THE STATE OF TEXAS, Appellant v. KATHRYN LYNN TURNER, Appellee

DISMISS; Opinion Filed September 16, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00519-CR
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THE STATE OF TEXAS, Appellant
V.
KATHRYN LYNN TURNER, Appellee
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On Appeal from the County Criminal Court No. 4
Dallas County, Texas
Trial Court Cause No. M10-51379
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OPINION
Before Justices Bridges, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
        The State charged Kathryn Lynn Turner with two offenses: driving while intoxicated and possession of marijuana. Turner filed one motion to suppress for both cases. The trial court granted the motion in the DWI case, but denied the motion in the possession case. The State filed this interlocutory appeal to challenge the trial court's order granting the motion to suppress in the DWI case. We conclude the State has not shown that evidence of substantial importance in the case was suppressed. Consequently, we dismiss the appeal for want of jurisdiction.
 
Background
 
        At approximately 2:45 a.m. one morning, Dallas police officers were conducting a traffic stop on Garland Road in Dallas, Texas when they saw and heard Turner's vehicle, which was traveling in the opposite direction on Garland Road, leave the roadway and hit a telephone pole. The collision caused Turner's air bag to deploy. The officers left the unrelated traffic stop and ran across the street to help Turner. As the officers spoke with Turner to determine if she was injured, they noticed a strong odor of alcohol coming from her and her vehicle, she seemed disoriented and unsteady, she had bloodshot eyes, and she slurred her speech. The officers concluded she was intoxicated. Turner was not injured and refused medical assistance. After she also refused to perform field sobriety tests, she was arrested for driving while intoxicated. In a subsequent search of the vehicle, the police found marijuana in her car.
        Several witnesses testified at the hearing on Turner's motion to suppress. The court stated that the issue in the suppression hearing was “whether the police had probable cause to arrest Kathyrn Lynn Turner for the offense of driving while intoxicated (DWI).” In findings of fact and conclusions of law, the court stated that the police did not have probable cause to arrest Turner because the paramedics characterized her condition as “normal.” The court concluded “that it is apparent from the record that the airbag [sic] deployed and that could certainly account for Kathryn Lynn Turner's stumbling and unsteadiness. Additionally, the smell of alcohol, even if 'strong,' does not automatically lead to the conclusion that Kathryn Lynn Turner was intoxicated.” The trial court granted the motion to suppress in the DWI case, but denied the motion to suppress the marijuana, which was seized after Turner's arrest. The order does not state what evidence, if any, in the DWI case was suppressed. The State appeals the order granting the motion to suppress in the DWI case.
Analysis
 
        Article 44.01(a)(5) authorizes the State to file an interlocutory appeal of an order that “grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case[.]” Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2009). The Texas Court of Criminal Appeals has stated that the purpose of article 44.01 “is to permit the pretrial appeal of erroneous legal rulings which eviscerate the State's ability to prove its case.” State v. Medrano, 67 S.W.3d 892, 896 (Tex. Crim. App. 2002).
        The State's notice of appeal complies with article 44.01(a)(5). However, neither the State's brief nor Turner's brief on appeal addresses what evidence was actually suppressed. And Turner did not point out specifically in her motion the evidence she sought to have suppressed. See Amador v. State, 275 S.W.3d 872, 874 n.3 (Tex. Crim. App. 2009) (motion to suppress must identify specifically the items defendant seeks to suppress). Instead, she asked the court to “suppress any and all evidence seized or obtained as a result of illegal acts on behalf of the government” because her arrest “was made without any reasonable suspicion that [s]he was engaged in criminal activity” and “the evidence that will be offered by the government in this cause was not pursuant to a reasonable investigate [sic] detention, not pursuant to an arrest warrant, was absent exigent circumstances, and made without probable cause to believe the accused was engaged in criminal activity.”
        As far as we can tell from the record on appeal, the trial court's order did not suppress any evidence in the case. All the evidence of Turner's intoxication was obtained prior to her arrest, not after. And the order did not dismiss the DWI case. Even if the trial court suppressed the fact of Turner's arrest, an arrest is not evidence of a crime and would not be of such importance that it eviscerated “the State's ability to prove its case.” See Medrano, 67 S.W.3d at 896; Tex. Penal Code Ann. § 2.01 (West 2003) (“The fact that [a person] has been arrested . . . gives rise to no inference of guilt at his trial.”).
        We conclude the record does not support the State's contention that the trial court suppressed evidence of substantial importance in this case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5). As a result, we dismiss this appeal for want of jurisdiction. Tex. R. App. P. 25.2(a)(1).
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100519F.U05