No. 05-10-00739-CR
Opinion issued October 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB0737061H.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice FITZGERALD.
Appellant David Wayne Herring was convicted of operating a motor vehicle in a public place while intoxicated. He appeals his conviction, arguing in two points of error that the trial judge erred by denying his motion to suppress and that the evidence was legally insufficient to support his conviction. We affirm.
I. Background
Appellant was charged by information with the offense of operating a motor vehicle in a public place while intoxicated. He filed a motion to suppress evidence in which he argued that all evidence obtained from him should be suppressed because his arrest was made without probable cause. The trial judge held a hearing on appellant's motion. The only witness at the hearing was the arresting officer, Irving police officer Jared Payne. The judge denied appellant's motion to suppress. The case was tried to the court, and again the only witness was officer Payne. The judge found appellant guilty and imposed a sentence of confinement in jail for 180 days, probated for two years, and a $1,000 fine. Appellant then perfected this appeal. II. Analysis
A. Motion to suppress
In his first point of error, appellant argues that the trial judge erred by denying his motion to suppress because the State did not show probable cause for his arrest. In our review, we give almost total deference to the trial court's determination of historical facts, and we review the trial court's application of law de novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We uphold the trial court's decision if it is supported by the record and was correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). Generally, evidence that is illegally obtained may not be admitted in evidence against the accused at trial. Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). Texas law requires a warrant for an arrest unless a statutory exception applies. Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996). A police officer may arrest a person without a warrant only if probable cause exists with respect to the person in question and the arrest falls within a statutory exception to the warrant requirement. Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). The statutory exception relevant to this case provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005). Probable cause to arrest exists if, at the moment of the arrest, the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient for a prudent man to believe that the arrested person had committed or was committing an offense. Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006); see also Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008) ("Probable cause exists if the officer knows of facts that would lead a reasonable person to believe that the suspect has committed or will soon commit a crime."). If the offense of driving while intoxicated is not committed in an officer's presence, a warrantless arrest for driving while intoxicated may still be valid because the defendant may still be subject to a charge of public intoxication. Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. [Panel Op.] 1982); Pointer v. State, No. 05-09-01423-CR, 2011 WL 2163721, at *3 (Tex. App.-Dallas June 3, 2011, no pet.) (not designated for publication). Officer Payne's testimony at the suppression hearing supported the following facts. At about 4:20 in the morning on September 21, 2007, Payne was dispatched to the 600 block of the service road of east Highway 114 in Dallas County. There he found a vehicle stopped in the right lane of traffic with its rear lights on. Payne could not see anyone in the vehicle, so he got out of his squad car and approached the stopped vehicle on foot. As he approached the rear of the vehicle, he could see appellant sitting in the driver's seat and "laying on the steering wheel." Appellant's foot was on the brake, and he was not wearing a seatbelt. The vehicle's engine was running. Appellant was asleep, and Payne knocked on the window for a couple of minutes before appellant woke up. Appellant tried and failed to roll down his window, and he eventually opened the door. Payne immediately smelled alcohol and saw that appellant's eyes were red. Appellant had difficulty speaking and slurred his speech. At Payne's request, appellant got out of his vehicle and stumbled a couple of times. Appellant could not coherently tell Payne where he had been or what he was doing, so Payne attempted to administer field sobriety tests. Appellant was unable to complete any of the tests Payne administered. Payne discontinued the nine-step walk-and-turn test because appellant almost fell and Payne did not want him to fall into the lane of traffic. No one else was in appellant's vehicle, and Payne did not encounter anyone outside the car who could have been a passenger. On cross-examination, Payne acknowledged that the vehicle's brake lights came on after he began knocking on the window and then went off and that the vehicle was stopped on a downward slope, which indicated that the vehicle's gear must have been in park. We need not consider whether Payne had probable cause to arrest appellant for driving while intoxicated because the record supports the existence of probable cause to arrest appellant for