Brian Stafford v. The State of Texas--Appeal from County Court at Law No 6 of Bexar County

No. 04-98-00004-CR
Brian STAFFORD,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 616,221
Honorable Ray Adams, Judge Presiding

Opinion by: John F. Onion, Jr., Justice(1)

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

John F. Onion, Jr., Justice

Delivered and Filed: March 10, 1999

AFFIRMED

This appeal is taken from a conviction for operating a motor vehicle in a public place while intoxicated. See Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1999).(2) After the jury found appellant Brian Stafford guilty, the trial court assessed appellant's punishment at 180 days in the county jail and a fine of $650. The imposition of the sentence was suspended and appellant was placed on community supervision for 24 months.

POINTS OF ERROR

Appellant advances four points of error.(3) First, he contends that the trial court erred in failing "to submit Defendant's Requested Jury Instruction No. 2 because there was sufficient evidence to establish that the State arrested the Defendant illegally." In points of error two, three, and four, appellant challenges the legal sufficiency of the evidence to support the conviction. He claims that the evidence was not sufficient to prove beyond a reasonable doubt that he was guilty of driving while intoxicated, that the trial court erred in overruling the motion for judgment notwithstanding the verdict,(4) and erred in overruling the motion for judgment notwithstanding the verdict.(5) It is his contention that he was not driving the vehicle and was not intoxicated.

FACTS

In the early morning hours of September 21, 1995, San Antonio police officers received a dispatch that a vehicle was stopped in the middle of the road on Loop 410. Four minutes later, about 2:30 a.m., Officer Stephan Rothstein found a 1995 Chevrolet Blazer in the middle traffic lane of westbound Loop 410. The vehicle's lights were on and the engine was running. Officer Alberto Marin arrived immediately thereafter in a separate police unit with its overhead lights flashing. Marin parked his vehicle behind the Blazer to alert oncoming traffic. Officer Ramirez arrived later to direct traffic around the parked vehicles.

As Rothstein approached the Blazer, he found an individual (later identified as appellant) "passed out" in the driver's seat. The front seat passenger was in the same condition. Officer Marin reached inside the Blazer and shifted the gear from "drive" to "park", turned off the ignition, and removed the car keys for safety reasons. Officer Rothstein awakened appellant by rubbing his flashlight against appellant's chest. He then removed appellant from the Blazer. He described appellant as disoriented, somewhat combative, and not wanting to cooperate. Rothstein, a veteran police officer,(6) observed a strong odor of alcohol on appellant's breath, bloodshot eyes and slurred speech. Appellant's clothes were disorderly and he had urinated on himself. It was Rothstein's opinion that appellant had passed out from the use of alcohol and was drunk. He concluded that appellant did not have the normal use of his mental and physical faculties. Rothstein stated that he had never seen a person in possession of their faculties that would stop a car in the middle of Loop 410 and fall asleep. Appellant was described as a danger to himself and to others on the highway. Appellant was arrested for driving while intoxicated but Rothstein explained that appellant could have also been arrested for public intoxication. The officer steadied appellant and took him to the officer's patrol unit and placed him there in handcuffs.

Rothstein acknowledged that no field sobriety tests were administered. He explained that such tests were not mandatory and were used in "close cases." He further explained that the highway was wet from a recent rain and that an unhandcuffed suspect could wander into traffic during testing and be a danger to himself and the officers.

Rothstein stated that later he started the Blazer without any difficulty and drove it to the side of the highway. Other evidence showed that the Blazer appeared "brand new" and showed no signs of having been in a wreck or having mechanical difficulties. Rothstein made an inventory search of the Blazer and found a Coors beer can in the vehicle and no indication that a third person had been in the vehicle.

Officer Marin awakened the passenger, who was described as intoxicated. Rothstein described the passenger, whose name was not given, as being calm and in a state of disbelief as to what had happened. Rothstein explained the policy of releasing such individuals instead of filing Class C misdemeanors when they could be released to a responsible individual or a relative. This policy was followed in the instant case. A relative was called and Rothstein believed the passenger was released to his parents. Officer Marin confirmed the passenger's release to his parents.

The State was apparently aware of the defensive theory. It was elicited from Officer Rothstein that appellant never made known to him that the Blazer had motor trouble or that appellant's brother, the driver, had gone to call a wrecker service. Rothstein also stated that appellant was not chewing or using tobacco.

