




02-10-510-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00510-CR
 
 



Eric Schura Schragin


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM THE 432nd
District Court OF Tarrant COUNTY
----------
OPINION
----------
I.  Introduction
Appellant
Eric Schura Schragin appeals his conviction following a jury trial for felony
driving while intoxicated (DWI).[1]  He contends in his first
point that the evidence is insufficient to support his conviction because there
is no evidence he operated a motor vehicle, and he argues in his second point
that the State improperly commented on his post-arrest silence.  We affirm.
II. 
Background
Officer
Daniel Gonzales was working as a patrol officer for the Fort Worth Police
Department on April 12, 2008, when he received a dispatch at approximately
11:21 p.m.  A caller had reported a suspicious vehicle on Strohl Street in Fort
Worth that had been parked for about ninety minutes without moving.  Officer
Gonzales testified that when he arrived on scene, he “observed a white Mazda
vehicle parked facing southbound, approximately two feet away from the curb,
with the lights on.”  Despite the vehicle’s distance from the curb, it was
legally parked.  Officer Gonzales testified that he “spotlighted the vehicle,
and [he] observed a male slumped over in the driver’s side seat.”  Officer
Gonzales identified Appellant in open court as the person sitting in the driver’s
seat of the vehicle.
Officer
Gonzales testified that when he approached the vehicle on foot, he saw Appellant
sleeping in the driver’s seat with his seat belt on.  He could also hear the
vehicle’s engine running.  Officer Gonzales testified that Appellant was
sitting in the driver’s seat the “way someone would sit when they’re driving”
and that the driver’s seat was not reclined in any way.  He could not recall
whether the heater was on in the vehicle, but he acknowledged that the police
report states that the weather was cool that evening.  Even so, Officer
Gonzales testified that he was wearing short sleeves and that Appellant was
wearing cargo shorts and a short-sleeved shirt.[2]
Officer
Gonzales knocked on the window several times, but Appellant did not wake up.  The
doors were locked, so Officer Gonzales shook the vehicle.  Appellant then
slumped to the side and woke up, and Officer Gonzales identified himself and
asked Appellant to roll down the window or open the door.  Officer Gonzales
testified that when Appellant rolled down the window, the first thing he
noticed was a strong alcohol smell emanating from inside the car and from
Appellant.
According
to Officer Gonzalez, Appellant “took his time” exiting the vehicle when asked
to do so, and upon standing outside, Appellant had to lean against the car to
keep his balance.  Officer Gonzales testified that he asked Appellant where he
was coming from and that Appellant, after initially hesitating, said he had
been in Grapevine.  Appellant also told Officer Gonzales that he did not know
how he had arrived at that particular location.  Officer Gonzales continued:
I asked him, were you
driving the vehicle, and he said, yes.  And I asked him, what made you come over
to this particular area, and he goes, I don’t remember.  I was tired and I
decided to take a nap.  That was his exact answer.  I remember him saying that.
 
After that I asked
him, well, where are you headed to or where were you going?  He said, I was
going to Saginaw, which is just north -- a few miles north of where he was at.
 
I asked him if he
knew anybody that lived -- that lived in this particular area that he was parked
at, and he said, no, I don’t.
 
