital
until the officers stopped him in a field early the next morning. Thus, appellant was unable to
account for over five hours.
Further, the evidence shows “a controlled substance, a drug, a dangerous drug, a
combination of those substances, or any substance” caused appellant to not have the normal use
of his mental or physical faculties. Appellant had taken a drug or combination of drugs.
Appellant admitted to taking numerous prescription drugs. These drugs had potential side effects
of dizziness and inability to operate vehicles. Appellant’s expert, a psychologist and R.N.,
admitted the drugs could have an effect on some people, and she had no personal knowledge of
whether any of appellant’s prescription medications affected him in this manner.
Appellant was in the hospital the night before he was stopped and was given morphine
and a muscle relaxant in addition to the prescription medication appellant was taking. Appellant
was wearing his hospital bracelet when he was stopped and did not know where he had been
since his discharge from the hospital hours before. The hospital discharge papers listed the
medications that had been prescribed. The medications included a pain medicine and a muscle
relaxant, and both carried warnings about driving a vehicle or operating heavy machinery. The
warnings also indicated that the medications could cause drowsiness when taken in combination
with each other and other medications. Finally, when describing the field sobriety tests, the
officer stated HGN is generally caused by alcohol or narcotics.
We conclude that, based on the driving facts, the sobriety tests, the officers’ evaluation
and opinion of appellant’s performance and condition, appellant’s admissions, the substantial
period of time preceding appellant’s arrest for which appellant had no apparent memory,
appellant’s use of prescription medication, and the morphine dosage recently administered at the
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Rockwall hospital, the trial court could reasonably find that appellant did not have normal use of
his mental or physical faculties resulting from the introduction of a drug or combination of
drugs. See Landers v. State, 110 S.W.3d 617, 620‒21 (Tex. App.—Houston [14th Dist.] 2003,
pet. ref’d) (finding evidence sufficient to support DWI when appellant admitted ingesting
medication and appeared sluggish, stumbled, had poor coordination, and slurred words); Harkins
v. State, 268 S.W.3d 740, 748 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding evidence of
intoxication sufficient based on officer testimony that appellant’s eyes were heavy, her pupils
constricted, and she was disoriented and slurred her speech); Kiffe v. State, 361 S.W.3d 104, 108
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (concluding evidence supported intoxication
where defendant admitted taking Xanax the night before and Vicodin intermittently, trooper
observed erratic driving, slurred speech, unstable gait and dilated pupils, trooper believed
defendant was under influence of narcotic, hospital recorded that defendant appeared to be
intoxicated by opiates, and expert testified that defendant’s prescription drugs could impair
cognitive ability and central nervous system); Paschall v. State, 285 S.W.3d 166, 177‒78 (Tex.
App.—Fort Worth 2009, pet. ref’d) (holding evidence sufficient to find intoxication based on
video of field sobriety tests admitted into evidence, witnesses’ observations of erratic driving,
defendant’s poor performance on field sobriety tests, officer testimony that HGN is accurate
measure of intoxication, pharmacist testimony that drugs taken by defendant could cause slurred
speech, affected balance, abnormal gait, and constricted pupils and officer’s observation of these
symptoms in defendant).
Although appellant presented an alternative explanation for his condition, it was the trial
court’s function in its role as fact finder to resolve any conflicts in the evidence, and the judge
was free to accept or reject any and all of the evidence presented by either side. See TEX. CODE
CRIM. PROC. ANN. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim.
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App. 2000). Therefore, we conclude the evidence was sufficient to establish the element of
intoxication.
Appellant also argues the evidence is insufficient to establish that he was in a “public
place.” A “public place” is defined as “any place to which the public or a substantial group of the
public has access and includes, but is not limited to, streets, highways, and the common areas of
schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” TEX.
PENAL CODE ANN. § 1.07(40) (West Supp. 2013); Loera v. State, 14 S.W.3d 464, 467 (Tex.
App.—Dallas 2000, no pet.) (stating that pertinent question is “whether the place is one to which
the public has access”); see also Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App.—Austin
1995, pet. ref’d). The penal code does not define access, but appellate courts have defined it as:
“freedom of approach or communication; or the means, power, or opportunity of approaching,
communicating, passing to and from.” Loera, 14 S.W.3d at 467.
Courts have concluded that a parking lot is a public place for purposes of section 49.04(a)
when the evidence shows that the public had access to it. For example, the San Antonio Court of
Appeals has held that a parking lot that was meant for patrons of a nightclub was a public place
because the public had clear access to it. Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex.
App.—San Antonio 1994, pet. ref’d); see also State v. Nailor, 949 S.W.2d 357 (Tex. App.—San
Antonio 1997, no pet.) (hotel parking lot a public place). Likewise, a parking and sidewalk area
outside a gas station is considered a public place. See York v. State, 342 S.W.3d 528, 537 (Tex.
