Mileah Gill Jordan v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00389-CR



Mileah Gill Jordan, Appellant

v.

The State of Texas, Appellee



FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY NO. 504044, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

Mileah Gill Jordan was charged with a Class B misdemeanor offense of driving while intoxicated ("DWI"). ⁽¹⁾ She filed a motion to suppress evidence, which was denied. Pursuant to a plea bargain agreement, Jordan pleaded nolo contendere and was convicted on her negotiated plea. The court, in accordance with the terms of the plea agreement, assessed punishment at 180 days in jail and a $2000 fine but suspended imposition of this sentence and placed her on community supervision for two years. Jordan contends that the trial court erred in denying her motion to suppress because she was arrested without a warrant or probable cause. We will affirm the judgment.

BACKGROUND

At approximately 4:30 p.m. on May 28, 1998, Austin Police Department Officer Gary Shaw received a call dispatching him to the scene of a two-car automobile accident in the 100 block of West Annie Street in Austin. When Shaw arrived, he found appellant and two witnesses waiting in a parking lot near the intersection of West Annie and Congress Avenue. The two cars had sustained minor damage and no one was injured. One of the witnesses told the officer that he had been traveling eastbound on Annie Street near Congress Avenue when Jordan struck his car from the rear. The witnesses and Jordan proceeded across Congress and pulled into the parking lot.

After speaking to the witnesses, the officer approached Jordan. He asked her whether she had been drinking. Jordan responded that she had consumed a couple of beers that afternoon. The officer did not smell alcohol on her breath. The officer then asked her whether she had taken any drugs. Jordan responded that she had taken Benedryl and Sudafed as well as Soma, a muscle relaxant. Shaw observed that Jordan's speech was slurred and she mumbled when she spoke. She was unable to maintain her balance and she swayed while standing. She walked with difficulty and stumbled as she walked. As she leaned over to tie her shoe, she almost fell onto the pavement. Based on these signs and symptoms, Shaw suspected that Jordan was under the influence of alcohol or drugs, so he conducted field sobriety tests. Officer Shaw tied Jordan's shoe so that she could perform the tests, which she failed.

After Jordan failed the field tests, Officer Shaw placed her under arrest and transported her to the police station where she was videotaped. An intoxilyzer test administered to appellant reflected no alcohol in her system. Appellant also consented to a blood test, but law enforcement personnel were unable to draw blood from her.

Jordan filed a pre-trial motion to suppress all evidence obtained as a result of the arrest. She sought suppression of her statements made to Officer Shaw as well as the statements made by the two witnesses, the results of breath and blood tests, the videotape made at the station, and the officer's observations. Officer Shaw was the sole witness to testify at the hearing. The trial judge ruled that she was "not going to suppress the stop," but that she would grant the motion to suppress Jordan's statements about "the drinking and the drugs."

Standard of Review

In reviewing a motion to suppress for lack of probable cause, we look to the standard articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Although we give "almost total deference to a trial court's determination of the historical facts," we review de novo a determination of probable cause. Id. at 90; see also Ornelas v. United States, 517 U.S. 690, 697 (1996).

Because the trial court did not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling. See Carmouche v. State, No. 0614-99, slip op. at 5 (Tex. Crim. App. Jan. 26, 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Thus, we will assume that the trial court made "implicit findings of fact supported in the record that buttress its conclusion." Carmouche, slip op. at 5. Because the trial court did not specify its reason for the denial of the motion to suppress, its ruling will be upheld if it is correct under any applicable theory of law. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

DISCUSSION

As her first issue, Jordan contends that she was illegally detained by the two witnesses who lacked probable cause to arrest her. She further contends that the record fails to demonstrate that any offense was committed in their presence. As a consequence, any evidence obtained as a result of the arrest by the civilians constitutes "fruit of the poisonous tree" and must be suppressed. The State asserts that Jordan was merely detained by the witnesses and that she was not arrested until she failed the field sobriety tests conducted by Officer Shaw. At that point, the State further contends, the officer had probable cause either to arrest her or to transport her to the station house. In the alternative, the State contends that the civilian arrest was lawful because it was based on probable cause that appellant committed a breach of peace in the presence of the witnesses.

We turn first to the threshold question of whether Jordan was actually arrested by the two witnesses at the scene of the collision. At the pre-trial hearing, defense counsel elicited the following testimony:

DEFENSE COUNSEL: In fact, Mileah Jordan had been physically detained by [the two witnesses], is that correct?

OFFICER SHAW: That was the information provided me by those two individuals, yes.

DEFENSE COUNSEL: Before your arrival, they had physically prevented her from leaving that location while they held her for your arrival, is that correct?

OFFICER SHAW: That's correct.

* * * *

DEFENSE COUNSEL: She was basically in their custody when you arrived, is that correct?

OFFICER SHAW: She was present at the scene when I arrived.

