Walters v. State , 1988 Tex. App. LEXIS 1730 ( 1988 )

SEARS, Justice,

dissenting.

I respectfully dissent.

The Appellant was stopped on the freeway by three Houston Police units, and a fourth unit arrived to transport the Appellant to jail. Of those eight police officers present at the scene of Appellant’s arrest, none saw a Budweiser beer can in the Appellant’s vehicle. The vehicle was then picked up in the front by a wrecker, towed 150 to 200 yards to a freeway exit, down the exit to the service road and along the service road to a nearby service station. Later during an inventory of the vehicle, a cold, half-empty Budweiser beer can was found still sitting upright on the dash of Appellant’s vehicle.

There is no evidence that the Appellant placed the beer can on the dash of his vehicle. It is more reasonable to conclude the wrecker driver placed the can on the dash then it is to speculate that Appellant did so and eight Houston Police officers failed to see the can which was in plain view.

Also, the police did not smell, taste, observe the color or carbonation of the contents of the can, not did they conduct any tests on the contents or preserve the evidence for trial. Although the officers testified the. Appellant, had .alcohol _pn his breath, no one testified they detected beer on his breath. The arresting officer observed the Appellant during a four and one-half mile chase, yet never saw him take a drink from the can or put the can on the dash.

I find that the State failed to prove beyond a reasonable doubt that the can was in the vehicle at the time of Appellant’s arrest, or that the can contained an alcoholic beverage. I would reverse the finding of a violation of Article 6701J — 1(f), reverse the condition of probation requiring thirty days confinement in the county jail, and affirm the conviction of DWI.