public intoxication committed in Payne's presence. A person commits public intoxication if he appears in a public place while so intoxicated that he may endanger himself or another. See Tex. Penal Code Ann. § 49.02(a) (West 2011). Payne encountered appellant in a public place and observed several signs of intoxication. Appellant was asleep in a parked car that was stopped in a lane of traffic when Payne encountered him, and appellant nearly fell when he attempted to complete a field sobriety test. Under the totality of the circumstances, Payne had a reasonable belief, based on his observations, that appellant was in a public place while intoxicated to such a degree that he was a danger to himself or others. See Pointer, 2011 WL 2163721, at *3 (upholding denial of motion to suppress and affirming DWI conviction on analogous facts); Segura v. State, 826 S.W.2d 178, 184-85 (Tex. App.-Dallas 1992, pet. ref'd) (same). The trial court did not err by denying appellant's motion to suppress evidence. We overrule appellant's first point of error. B. Sufficiency of the evidence
In his second point of error, appellant argues that the evidence is insufficient to support his conviction for driving while intoxicated. Under the appropriate standard of review, we consider all of the evidence in the light most favorable to the trial judge's determination and affirm if the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd, untimely filed) (setting forth standard of review for jury verdicts); Ferguson v. State, 313 S.W.3d 419, 422 (Tex. App.-Houston [1st Dist.] 2009, no pet.) ("In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict."). The elements of the offense of driving while intoxicated are that the defendant (1) was intoxicated (2) while operating a motor vehicle (3) in a public place. See Tex. Penal Code Ann. § 49.04(a) (West 2011). Appellant stipulated at trial that he was intoxicated. He does not argue on appeal that he was not in a public place during his encounter with officer Payne. He argues only that the evidence is insufficient to prove that he operated a motor vehicle while intoxicated. In this context, "operate" means to take action to affect the functioning of a vehicle in a manner that would enable the vehicle's use. Barton v. State, 882 S.W.2d 456, 459 (Tex. App.-Dallas 1994, no pet.); see also Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). The evidence at trial included the testimony of officer Payne and a video taken from a camera in his squad car. Officer Payne's testimony at appellant's trial was largely the same as his testimony at the suppression hearing. He responded to a call about a traffic hazard in the 600 block of the south frontage road of Highway 114. At the scene he found a car stopped in the right lane of traffic, and he parked behind the car. The video reflects that it was about 4:20 on September 21, 2007, at the time of the encounter. Payne found appellant in the driver's seat of the car, slumped down and either asleep or unconscious. The keys were in the ignition, and the engine was running. Payne eventually got appellant's attention by knocking on the window. Appellant obeyed Payne's instruction to turn the car off, but then tried twice, unsuccessfully, to start the car again. The video shows that the brake lights on appellant's car came on while Payne was standing at the driver's side window, and then went off again. In conversing with appellant, Payne found that appellant could not give him clear answers about where he had been or where he was going. No one else was in the car with appellant, and appellant did not say anything about anyone else being in the car with him recently. Appellant contends there is insufficient evidence that he operated the car while intoxicated. We reject his contention. Although Payne did not see appellant cause the car to move, he found appellant asleep or unconscious (and admittedly intoxicated) in the driver's seat of a car that was parked on a highway frontage road in a lane of traffic late at night with the engine running. There was no one else in the car, and appellant did not indicate that anyone else had been there with him. The video indicates that appellant pressed and released the brake pedal of the car, and Payne testified that appellant turned the car off and twice attempted to turn it back on. Based on the totality of the evidence, a reasonable fact-finder could conclude beyond a reasonable doubt that appellant, while intoxicated, took action to affect the functioning of the vehicle in a way to enable its use. This case is quite similar to the Barton case, in which a police officer discovered the defendant asleep behind the wheel of his vehicle, which was turned on and parked in the road late at night. 882 S.W.2d at 457-58. The police officer turned the engine off, and after the defendant woke up he engaged the clutch, changed the gears, released the clutch, and reached to start the engine. Id. at 459. We held that the evidence was sufficient to support the defendant's conviction for driving while intoxicated. Id. at 459-60; see also Hearne v. State, 80 S.W.3d 677 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (upholding DWI conviction based on evidence similar to that in the instant case). We reach the same conclusion in this case. We overrule Herring's second point of error. III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.