Robinson, Thomas Pascal v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00837-CR

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THOMAS PASCAL ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1,042,912

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O P I N I O N

Appellant, Thomas Pascal Robinson, pled guilty to the offense of driving while intoxicated, and the trial court assessed punishment at 31 days in jail. In three points of error, appellant contends the trial court erred in denying his motion to suppress all evidence as a result of an unlawful arrest of appellant. We affirm.

Facts

On the night of February 2, 2000, as Robert Strohl was traveling eastbound on the I-10 Katy Freeway, he observed appellant, who was driving a black Porsche, enter the freeway at a high speed and cut across two lanes of traffic directly in front of Strohl's vehicle. Strohl then lost sight of the Porsche. On reaching the interchange at the 610 West Loop Freeway, Strohl observed that traffic had stopped, and the black Porsche had been involved in an accident. When he arrived at the interchange, Strohl thought the Porsche had been in a multi-car accident. Strohl observed appellant get out of the driver's side of the Porsche and run across the freeway with the passenger. Strohl was concerned that appellant and the passenger would not contact the police, and decided to follow them. Strohl proceeded to a nearby police substation and waited with his lights turned off to see if the two individuals would report the accident. The men did not stop by the substation.

Strohl signaled to a nearby police officer who was at the corner of Memorial and Post Oak. Strohl told Officer A. Holden that he had been cut off by a driver on I-10, and that the same car was later in a multi-car accident, in which two individuals left the scene without reporting to the police. Although the accident was not visible from the corner of Memorial and Post Oak, Strohl testified that he heard sirens. Strohl's initial suspicion was that the Porsche was stolen and the occupants were joyriding, but he later suspected they were driving drunk when they left the scene of the accident because they were not running very fast.

After speaking with the officer, Strohl asked her to follow him to where the individuals had been walking. When they reached this place, Officer Holden saw two men walking down the street. When Strohl identified them, Holden stopped and asked them if they had been involved in the accident. They denied being involved in an accident, or owning a Porsche, and told the officer they were going to the Houstonian Hotel. Officer Holden asked the two men to wait while she investigated further. Officer Holden proceeded to interview Strohl, and Strohl identified appellant as the driver of the Porsche. Officer Holden called for backup to investigate a possible failure to stop and give information (FSGI), and a possible failure to stop and render aid (FSGA), as an ambulance arrived on the freeway.

Houston Police Officer Margaret Ogrodowicz arrived at the scene to assist Officer Holden. Holden apprised Ogrodowicz of the situation and indicated appellant was the driver of the Porsche. At that point, appellant and the passenger were questioned separately. Officer Ogrodowicz questioned appellant, who told her that he and his companion had just walked from a convenience store and were walking to a friend's house. While talking to appellant, Officer Orgodowicz noticed appellant was slurring his speech and had the odor of alcohol on his breath. Appellant also had bloodshot and glassy eyes. When asked if he had been drinking, appellant told Officer Ogrodowicz he had consumed about seven beers and two shots of tequila while at a pool hall with his friend.

Officer Ogrodowicz then spoke with appellant's companion, who told the officer they had been involved in the accident. During this time, both officers agreed that appellant was possibly intoxicated. Officer Ogrodowicz knew appellant had been involved in an accident and that he was the driver, and therefore suspected he was intoxicated. Officer Ogrodowicz also felt appellant was a danger to himself or others based on her observations and his actions. In addition, Officer Holden explained:

After Ogrodowicz and I separated them and talked to them for awhile and realized that they were intoxicated and that we did have someone that identified the defendant as the driver. Then we could - then we arrested him. I shouldn't say arrested him, we placed him under arrest for suspicion of driving while intoxicated and suspicion of perhaps [sic] he caused an accident, FSGI.

After appellant was handcuffed, the officers removed a set of Porsche keys from his pocket. Houston Police Officer Borgstedte was called to the scene and performed several field-sobriety tests on appellant. Appellant's performance on the field-sobriety tests revealed he was highly intoxicated. Officer Borgstedte also noticed the odor of alcohol on appellant's breath. The other officers informed Borgstedte that Strohl had seen appellant behind the wheel of a vehicle that had been involved in a nearby accident. Borgstedte placed appellant under arrest for suspicion of driving while intoxicated.

