Manuel Velazquez v. The State of Texas--Appeal from County Court at Law No 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MANUEL VELAZQUEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00373-CR

Appeal from the

County Court at Law No. 1

of El Paso County, Texas

(TC# 990C02287)

MEMORANDUM OPINION

Manuel Velazquez pleaded guilty to a charge of driving while intoxicated, and pursuant to a plea bargain, the trial court placed him on probation for one year. Velazquez appeals the denial of his motion to suppress the results of an intoxilizer test. We affirm.

Facts

The trial court held a hearing on the motion to suppress, where the following facts were established. On February 12, 1999, Gregorio Vera lived at 1401 East San Antonio Street in El Paso, Texas. That evening, Vera heard a collision that sounded like one vehicle being struck by another. He stepped out, and found that a pickup truck had struck his car. The driver of the pickup was defendant Velazquez. Velazquez looked shaken and a little hurt. He exited the pickup and told Vera he wanted to leave. To Vera, he appeared a little inebriated or intoxiated. He was the only person in the pickup. Vera asked if he had been drinking and Velazquez answered Aa little bit.@ Vera noticed the smell of alcohol coming from Velazquez and his truck. When he stepped from the truck, he was stuttering and he was unstable, Aa little bit of wobbly.@ He did not have any visible injuries.

Sergio Cordova testified he is an officer with the El Paso Police Department with five years experience on the force. He has worked on DWI and public intoxication cases, and has been in contact with hundreds of intoxicated persons over the last five years. He can recognize the signs of intoxication, is certified to perform field sobriety texts, and he normally administers the horizontal gaze nystagmus, the one-leg stand and the walk-and-turn tests. He was on patrol the evening of February 12, 1999, when he was flagged down by Gregorio Vera. Officer Cordova saw a pickup with apparent damage from a traffic accident, with fluid on the ground. He approached Velazquez initially to check for injuries. Velazquez did not appear hurt, nor did he complain of injuries. Cordova noticed the smell of alcohol on Velazquez=s breath and person; he had bloodshot eyes, slurred speech, and difficulty standing. Cordova performed the nystagmus, one-leg-stand, and walk-and-turn tests on Velazquez, who could not perform them correctly. Cordova concluded from the field sobriety tests and the smell of alcohol that Velazquez was intoxicated. He read Velazquez the statutory DIC-24 warning regarding alcohol testing. Velazquez indicated he understood the warning and submitted to a breath test. Cordova agreed that he arrested Velazquez at the scene, and he was in custody about thirty minutes before arriving at EPPD central command. Velazquez was read his Miranda[1] rights, which he indicated he understood. Cordova then interviewed him. Velazquez told him he had been operating the vehicle and that he had consumed about three Bud beers. He hesitated in answering the question Awhat time did you finish your last drink,@ but responded Aabout eight or so,@ although it was only about eight o=clock when they arrived at the station.

Cordova did not see Velazquez driving, nor did he witness the accident. He arrested Velazquez after the sobriety tests. He had no warrant for the arrest.

Standard of review

In reviewing the trial court=s decision on a motion to suppress, we review the facts using an abuse of discretion standard. Chilman v. State, 22 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2000, pet. ref=d). We apply a de novo review to the application of those facts to the law. Id. If the trial court=s determination is correct on any theory of law applicable to the case, we sustain the trial court=s decision. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Probable cause existed to believe that Velazquez was committing

the offense of public intoxication

Velazquez presents a single issue on appeal. He contends that the trial court erred in denying his motion to suppress, because his warrantless arrest was made without probable cause to believe he was driving while intoxicated. Finding the evidence established grounds for a warrantless arrest for public intoxication, we affirm.

An officer can make a warrantless arrest when (1) there is probable cause to believe an offense has been or is being committed, and (2) the arrest falls within a statutory exception to the warrant requirement. Chilman, 22 S.W.3d at 56. A peace officer may arrest an offender without a warrant for any offense committed in the officer=s presence or view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). Probable cause for a warrantless arrest exists when Aat the moment of arrest, the facts and circumstances within the officer=s knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the arrested person had committed or was committing an offense.@ Hillsman v. State, 999 S.W.2d 157, 161 (Tex. App.--Houston [14th Dist.] 1999, pet. ref=d). We consider the totality of the circumstances when determining whether the facts were sufficient to give the officer probable cause to arrest. Chilman, 22 S.W.3d at 56.

The offense of public intoxication occurs when an individual (1) appears in a public place while intoxicated and (2) is so intoxicated that he or she might endanger him or herself or another. Tex. Pen. Code Ann. ' 49.02(a) (Vernon 2003); Chilman, 22 S.W.3d at 56. If an intoxicated person is in an officer=s presence and there is probable cause for arrest for public intoxication, the officer may do so without a warrant. Id. Here, Officer Cordova made personal observations that defendant Velazquez was in a public street, appeared to have damaged his pickup in an accident, smelled of alcohol, had slurred speech and bloodshot eyes, and could stand only with difficulty. Cordova, certified to give field sobriety tests, administered three of these to Velazquez, who did not pass them. Based on this, Officer Cordova reasonably formed the opinion that Velazquez was intoxicated. It is undisputed that Velazquez was in a public place.

As to the second element of the offense, we also find Officer Cordova had probable cause to believe that Velazquez might endanger himself or another. An accident in which Velazquez was apparently involved had just occurred. He could stand only with difficulty. He failed three field sobriety tests. This constituted probable cause to believe Velazquez might be a danger to himself or others.

Thus, we conclude Officer Cordova possessed probable cause to arrest defendant Velazquez for public intoxication. The trial court did not err in denying the motion to suppress, and appellant=s sole issue on appeal is overruled.

Conclusion

The trial court=s order denying the motion to suppress is affirmed.

SUSAN LARSEN, Justice

December 23, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1]Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).