Javier Salazar Rubio v. The State of Texas--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-039-CR

JAVIER SALAZAR RUBIO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

McLennan County, Texas

Trial Court # 913023 CR1

O P I N I O N

Javier Rubio appeals his conviction for driving while intoxicated. // A jury found Rubio guilty and assessed punishment at sixty days in jail and a $2000 fine. The court probated the sentence for twenty-four months, conditioned upon the payment of a $500 fine. We affirm.

In point one Rubio contends that the court erred in denying his motion to suppress evidence obtained as a result of his warrantless arrest because the arrest was not based on probable cause. Although Rubio did not file a pre-trial motion to suppress evidence, he did object to the admission of a videotape of sobriety tests conducted by Officer Joe Neal, the Waco Police Officer who arrested Rubio and took him to the McLennan County Sheriff's Office. At that point in the trial, however, Neal had already provided detailed testimony, without objection, to Rubio's performance on several field sobriety tests. As a result, any prejudice from the admission of the videotaped sobriety tests was rendered harmless because the same evidence had already come in by Neal's testimony. // Because Rubio also complained, when objecting to the admission of the videotape, that "any evidence [obtained] after the arrest would be inadmissible," we will consider the broad question of whether Neal had probable cause to arrest Rubio. The trial court determined that the arrest was lawful and overruled Rubio's objection. We must sustain the trial court's ruling if it is correct on any theory of law applicable to the case. We are not bound by the legal theories advanced by the parties or articulated by the court at trial. //

Richard Aleman was working as a security guard at La Fuente Ballroom on the evening of November 9, 1991. He testified that he saw a tractor-truck enter the parking lot of the nightclub and "go around the parking lot like it was going to park or something." // According to Aleman, he and his cousin got out of their car to watch the large truck maneuver through the crowded parking lot. As the truck went around the back of the parking lot, Aleman heard a collision. After the collision, the truck initially proceeded toward the parking-lot entrance, but when the driver, whom Aleman recognized as Rubio, saw Aleman and his cousin, he started turning the truck and drove into an alley behind the nightclub. The truck hit the top corner of the building before leaving the scene. Aleman walked over to where the collision occurred and saw a parked car with its bumper "hanging off." A few minutes later, Aleman saw Rubio walking back toward the nightclub. After Rubio entered the nightclub, Aleman sent his cousin to find the truck. Aleman then went inside and called the police. When the police arrived Aleman told them that the driver of the truck had returned on foot and entered the nightclub. Aleman then took the officers inside and identified Rubio.

Officer Joe Neal testified that he and another officer arrived at the nightclub at 11:43 p.m. Aleman informed them that a collision had occurred in the parking lot about fifteen minutes earlier and that the driver was inside the nightclub. According to Neal, Rubio was sitting at a table holding a can of beer which "looked to be still full." The officers asked Rubio and a companion to walk outside to a porch area of the nightclub. According to Neal, Rubio admitted to driving the truck through the parking lot but denied being involved in a collision. Neal testified that he could smell alcohol on Rubio's breath as they talked about the accident.

Neal conducted the gaze-nystagmus test because he believed that Rubio had been involved in an accident. Based on Rubio's response to the gaze-nystagmus test, Neal determined that Rubio was probably intoxicated. Neal then asked Rubio to go with him back to the truck, parked a block-and-a-half away from the nightclub. After seeing the damage to the truck, Rubio changed his story, claiming that a "crazy driver" in the parking lot had backed into his truck. Neal conducted the gaze-nystagmus test again, with the same results. He then asked Rubio to perform several other field sobriety tests, each of which indicated that he was probably intoxicated. Neal testified that he believed Rubio to be a danger to himself and others. According to Neal, Rubio was "too intoxicated to be on the street, and especially to be driving." In Neal's opinion, Rubio did not have control of his physical abilities. As a result, Neal arrested Rubio for driving while intoxicated and transported him to the county jail to use the intoxilyzer machine.

After Neal identified the videotape and verified that it contained the requisite warnings, Rubio's attorney asked to conduct a voir dire examination, outside the presence of the jury, concerning the admissibility of the videotape. Neal testified on voir dire examination that, although he had not seen Rubio driving while intoxicated and no one had told him that Rubio was intoxicated when he was seen driving the truck, Neal had been informed that Rubio "ran into another vehicle." According to Neal, "That is considered reasonable suspicion that something out of the ordinary may be taking place." Neal also testified that, if he was looking for an intoxicated person, the nightclub was a very suspicious place to find one.

Rubio objected that his warrantless arrest was a violation of article 14.01 of the Texas Code of Criminal Procedure. // The state responded that, even if the officer did not have probable cause to arrest Rubio for driving while intoxicated because Neal did not observe Rubio driving the truck, Neal did have probable cause to arrest Rubio for public intoxication. Based on Neal's testimony that he considered Rubio to be a danger to himself and others, the trial court overruled Rubio's objection and admitted the videotape into evidence.