I
asked him, do you know exactly where you’re at?  He looked around and said, not
exactly.
Officer
Gonzales further testified that Appellant failed a series of field sobriety
tests and that he believed Appellant to be intoxicated from the consumption of
alcohol.  Officer Gonzales acknowledged, however, that he had not seen
Appellant drive or otherwise move the vehicle that night.
Officer
Gonzales testified that the vehicle in which Appellant was sitting was
registered to A.J. Macias, a person he believed to be a realtor because of the
realty signs he found when searching the vehicle.  The registration report
stated that the car was registered in the City of Saginaw.
Officer
Collin Harris from the DWI unit was dispatched to the scene at 11:43 p.m.  He
arrested Appellant and transported him to jail.  Officer Gonzales remained at
the scene to wait for the car to be towed, and he inventoried the vehicle.  He
did not find any open alcoholic beverage containers, but he did notice damage
to the car on one side “that appeared fresh.”
Officer
Harris described for the jury the process through which he escorted Appellant
to the city jail in Fort Worth, including the “intox room” and reading
Appellant his statutory warnings.  Officer Harris testified that once Appellant
was in the intox room, he refused to provide a breath specimen.  He also
refused to perform the “walk-and-turn” and “one-leg stand” tests.  Appellant
did, however, answer each of Officer Harris’s questions after receiving his Miranda[3]
warnings and indicating that he understood his rights.[4]
 Describing one of his questions to Appellant, Officer Harris testified, “I
asked him if he was operating a vehicle at the time he was stopped[.]  He said,
yes.”[5]  Appellant told Officer
Harris that he was coming from Grapevine and headed to Saginaw.  Officer Harris
testified that he believed Appellant to be intoxicated.
A. J.
Macias testified for Appellant.  He is a realtor and has known Appellant since
1996.  Macias recalled the day of Appellant’s arrest and testified that
Appellant participated in a March of Dimes charity event that evening.  He
described the charity event as a “poker run” where participants went to several
Chili’s restaurant locations.  Macias was not initially with Appellant at the
charity event, though, because he was showing houses to a client.
Macias
testified that he left his car parked at a house on Strohl Street earlier that
day while he showed his client other houses.  The client, however, received a
call and needed to do something for one of his children, so the client dropped
Macias off at his home office in Saginaw instead of taking him back to Strohl
Street where his car was parked.
Macias
testified that he later received a call from Appellant.  Appellant needed a
ride because the limousine in which Appellant had been riding for the charity
event had broken down.  Macias drove his truck and met Appellant at the
second-to-last stop of the charity fundraising event, and he and Appellant
stayed at the charity event for a while, going together to two different
Chili’s restaurants.  Macias testified that he met Appellant at the first
Chili’s “[b]etween 3:00 and 4:00” and that they left the second Chili’s at
“7:00 -- 7:00, 7:30, somewhere around there.”
Macias
testified that, when they left the second Chili’s, he and Appellant were going
to Saginaw to spend the night at his house.  Macias also testified, however,
that he remembered leaving his car earlier that day and that he “decided to go
to the other car and just see if [he] could get [Appellant] to drive it home.”  Macias
testified that he returned to his Mazda vehicle with Appellant “somewhere
between 8:00 and 9:00 o’clock.”  Macias testified that Appellant exited the
truck and that he threw the keys to his Mazda to Appellant.  On
cross-examination, Macias testified that he knew Appellant had been drinking
that evening and that, looking back, he realized that Appellant had been
intoxicated.  Macias testified that Appellant called him several times to come
back but that he told Appellant he was not coming back and to sleep in the car.
The
trial court admitted Macias’s cell phone record from April 2008 during Macias’s
testimony.  Macias identified Appellant’s phone number, and the exhibit
reflects six calls from Appellant to Macias between 9:06 and 9:35 p.m. on April
12, 2008.
When
Macias was recalled to testify the next day, he testified that he and Appellant
left the second Chili’s restaurant around 7:00 p.m. and that they went to
dinner at a Japanese restaurant before he dropped Appellant off at his other
car.
Jackie
Matliech testified that she also attended the charity event.  She testified
that it began around lunchtime and lasted for about four hours.  Matliech also
testified that she knows Macias but that she did not see Macias at the charity