The officer later testified that one of the witnesses stated that "Jordan was the driver of the car, that they had made her stop and wait for the police." From this testimony, appellant asks us to conclude as a matter of law that she was arrested by the two witnesses.

A citizen other than a police officer may make a warrantless arrest of an individual for a misdemeanor offense when the individual commits a breach of the peace. ⁽²⁾ See Tex. Code Crim. Proc. Ann. art. 14.01(a) (West 1977). A person is under arrest "when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." Id. art. 15.22. A person is in custody when her freedom of movement has been curtailed to the degree associated with a formal arrest as opposed to an investigative detention; the determination is "based entirely upon objective circumstances." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322-23 (1994)).

Although the record in the present case is meager, it establishes that, after colliding into the rear of the witnesses' car, the appellant drove to a nearby parking lot. The record does not reveal that the two witnesses employed any force or coercion at any time. Although defense counsel elicited acknowledgments by the officer to his questions, the record is silent on the manner of the alleged detention or its duration. Nor have we been cited to any case in which detention of a DWI suspect at the scene of a collision until the arrival of police has been held to be an illegal arrest. Recognizing confusion among courts in the definition of "arrest," however, the Texas Court of Criminal Appeals recently addressed its meaning in the context of the offense of escape. See Medford v. State, No. 521-99, slip op. at 4-7 (Tex. Crim. App. Feb. 23, 2000); see also Tex. Penal Code Ann. § 38.06 (West Supp. 2000).

In Medford, a police officer approached the defendant, who matched the description of the suspect in an arrest warrant, to conduct an investigatory detention. See Medford, slip op. at 2. During a search of Medford's pants pocket, the officer discovered a matchbox containing a substance that appeared to be "crack" cocaine. See id. The officer told Medford that he was under arrest. As the officer attempted to place Medford in handcuffs, Medford broke free of the officer's grip and fled. He was captured, indicted, and found guilty of possession of cocaine and escape.

Noting that the word arrest is a "technical term possessing a long, established history in the common law," id. at 4, the court concluded that, for purposes of the escape statute, "[t]he obvious conclusion we draw is that neither jurors nor reviewing courts can rely solely on Article 15.22's definition of arrest," but that it could provide guidance to the meaning of the word in other contexts. Id. at 5. Focusing on the "fact finder's application of the reasonable person standard," the court found an arrest complete "when a person's liberty of movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority," and further, only if "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. at 7 (citing United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)).

Reviewing the evidence in the light most favorable to the trial court's ruling as we are constrained to do, the evidence does not support appellant's contention that she was arrested by the two witnesses. Other than the conclusory testimony of the officer who was not present immediately after the collision, appellant failed to demonstrate that she was restrained in any manner. Once the accident occurred, Jordan and the two witnesses were obligated to stop and give information or render aid if necessary. See Tex. Transp. Code Ann. §§ 550.022-.023 (West 1999). At most, the evidence establishes that appellant was persuaded in some unspecified manner by the witnesses to wait until the police could arrive on the scene. ⁽³⁾ Appellant has failed to adduce any facts indicating that the encounter had escalated to an arrest. Cf. State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). The trial court reasonably could have found that the detention did not constitute an arrest. Applying the objective test of Medford, we conclude that the trial court did not err in upholding the "stop."

As her second issue, Jordan contends that the trial court erred in overruling her motion to suppress because the evidence at the hearing failed to establish that Officer Shaw had probable cause to arrest her. Because (i) the trial court suppressed Jordan's statements to the officer, (ii) her blood-alcohol test did not reveal her to be intoxicated, and (iii) the officer did not have personal knowledge that Jordan was driving and that she had collided with the other vehicle, Jordan contends that the officer's observations of her condition were insufficient to establish probable cause.

Relying on McVickers v. State, 874 S.W.2d 662 (Tex. Crim. App. 1993), appellant argues that the officer cannot testify to information provided to him by the two witnesses because it is impermissible hearsay. We disagree. An officer may rely upon and testify to information provided to him by others. The existence of probable cause is determined from the totality of the facts and circumstances of each case. See Torres v. State, 868 S.W.2d 798, 801 (Tex. Crim. App. 1993). An officer may rely in part on information supplied by others, including lay witnesses, in forming probable cause to believe that an offense has been committed in his presence or view. See Astran v. State, 799 S.W.2d 751, 764 (Tex. Crim. App. 1990). The testimony by the officer is admissible because it establishes why he took the actions he did. McVickers specifically concluded that statements that led an officer to find that there was probable cause to arrest a suspect are not hearsay and are admissible in suppression hearings. See McVickers, 874 S.W.2d at 666. Thus, Officer Shaw's testimony as to the statements made by the two witnesses to him was admissible in assessing probable cause to arrest.