Officer Alberto Marin, also a veteran officer, corroborated Rothstein's testimony as to appellant's intoxication at the scene and the location of the Blazer in the middle of the roadway. He stated that the "vehicle was in operation, engine was operating and running, and it was in drive." The Blazer's headlights were on. Marin shifted the Blazer's gears to "park" and removed the keys. Marin assumed that appellant, under the circumstances, had his foot on the brake. Marin believed that appellant was the owner of the Blazer but he could not be sure. He added: "I know he was driving it."

Officer James D. Wingo arrived on scene some fifteen or twenty minutes after the other officers. He described the situation as dangerous with the wet road, with people driving home from bars, and with one officer (Ramirez) directing traffic around the stopped vehicle. He looked into the Blazer and saw a half-full can of Coors Silver Bullet beer in the console within the reach of the driver. The can was cold to the touch. Wingo was asked to take appellant to jail. He found appellant passed out in Rothstein's patrol unit. When appellant was awakened, Wingo smelled the strong odor of intoxicants on appellant's breath, observed appellant's bloodshot eyes and noticed that appellant's speech was "real slurred." Appellant was unsteady on his feet and Wingo had to hold him to keep him from falling down as he was being moved to Wingo's vehicle. Officer Wingo did not search appellant as he observed that appellant had urinated in his pants. Wingo administered the Miranda(7) warnings to appellant who stated that he understood the warnings.

Appellant was taken to the police station where he was given the statutory DWI warnings. Appellant refused to take the breath test and was then taken to the video room where a tape was made. Wingo was of the opinion that appellant was still intoxicated at that time.

On cross-examination, Wingo stated that upon his arrival at the scene on Loop 410, he talked to Officer Rothstein, who told him that the person in Rothstein's vehicle had been "sitting in the driver's seat of the Blazer. The engine was running. His foot was on the brake. The car was in gear." There was no objection that the answer was unresponsive or that it was hearsay. No motion to strike was made.(8)

John Stafford, appellant's brother, testified that he met appellant at the University Bowling Alley on September 20, 1995, about 9:00 p.m. They bowled there in a league every Wednesday night. Appellant's wife brought him to the location that night. After finishing bowling, the two brothers had "a couple of beers" in the lounge there. They encountered Greg (whose last name was never given) who told them that some friends wanted to meet with them at the Midnight Rodeo, a bar-dance club. John stated that he, appellant, and Greg left the bowling alley about 11:30 p.m. in the 1965 Blazer which he was driving. It took them about 30 minutes to reach the Midnight Rodeo, but they did not stay long as the bar began shutting down. They left about 2:00 a.m. to take Greg to the bowling alley where he had left his car. On Loop 410, just passed San Pedro, the Blazer's headlights became dim, then bright and then dim again. He stopped the vehicle on the side of the road, popped the hood, and saw a smoking alternator. He left to go to a nearby convenience store to call Mission Wrecker Company, who had a contract with Alamo Service Company, the owner of the Blazer. John Stafford and appellant worked at Alamo Service and John testified: "We own our own company." He left appellant and Greg in the vehicle. After contacting Mission Wrecker, John Stafford began his return to the vehicle. On his way, he encountered Greg, who told him that appellant had been arrested for arguing with the police about which wrecker service was to be called to tow the Blazer. Not wanting to get into trouble, John Stafford went back to the convenience store with Greg. There he called his father who came to pick him and Greg up.

John Stafford testified that appellant was not driving the Blazer and was not intoxicated when he left to seek help. He acknowledged that he did not keep count of what appellant drank, but did not believe that appellant had more than three beers that night.

Appellant testified that he had two beers at the bowling alley lounge and one beer at the Midnight Rodeo. He admitted that there was probably a Coors beer can in the Blazer as he and Greg both "dip" tobacco. When the Blazer began having mechanical trouble, appellant related that he was riding in the back seat. The vehicle was pulled off to the side of the road. Appellant got out and observed the smoking alternator. He claimed that he merely sat in the driver's seat when his brother left to call the wrecker company. Appellant stated that he was in full possession of his mental and physical faculties. He denied that he was intoxicated. He stated that when Officer Rothstein approached the vehicle, that he informed Rothstein about the motor trouble and that another had gone to call the Mission Wrecker Service. An argument ensued when Rothstein stated that another wrecker company would be called to tow the Blazer. Appellant recalled being placed in Rothstein's police vehicle. He testifed that at the scene, Greg was told that he could leave and was instructed to call his mother to pick him up. Appellant acknowledged that Officer Wingo read his rights to him, and that thereafter he refused to breath test and asked to call his attorney. He was later videotaped.

