No. 05-08-00078-CR
Opinion Filed January 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MAO6-66373-C.
Before Chief Justice THOMAS and Justices MORRIS and MALONEY.
Opinion By Justice MALONEY.[fn1] [fn1] The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
The jury found Bronwyn Lawson Conly guilty of driving while intoxicated and the trial court assessed a 180 day sentence, a $1000 fine, suspended the imposition of sentence, and placed appellant on community supervision for twenty-four months. In two points of error, appellant argues the trial court incorrectly denied her written motion to suppress evidence. We affirm the trial court's judgment.
BACKGROUND
Appellant's vehicle bumped into a vehicle that was stopped for a red traffic light on Cedar Springs Road at the Inwood Road intersection and, a few minutes later, struck a second vehicle in the intersection of Inwood Road and Lemmon Avenue. After striking the second vehicle, appellant continued on and drove into a car dealership. The drivers of the two vehicles that she struck confronted her in the dealership's lot. One of those drivers flagged down a passing police officer, who in turn called for a backup officer trained to conduct field testing for intoxication. After giving appellant the test, the officer arrested her. MOTION TO SUPPRESS
In appellant's first point of error, she argues that the trial court erred in not granting her motion to suppress because the State did not establish probable cause to arrest her for public intoxication. She contends the officer lacked probable cause to arrest her because no evidence showed she posed a danger to herself or others. In appellant's second point of error, appellant maintains the trial court erred in not granting her motion to suppress because no evidence exists to show she drove while intoxicated from consuming alcohol. The State replies that probable cause existed to arrest appellant because the trial court reasonably concluded from the evidence that appellant was a danger to herself or to others. The State also argues it is immaterial that the officer did not see her driving because appellant told him she had been driving. THE EVIDENCE 1. Stephanie Walker
Walker testified that on the day in question, she had stopped at a traffic light at Cedar Springs and Inwood when a vehicle bumped her vehicle from behind. She looked in her rear view mirror and saw a "Caucasian woman" in a green Explorer. As the traffic light turned green, Walker pulled into the far right-lane and motioned for the Explorer to pull over, but the Explorer kept going. Walker wrote down her license number of the Explorer and followed it. At Inwood and Lemmon, it appeared that appellant would turn left, so Walker pulled her vehicle into the far left lane behind appellant's vehicle. A red traffic light faced their lane, but appellant went through the red light and "plowed into" a white vehicle that had entered the intersection. When the traffic light turned green, Walker followed appellant's vehicle into the Park Cities Dodge dealership. The driver of the white vehicle jumped out and followed appellant into the dealership. Walker flagged down a police officer as he drove by. When Walker first spoke to appellant, Walker ask appellant if she "was drunk." Appellant's speech was slurred and she began to fumble in her purse "like she was . . . [looking] for her driver's license and registration" as if Walker had asked for them. Walker looked into appellant's vehicle and saw an open bottle of wine in the console. On cross examination, Walker explained that she was test-driving a truck from the dealership and had left her TollTag there. Appellant bumped the truck as Walker was returning to the dealership to retrieve her TollTag. Walker explained she had stopped her vehicle in the left turn lane because the traffic light was red. While she waiting for the traffic light to turn green, appellant's vehicle bumped her. Walker also explained that she thought the bottle she saw in appellaant's vehicle was a wine bottle because it looked like the wine bottles served on airplanes. 2. William Clark
Clark testified that he was driving south on Inwood Road towards the car wash. He entered the intersection at Inwood Road and Lemmon Avenue on a green traffic light. While Clark's vehicle was in the intersection, the vehicle waiting in the left turn lane turned into his vehicle. Clark's vehicle spun around and ended up in the median between the northbound and southbound lanes of Inwood Road. As Clark got out of his vehicle, appellant drove off. She went down Lemmon Avenue toward Love Field. Clark followed her vehicle and saw appellant turn into a car leasing office. He yelled at some men standing there to stop her. On cross examination, appellant questioned Clark on how he could identify the vehicle that hit hm, if he did not know the make or the color of appellant's vehicle. Clark explained the leasing office was only forty or fifty yards away. Clark wanted to get her insurance, license number, and telephone number. As he approached appellant, she did not seem right. Rather, she appeared apathetic, impaired, and had "some difficulty producing the information." Although he looked inside appellant's vehicle, he did not remember seeing a empty bottle and thought the seat was a "bench seat." 3. Booker T. Smith
Smith, a Dallas Police Officer, testified that he was on patrol when he saw the major accident on Lemmon Avenue and traffic beginning to back up. He stopped to clear the intersection. Eventually, he saw appellant in "the parking lot with two other vehicles." As he tried to determine if anyone was injured, he noticed appellant had problems answering his questions. When Smith removed appellant from her car, she seemed unsteady and he thought she had been drinking so he called a cover element certified to conduct a horizontal gaze nystagmus test (H.G.N.). He examined the inside of appellant's vehicle and found empty "baby" bottles of white wine-like those that come in a six pack. On cross examination, appellant questioned Smith about the bottles. Smith explained that he found at least three empty bottles on the front passenger's seat and on the front passenger floorboard-he did not "seize the bottles." Smith could only remember the SUV was a light color, but it had a split seat with a console between the front seats. 4. Officer Westerlund
