Page 35 - TPA Jourtnal September October 2023

she opened her door. And I will say that when she “couldn’t walk a straight line.” None of
opened and unlocked the door, you the witnesses observed Appellee “operating” her
could smell alcohol on her breath.” After Appellee vehicle.When Officer Brasuell made contact with
exited the vehicle, it took a minute or Appellee, he believed that she wasintoxicated.
two for Appellee to speak intelligibly, and when she According to him, Appellee smelled like alcohol,
did, it was still difficult tounderstand her. Fajkus and she was slurring herwords. She was also
understood Appellee to be asking for a ride home. disoriented and had bloodshot, glassy eyes. Officer
While the incident was unfolding between Brasuell askedAppellee where she was coming
Appellee and Fajkus, a teacher (Tasha Luce), who from, and Appellee’s responses were confusing.
wasescorting children across a busy nearby Atonepoint she said that she was coming from
intersection, saw Appellee’s vehicle blocking the home, but then she said that she was coming
line, and she went to help. She ended up driving from her parent’s house and was headed to work.
Appellee’s vehicle to a nearby daycareparking lot. She claimed not to know why she was
Fajkus estimated that a fire truck arrived about 30 sleeping in her vehicle and said that she had never
minutes after she first sawAppellee in her vehicle drank alcohol. Officer Brasuell offered
and that the police arrived about 10 minutes later. to administer standard field sobriety tests, and he
She did notknow how long Appellee’s vehicle had requested a blood sample, but Appellee
been parked where it was, and she said that she refused both.
never saw Appellee “operate” her vehicle.
Officer Brasuell did not see Appellee “operate” her
Luce testified that she escorted the “walkers” once vehicle, but he thought that hehad probable cause
the children were dismissed.According to her, the to arrest Appellee. He said that witnesses told him
pickup line usually began to form at about 3:00 that they foundAppellee behind the wheel of her
p.m., but that year,the line began to form before vehicle asleep on a public roadway intoxicated.
3:00 p.m. and filled up fast.1 Luce said that school Theyalso told him that the vehicle’s engine was
dismissed at 3:05 p.m., and the “walkers” were running when Appellee was discovered.
released before the “riders” (children who Officer Brasuell also testified that Appellee
were being picked up). She said that the “riders” admitted to him that she had recently been
pickups began at about 3:15 p.m. When driving.3 Officer Brasuell agreed with defense
Luce was escorting “walkers” across the busy counsel that it was possible that Appellee
intersection, she saw two people behind had arrived in her vehicle at 10:00 a.m. that
Appellee’s vehicle, which was fourth or fifth in the morning or even the night before, but he said
pickup line. Luce said that sheapproached them that is not what he believed happened.4
because traffic was backing up. She also said that Appellee was charged by information with DWI.
Appellee told her thatshe was headed to a middle She filed a pretrial motion tosuppress, and the court
school. Luce never saw Appellee “operate” her granted the motion, The State appealed, and the
vehicle.Officer Richard Brasuell from the Houston court of appealsaffirmed the ruling of the trial
Police Department was dispatched torespond to a court. We granted the State’s petition for
call about a person “down” in a vehicle. He arrived discretionaryreview to decide whether the court of
not long after the firedepartment. Appellee was appeals erred when it affirmed the trial court’s
sitting outside of her vehicle. Officer Brasuell spoke ruling.
to thewitnesses and talked to other people at the
scene. Fajkus told him that she saw Appellee
behind the wheel of her vehicle, with the engine MOTION TO SUPPRESS
running and keys in the ignition, and that In her motion to suppress, Appellee argued that the
she had to bang on vehicle “to get [Appellee] to State had the burden underCoolidge v. New
wake up.” Fajkus also told Officer Hampshire, 403 U.S. 443 (1971) to prove the
Brasuell that Appellee “smelled like a bar” and

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