At the conclusion of the guilt/innocence stage of the trial, the jury returned a verdict of guilty, rejecting appellant's version of the events.

We shall first consider appellant's challenges to the legal sufficiency of the evidence to sustain the conviction.

LEGAL SUFFICIENCY

In determining whether the evidence is legally sufficient to support the conviction, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996); Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995).

The evidence, viewed in this light, and all reasonable inferences drawn therefrom, are evaluated in this review. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). A reviewing court must consider all evidence, rightly or wrongly admitted, which the trier of fact was permitted to consider. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1997); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The standard for review is the same for both direct and circumstantial evidence cases. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). Appellate courts measure the legal sufficiency of the evidence against a hypothetically correct charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not realign, disregard, or weigh the evidence. See Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.--Austin, no pet.).

The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given the testimony, and may accept or reject all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Reconciliation of evidentiary conflicts is solely the function of the trier of fact. See Miranda v. State, 813 S.W.2d 724, 733-734 (Tex. App.--San Antonio 1991, pet. ref'd). Moreover, the evidence is not rendered insufficient merely because the defendant presented a different version of the events. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

It is appellant's contention that the evidence was not legally sufficient to show elements of the offense that he was (1) intoxicated or (2) operating the motor vehicle involved. We do not understand appellant to contend that the alleged offense did not occur in a public place.

We need not reiterate the testimony. The officer's opinions regarding appellant's inebriated condition is sufficient evidence, standing alone, to prove intoxication by loss of possession of the normal use of appellant's mental and physical faculties as an element of the offense charged. See Hawkins v. State, 964 S.W.2d 767, 769 (Tex. App.--Beaumont 1998, pet. ref'd); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd); Shannon v. State, 800 S.W.2d 896, 902 (Tex. App.--San Antonio 1990, pet. ref'd); Hargrove v. State, 774 S.W.2d 771, 772 (Tex. App.--Corpus Christi 1989, pet. ref'd).

Moreover, evidence of the refusal to take the breath test may be considered by the fact finder in determining that an accused was intoxicated. See Scott v. State, 914 S.W.2d 628, 630 (Tex. App.--Texarkana 1995, no pet.); Bright v. State, 865 S.W.2d 135, 137 (Tex. App.--Corpus Christi 1993, pet. ref'd); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.--Houston [14th District] 1991, pet. ref'd). In addition, the jury had before it the videotape. See Scott, 914 S.W.2d at 630. The fact that appellant gave a different version of the facts does not call for a different result.

Appellant also urges that the evidence was insufficient to show that he was "operating" the Chevrolet Blazer. He contends that since no witness saw him operating the vehicle that the State is relegated to circumstantial evidence which is insufficient to sustain the conviction. He cites Reddie v. State, 736 S.W.2d 923 (Tex. App.--San Antonio 1987, pet. ref'd), and Sinast v. State, 688 S.W.2d 631 (Tex. App.--Corpus Christi 1985, pet. ref'd); see also Ballard v. State, 757 S.W.2d 389 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Each of the authorities relied upon by appellant utilized the pre-Geesa standard requiring that circumstantial evidence exclude all reasonable hypotheses raised by the evidence except the defendant's guilt. This procedure involved accepting the inculpatory circumstances and then inquiring whether there was a reasonable hypothesis other than guilt which would also account for such circumstances. See Girard v. State, 631 S.W.2d 162, 164 (Tex. Crim. App. 1982). The Court of Criminal Appeals has now rejected the "reasonable hypothesis" analytical construct as a method of appellate review for evidentiary sufficiency in cases tried after November 6, 1991. See Geesa v. State, 820 S.W.2d 154, 165 (Tex. Crim. App. 1991); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.--Dallas 1994, no pet.).

