No. 05-95-00725-CR.
Opinion filed March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MB93-63994-L. Affirmed.
Before Justices MOSELEY, FRANCIS, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Cheryl Stringer Pierce of driving while intoxicated (DWI) and the trial court assessed 180 days in the county jail and a $500 fine, suspended the jail sentence, and placed appellant on community service for twenty-four months. On original submission, appellant raised four points of error. On remand, the issue is whether the trial was correct in denying appellant's motion to suppress. We affirm the trial court's judgment.
BACKGROUND
David Miller, a Bosque County deputy sheriff, was driving his marked sheriff's vehicle when he saw appellant's vehicle rapidly approaching him from behind. As appellant's vehicle passed Miller's vehicle, her vehicle swerved into Miller's lane. He had to brake to avoid a collision. Appellant raced ahead. Her vehicle continued to swerve from lane to lane and repeatedly straddled the white line. Appellant's erratic driving made Miller suspect she was intoxicated. Miller followed her and stopped her vehicle. Miller smelled alcohol, saw appellant's bloodshot eyes, and heard appellant slur her speech. Miller asked appellant where she had been. She told Miller she was coming from a nightclub. Because Miller was out of his jurisdiction, he called the Dallas Police Department. Shortly thereafter, Dallas police officer Brian Topp happened upon the scene and stopped his patrol car. Topp, after observing appellant, administered field sobriety tests. Appellant failed several of the tests and Topp arrested her for DWI. At the jail, although appellant performed sobriety tests on videotape, she refused to take a blood or breath test. This Court originally affirmed the trial court on July 27, 1999. We granted appellant's motion for rehearing and again affirmed the trial court on October 18, 1999, relying on the trial court's jury charge under Article 38.23 of the Code of Criminal Procedure and on Lalande v. State, 676 S.W.2d 115, 117 (Tex.Crim.App. 1984) (comparing State's burden of proof on motion to suppress and before a jury); Johnson v. State, 885 S.W.2d 578, 580 (Tex. App.-Dallas 1994, no pet.) (holding jury's verdict subsumed the trial court's denial of motion to suppress); and Foster v. State, 767 S.W.2d 909, 911 (Tex. App.-Dallas 1989, pet. ref'd) (discussing State's burden in motion to suppress). The court of criminal appeals reversed our judgment and remanded this case, concluding that we misplaced our reliance on those cases. See Pierce v. State, 32 S.W.3d 247, 253 (Tex.Crim. App. 2000). We again reviewed the record and reversed the trial court because we read the first remand opinion to say that the original stop was for a traffic violation. The court of criminal appeals again remanded on the State's petition of review, instructing us that the Pierce court's language reciting that appellant was stopped for a traffic violation was mere dicta and we should resolve this case on the merits of appellant's complaint that the stop was illegal from its inception and Topp never saw appellant driving. We now address the merits of those complaints. MOTIONS TO SUPPRESS
On remand, appellant argues that the trial court erred in denying her motion to suppress because (1) the initial stop was unlawful because the officer who stopped her was outside his jurisdiction and (2) the arrest for DWI was unlawful because the arresting officer did not see her driving. Appellant complains the stop and arrest violated the United States and Texas Constitutions, as well as article 38.23. Because she does not argue that different laws or standards of review apply, we address all of her arguments together. 1. Standard of Review
We review motions to suppress under the standard set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). We afford almost total deference to a trial court's determination of the historical facts supported by the record when the trial court's findings turn on an evaluation of credibility and demeanor. Id. at 89. The amount of deference we afford a trial court's ruling on a mixed question of law and fact depends upon which court is in a better position to decide the issue. See id. Without credibility issues, we determine de novo whether reasonable suspicion or probable cause existed to justify a stop or arrest. See Ornelas v. United States, 517 U.S. 690, 699 (1996); Guzman, 955 S.W.2d at 89. 2. Probable Cause a. Applicable Law (1) Officer Miller
