Melinda R. Howard v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00187-CR
MELINDA R. HOWARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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OPINION DISSENTING FROM DENIAL OF
MOTION FOR REHEARING EN BANC
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Respectfully, I must dissent from the majority’s denial of Appellant’s motion
for rehearing en banc. Officer Clements was dispatched to investigate the crime
of driving while intoxicated (DWI). He was not engaged in community caretaking.
When he approached Appellant, who was leaning on the truck, he determined
that she had alcohol on her breath; was thick-tongued; and had glassy, heavy
eyes. When Clements asked her to move away from the truck, she swayed and
was unsteady on her feet. At that point, Clements had probable cause to believe
that Appellant was guilty of public intoxication and probable cause to arrest her
for public intoxication. Clements admitted at the hearing on Appellant’s motion to
suppress that she was not free to leave and was being detained until he
completed his DWI investigation. Clements asked Appellant for her name,
instructed her to step away from the truck, and said, “Tell me what happened this
evening . . . .”
There was a clear show of authority by Clements. Appellant acquiesced to
that show of authority. But Clements had no authority to arrest her for DWI
because chapter 14 of the code of criminal procedure does not authorize a
warrantless arrest for a misdemeanor DWI committed outside the police officer’s
presence unless it could be classified as a breach of the peace, which is not
applicable here.1 Chapter 14 does, however, authorize a warrantless arrest for
the public intoxication offense, both because it was committed within Clements’s
presence and because he found Appellant “in suspicious places and under
circumstances which reasonably show that [she is] guilty of” that offense.2
Clements’s public intoxication investigation was complete, and he was gathering
evidence for a DWI prosecution when he questioned Appellant.
1
See Tex. Code Crim. Proc. Ann. arts. 14.01(b), 14.03(a)(1) (West 2005 &
Supp. 2012).
2
See id. arts. 14.01(b), 14.03(a)(1).
2
I would hold that the evidence clearly demonstrated that Clements had
probable cause to arrest Appellant for public intoxication and that she was not
free to leave when he questioned her. Under Dowthitt3 and Miranda,4 Appellant
was entitled to be warned that she did not have to answer Clements’s questions.
I would therefore grant rehearing, vacate our prior opinion, reverse the trial
court’s judgment, and remand this case. Because the majority does not, I
respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 30, 2013
3
Dowthitt v. State, 931 S.W.2d 244, 252–55 (Tex. Crim. App. 1996).
4
See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
3