A reviewing court now examines both direct and circumstantial evidence in the same manner, no longer considering whether the evidence eliminates all reasonable hypothesis other than guilt. See Geesa, 820 S.W.2d at 160-161. Appellate courts look to the totality of the circumstances surrounding the entire incident with reasonable inferences to be drawn from the circumstantial evidence. Each circumstantial evidence case stands or falls on the cumulative effect of the trial evidence. See Barton, 882 S.W.2d at 459.

There is no statutory definition of "operate." Id. "Words and phrases shall be read in context and be construed according to the rules of grammar and common usage." Tex. Gov't Code Ann. 311.011(a) (Vernon 1999). With that rule in mind, the Court of Criminal Appeals has held that a defendant "operates" a vehicle if he takes action to affect the functioning of his vehicle in a manner that would enable the vehicle's use. See Denton v. State, 911 S.W2d 388, 390 (Tex. Crim. App. 1995) (adopting the definition used in Barton, 882 S.W.2d at 459). In making the determination, the totality of the circumstances will be examined. Denton, 911 S.W.2d at 390; Barton, 882 S.W.2d at 459.

The issue is whether a person in appellant's position, found asleep in the driver's seat in a motor vehicle, stopped in the middle lane of a roadway, with the motor running, lights on, the gearshift in "drive," with the person's foot on the brake is "operating" a motor vehicle. From the circumstantial evidence, a rational trier could have inferred that appellant had his foot on the brake and therefore was exerting personal effort to cause the vehicle to function. We find support for such statement in both pre- and post-Geesa cases. See, e.g., Barton, 882 S.W.2d at 459 (evidence sufficient to show sleeping defendant operated vehicle with car in gear and defendant's feet on brake); Milam, 976 S.W.2d 788, 789 (Tex. App.--Houston [1st Dist.] 1998, no pet. h.); Ray v. State, 816 S.W.2d 97, 97-98 (Tex. App.--Dallas 1991, no pet.) (evidence that defendant was slumped unconscious behind steering wheel of vehicle stopped crossways at intersection, with engine running, gearshift in "drive," and with defendant's foot depressing the brake and holding vehicle in place, was sufficient to show he was "operating" vehicle); Garza v. State, 846 S.W.2d 936, 938-39 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd); Boyle v. State, 778 S.W.2d 113, 113-14 (Tex. App.--Houston [14th Dist.] 1989, no pet.) (evidence that defendant was awake in a vehicle stopped in far left of busy freeway with foot on the brake, car in gear, and engine running was sufficient to show she was "operating" vehicle).

From both the direct and circumstantial evidence, the jury could have found that appellant was "operating" the Blazer. See Pope v. State, 802 S.W.2d 418, 420 (Tex. App.--Austin 1991, no pet.); Hernandez v. State, 773 S.W.2d 761, 762 (Tex. App.--San Antonio 1989, no pet.).

We conclude from the facts and circumstances in the instant case that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Points of error two, three, and four are overruled.

REQUESTED INSTRUCTION

In his first point of error, appellant contends that the "trial court erred in failing to submit Defendant's Requested Jury Instruction No. 2 because there was sufficient evidence to establish that the State arrested the Defendant illegally." He urges that the requested charge was for an article 38.23 instruction. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 1999).(9) Appellant argues that there was a factual dispute underlying the basis for his arrest for driving or operating a vehicle while intoxicated.

In Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996), the court stated:

Evidence obtained in violation of the law must be excluded from jury consideration in criminal cases on request of the defendant. Tex. Code Crim. Proc. art. 38.23. The judge should withhold such evidence from the jury altogether when it is inadmissible purely as a matter of law. Lackey v. State, 638 S.W.2d 439, 454 (Tex. Crim. App. 1982). But, when there are disputed issues of fact affecting the legality of its seizure, the question of exclusion may be tried to the jury. Marrs v. State, 647 S.W.2d 286 (Tex. Crim. App. 1983); Chaires v. State, 480 S.W.2d 196 (Tex. Crim. App. 1972). In such event, the judge must include in his final charge an instruction that, if the jury "believes, or has a reasonable doubt, that the evidence was obtained in violation of . . . any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, . . . then and in such event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. art. 38.23; Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App. 1993); Hall v. State, 649 S.W.2d 627 (Tex. Crim. App. 1983).

Id. at 23.