Any person may make a warrantless arrest of a person for an offense committed in his view or presence if the offense is a felony or a breach of peace. See Tex. Code Crim. Proc. Ann. art. 14.01(a) (Vernon 1977). A breach of the peace includes any act that threatens danger and disaster to the community. See Ruiz v. State, 907 S.W.2d 600, 603 (Tex. App.-Corpus Christi 1995, no pet.). DWI is a breach of the peace. See Romo v. State, 577 S.W.2d 251, 253 (Tex.Crim.App. 1979); Dyar v. State, 59 S.W.3d 713, 716 (Tex. App.-Austin 2001), aff'd, 125 S.W.3d 460 (Tex.Crim.App. 2003). (2) Officer Topp
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 1977). An arrest for DWI is not necessarily invalid because the arresting officer did not see the person drive his car. Warrick v. State, 634 S.W.2d 707, 709 (Tex.Crim.App. [Panel Op.] 1982) (citing United States v. Fossler, 597 F.2d 478, 482 (5th Cir. 1979)). That person may be subject to arrest for public intoxication. Id. If an officer arrests a person for the wrong offense, but has probable cause to arrest for a closely related offense, the arrest is valid. See id.; see also Segura v. State, 826 S.W.2d 178, 184 (Tex. App.-Dallas 1992, pet. ref'd). A person commits public intoxication if she appears in a public place while intoxicated to the degree that she may endanger herself or another. See Tex. Penal Code Ann. § 49.02(a) (Vernon 2003). Potential danger to herself or others suffices to show endangerment. See Segura, 826 S.W.2d at 184. b. 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. Because the facts are undisputed that Miller was an out-of-county peace officer and Topp did not see appellant driving, we begin by determining de novo whether probable cause existed to justify the stop and arrest. See Ornelas, 517 U.S. at 699; Guzman, 955 S.W.2d at 89. Appellant argued at her pretrial hearing on September 7, 1994, that Miller stopped her solely because he observed traffic violations, not for breaching the peace. Appellant also claimed her arrest was illegal because Topp did not personally observe her driving. Appellant repeats these same arguments on remand. The only evidence before the trial court at the pretrial hearing was the arrest report and appellant's affidavit attached to the motion to suppress. Appellant's brief cites this Court to the language contained the arrest report-appellant's failure "to maintain a single lane of traffic" and speeding "off [from a red light] at a high rate of speed." However, the language immediately proceeding the above quoted language recites that "an off-duty officer having a DWI suspect stopped in which the arrestee was involved." Appellant's affidavit maintains she operated her vehicle safely in a single lane and only changed lanes when she could do so safely. The trial court recessed the pretrial hearing for one week for argument of counsel, and, after argument, denied appellant's motion. But, on the day of trial, the trial court allowed appellant to reurge her motion, announced "Motion to suppress evidence is being held," and began the trial. We take this to mean the trial court rescinded its previous denial and again took the motion under advisement. On appeal, appellant contends the only way Miller could legally stop her was as a private citizen who observed a felony or a breach of the peace. Under the law in effect at the time of appellant's arrest, we agree. Miller testified at trial that appellant was driving erratically, swerving from lane to lane, straddling the white line between lanes, and almost hit his vehicle. Her driving caused Miller to have to slam on his brakes. He also testified he stopped appellant because the time of night and the number of nightclubs in the area prompted him to believe that appellant was driving while intoxicated. The trial court could have believed that the totality of the circumstances-appellant's reckless and erratic driving and Miller's or any other citizen's belief that appellant was driving while intoxicated-authorized a warrantless arrest. See Tex. Code Crim. Proc. Ann. art 14.01(a). Having determined that Miller properly arrested appellant, it follows that Miller properly transferred appellant to Topp's custody. Moreover, when Topp arrived at the scene, he saw appellant's condition. Under the totality of the circumstances, we conclude any reasonable factfinder could have found Topp had probable cause to arrest appellant for public intoxication. Also, any reasonable factfinder could have concluded that appellant could have driven from the scene while intoxicated and would be a danger to herself and to others. We overrule appellant's first and second points of error. Accordingly, we affirm the trial court's judgment.