event.
Phillip
Foreman testified that he is a limousine driver and that he was hired to drive
Appellant and others during the charity event.  Foreman confirmed that the air
conditioner in his limousine went out that day and that he was not able to
finish driving Appellant and the others to the rest of the fundraiser.  Foreman
testified that he left Appellant and the others at a Chili’s restaurant in
Flower Mound.
III. 
Sufficiency of the Evidence
Appellant
contends in his first point that the evidence is insufficient to support his DWI
conviction because “the evidence just does not show any operation of a motor
vehicle.”  Appellant does not contest the other elements of his felony DWI
conviction.
A.  Standard of Review
In
our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
This
standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.  The trier of
fact is the sole judge of the weight and credibility of the evidence.  See
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).  Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder.  Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).  Instead, we Adetermine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@  Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007).  We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.  Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.  The
standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor.  Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d
at 13.
B.  Applicable Law
“Operating”
is not defined in the Texas Penal Code.  Kirsch v. State, 357 S.W.3d
645, 649–50 (Tex. Crim. App. 2012).  However, the court of criminal appeals has
instructed that, for purposes of reviewing the sufficiency of the evidence for
a DWI conviction, a person “operates” a vehicle when “the totality of the
circumstances . . . demonstrate that the defendant took action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use.”  Denton
v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see Kirsch,
357 S.W.3d at 650–51 (reaffirming Denton’s definition of “operate” for
sufficiency review purposes).  Whether a person was operating his vehicle is a
question of fact for the factfinder.  Kirsch, 357 S.W.3d at 652 (citing
Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007)); Brown v. State, 122
S.W.3d 794, 798–99 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 938
(2004)).
The
State cites several cases in which persons were found sleeping in their
vehicles and in which reviewing courts found sufficient evidence to support the
DWI convictions.  For example, in Molina v. State, No. 07-09-00022-CR,
2010 WL 980560, at *1 (Tex. App.—Amarillo Mar. 18, 2010, pet. ref’d) (mem. op.,
not designated for publication), the court of appeals described the applicable
facts as follows:
Austin police
officers were called out to investigate a suspicious vehicle in a cul-de-sac.  When
the police officers arrived, they observed appellant asleep behind the wheel of
the vehicle.  The keys were in the vehicle’s ignition and the car and radio
were both on.  Appellant was also in a position in the vehicle that he was able
to reach the brake pedal.  The police officers proceeded to wake up appellant
and, after conducting field sobriety tests, arrested him for driving while
intoxicated.
Id.
(internal footnote omitted).  The court added in a footnote that the video from
the patrol car showed the vehicle’s lights “flickering on or off during the
investigation.”  Id. at *1 n.1.  Holding that sufficient evidence
supported the conviction, the court stated that “the jury could have determine[d]
that the running vehicle, the flickering brake lights, and the activated radio
were indications that appellant had taken actions that affected the functioning
of the vehicle and, thus, was operating the vehicle prior to falling asleep.”  Id.
at *2.  The court added that although “no one observed appellant start the
vehicle, the fact that appellant was the only person in the vehicle, in the
driver’s seat, and able to operate the brake lights is circumstantial evidence
that the jury could have used in determining the guilt of appellant.”  Id.
In Reynolds
v. State, 744 S.W.2d 156, 158–59 (Tex. App.—Amarillo 1987, pet. ref’d), the
court held that sufficient evidence supported the DWI conviction, and it
described the facts as follows:
[T]he arresting
officer testified that he found appellant alone behind the wheel of a car that
was half in a ditch and half on a farm-to-market road.  He testified that
appellant’s feet were on the floorboard of the driver’s seat under the steering
wheel and that no one else was in the car.  The officer also testified that he
found no one else in the vicinity and found no liquor bottles either in or
around the vehicle.  The driver’s door was closed.
 