Westerlund, a Dallas Police Officer, testified that he was on patrol when another officer asked for help at an accident. When Westerlund arrived at the parking lot, he approached appellant's SUV and looked inside. He noticed appellant's unzipped fly and numerous small bottles of wine. Westerlund administered the H.G.N. test to appellant, who exhibited six potential clues for intoxication. Before giving the walk-and-turn test, Westerlund questioned appellant on whether she had any medical problems that would hamper her from doing that test, she told him no. When she did the walk-and-turn test, she "broke her feet," stepped off the line, and made an improper turn. As he was starting the one leg stand, appellant said she had a bad knee, so Westerlund stopped the test. He opined that appellant did not have the normal use of her mental or physical faculties because of alcohol in her system-especially to operate a motor vehicle. On cross examination, Westerlund explained that some of the wine bottles were full, some empty. Westerlund also noted he smelled a slight odor of alcohol from appellant. Westerlund arrested appellant because he determined she had lost the normal use of her mental and physical faculties. He only learned of her prior contacts with police officers when he took her to jail. 1. Standard of Review
We review de novo a trial court's ruling on a motion to suppress that does not turn on evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We defer to a trial court's determination of the historical facts that the record supports, particularly on credibility and demeanor. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002); see Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); see also Leach v. State, 35 S.W.3d 232, 234-35 (Tex.App.-Austin 2000, no pet.). We uphold a trial court's evidentiary ruling if any valid theory exists to support that ruling whether the State argued that theory at trial or on appeal. See Graham v. State, 893 S.W.2d 4,7 (Tex.App.-Dallas 1994, no pet.). When we review the trial court's decision to deny a motion to suppress, we consider the evidence in the light most favorable to the trial court's ruling. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). 2. Applicable Law
A search conducted without a warrant issued on probable cause is per se unreasonable. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Any evidence seized in violation of the constitutions or laws of the United States or the State of Texas is inadmissible against the accused in a criminal trial. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). An officer may make a warrantless arrest for any offense that is committed in the officer's view or presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). But, the total facts and circumstances within the officer's knowledge at the time of arrest must be sufficient to justify a prudent person in believing that the arrested person has committed or is committing an offense. See Brother v. State, 166 S.W.3d 255, 257-58 (Tex.Crim.App. 2005); Chilman v. State, 22 S.W.3d 50, 56 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). To establish probable cause, we do not require that knowledge to be personal knowledge, knowledge from reasonably trustworthy sources can establish probable cause. Torres v. State, 182 S.W.3d 899, 901 (Tex.Crim.App. 2005). As the sole trier of fact in a motion to suppress, the trial court evaluates the witnesses' testimony and credibility. Id. at 902. A person commits public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. See Tex. Penal Code Ann. § 49.02(a) (Vernon 2003). The danger need not be immediate-potential danger to himself or others suffices to show endangerment. See Loera v. State, 14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.); see also Segura v. State, 826 S.W.2d 178, 184 (Tex.App.-Dallas 1992, pet. ref'd). Under Texas law, any area to which the public, or a substantial group of the public, has access, including the common areas, is a public place. See Tex. Penal Code Ann. § 1.07(a)(40) (Vernon Supp. 2008); Loera, 14 S.W.3d at 467. Detailed information given to an arresting officer by a citizen reciting specific erratic driving, identifying the vehicle and its location, is sufficient corroboration to justify a temporary stop and detention. See Brother, 166 S.W.3d at 257; Pipkin v. State, 114 S.W.3d 649, 654-56 (Tex.App.-Fort Worth 2003, no pet.). The factual basis for stopping a vehicle need not arise from the officer's personal observations, but may be supplied by another's information. See Adams v Williams, 407 U.S. 143, 147 (1972). 3. Application of Law to Facts
Appellant moved to suppress all evidence seized by the police on the grounds that she was arrested without a warrant and without probable cause. Appellant challenges only the trial court's overruling her pretrial motion to suppress. Appellant does not dispute that a police officer arrested her in a public area. Rather, she argues that the State did not establish probable cause for a warrantless arrest for public intoxication and no evidence supports the officer's arresting her for driving while intoxication by having consumed alcohol. Because the facts are undisputed, we begin by determining de novo whether reasonable suspicion or probable cause existed to justify the arrest. See Ornelas v. United States, 517 U.S. 690, 699 (1996). Both Walker and Clark testified at the suppression hearing to their first-hand observations-that they had seen appellant driving, her vehicle had collided with their vehicles, she ran a red traffic light that caused one of the collisions, and she left the scene of both collisions. It was not until she pulled into a dealership's lot that Walker and Clark caught up with appellant. When Walker first spoke with appellant, Walker asked her if she was drunk. Appellant slurred her speech and fumbled around in her purse. Walker saw wine bottles in appellant's vehicle. Although Clark did not see any wine bottles in appellant's vehicle, he testified that appellant seemed impaired and had "difficulty producing the information" he needed. After Smith removed appellant from her vehicle, he saw empty wine bottles inside the vehicle. Because she was unsteady on her feet and had problems answering questions, Smith called for "certified" cover. Westerlund responded and administered field sobriety tests to appellant. He determined that she did not have the normal use of her mental and physical faculties "to operate a motor vehicle." Additionally, Westerlund smelled a slight odor of alcohol on appellant. And appellant told Westerlund she had been driving. We conclude the above facts, when taken together with rational inferences from those facts, led the officers to believe that appellant was intoxicated. And, it can be reasonably inferred that any person would be a potential danger to herself or to others if she (1) bumped a vehicle that was stopped at a red traffic light and drove off without stopping; (2) entered a left turn lane, ran a red traffic light, and hit another vehicle entering an intersection on a green traffic light; (3) had slurred speech, difficulty producing her driver's license and seemed impaired; (4) failed an H.G.N. test and had difficulty when an officer administered the walk-and-turn test; and (5) had both full and empty wine bottles inside her vehicle. Therefore, we conclude the trial court did not err in denying the motion to suppress. We resolve appellant's issues against her. We affirm the trial court's judgment.