Crim. App. 2011).
Appellant complains that there were no markings in the parking lot to indicate that it was
public, and the officer admitted that she did not know if the gravel road was public or private.
Appellant also points out that neither officer saw appellant on Highway 205; they saw him only
on the gravel road leading to the highway. (We observe appellant has not explained how he
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could possibly have driven from a hospital in Rockwall to the field where he was arrested in
Collin County without traveling on a public road.)
Both officers testified that appellant was operating a vehicle in a public place and that the
public had access to both the parking lot and the gravel road. There is nothing in the record to
suggest that either location was private or not otherwise open to the public. There were
commercial vehicles parked in the parking lot. The gravel road leads to a highway. From this
evidence, the court could reasonably conclude that the public had access to both areas. See
Loera, 14 S.W.3d at 467. Accordingly, the evidence is sufficient to support the “public place”
element of driving while intoxicated. Appellant’s fourth and fifth issues are overruled.
Illegal Search and Seizure
In his first and third issues, appellant asserts the trial court erred in admitting State’s
Exhibits 3 and 4 because they were obtained through a warrantless search and seizure in
violation of the Fourth Amendment.
To preserve error for appellate review, the rules of appellate procedure require that the
record show that the objection “stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P.
33.1(a)(1)(A). The objection must be specific so that the trial court is aware of the complaint and
has the opportunity to correct the error, or the opposing party has an opportunity to remove the
basis for objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Further, the
trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or
the complaining party must have objected to the trial court’s refusal to rule. Mendez v. State, 138
S.W.3d 334, 341 (Tex. Crim. App. 2004). Even a constitutional error can be forfeited if an
objection is not made at trial. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);
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Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). The point of error on appeal must
also comport with the objection made at trial; otherwise, the issue has not been preserved for our
review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Thomas v. State, 723
S.W.2d 696, 700 (Tex. Crim. App. 1986)
State’s Exhibit 3 consists of three pages of discharge instructions appellant received upon
discharge from the hospital the day before his arrest. Exhibit 4 is a copy of appellant’s hospital
records with an affidavit from the custodian of records. When the State offered Exhibit 3,
appellant’s counsel lodged a hearsay objection which the trial court overruled. When the State
offered Exhibit 4, appellant’s counsel objected that he did not have two weeks to review the
documents as required by TEX. R. EVID. 902(10). The court noted the affidavit from the custodian
of records had been on file for the appropriate amount of time and overruled the objection.
Appellant’s counsel did not object to Exhibit 3 or 4 on Fourth Amendment grounds at
any time during trial, and there are no pre- or post-trial motions asserting the documents were
obtained through an illegal search and seizure or that one or more of the documents are fruit of
the poisonous tree.3 Because appellant’s appellate points do not comport with his trial objections,
the issues have not been preserved for our review. Appellant’s first and third issues are
overruled.
Authentication of Evidence
In his second issue, appellant complains that the trial court erred in admitting Exhibit 3,
the discharge summary, “without authentication or sponsor.” Appellant claims the State
improperly used the Exhibit to show he had just been released from the hospital and had been
3
Appellant’s fruit of the poisonous tree argument is less than clear. Appellant argues that “Exhibit 3 . . . was secured by legal means, but
discovered as a result of the improper search securing State’s Exhibit 2. Therefore, State’s Exhibit 3 is fruit of the poisonous tree.” (Emphasis
added). Because there was no trial objection concerning any constitutionally illicit conduct, we need not address whether any exhibit was fruit of
the poisonous tree.
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prescribed a number of medications. Although appellant objected to the exhibit when it was first
offered into evidence, he did not ask for a running objection. Thereafter, when witnesses testified
about the exhibit and its contents, appellant did not object. For example, Officer White testified
without objection that appellant identified Exhibit 3 as his discharge papers. Officer Larue
testified without objection that appellant identified Exhibit 3, and the document reflected that
appellant had been prescribed medications that carried a warning about driving or operating
heavy machinery. Moreover, appellant’s expert witness presented the same evidence—details of
his treatment at the hospital and prescription medication. Because the same evidence was
admitted without objection, any error concerning the admission of Exhibit 3 was waived. See
Jefferson v. State, 909 S.W.2d 247, 250 (Tex. App.—Texarkana 1995, pet. ref’d). Appellant’s
second issue is overruled.
Having resolved all of appellant’s issues against him, we affirm the trial court’s
judgment.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
Publish
TEX. R. APP. P. 47
120863F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAWRENCE FRANK CROUSE, Appellant On Appeal from the County Court at Law
No. 2, Collin County, Texas
No. 05-12-00863-CR V. Trial Court Cause No. 002-87861-2011.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 27, 2014
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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