The
officer also said that appellant admitted to the officer that he was driving
the vehicle in which he was found. . . .
Id. at
158; see also Dornbusch v. State, 262 S.W.3d 432, 433–38 (Tex. App.—Fort
Worth 2008, no pet.) (holding evidence sufficient; defendant found asleep in
vehicle behind restaurant with headlights on, engine running, radio playing,
and vehicle not moving because wheels were touching curb).
Appellant
primarily relies on Texas Department of Public Safety v. Allocca, 301
S.W.3d 364, 365–66 (Tex. App.—Austin 2009, pet. denied) (op. on reh’g), to
support his argument that the evidence is insufficient to establish that he
operated a motor vehicle.  In that case, the court of appeals affirmed the
trial court’s determination that substantial evidence did not support an
administrative judge’s decision to suspend Allocca’s driver’s license for
driving while intoxicated.  Id. at 365–66.  An officer responded to a
report concerning a suspicious vehicle parked in a Jiffy Lube parking lot and
found Allocca sleeping in the driver’s seat of his vehicle with the engine
running.  Id. at 366.  Allocca testified at the administrative hearing
that he worked at the business where his vehicle was parked, that he had gone
to a sports bar with friends, and that a friend had dropped him off at his
vehicle later that evening.  Id.  Allocca’s vehicle “was parked in his
usual parking space behind the building where he worked.”  Id. at 368. 
Allocca testified that the vehicle was not running when he first went to sleep
but that he later turned it on to use the air conditioner.  Id. at 366. 
He also testified that the vehicle was in park and that his feet were on the
floorboard while he slept.  Id.  Moreover, Allocca had reclined the
driver’s seat to better accommodate sleeping and had not turned on the
headlights.  Id. at 368–69.  Based on these facts, the court affirmed
the trial court’s determination that the administrative judge’s decision was
not supported by substantial evidence.  Id. at 369–70.[6]
C.  Application
Setting
aside that Allocca was a civil case decided under a substantial evidence
standard of review and was not reviewed by the court of criminal appeals, some
of the facts from that case resemble the evidence presented to the jury in this
case.  For example, Allocca was found asleep in the driver’s seat of his
vehicle, with the engine running and the vehicle in park, in a public parking
lot after being dropped off there by a friend.  See Allocca, 301 S.W.3d
at 366.  Allocca had testified that the vehicle was running because he was hot
and needed to use the air conditioner while he slept.  Id.  Here,
Appellant presented evidence that a friend dropped him on Strohl Street, tossed
him the keys to the Mazda, and drove away and that Appellant slept in the car
with the engine running to utilize the car’s heater since it was cool outside.
Allocca
had reclined the driver’s seat, see id. at 368–69, but Appellant had his
seatbelt on and had not reclined the driver’s seat.  There is also no
discussion in Allocca that suggests that he had admitted driving his
vehicle, see id. at 366–69, but the jury in this case heard testimony
from Officers Gonzales and Harris that Appellant admitted to each of them that
he had been driving the vehicle.  The jury also heard testimony that Appellant
said he was going from Grapevine to Saginaw.  Moreover, the jury, in carrying
out its role as the sole judge of the weight and credibility of the evidence,
could have disbelieved Macias’s testimony concerning the sequence of events
leading up to Appellant’s sleeping in the car.  See generally Tex. Code
Crim. Proc. Ann. art. 38.04; Brown v. State, 270 S.W.3d 564, 568 (Tex.
Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009); see also Kirsch,
357 S.W.3d at 652 (stating that whether a person was operating his vehicle is a
question of fact for the factfinder); Brown, 122 S.W.3d 798–99 (same).
Viewing
all of the evidence in the light most favorable to the jury’s verdict, and
deferring to the jury’s authority to draw reasonable inferences from basic
facts to ultimate facts, we conclude that the evidence was sufficient to enable
the jury to rationally find, beyond a reasonable doubt, that Appellant operated
a motor vehicle while intoxicated.  See Dornbusch, 262 S.W.3d at 433–38;
Reynolds, 744 S.W.2d at 158–59; see also Molina, 2010 WL 980560,
at *1–2.  We therefore overrule Appellant’s first point.
IV.  Post-Arrest
Silence
Appellant
contends in his second point that the trial court erred by overruling his
objection to the prosecutor’s comment about his post-arrest silence.
A.  Applicable Law
The
federal constitution’s guarantee of due process prohibits comment on an
accused’s post-arrest silence after Miranda warnings are given.  Doyle
v. Ohio, 426 U.S. 610, 617–20, 96 S. Ct. 2240, 2244–45 (1976); see
Fletcher v. Weir, 455 U.S. 603, 606–07, 102 S. Ct. 1309, 1311–12 (1982).  The
prohibition against the use of a defendant’s post-arrest silence contained in
the United States Constitution is based on the unfairness of assuring a suspect
he has the right to remain silent and then using that silence against him.  See
Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 639 (1986).
The
Texas constitution provides additional protection and prohibits comment on a
person’s post-arrest silence both before and after Miranda warnings are
given.  Sanchez v. State, 707 S.W.2d 575, 579–80 (Tex. Crim. App. 1986).
 Use of a defendant’s post-arrest silence violates the prohibition against
self-incrimination, even if Miranda warnings have not been given.  See
Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005) (providing
that a defendant’s failure to testify in his own behalf “shall not be taken as
a circumstance against him, nor shall the same be alluded to or commented on by
counsel in the cause”); see also Franklin v. State, 693 S.W.2d 420, 428
(Tex. Crim. App. 1985) (stating that article 38.22 of the code of criminal procedure
has consistently been construed as prohibiting proof of an accused’s silence
while under arrest and which tends to communicate thoughts of the defendant of
an incriminating nature).  This case, however, concerns only a comment about
Appellant’s post-arrest, post-Miranda silence, and the difference
between federal and Texas law is not at issue.
B. 
Discussion
 
