Opinion
No. 13-06-310-CR
June 14, 2007.
On appeal from the County Court at Law No. 2 of Bell County, Texas.
Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez.
MEMORANDUM OPINION
Appellant, Ruben Soliz, appeals from his conviction for the offense of driving while intoxicated (DWI). See TEX. PEN. CODE ANN. § 49.04 (Vernon 2003). As the sole issue on appeal, appellant challenges the probable cause for his arrest and contends that the trial court erred when it denied his Motion to Suppress Intoxylizer. We affirm.
I. Background
Texas State Trooper Michael Mingst stopped appellant at approximately 1:30 a.m. after he allegedly observed appellant operating his vehicle in violation of section 547.322(f)(2) of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 547.322(f)(2) (Vernon 1999) (providing that it is unlawful to operate a motor vehicle without a light illuminating the vehicle's rear license plate). Trooper Mingst smelled an odor of alcohol coming from appellant, and appellant told Trooper Mingst that he had consumed "a couple of beers" prior to the stop. Trooper Mingst administered a horizontal gaze nystagmus (HGN) test on appellant, which provided Trooper Mingst with six clues that appellant was intoxicated. In addition, Trooper Mingst administered a portable breath test (PBT), and according to Trooper Mingst, the PBT indicated that appellant's blood alcohol concentration was "something around a 0.10." After administering the two field sobriety tests, Trooper Mingst placed appellant under arrest for suspicion of DWI. While in police custody, appellant submitted to two intoxilyzer breath tests that registered appellant's blood alcohol concentration at 0.176 and 0.164.
Prior to trial, appellant filed a Motion to Suppress Intoxilyzer arguing: (1) Trooper Mingst lacked reasonable suspicion to stop appellant, and (2) Trooper Mingst did not have probable cause to arrest appellant for suspicion of DWI. Following a hearing on appellant's motion to suppress, the trial court denied the motion. At a bench trial, appellant entered a plea of nolo contendere, and the trial court found appellant guilty. This appeal ensued.
II. Motion to Suppress and Probable Cause
As the only issue raised on appeal, appellant contends that the trial court erred by denying the Motion to Suppress Intoxilyzer because Trooper Mingst lacked probable cause for the arrest.
Appellant does not challenge on appeal whether Trooper Mingst had reasonable suspicion to stop appellant.
B. Applicable Law
The State has the burden to prove probable cause for an arrest. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). "To establish probable cause to arrest, the evidence must show that `at that moment [of the arrest] the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.'" Parker v. State, 206 S.W.3d 593, 596 (Tex.Crim.App. 2006) (quoting State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002)). A person commits an offense of DWI if the person, while intoxicated, operates a motor vehicle in a public place. See TEX. PEN. CODE ANN. § 49.04 (Vernon 2003). "Intoxication" means (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more. See id. § 49.01.
C. Analysis
Appellant specifically contends that Trooper Mingst lacked probable cause for the arrest because the State did not offer evidence to support the proper administration and scientific validity of the PBT and HGN tests. See Emerson v. State, 880 S.W.2d 759, 763-64 (Tex.Crim.App. 1994) (en banc).
As a prerequisite for presenting an error for appellate review, the record must show that appellant made the same complaint to the trial court in the form of a request, objection, or motion. TEX. R. APP. P. 33.1(a); Morris v. State, 89 S.W.3d 146, 150 (Tex.App.-Corpus Christi 2002, no pet.). An appellant has not preserved an error for review if the complaint made on appeal differs from the objection made in the trial court. Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986) (en banc). While appellant's motion to suppress generally contended that Trooper Mingst lacked probable cause for the arrest, appellant's motion did not develop any basis for challenging the probable cause for the arrest. At the hearing on the motion to suppress, the State offered evidence supporting the probable cause for the arrest, including the results of the PBT and HGN tests. Appellant, however, did not object to the trial court's admission of Trooper Mingst's testimony regarding the PBT and HGN tests. In addition, appellant did not question the method of administration or scientific validity of either test. Therefore, appellant has failed to preserve his complaints regarding the admissibility of these tests. See TEX. R. APP. P. 33.1(a); Morris, 89 S.W.3d at 150.
Because appellant did not object to the admissibility of the HGN and PBT evidence below, we consider this evidence as part of the record on appeal. See Maxcey v. State, 990 S.W.2d 900, 903 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Therefore, we may consider the results of the PBT and HGN tests in our review of probable cause for appellant's arrest. Trooper Mingst testified that he witnessed four signs of appellant's intoxication: (1) appellant smelled of alcohol, (2) appellant admitted to consuming alcohol, (3) appellant showed six of six clues on the HGN test, and (4) the PBT showed that appellant's blood alcohol concentration was above 0.08. See TEX. PEN. CODE ANN. § 49.04 (Vernon 2003). Trooper Mingst also testified that he witnessed appellant operating a motor vehicle on Business 190, a public highway. See id. § 49.01. Therefore, the facts and circumstances within Trooper Mingst's knowledge were sufficient to warrant a prudent man to believe that appellant committed the offense of DWI, and accordingly, Trooper Mingst had probable cause to arrest appellant. See Parker, 206 S.W.3d at 596. Because probable cause existed for appellant's arrest, the trial court properly overruled the Motion to Suppress Intoxilyzer. We overrule appellant's sole issue.
III. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ Justice