Probable Cause

In his three points of error, appellant contends the trial court erred in overruling appellant's motion to suppress all evidence because there was no probable cause to arrest appellant for failure to stop and give information (FSGI), failure to stop and render aid (FSRA), driving while intoxicated, or public intoxication. Appellant contends the officers had not observed him driving and could not arrest him for driving while intoxicated. Moreover, appellant contends the officers' determination that he was a danger to himself or others was improper. Appellant does not contend there was a lack of reasonable suspicion for his stop. Appellant raises both state and federal constitutional challenges, but briefs only the state constitutional challenge.

Although great weight should be given to the inferences drawn by the trial court, determinations of reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997). During a motion to suppress hearing, the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Appellant contends the officers did not have enough evidence to support probable cause to believe appellant had committed a crime. A private citizen who contacts the police for the sole purpose of reporting a criminal act is inherently credible and reliable. Tribble v. State, 792 S.W.2d 280, 284 (Tex. App.--Houston [1st Dist.] 1990, no pet.); Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. [Panel Op.] 1982). An informant's explicit and detailed description of wrongdoing, along with a statement that the informant actually saw the reported criminal act, entitles the informant's tip to greater weight than otherwise might be the case. Illinois v. Gates, 462 U.S. 213, 234-35, 103 S. Ct. 2317, 2330 (1983).

Appellant contends an officer may not arrest without a warrant for driving while intoxicated when the officer did not observe the defendant driving the vehicle. Appellant relies on article 14.01(b) of the Texas Code of Criminal Procedure, which permits a warrantless arrest for driving while intoxicated only when the offense is committed in the view or presence of the arresting officer. Tex. Code Crim. P. Ann. § 14.01(b) (Vernon 1977). Even though no officer saw appellant driving, a warrantless arrest for DWI may be upheld if appellant was subject to a public-intoxication charge. Reynolds v. State, 902 S.W.2d 558, 560 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (citing Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. 1982)). In Reynolds, we held:

The Texas Court of Criminal Appeals has indicated, however, that an arrest for driving while intoxicated is not necessarily invalid merely because the arresting officer did not see the defendant drive his car, since the defendant may still be subject to a public-intoxication charge . . . . The Fifth Circuit has recognized that where a defendant was arrested for the "wrong" offense, the arrest is nonetheless valid where the crime for which there was probable cause to believe he had committed are closely related and there is no proof of sham or fraud.

Reynolds, 902 S.W.2d at 560 (citing Warrick, 634 S.W.2d at 709).

Thus, if there was probable cause for public-intoxication, appellant's arrest was proper. The offense of public intoxication occurs when an individual appears in a public place while intoxicated and is so intoxicated that he might endanger himself or another. Tex. Penal Code Ann. § 49.02(a) (Vernon 1994). The determination is based on the reasonable and prudent officer's knowledge at the time that would lead the officer to belief that an offense was committed. Reynolds, 902 S.W.2d at 560.

Appellant contends observations by the officers that he appeared to have glassy eyes and a strong odor of alcohol on his breath do not support probable cause for a public intoxication arrest. See Commander v. State, 748 S.W.2d 270, 271 (Tex. App.--Houston [14th Dist.] 1988, no pet.). Appellant contends he could not have been a danger to himself or others by walking normally down the street while wearing a light-colored jacket.

Commander is distinguishable because there was no evidence of an accident in that case. Commander, 748 S.W.2d at 271. Moreover, in Mathieu v. State, we held there was sufficient probable cause to arrest for public intoxication when the defendant had been driving a vehicle in a multi-car accident even though the officer did not see the defendant driving. Mathieu v. State, 992 S.W.2d 725, 728 (Tex. App.--Houston [1st Dist.] 1999, no pet.). In addition, a police officer can believe a defendant involved in a single-car accident could be a danger to herself so as to be subject to arrest for public intoxication. Carrasco v. State, 712 S.W.2d 120, 121-22 (Tex. Crim. App. 1986).

In this case, all three officers observed a strong odor of alcohol on appellant's breath. Appellant admitted drinking seven beers and two shots of tequila. Additionally, appellant failed the field-sobriety test and officers knew appellant had been involved in an accident. Officer Ogrodowicz also testified that appellant was a danger to himself. The arrest for public intoxication was proper because appellant was a danger to himself or others as he walked along the street to an unknown destination after leaving the scene of an automobile accident. Accordingly, we hold there was sufficient probable cause to support an arrest for public intoxication. Having held there was probable cause for a public intoxication arrest, it is not necessary to address the issue of probable cause for failure to stop and give information or failure to stop and render aid.

We overrule appellant's three points of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Chief Justice Schneider, and Justices Taft and Radack.

Do not publish. Tex. R. App. P. 47.4.