Appellant
contends that the trial court should have sustained his objection to the
following question because it improperly commented on his right to post-arrest
silence:
Q. 
How many times, during your interview in the intoxilyzer room, did the
Defendant state, I wasn’t driving a vehicle, I didn’t drive a car?  How many
times did he do that?
Appellant
objected before Officer Harris answered the question, and the trial court excused
the jury to address the objection, eventually overruling it.  When the jury
returned, the following exchange occurred:
Q.  (BY MR. RODGERS) 
Officer Harris, while you were in the intoxilyzer room after the Defendant had stated
he understood his rights and waived them and answered your questions, did the
Defendant ever make a statement to you as to whether or not he was driving the vehicle?
 
MR. BURNS:  The same
objection.
 
THE COURT: 
Overruled.
 
THE
WITNESS:  No, he did not.
The
prosecutor then moved to a different topic of questioning.
Appellant
argues that Officer Harris never asked him whether he had driven a motor
vehicle after he had his first drink and that the State “realized that
glaring omission” and used the foregoing questions to fill that void.  Appellant
further contends that the State sought “to use [his] failure to volunteer
additional information as a sign of guilt.”  Appellant’s argument, however, is
premised on the concept that he remained silent after his arrest.  Appellant
did not do so and instead answered Officer Harris’s questions in the
intoxilyzer room.  Among other things, Appellant was asked (and answered)
whether he was operating a vehicle,[7] the name of the street
where he was stopped, where he was headed, where he had been, what he had done
in the past three hours and with whom, when he last ate, what he last ate, when
he took his last drink, how much he had to drink, how often he drinks alcohol,
and when and for how long he last slept.
“The
State cannot improperly comment upon a defendant’s post-arrest silence when he
did not remain silent.”  Salazar v. State, 131 S.W.3d 210, 215 (Tex.
App.—Fort Worth 2004, pet. ref’d); see Garcia v. State, 126 S.W.3d 921,
924 (Tex. Crim. App. 2004) (holding closing argument did not comment on right
to remain silent because the defendant waived post-arrest silence by giving
written statement to police after receiving Miranda warnings); Maxson
v. State, 79 S.W.3d 74, 76–77 (Tex. App.—Texarkana 2002, pet. ref’d)
(holding Doyle and its progeny not applicable because Maxson did not
exercise his right to remain silent “but chose to attempt to explain his
actions”); Wearren v. State, 877 S.W.2d 545, 547 (Tex. App.—Beaumont
1994, no pet.) (“The central flaw in appellant’s [post-arrest silence] argument
is [that] he was not silent after arrest.”); see also Gee v. State, No.
01-07-00068-CR, 2007 WL 4387336, at *3 (Tex. App.—Houston [1st Dist.] Dec. 13,
2007, pet. ref’d) (mem. op., not designated for publication) (holding Gee could
not establish ineffective assistance of counsel for failure to object to
comment on post-arrest silence because he “answer[ed] ‘everything . . . asked’
of him after [the officer] informed him of his legal rights,” thereby waiving
his right to remain silent).
Appellant
did not remain silent after receiving his Miranda warnings and instead
answered every question he was asked during his videotaped interview.  Appellant