Even without Jordan's admission of drug and alcohol use, ⁽⁴⁾ which the court held to be inadmissible, Shaw had probable cause to arrest Jordan. Her speech was mumbled and slurred. She had difficulty walking and could barely stand. She could not even tie her own shoelace or perform sobriety field tests. She had collided with another car. The court of criminal appeals has held that the fact that an accused has been involved in a car accident is sufficient probable cause to believe that she poses a danger to herself or others. See Carrasco, 712 S.W.2d at 122. ⁽⁵⁾ We hold that Shaw had probable cause to arrest Jordan.

CONCLUSION

Reviewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court did not err in denying appellant's motion to suppress. We affirm the judgment of the trial court.

Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: March 9, 2000

Do Not Publish

1. Tex. Penal Code Ann. § 49.04 (West Supp. 2000).

2. Driving while intoxicated is a breach of peace which allows a citizen other than a police officer to make an arrest without a warrant. See Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); Heck v. State, 507 S.W.2d 737, 740 (Tex. Crim. App. 1974); Trent v. State, 925 S.W.2d 130, 133 (Tex. App.--Waco 1996, no pet.); McGuire v. State, 847 S.W.2d 684, 696 (Tex. App.--Houston [1st Dist.] 1993, no pet.); Pringle v. State, 732 S.W.2d 363, 368 (Tex. App.--Dallas 1987, pet. ref'd).

3. See Woods v. State, 970 S.W.2d 770, 773 (Tex. App.--Austin 1998, pet. ref'd) (temporary detention by a private individual does not violate either the Fourth Amendment or article I, section 9 of the Texas Constitution).

4. The State did not challenge on appeal the suppression of appellant's statements but urged in oral argument that we should address the issue as unassigned error and find that the suppressed statements are admissible. While a court of appeals may, in its discretion, address unbriefed errors, see Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990), we decline to do so here. Because the court suppressed appellant's statements to the officer, appellant argues that the court must have concluded that the witnesses accomplished a citizen's arrest and that appellant was "in custody" when the officer arrived on the scene. The State contends that the hearing occurred prior to this Court's ruling in State v. Waldrop and that the court was simply mistaken in suppressing the statement and that the defendant was not in custody. In Waldrop, we held that a person stopped for a traffic offense is not in custody and her volunteered statements are not the product of custodial interrogation. See State v. Waldrop, 7 S.W.3d 836, 839-40 (Tex. App.--Austin 1999, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). Because neither argument is essential to our holding here, we decline to draw either conclusion from the meager record before us. In denying Jordan's motion to suppress the "stop," we conclude only that the trial court found she was not unlawfully arrested by the civilians. See State v. Ballard, 987 S.W.2d 889, 892-93 (Tex. Crim. App. 1999).

5. A person commits the offense of 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) (West Supp. 2000). A warrantless arrest under the circumstances shown here is not invalid merely because the arresting officer did not see the defendant driving a car, because the defendant may still be subject to a public intoxication charge. See Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. 1982). The arrest can be upheld if sufficient probable cause to arrest for the offense of public intoxication exists. See Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986) (officer observed symptoms of intoxication in driver in one-car accident); Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); Peddicord v. State, 942 S.W.2d 100, 109 (Tex. App.--Amarillo 1997, no pet.); Reynolds v. State, 902 S.W.2d 558, 559-60 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd); Segura v. State, 826 S.W.2d 178, 185 (Tex. App.--Dallas 1992, pet. ref'd).

use to believe that she poses a danger to herself or others. See Carrasco, 712 S.W.2d at 122. ⁽⁵⁾ We hold that Shaw had probable cause to arrest Jordan.

CONCLUSION

Reviewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court did not err in denying appellant's motion to suppress. We affirm the judgment of the trial court.

Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: March 9, 2000

Do Not Publish

1. Tex. Penal Code Ann. § 49.04 (West Supp. 2000).

2. Driving while intoxicated is a breach of peace which allows a citizen other than a police officer to make an arrest without a warrant. See Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); Heck v. State, 507 S.W.2d 737, 740 (Tex. Crim. App. 1974); Trent v. State, 925 S.W.2d 130, 133 (Tex. App.--Waco 1996, no pet.); McGuire v. State, 847 S.W.2d 684, 696 (Tex. App.--Houston [1st Dist.] 1993, no pet.); Pringle v. State, 732 S.W.2d 363, 368 (Tex. App.--Dallas 1987, pet. ref'd).

3. See Woods v. State, 970 S.W.2d 770, 773 (Tex. App.--Austin 1998, pet. ref'd) (temporary detention by a private individual does not violate either the Fourth Amendment or article I, section 9 of the Texas Constitution).

4. The State did not challenge on appeal the suppression of appellant's statements but urged in oral argument that we should address the issue as unassigned error and find that the suppressed statements are admissible. While a court of appeals may, in its discretion, address unbriefed errors, see Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990), we decline to do so here. Because the court suppressed appellant's statements to the officer, appellant argues that the court must have concluded that the witnesses ac