Carlos M. Mata, Sr. v. State of Texas ( 2002 )

NO. 07-01-0066-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 18, 2002
______________________________
CARLOS MATA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A13917-0012; HONORABLE JACK R. MILLER, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Following his plea of not guilty, appellant Carlos Mata was convicted by a jury of
unlawful possession of a firearm by a felon, sentenced to eight years confinement and
assessed a fine of $10,000. By three points of error, appellant contends that the trial court
erred in (1) admitting evidence seized after his warrantless arrest, (2) refusing to submit
to the jury his timely requested instruction, and (3) submitting an inaccurate and incomplete
jury instruction. Based on the rationale expressed herein, we affirm the judgment of the
trial court.
Because appellant does not challenge the sufficiency of the evidence to support his
conviction, a detailed fact statement is not required. Shortly after midnight on August 26,
2000, Officer Sanchez was dispatched to an area in Plainview to investigate a report that
shots had been fired. As he was driving to the area where the shots were reported, he saw
appellant and another male walking in the middle of the street. He activated the overhead
lights on his patrol car and stopped the two men. The officer recognized appellant and
detected signs that he and the other man were intoxicated. After performing field sobriety
tests, appellant and the other man were arrested for public intoxication. The officer
testified that in his opinion, appellant exposed himself to danger by walking down the
middle of a public street at night. After appellant was taken to jail, a .22 caliber handgun
was discovered on his person during a pat down and booking procedure.
By his first point of error, appellant contends the trial court erred in admitting
evidence seized after his warrantless arrest. We disagree. Without presenting a pretrial
motion to suppress evidence, appellant objected to the admission of the firearm into
evidence contending it was seized after a warrantless arrest. Although appellant’s brief
does not cite us to the portion of the record where his objection was made, our review
shows that his objection appears in volume six of the reporter’s record. There, without
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questioning the witness on voir dire examination, appellant’s counsel presented the
following objection:
Your Honor, I would object because before any evidence obtained after an
arrest can be admitted it must be proven by the State that it is a lawful arrest.
For there to be a lawful arrest under the facts of this case, it must be an
articulable basis for the offense of public intoxication including the element
of danger to self over others, which has not been presented, which there is
no such articulable basis.
The trial court overruled the objection and admitted the firearm into evidence. Appellant’s
argument does not challenge his state of intoxication or that he was walking in the middle
of the street at night, but only questions whether the officer’s knowledge is sufficient to
“warrant him as a prudent man to believe that appellant, albeit intoxicated, posed such a
danger to himself or another that he had committed or was committing the offense of public
intoxication.” Section 49.02(a) of the Texas Penal Code provides in part:
A person commits an offense if the person appears in a public place while
intoxicated to the degree that the person may endanger the person or
another.
(Vernon Supp. 2002). The question presented here was previously decided in Balli v.
State, 530 S.W.2d 123, 126 (Tex.Cr.App. 1975), overruled on other grounds, Chudleigh
v. State, 540 S.W.2d 314, 319 (Tex.Cr.App. 1976). There, as here, the officer approached
the appellant walking in the middle of the street and noticed the odor of alcohol on his
breath, slurred speech, swaying, and difficulty in walking. The Court held that because the
officer had probable cause to arrest appellant for public intoxication without a warrant
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under article 14.01 of the Texas Code of Criminal Procedure,1 the trial court did not err in
overruling appellant’s objection. Similarly, appellant’s first point of error is overruled.
By his second and third points of error, without specific citation to article 38.23 of
the Texas Code of Criminal Procedure, appellant contends that the trial court erred in
refusing to submit to the jury his timely requested instruction and that the trial court erred
in submitting an erroneous instruction regarding his unlawful warrantless arrest. We
disagree.
Because appellant did not challenge the fact of his intoxication while walking in the
middle of the street at night, no fact issue was presented on probable cause and it was a
question to be determined by the trial court as a matter of law. McElwee v. State, 493
S.W.2d 876, 880 (Tex.Cr.App. 1973). In a situation such as this, article 38.23 of the Code
of Criminal Procedure, requiring that an instruction be presented to the jury if there is a fact
issue on how the evidence was obtained, does not apply. Wesbrook v. State, 29 S.W.3d
103, 121 (Tex.Cr.App. 2000). Therefore, instructions regarding unlawful arrest were not
proper. Points of error two and three are overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1
Now article 14.03(a)(1) of the Texas Code of Criminal Procedure (Vernon Supp.
2002).
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