Opinion
No. 05-02-00756-CR
Opinion Filed June 11, 2003 Do Not Publish
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB01-61594-H. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Marisa Diana May entered a nolo contendere plea to the charge of driving while intoxicated ("DWI"). See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). The trial court found May guilty and, following a negotiated-plea agreement, assessed punishment at 120 days confinement, probated for two years, and a $500 fine. May appeals. In her sole point of error, she contends the trial court erred in denying her motion to suppress because she was unlawfully arrested. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm. When reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of the facts, particularly when the finding involves an evaluation of a witness's credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Id. Because the instant case presents us with questions of law based on undisputed facts, we apply a de novo review. See id. The undisputed evidence in the record reflects on the night of her arrest May was driving erratically. A witness, following May, saw May's car jump a median, then jump a curb, and almost drive into a small pond. Finally, after accelerating at a high rate of speed, May's car then went airborne and crashed through a fence surrounding the facility of the U.S. Drug Enforcement Administration ("DEA"). Although the record is unclear as to the construction of the fence at the location where May's car went through it, other testimony describes the DEA's facility as a building with "plants and a big security system and a big brick wall and fence all around it." May's car then proceeded through the DEA's parking lot and to the front gate. The security guard manning the DEA's guard booth, who worked for a security consulting group, testified that he monitored people coming in but not coming out. Thus, unaware of how May's car had gained ingress to the DEA facility, the guard opened the barrier gate to let May's car out. At that point the witness to the crash, who had circled back, blocked May's car from leaving and got out to see if its occupants were injured. Words were spoken, May admitted to having been driving the car, and the police were called. At some point during this time May used her cell phone to call her husband, handed the phone to the guard, and told the guard to tell her husband were she was. After talking with the witness, a police officer interviewed May and determined she was intoxicated, due in part to the odor of alcohol coming from May and to May's admission that she was drinking that night. Completing his interview, the officer arrested May. Some twenty minutes after the police and May left the scene, her husband arrived. May argues her motion to suppress should have been granted because the arresting officer unlawfully arrested her without a warrant. To justify a warrantless arrest, the State has the burden to prove probable cause existed when the officer made the arrest. Roberts v. State, 545 S.W.2d 157, 158 (Tex.Crim.App. 1977); Segura v. State, 826 S.W.2d 178, 182 (Tex.App.-Dallas 1992, pet. ref'd). Probable cause to arrest without a warrant exists if at the moment of arrest "the facts and circumstances within the officer's knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense." Brown v. State, 986 S.W.2d 50, 52 (Tex.App.-Dallas 1999, no pet.) (quoting Lunde v. State, 736 S.W.2d 665, 667 (Tex.Crim.App. 1987)). We examine the totality of the circumstances to determine whether probable cause existed at the time of the warrantless arrest. Id. Although May was convicted of DWI, the arresting officer could have arrested May without a warrant if, at the time of the arrest, probable cause existed for May committing either the DWI or the offense of public intoxication. Segura, 826 S.W.2d at 184-85. No party argues probable cause for the DWI existed when the officer arrested May. Therefore, the resolution of this appeals centers on whether probable cause existed for the offense of public intoxication. The offense of public intoxication occurs when an individual: (1) appeared in a public place while intoxicated; and (2) was so intoxicated that she may have been a danger herself or another. Tex. Pen. Code Ann. § 49.02 (Vernon 2003). May contends that when she was arrested there was no proof she was a danger to herself or to others. Nevertheless, if there were proof of potential danger to herself or to others, then the officer had probable cause to arrest her without a warrant for public intoxication. Segura, 826 S.W.2d at 184. May specifically argues that the above evidence does not prove she was a potential danger to herself or to others. May also cites to the fact that prior to the officer's arrival she called her husband, who arrived twenty minutes after May was arrested and transported to jail, to establish as a matter of law she was not a danger to herself or to others. Nothing in the record indicates whether the officer, prior to arresting her, knew May phoned her husband. Nonetheless, the fact that May was involved in a one car accident, flying through the DEA's fence, provided the officer with the necessary knowledge to determine that May was a potential danger to herself or to others. See Carrasco v. State, 712 S.W.2d 120, 122 (Tex.Crim.App. 1986). Therefore, at the moment of her arrest, the officer had probable cause to arrest without a warrant because the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that May was committing the offense of public intoxication. See id.; Segura, 826 S.W.2d at 185. Consequently, the trial court properly denied May's motion to suppress. Thus, we resolve May's sole point of error against her. Having resolved May's sole point of error against her, we affirm the trial court's judgment.
The State urges that May's notice of appeal does not comply with the form requirements of former rule of appellate procedure 25.2(b)(3); thus, she failed to invoke our jurisdiction even though May's conviction was for a misdemeanor instead of a felony. See Tex.R.App.P. 25.2(b)(3) (amended January 1, 2003). Former rule 25.2(b)(3) applied to appeals of plea-bargained felony convictions made pursuant to article 1.15 of the code of criminal procedure, but it did not apply to plea-bargained misdemeanor convictions. Alvorado v. State, 83 S.W.3d 203, 204 (Tex.App.-Amarillo 2002, no pet.). Because May was convicted for a misdemeanor, former rule 25.2(b)(3) does not apply. Additionally, if former rule 25.2(b)(3) applied, the record contains a notice of appeal that conforms to the form requirements of it. Accordingly, we conclude we have jurisdiction over this appeal.