It is clear that article 38.23 provides in mandatory terms that a jury is to be instructed to resolve factual disputes over whether evidence was illegally obtained and therefore inadmissible. See Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). No instruction is required when the evidence fails to raise a fact issue as to the legality of the State's methods in obtaining the evidence. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996), cert. denied, 118 S. Ct. 90 (1997); Howard v. State, 888 S.W.2d 166, 174 (Tex. App.--Waco 1994, pet. ref'd).

Appellant's requested instruction was as follows:

Our laws provide that a law enforcement officer shall not make a full custodial arrest, i.e., take the person into permanent custody, for a misdemeanor offense that is not committed within the presence of the arresting officer. Driving while intoxicated which was not committed in his presence, that arrest is illegal.

The evidence has raised an issue on whether the arrest of Brian Stafford was illegal. Therefore, if you determine at the onset of your deliberations that the officer arrested Brain [sic] Stafford for a misdemeanor offense that was not committed within his presence, then you are instructed not to consider any further evidence and to enter a verdict of not guilty.

Appellant clearly was not entitled to the requested instruction as written. Earlier case law would have justified the refusal of such a requested instruction. See Turpin v. State, 606 S.W.2d 907, 912-13 (Tex. Crim. App. 1980) (requested charge does not comport with applicable law); Wickware v. State, 488 S.W.2d 127, 129 (Tex. Crim. App. 1972) (not an accurate statement of the law); Stewart v. State, 438 S.W.2d 560, 561 (Tex. Crim. App. 1969) (vague, misleading and not correctly stating the law); Martinez v. State, 634 S.W.2d 929, 936 n.7 (Tex. App.--San Antonio 1982, pet. ref'd) (ambiguous and legally incorrect requested charge); see also Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995) (requested charge a comment on the weight of the evidence); DeJesus v. State, 889 S.W.2d 373, 379 (Tex. App.--Houston [14th Dist.] 1993, no pet.) (requested charge contrary to existing law). Moreover, the law should not allow a trial court to be "sandbagged." See Wallace v. State, 618 S.W.2d 67, 77 (Tex. Crim. App. 1981) (Onion, P.J., concurring); Seefurth v. State, 422 S.W.2d 931, 936 (Tex. Crim. App. 1967).

At the charge conference, appellant called the trial court's attention to the requested instruction, cited article 38.23, and urged that the offense of driving or operating a motor vehicle as charged did not occur within the presence and view of the arresting officers and thus any warrantless arrest for that offense was invalid under article 14.01.(10) He contended that the refusal of the blood test and the videotape should not be considered by the jury. Despite the flaws in the written request, it appears that appellant orally called the trial court's attention to the instruction he desired, particularly as to a claimed violation of article 14.01 as to the offense charged. See Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996). If entitled to an article 38.23 instruction, it appears appellant preserved error. One of the difficulties is that appellant never made clear to the trial court or in his appellate brief that he is contending that the warrantless arrest for the offense charged was without probable cause under the Fourth Amendment to the United States Constitution, or article I, section 9 of the Texas Constitution. This may be inherent in his argument. He, however, has not properly distinguished the federal and state issues with separate arguments so as to permit their consideration. See Arnold v. State, 873 S.W.2d 27, 33 n.4 (Tex. Crim. App. 1993); McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex. Crim. App. 1986), cert. denied, 495 U.S. 910 (1990); see also Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991). Appellant predicates his entitlement to an article 38.23 instruction on the factual dispute whether the DWI offense occurred within the presence and view of the arresting officers so as to justify a warrantless arrest under article 14.01 of the Code of Criminal Procedure.

STATE'S RESPONSE -- HARMLESS ERROR

The State's only response to the point of error is its harmless error claim, citing Rule 44.2(b)(11) and Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Appellant makes no claim or showing of harm, asserting that a violation of article 38.23 as here presented is "automatic reversible error not subject to a harm analysis." Appellant cites Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986). Both are in error. The harmless error analysis of a violation of article 38.23 is governed by article 36.19.(12) See Atkinson, 923 S.W.2d at 27. If error results from a violation of article 38.23, then the reviewing courts must apply article 36.19 as authoritatively construed in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g), cert. denied, 481 U.S. 1019 (1987). If a defendant has objected to the court's charge, the courts must reverse unless the error was harmless. Id. The actual degree of harm must be determined in light of the entire jury charge, the state of evidence, including contested issues and the weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. See id.

