TYLER, Texas — The defense team for a man accused of killing a Smith County deputy while driving intoxicated spent most of Monday in court questioning the sobriety test a Texas Department of Public Safety trooper administered and if the suspect gave consent to the alcohol blood test.
Daniel Nyabuto, 22, of Grand Prairie, is charged with intoxication manslaughter in connection with Smith County Deputy Lorenzo Bustos' death in the early morning hours of July 29, 2022.
At the beginning of his trial last week, Nyabuto pleaded not guilty.
Bustos, 29, who was in the final phase of his training, had performed a traffic stop with emergency lights activated on the patrol unit. As he took a call with his sergeant, a different car hit him and his patrol vehicle from behind.
Bustos was later pronounced dead in an ICU. Officials identified Nyabuto as the driver accused of striking Bustos.
DPS trooper Kody Gayle testified Bustos was parked along the lane of traffic and shoulder. The defense asked if Bustos had not been parked there that night, would the wreck have happened. Gayle said the wreck would not have happened if Nyabuto was not driving intoxicated.
Gayle said that Nyabuto was not showing remorse while he was intoxicated, but he does not know how Nyabuto would have acted when he was sober. He agreed with the defense he couldn't read Nyabuto's mind then or now.
Nyabuto told Gayle that he was nervous after the crash, and Gayle did not articulate any signs showing Nyabuto was nervous.
Gayle testified he believed Nyabuto was not remorseful because he had no idea what was going on. Gayle said he did not see fault in connection with the wreck among Bustos or Skinner.
Regarding the smell of alcohol on Nyabuto, Gayle said he knows what the smell of alcohol is, but he is not an expert on balance and a person's eyes.
To Gayle's knowledge, there was no 911 call about a reckless, drunk driver before the crash.
He testified he did not issue a ticket for speeding or failure to drive in a single lane for Nyabuto. Gayle agreed visibility is reduced for drivers at night.
Gayle recalled that Nyabuto had taken something for his stomach, but he could not specify what medication it was. The defense said the medication Nyabuto took could cause a change in the appearance of his eyes, which could be a symptom of intoxication. Gayle said he was not aware of that.
At the time Nyabuto exited his vehicle, Gayle testified he did not see evidence that Nyabuto was armed and dangerous in that instance. But Gayle believed Nyabuto was dangerous because he "assaulted an officer" (referring to the wreck that killed Bustos) and he didn't know what Nyabuto might do based on his behavior.
Gayle testified that Nyabuto did not consent to give a specimen to test for intoxication and the trooper wrote that in his search warrant affidavit.
He testified that Nyabuto's speech was not slurred or repetitive, but it was slow. Slow speech by itself is not indicative of intoxication.
Gayle agreed with the defense that Nyabuto was sleepy and drowsy. He testified that he did not ask how much sleep Nyabuto had gotten. Gayle testified he's not sure if a drowsy driver and an intoxicated driver have the same symptoms.
The lawyer asked Gayle about other sobriety tests, such as saying the alphabet and the person touching their nose, that Gayle could have done. He said that could've given a better picture of Nyabuto's sobriety.
The only proof of Nyabuto jerking his eyes is Gayle's observation and opinion.
Gayle testified that at one point when asking for Nyabuto's consent for a blood test, Nyabuto said yes and later said no. He told Judge Taylor Heaton, who signed the affidavit to search for Nyabuto's blood, that Nyabuto kept changing his answer. But Gayle testified he only wrote that Nyabuto refused in the document.
Gayle said both Nyabuto and his brother were laughing at the hospital, but his brother was significantly louder. The trooper said he did not ask his brother questions after the wreck.
Outside of the presence of the jury, the defense claimed 7th District Court Judge Kerry Russell was allowing Gayle to volunteer information and elude the defense's line of questions. The lawyer said this was a violation of Nyabuto’s rights.
Russell said the record would not show that he is limiting the defense. He said those kinds of statements are "hard to swallow for him.”
During the sobriety test, Nyabuto was walking toward Gayle's patrol vehicle and the emergency lights from the crash site were behind him, Gayle testified.
Gayle's eyes were toward the emergency vehicle lights as he directed Nyabuto in the test. The defense said Nyabuto was walking away from and then toward the lights. If Nyabuto were told to walk left to right, the lights would not have affected him, but Gayle said the lights would've just been to Nyabuto's left and right side.
There was no point in the body cam video where Nyabuto's eyes could be seen, Gayle testified.
The defense argued that the light from the vehicles that were flashing onto Nyabuto's face was also flashing in his eyes, and Gayle agreed the lights were probably going into his eyes as well.
Initially, Nyabuto was charged with DWI. Between his arrest and going to the hospital, Gayle testified he judged that Nyabuto was not remorseful about the wreck.
The defense pointed out to Gayle that fellow DPS trooper Adam Albritton was wearing a reflective vest when he came to the wreck site.
ISSUE OF CONSENT FOR BLOOD TEST
Gayle told Albritton that Nyabuto went back and forth between yes and no when asking for consent for a blood test.
Regarding the blood test, Gayle said he wanted to take the safe route by testing Nyabuto's blood for the level of alcohol content.
Gayle agreed with the defense that Nyabuto said yes to a blood test sometimes. The trooper said he didn't want to have to write a search warrant affidavit because that would require more steps for him.
During the dash cam video, Gayle said to Nyabuto that he couldn't persuade Nyabuto to give a yes or no response.
"I'm going to take it as a no because you're real unsure. So I'm going to get a warrant," Gayle said on the dash cam video.
Gayle testified the hospital staff would check on Nyabuto and take his blood as a part of the investigation.
In the dash cam video, Nyabuto later said, "I'm good with whatever," referring to having his blood taken. The defense considered that to be Nyabuto giving consent, but Gayle said he had already taken his previous response as a refusal.
Gayle said he did not tell Judge Heaton about the times that Nyabuto consented to have his blood taken and tested.
During questioning from the state, Gayle testified he had no problems driving in a single lane of the highway. He said the emergency lights helped brighten the driving path.
Gayle testified he's never been trained to lift his body camera to record video of a suspect's eyes.
The trooper testified again that Nyabuto's response to learning he hit someone with the vehicle he drove was "bro."
It was honest to say that Nyabuto did not consent to having his blood tested, Gayle testified.
Gayle called the driving captured on a camera from someone who lived nearby "unsafe."
Testimony will resume Tuesday morning.