Affirmed and Plurality, Concurring, and Dissenting Opinions filed April 2,
2019.




                                      In The

                   Fourteenth Court of Appeals
                               NO. 14-17-00493-CR

                       PAUL CRAIG SCOTT, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 11
                           Harris County, Texas
                       Trial Court Cause No. 2095430


                       DISSENTING OPINION

      The plurality concludes that appellant’s arrest was valid because he could
have been arrested for various traffic violations. I respectfully disagree with the
plurality’s view that arresting an individual for traffic violations can morph into a
two-hour long detention in central intox and ultimately end with standard field
sobriety testing and an arrest for driving while intoxicated. The officer had two
options under Texas Transportation Code sections 543.002 and 543.003 if he had
arrested appellant for traffic violations; he did neither.1 The concurrence concludes
that even if the arrest could not be justified by the traffic violations, there was
nonetheless probable cause to arrest appellant for driving while intoxicated before
he was transported to central intox. Because I would find that the officer in this
case had arrested appellant before transporting him to central intox and that the
officer did so without probable cause, I respectfully dissent.

       Probable cause to arrest exists when the facts and circumstances within an
officer’s personal knowledge and of which he has reasonably trustworthy
information are sufficient to warrant a prudent person in the belief that, more likely
than not, a particular suspect has committed an offense. Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). A finding of probable cause requires “more than bare suspicion” but “less
than . . . would justify . . . conviction.” Id. (citing Brinegar v. United States, 338
U.S. 160, 175 (1949)). To establish that Officer O’Brien had probable cause to
arrest appellant for DWI, the State had to show that appellant lacked the normal
use of his mental or physical faculties by reason of intoxication. See Tex. Penal
Code § 49.01(2); Williams v. State, 525 S.W.3d 316, 321 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref’d); Navarro v. State, 469 S.W.3d 687, 694 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).

       The concurrence lists seven different things that Officer O’Brien observed
before arresting appellant—however, Officer O’Brien also testified that there was a
myriad of reasons that could have caused these conditions. Furthermore, although
Officer O’Brien admitted that he could be considered an expert in DWI
investigation, he did not ask appellant a single investigatory question regarding
       1
         Sections 543.002 and 543.003 give an officer who arrests a person for a traffic violation
two options only: to bring the person before a magistrate immediately or release the person if he
signs a written promise to appear in court. See Tex. Transp. Code §§ 543.002–.003.

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where he had come from, where he was going, or if he had consumed any alcohol
that evening. Officer O’Brien did not perform a single standard field sobriety test.
Instead, he handcuffed appellant, placed him in the back of the patrol car, had
appellant’s car towed, and transported appellant to central intox where he waited
over two hours before any investigation or sobriety testing was performed. In fact,
Officer O’Brien testified that when he placed appellant in the back of the patrol
car, O’Brien did not know that appellant was intoxicated. See Williams, 525
S.W.3d at 322 (noting testimony of police officer that individual is intoxicated is
probative evidence of intoxication).

      The concurrence cites several cases for the proposition that standard field
sobriety tests are not necessary for a finding of probable cause—it is not my
contention that every finding of probable cause requires standard field sobriety
tests. However, I am troubled by the proposition that such scant evidence, absent
any investigation at all, can support probable cause for a warrantless arrest. In
every case cited by the concurrence, there was some investigation performed, the
defendant himself admitted to drinking alcohol, there was a motor vehicle
collision, or some combination of these factors.

      Officer O’Brien conducted no investigation. By his own admission, at the
time he placed appellant under arrest, he did not know whether appellant had lost
the normal use of his mental or physical faculties due to intoxication. Based on the
facts presented, I would find that Officer O’Brien did not have probable cause to
arrest appellant for DWI before transporting him to central intox.


                                       /s/       Frances Bourliot
                                                 Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot (Frost,
C.J., plurality) (Christopher, J., concurring).
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