does not argue that he was coerced into answering Officer Harris’s questions,
that he did not understand his rights, or that his answers to Officer Harris’s
questions were in any way involuntary.  Thus, by answering Officer Harris’s
questions in the intoxilyzer room (the video of which the jury watched during
the State’s presentation of evidence), Appellant waived his right to remain
silent after his arrest.  See Gee, 2007 WL 4387336, at *3; see
also Garcia, 126 S.W.3d at 924; Salazar, 131 S.W.3d at 215; Maxson,
79 S.W.3d at 76–77; Wearren, 877 S.W.2d at 547.  The State could
therefore use the entirety of Appellant’s videotaped interview, “including the
implicit references to his silence contained therein,” as affirmative evidence
of his guilt.  United States v. Pando Franco, 503 F.3d 389, 396–97 (5th
Cir. 2007); see United States v. Fambro, 526 F.3d 836, 842–43, 847 (5th
Cir. 2008) (holding officer’s testimony concerning Fambro’s failure to disclaim
knowledge of the firearm he was convicted of possessing did not violate Doyle
principle because Fambro voluntarily answered questions after receiving Miranda
warnings).  Consequently, the State did not, under the circumstances of this
case, improperly comment on Appellant’s post-arrest silence by asking the
foregoing questions of Officer Harris, and the trial court did not abuse its
discretion by overruling Appellant’s objection.  We overrule Appellant’s second
point.
V.  Conclusion
Having
overruled each of Appellant’s two points, we affirm the trial court’s judgment.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
LIVINGSTON, C.J.; GARDNER
and GABRIEL, JJ.
 
PUBLISH
 
DELIVERED:  August 16, 2012




[1]See Tex. Penal Code
Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2012).


[2]Another officer testified
that the weather was cool that night and agreed that the weather could have
been “a little cool” for a person in shorts and short-sleeves.


[3]Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602 (1966).


[4]The State also published
the video recording of the interaction between Appellant and Officer Harris in
the intox room.


[5]Officer Harris later
testified, however, that Appellant did not “make a statement to [him] as to
whether or not he was driving the vehicle.”  From our review of the recorded
interview, we note that Appellant answered each of Officer Harris’s questions
but did not volunteer additional information.


[6]Appellant cites York v.
State, 342 S.W.3d 528, 534–38 (Tex. Crim. App. 2011), cert. denied,
132 S. Ct. 1093 (2012), in which the court held that the officer had reasonable
suspicion to detain York for public intoxication upon finding him asleep in his
car in a gas station parking lot.  Appellant argues that the “Court of Criminal
Appeals did not find that there was even a reasonable suspicion that DWI was a
crime that needed to be investigated.”  However, the issue decided was whether
the officer illegally detained York and thus whether the subsequent search that
revealed drugs on York’s person was legal.  Id. at 534–38.  York was not
prosecuted for DWI, and the court thus had no reason to address whether the
officer had reasonable suspicion for that offense since it had already held
that there was reasonable suspicion to suspect public intoxication.  See id.


[7]Appellant answered, “Yes,
sir.”