ERROR IN FACT?

Before applying a harm analysis under Almanza, we must determine if there was error as claimed by appellant. Evidence obtained in violation of the law should be excluded upon objection of an accused and ruled inadmissible as a matter of law. See Atkinson, 923 S.W.2d at 23. We do not find that appellant objected to any of the evidence he claims was inadmissible as a result of an illegal arrest for driving or operating a motor vehicle while intoxicated. Our attention is not directed to any trial objection, and we find no motion to suppress evidence in the record or any pretrial suppression hearing in the reporter's record. The failure to object, however, does not waive appellant's right to an article 38.23 instruction. See Johnson v. State, 743 S.W.2d 307, 310 (Tex. App.--San Antonio 1987, pet. ref'd).

TRAFFIC WARRANTS

On cross-examination of Officer Rothstein, appellant's counsel elicited evidence that appellant was arrested at the scene on two outstanding traffic warrants. There was no claim of an unresponsive answer or other objection. No request for a jury instruction to disregard was made. The evidence remained before the jury. There was, however, no follow-up by the prosecution to show that the traffic warrants were "issued by a neutral magistrate based on probable cause." The exception to article 38.23(a) therefore does not apply. See article 38.23(b); Curry v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991); Carroll v. State, 911 S.W.2d 210, 223 (Tex. App.--Austin, no pet.). We will not explore the question of waiver of an entitlement to an article 38.23 jury instruction by appellant's elicitation of evidence concerning the traffic warrants.

PUBLIC INTOXICATION

Appellant claims that the exclusion of the evidence should have been left to the jury principally because the offense of driving or operating a motor vehicle while intoxicated did not occur in the presence and view of the officers as required by article 14.01, thus rendering his warrantless arrest for that offense illegal under state law. Although a finding that an arrest for DWI may not be appropriate under the particular circumstances, the warrantless arrest may be upheld for public intoxication under section 49.02 of the Penal Code(13) as being within the presence and view of the arresting officer. See Reynolds v. State, 902 S.W.2d 558, 560 (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); see also Lopez v. State, 936 S.W.2d 332, 334 (Tex. App.--San Antonio 1996, no pet.).

A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. See article 49.02(a). The danger need not be immediate. See Gallagher v. State, 778 S.W.2d 153, 154 (Tex. App.--Houston [1st Dist.] 1989, no pet.). It is sufficient if the accused render himself or others subject to potential danger. See Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977). The issue turns on whether the knowledge of a reasonable and prudent officer at the time would lead one to the belief that a person was committing an offense. See Gallagher, 778 S.W.2d at 154. In the instant case, the circumstances were sufficient to justify appellant's arrest for public intoxication committed within the arresting officer's view and presence. The fact that the officer stated that appellant was being arrested for DWI is not dispositive as the reviewing court will look at the entire record to determine whether it supports a warrantless arrest for public intoxication. See Warnick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. 1982); Reynolds, 902 S.W.2d at 560 n.3. And it does not matter if the accused is actually prosecuted for DWI. See Peddicord v. State, 942 S.W.2d 100, 110 (Tex. App.--Amarillo 1997, no pet.).

In Peddicord, the defendant also claimed that the trial court erred in not submitting his requested charge on the issue of a warrantless arrest. There the court wrote:

Appellant's point is predicated upon his argument that "[t]he law requires an officer to actually view the offense before a warrantless arrest can be made." From this, he concludes that since the officers did not see him driving and they did not obtain an arrest warrant, the horizontal gaze nystagmus test and the blood test would have been inadmissible if the jury had determined that his arrest was illegal.

The predicate for appellant's point is faulty, for he merely presupposes his warrantless arrest could only be for driving while intoxicated not committed within the view of the arresting officer. However, as it has been explained, appellant's warrantless arrest was lawfully made for the offense of public intoxication, even though he was actually prosecuted for the offense of driving while intoxicated. Appellant did not request a charge regarding a warrantless arrest for the offense of public intoxication.

Id. at 110.

The Peddicord court concluded that the trial court did not err in refusing the defendant's requested charges because the jury should not be charged on a defensive theory contrary to the law or on an inaccurate statement of the law, or one that is immaterial. Id.

