No. 05-08-01448-CR
Opinion Filed November 12, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. MB07-49585-C.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.
Opinion By Justice RICHTER.
A jury convicted appellant of driving while intoxicated ("DWI"). The trial court sentenced appellant to one hundred eighty days in the Dallas County jail, probated for eighteen months, and a $1,000 fine. Appellant appeals her conviction and claims that evidence was improperly admitted as "fruit of an unlawful arrest." We overrule this issue and affirm the trial court's judgment.
STATEMENT OF FACTS
Dallas police officer Roger Brock observed appellant driving approximately fifteen miles over the speed limit on February 10, 2007, at approximately 1:00 a.m. He initiated a traffic stop of the vehicle driven by appellant and upon approaching the vehicle noticed the odor of alcohol and that appellant's eyes were bloodshot. Brock asked appellant if she had been drinking and she replied that she had not. Brock called Dallas police officer Ronald Cathcart, of the Dallas "DWI squad" to perform field sobriety tests. Cathcart arrived at the scene shortly and also detected symptoms of intoxication. Cathcart asked appellant if she had been drinking and she admitted drinking three beers. After performing three field sobriety tests Cathcart confirmed that appellant was driving while intoxicated and he arrested appellant. At the trial Brock testified to the facts surrounding the traffic stop and signs of intoxication. Cathcart testified about appellant's signs of intoxication and the results of the field sobriety test. He also testified that appellant refused a breath and blood test. A video tape taken from Officer Cathcart's patrol car of the events surrounding the arrest was also admitted. On voir dire, Cathcart testified that he did not see appellant drive the vehicle and he did not know if appellant's vehicle was "running" when he arrived on the scene. Appellant testified on her own behalf that she had consumed three beers that evening but that she was not intoxicated. She testified that her poor performance on the field sobriety tests were due to excess weight. Appellant's father also testified on her behalf, although he had not been with appellant that evening nor was he in the motor vehicle when appellant was stopped. STANDARD OF REVIEW
Where the arrest was lawful and there is no constitutional violation, we review the trial court's decision to admit evidence under the abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). Under the abuse of discretion standard the appellate court is required to uphold a trial court's decision to admit evidence provided the ruling was at least within a "zone of reasonable disagreement." Id. DISCUSSION
In her sole issue on appeal, appellant contends that her warrantless arrest was improper because Cathcart did not witness her "operating" a vehicle. Therefore, she contends the evidence obtained after her arrest, including her refusal to take a breath or blood test, was "fruit of a poisonous arrest" and should have been excluded by the trial court. In Texas, an officer may only arrest an offender without a warrant in limited circumstances. One of the exceptions to the warrant requirement is when the offense is committed in the officer's presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). A person commits the offense of DWI when they operate a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). Appellant complains that Cathcart could not lawfully arrest her for "operating a motor vehicle" while intoxicated if he did not observe her operate the vehicle. Appellant cites several cases requiring the officer to have seen the accused operate the vehicle in some manner, even if it involved merely having the engine running and the car in gear. The cases relied upon by appellant, however, are inapposite. In those cases no one saw the defendant "driving" a motor vehicle. Instead the defendant was found intoxicated in a motor vehicle in a position that established he had been driving or the officer arrested the defendant for public intoxication when it was unclear whether he had been operating a motor vehicle. Freeman v. State, 69 S.W.3d 374 (Tex. App.-Dallas 2002, no pet.) (defendant lawfully arrested for DWI when she was found asleep in her car, partially on a curb, with the motor running and in the "drive" position). Milam v. State, 976 S.W.2d 788 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (defendant lawfully arrested for DWI when he was discovered passed out at the wheel of his car in a parking lot, with the engine on, the car in gear and the defendant had his foot on the brake). In this case there is no dispute that Officer Brock witnessed appellant operating her car. Although Brock did not make the arrest, he observed appellant operating the motor vehicle in excess of the speed limit and initiated a traffic stop. After observing appellant, Officer Brock suspected intoxication and relayed this information to Officer Cathcart. Officer Cathcart then confirmed the suspicion of intoxication, performed field sobriety tests and arrested appellant for DWI. Officer Cathcart testified that he arrested appellant for operating a vehicle while intoxicated based upon the facts relayed to him by Officer Brock, his own observations of appellant and the results of the field sobriety tests. These facts are sufficient to establish that both officers were part of a team that participated in appellant's arrest and that Cathcart was authorized to arrest appellant. "As long as the facts show that the viewing officer effectively participated in the arrest and was fully aware of the circumstances of the arrest, then Art. 14.01 is satisfied." Astran v. State, 799 S.W.2d 761, 764 (Tex. Crim. App. 1990). The court in Astran also noted that the arresting officer can rely on other officers and lay citizens when determining that probable cause exists to make a warrantless arrest under Art. 14.01. Id. In this case Brock witnessed appellant operating the vehicle and he and Cathcart were integral to establishing that appellant was intoxicated and making the arrest. Because Brock and Cathcart were part of the arrest team and Brock had first hand knowledge that appellant had operated the motor vehicle, we conclude that the arrest was lawful under Art. 14.01(a). Because the arrest was lawful, any evidence obtained after the arrest was lawful and not fruit of the poisonous tree. Warwick v. State, 634 S.W.2d 707 (Tex. Crim. App. 1982). We conclude that the trial court did not err in admitting evidence obtained following appellant's arrest and overrule appellant's sole issue. The judgment of the trial court judgment is affirmed.