State v. May , 2007 Tex. App. LEXIS 6678 ( 2007 )

MEMORANDUM OPINION

Opinion by

CATHERINE STONE, Justice.

This case is on remand from the Court of Criminal Appeals. See State v. May, No. PD-1490-05, 2006 WL 2615253 (Tex.Crim.App.2006) (not designated for publication). The issue we must resolve on remand is whether the trial court abused its discretion by granting Donna Lynn May’s motion to suppress. The facts of this case are well-known to the parties so we do not recite them in any detail. Further, because the issue raised in this appeal involves the application of well-settled principles of law, we issue this memorandum opinion under Texas Rule of Appellate Procedure 47.4. We reverse and remand for further proceedings.

In accordance with State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006), the trial court entered findings of fact and conclusions of law in support of its suppression ruling. The court’s findings of fact recap the testimony of the arresting officers regarding May’s driving on the morning of her arrest. The court’s findings reflect that officers heard the screeching of tires and then observed May’s vehicle leave the roadway, travel on the sidewalk, and then strike another motorist. Although the trial court’s findings reflect the court believed that May “had a moderate odor of intoxicants on her breath” at the time of her accident, the court disbelieved other evidence presented at the suppression hearing relating to May’s appearance after the accident, which included testimony that she had slurred speech and was unsteady on her feet, and her poor performance on the horizontal gaze nystagmus test. According to the trial court, it was not compelled to believe all of the witness testimony offered by the State due to the tone and demeanor of the witnesses. The trial court’s conclusion of law thus provides: “The Court finds that the only credible evidence is that the tires squealed, there was an accident and the defendant had the smell of alcohol on her breath. Much of the evidence presented by the [S]tate lacked credibility. Therefore, there was no probable cause to arrest the defendant for driving while intoxicated.”

Although the trial court disbelieved some of the testimony it heard at the suppression hearing, it did believe that officers witnessed May strike another vehicle after she drove her vehicle off of the roadway and onto a sidewalk. The court also believed that May smelled of alcohol at the time of her accident. Based on existing precedent from this court and the Court of Criminal Appeals, such facts and circumstances, when viewed together, are sufficient to establish probable cause to arrest an individual for DWI. See Pesina v. State, 676 S.W.2d 122, 127 (Tex.Crim.App.1984) (recognizing that officer had probable cause to arrest defendant where the defendant was involved in a collision with another vehicle and had a strong odor of alcohol on his breath); State v. Cullen, 227 S.W.3d 278, 288 (Tex.App.-San Antonio 2007, pet. ref'd) (holding probable cause existed to arrest defendant for DWI where officers witnessed defendant crash his vehicle into a telephone pole after attempting to negotiate a turn at' a high rate of speed and defendant smelled of alcohol at the time of his accident); see also Knisley v. State, 81 S.W.3d 478, 483-84 (Tex.App.-Dallas 2002, pet. refd) (holding probable cause to arrest defendant for DWI where officer knew the defendant was involved in a single vehicle accident, was unable to answer simple questions, and smelled of alcohol); Broadnax v. State, 995 S.W.2d 900, 904 (Tex.App.-Austin 1999, no pet.) (holding probable cause to arrest defendant for DWI where officer knew the defendant crashed his vehicle trying to pass a truck and officer smelled alcohol on defendant’s breath after the accident); Mitchell v. State, 821 S.W.2d 420, 424-25 (Tex.App.-Austin 1991, pet. ref'd) (holding probable cause to arrest defendant for DWI where arresting officer learned from fellow officer that the defendant had been involved in a serious single vehicle accident and smelled of alcohol). We therefore hold that the trial court abused its discretion by granting May’s motion to suppress.

The trial court’s suppression order is reversed and the cause is remanded for further proceedings.

Dissenting opinion by STEVEN C. HILBIG, Justice.