As in Peddicord, appellant's point is predicated upon the argument that the offense of DWI was not within the actual view and presence of the officer and a warrantless arrest for that particular offense was illegal. For the reasons set forth in Peddicord, the trial court here did not err in refusing to submit requested instruction no. 2.

HARMLESS ERROR ANALYSIS

If it could be argued that Peddicord is not controlling, that the requested instruction was broad enough to include a warrantless arrest for public intoxication, and that error was preserved then we would be required to perform a harm analysis under Almanza as earlier described.

In Wilkerson v. State, 933 S.W.2d 276, 281 (Tex. Crim.--Houston [1st Dist.] 1996, pet. ref'd), the error of the trial court in failing to give an article 38.23 jury instruction to disregard evidence it found to have been illegally seized following an arrest without probable cause was harmless in a drug prosecution. There the evidence showing probable cause for the arrest and search was exactly the same as the evidence proving the offense charged so that the jury's guilty verdict necessarily indicated a finding that probable cause existed.

Likewise, in the instant case, the evidence showing probable cause for the arrest was the same as that showing the offense charged. Thus, in order to find appellant guilty of operating a motor vehicle while intoxicated, the jury must have rejected appellant's defense testimony that appellant was not operating a motor vehicle and was not intoxicated. The jury was free to accept appellant's testimony and return a verdict of not guilty. Instead, the jury chose to believe the testimony of the officers. There is no evidence in the record or any argument by appellant that would lead this Court to believe the jury would have given appellant's testimony about probable cause any more credence than his testimony denying his guilt. The two were the same. We do find that the presence of an article 38.23 instruction would have caused the jury to give more credence to appellant's testimony. Appellant has not met his burden of showing some actual harm from the trial court's denial of the requested instruction. See Wilkerson, 933 S.W.2d at 281. The first point of error is overruled.

The judgment is affirmed.

JOHN F. ONION, JR.

JUSTICE

DO NOT PUBLISH

1. Assigned to this case by the Chief Justice of the Supreme Court of Texas.

2. Section 49.04 was amended by Act of April 25, 1995, 74th Leg., R.S., ch. 76, 14.55, 1995 Tex. Gen. Laws 458, 841, effective September 1, 1995, and applicable to the instant case. The 1995 amendment to section 49.04 deleted the words "driving or" preceding the word "operating." Subsection (a) now reads: "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." Despite the amendment, the offense will undoubtedly still be referred to as "driving while intoxicated" or "DWI."

3. There is some confusion in the listing of the points of error. On page one of appellant's brief, the first point of error is a claim that the trial court erred in refusing to submit "requested jury instruction no. 1." Later, the points of error are renumbered. What was the first point of error was eliminated and point of error two became the first point of error. The second point of error is a challenge to the sufficiency of the evidence. We find no jury instruction no. 1 in the record and appellant does not brief this contention. We shall not consider the contention.

4. A point of error regarding the trial court's refusal to grant a motion for an instructed verdict of not guilty is normally considered a challenge to the legal sufficiency of the evidence to sustain the conviction. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 449 U.S. 954 (1991).

5. There is no motion for judgment non obstante verdicto in criminal law. See State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996). The trial court did not err in overruling the motion and the fourth point of error is without merit. Appellant uses the point of error only as a cumulative method of challenging the legal sufficiency of the evidence. We are not confronted with the granting of a motion for judgment non obstante verdicto followed by a State's appeal as in Savage.

6. Rothstein had over seventeen years in law enforcement and took annual courses in the identification of intoxicated persons.

7. See Miranda v. Arizona, 384 U.S. 436 (1966).

8. "Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." Tex. R. Evid. 802; see Benford v. State, 895 S.W.2d 716, 717 (Tex. App.--Houston [14th District] 1994, pet. ref'd).

9. Article 38.23 provides:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

10. See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977) which provides:

(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Driving or operating a motor vehicle in a public place while intoxicated is an offense against public peace. See Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); Yates v. State, 679 S.W.2d 534, 537 (Tex. App.--Tyler 1984, pet. ref'd).

11. See Tex. R. App. P. 44.2(b).

12. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981)

13. Tex. Penal Code Ann. 49.02(a) (Vernon 1994 and Supp. 1999).

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