Aleman told Neal that Rubio was driving the truck and that he collided with a car in the parking lot. Neal saw that an accident had taken place shortly before his arrival and that Rubio was intoxicated. Probable cause existed under the federal standard because Neal had facts and circumstances within his knowledge based on what he saw, and on what Aleman told him, which would warrant a person of reasonable caution to believe that Rubio had committed the offense. // The state standard is more stringent than the federal standard. Because the arresting officer did not personally observe Rubio driving the truck, Neal had no authority under article 14.01 to arrest Rubio for driving while intoxicated. //

We reject the State's contention that article 14.03(a) of the Code of Criminal Procedure authorized the officer to arrest appellant. // Driving while intoxicated is a breach of the peace. // However, the State's argument also assumes that the nightclub where Rubio was found is a suspicious place. Although the arresting officer characterized the nightclub as a suspicious place "if you are looking for somebody intoxicated," he never indicated that he was looking for an intoxicated person when he entered the nightclub to investigate the parking-lot collision. It is only when an officer discovers a person in a suspicious place and under such circumstances which reasonably show an offense has been or is about to be committed that a lawful warrantless arrest is sanctioned by the statute. // Furthermore, there is nothing in the record that would reasonably characterize the nightclub as suspicious. //

The State also argues that the court correctly overruled the objection because the officer had probable cause to arrest Rubio for public intoxication. An individual commits the offense of public intoxication if he appears in a public place under the influence of alcohol or any other substance to the degree that the individual may endanger himself or another. // The essential element of the offense is that the individual must be intoxicated to the extent that he "may" endanger himself or another. // Proof of "potential" danger either to the accused or others is enough to show the essential element. //

Rubio argues that the evidence is insufficient to show the arresting officer was justified in believing Rubio was intoxicated to such a degree that he was endangering himself or another. The test is whether the officer's knowledge at the time of the arrest would warrant a prudent person in believing that a suspect, albeit intoxicated, was in any way a danger to himself or another person. // In addition, the appellate court will independently scrutinize the objective facts without regard to the subjective conclusions of the officers to determine the existence of probable cause. //

Aleman testified that Rubio was driving the tractor-truck through a crowded parking lot when it collided with a parked car and the corner of the building. The officer found Rubio inside the bar holding a can of beer which appeared to be still full. The officer testified that in his opinion, based on Rubio's performance on the gaze-nystagmus test as well as several other field sobriety tests, Rubio was intoxicated. Finally Rubio admitted driving the truck, but denied involvement in a collision until confronted with the damage to his vehicle.

The arresting officer's personal knowledge, together with the information given to him by Aleman, supports a finding of probable cause under the federal standard. // The same facts, excluding the facts not personally observed by the arresting officer, support a finding of probable cause under the state standard. The fact finder could have reasonably inferred that Rubio could have run or driven from the scene in an intoxicated manner. This would pose a danger to both Rubio and others. // Rubio's argument that his involvement in an accident was not evidence of danger to himself or to another because the arresting officer did not see Rubio driving the truck or have personal knowledge that he was intoxicated at the time of the accident is without merit. In our view, based upon the evidence before the fact finder, the inferences the fact finder could draw from the record are enough to support a finding of probable cause to arrest appellant for public intoxication. // Because the State carried its burden to prove probable cause under both the federal and state standards, we overrule point of error one.

In point two Rubio contends that the court erred in refusing his requested instruction pertaining to the legality of his arrest. Article 38.23 of the Code of Criminal Procedure 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. //

The terms of the article are mandatory; when an issue of fact is raised about whether the evidence has been illegally obtained, a defendant has a statutory right to have the jury charged accordingly. // The court is not required to give the instruction, however, when the evidence does not raise the issue. // The State argues that, because the record did not raise a fact issue on unlawfully obtained evidence, the court properly denied the special requested charge. //

At trial Rubio requested a special instruction on probable cause to arrest, arguing that Aleman's testimony that Rubio did not appear to be intoxicated when he returned to the nightclub on foot constitutes controverting evidence that he was not intoxicated at the time of the collision in the parking lot. There is nothing in the record, however, to controvert Neal's testimony that Rubio was intoxicated at the time he performed the field sobriety tests or that he was a danger to himself and others. Because the officer's testimony supporting Rubio's arrest for public intoxication was never controverted, he has failed to raise a fact issue regarding the legality of the arrest. // Accordingly, we overrule point of error two.

In point three Rubio contends that the court erred in refusing his requested instruction pertaining to the administration of the intoxilyzer test because Neal was at times thirty feet from Rubio during the pre-examination observation period. // Neal testified that he observed Rubio for the required fifteen minutes, and this was not controverted by other evidence. That he was at times thirty feet from Rubio did not create a fact issue on whether the required observation period had occurred. Defense counsel did not cross-examine Neal regarding his ability to observe Rubio from that distance. Based on the record as a whole, the evidence did not raise a fact issue on whether the intoxilyzer results were illegally obtained. Accordingly, the court did not err when it refused the requested instruction. // Therefore, we overrule point of error three.

In points four and five Rubio contends that the evidence is insufficient to support his conviction for driving while intoxicated. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. //

Specifically, Rubio argues that there is legally insufficient evidence to prove that he was intoxicated when he was driving the truck. Rubio's confession to driving the truck was sufficiently corroborated by Neal's testimony. // The State called Nannette Wavra, a technical supervisor for the Texas Department of Public Safety, to testify as an expert witness on the intoxilyzer test. She testified that, in her opinion, based on the results of the intoxilyzer test conducted by Officer Neal at 1:17 a.m. on November 10, Rubio had an alcohol concentration in excess of .10 two hours before the test. As a result, a rational jury could have found beyond a reasonable doubt, that he was intoxicated at the time of the collision.

Rubio also argues that, when evidence of Rubio's alcohol concentration is the sole method of determining guilt, the use of the intoxilyzer test results, without corroboration, renders the evidence insufficient. In addition to Neal's and Wavra's testimony, however, the videotaped sobriety tests were admitted into evidence and played for the jury. Generally, in the absence of all or a part of the statement of facts, it is presumed on appeal that sufficient evidence was produced to support the findings of the jury. // Because the videotape potentially reveals evidence of Rubio not having the normal use of his mental or physical faculties, or even incriminating statements made by Rubio during the course of the sobriety tests, we must presume that the videotaped evidence presented to the jury, but not contained in the appellate record, supports the jury's finding of guilt. As a result, we overrule points of error four and five.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 22, 1993

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