
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-08-00169-CR


The State of Texas, Appellant

v.


Bobby Drewy, Appellee





FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY

NO. C-1-CR-07-213198, HONORABLE JAN BRELAND, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

The State appeals the county court at law's order granting appellee Bobby Drewy's
motion to suppress evidence in this prosecution for driving while intoxicated.  See Tex. Code Crim.
Proc. Ann. art. 44.01(a)(5) (West Supp. 2008).  The State asserts that the trial court erred by
concluding that Drewy was arrested without probable cause and contends that Drewy's warrantless
arrest was lawful.  We will reverse the suppression order and remand the cause for further
proceedings.
The only witness at the pretrial suppression hearing was Austin Police Officer
Jonathan Riley.  Riley testified that at 5:30 p.m. on Tuesday, July 3, 2007, he was dispatched to the
intersection of Ed Bluestein and Loyola to assist firefighters with a vehicle fire.  When he arrived,
he observed a vehicle on the shoulder of the road, with smoke or steam rising from it.  A firefighter
drew Riley's attention to Drewy, who was standing about fifteen feet away from the disabled car. 
The firefighter told Riley that when he arrived at the scene, Drewy was sitting behind the wheel of
the vehicle with the key in the ignition; the engine was not running.  The firefighter also told Riley
that when Drewy got out of the car, he was holding a large pair of scissors or shears in "an ice-pick-type grip."  The firefighter said that he had found this to be "alarming" but not frightening.
Riley testified that he heard Drewy talking to other people at the scene, and he
"noticed that [Drewy] was talking quite a bit, and that his speech appeared to be slurred."  When
Riley himself spoke to Drewy, he detected "a strong odor of alcoholic beverage coming off his breath
and his general person, [and] his eyes were dilated and bloodshot."  Riley noticed that Drewy had
a leather sheath attached to his belt and asked him if he had a knife.  Drewy replied that he did, and
he began to reach into his pocket.  Riley testified that he believed that Drewy was reaching for a
knife, so he "took hold of" Drewy and handcuffed him for safety's sake.  Riley frisked Drewy and
removed a knife from his pants pocket. (1)  With Drewy's permission, Riley also took Drewy's wallet
from his back pocket.  Riley testified that Drewy "was somewhat combative, just not really
cooperative," while the officer frisked him.  Riley said that he continued to notice the alcoholic-
beverage odor on Drewy's breath, his slurred speech, and his bloodshot eyes.
Riley testified that it was raining, traffic was heavy, and "there was no parking lot
where I could conduct an investigation safely," so he "decided that I'd place Mr. Drewy [sic] and
take him into custody and perform SFST's [standardized field sobriety tests] at a safer facility." 
Riley placed Drewy in his patrol car for transport to the county jail.  Before leaving the scene, Riley
looked inside Drewy's car and saw some empty beer cans and a half-empty bottle of vodka.
At the jail, Riley searched Drewy and found three small bags of marihuana.  Riley
then took Drewy to the video room, advised him of his rights, and administered the horizontal gaze
nystagmous test.  According to Riley, Drewy exhibited all six clues on this test.  Drewy refused to
perform the other field sobriety-tests, and he also refused to provide a breath sample.  While in the
video room, Drewy told Riley that he had been driving. (2)  He also admitted having consumed one
beer.  Drewy denied drinking any of the vodka, which he said belonged to his brother who had been
in the car earlier that day.
Drewy moved to suppress all statements made and evidence seized following his
arrest.  Drewy did not further identify in his motion or in his arguments below the evidence and
statements that he sought to suppress, nor did he identify the point at which he contends that he was
arrested.  It was undisputed at the hearing, however, that Drewy was under arrest by the time he
arrived at the jail.  We will assume that Drewy was arrested at the time Bailey placed him in the
patrol car and that Drewy sought to suppress all evidence seized and statements made thereafter. (3)
The motion to suppress alleged, among other things, that there was no probable cause
or statutory justification for the warrantless arrest.  During argument at the suppression hearing, the
prosecutor urged that the officer's observations at the scene gave him probable cause to believe that
Drewy had been driving while intoxicated.  In reply, Drewy's counsel argued that there was no
evidence that Drewy was "actually driving while he was intoxicated and [thus] there's no probable
cause for the arrest."
In granting the motion to suppress, the trial court stated, "I think there's enough to
show he was intoxicated.  I think there's enough to show he was driving, but because of the nature
of the sequence of events here, I don't think there's enough to establish probable cause that he was
driving while he was intoxicated."  The court added, "[W]e don't know what . . . happened after he
stopped and we know that he had access to alcohol in the vehicle."  The court later filed a written
finding of fact that Riley's testimony at the hearing was credible.

State's Arguments
The State filed both a notice of appeal and a motion to reconsider the suppression
ruling.  In the motion, the State asserted that:  (1) the trial court misapplied the probable cause
standard by requiring proof of the "while driving" element of the driving-while-intoxicated offense,
(2) Drewy was lawfully arrested for public intoxication pursuant to article 14.01(b), and (3) Drewy
was also lawfully arrested under the authority of article 14.03(a)(1).  See id. art. 14.01(b)
(West 2005), art. 14.03(a)(1) (West Supp. 2008).  Drewy filed a written response.  The trial court
conducted a hearing on the motion to reconsider at which no witnesses testified, but at which counsel
for both parties elaborated on their written arguments.  At the conclusion of the hearing, the court
overruled the motion to reconsider and reaffirmed the suppression order.  In its brief to this Court,
the State makes the same arguments it made to the trial court in the motion for reconsideration and
at the hearing on the motion. (4)

Standard of Review
We use a bifurcated standard to review an order granting or denying a motion to
suppress evidence.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We give
almost total deference to the trial court's determination of historical facts that the record supports
and to the trial court's rulings on mixed questions of law and fact that turn on the credibility of the
witnesses.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We review de novo those
mixed questions of law and fact that do not turn on witness credibility.  Carmouche, 10 S.W.2d at
327; Guzman, 955 S.W.2d at 89.  In this case, there is no issue of witness credibility because the trial
court expressly found that Riley's testimony was credible.
Probable cause is a fluid concept turning on the assessment of probabilities, not hard
certainties, in particular factual contexts.  Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App.
2006) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).  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 person of reasonable caution in the belief that,
more likely than not, a particular suspect has committed an offense.  State v. Garrett, 22 S.W.3d 650,
653-54 (Tex. App.--Austin 2000, no pet.) (quoting Hughes v. State, 878 S.W.2d 142, 154
(Tex. Crim. App. 1992)).  Probable cause must be examined in light of the totality of the
circumstances established by the evidence.  Id. at 654.  Whether the facts support a finding of
probable cause is a mixed question of law and fact that we review de novo.  Id.
 
Driving While Intoxicated
The State argues that the trial court erred by concluding that the evidence at the
suppression hearing did not support a finding of probable cause to arrest Drewy for driving while
intoxicated.  As previously noted, the trial court found that Drewy drove his vehicle to the location
where it was found burning on the afternoon in question and that Drewy was intoxicated when Riley
spoke to him at the scene.  Nevertheless, the court concluded that Riley did not have probable cause
to arrest Drewy for driving while intoxicated because there was no evidence showing how long
Drewy had been stopped at the side of the road before firefighters and the police arrived.  The State
urges that by so concluding, the trial court mistakenly required a showing of guilt beyond a
reasonable doubt rather than a showing of probable cause.
Because there is no direct evidence showing how long Drewy had been stopped by
the side of the road before the firefighters arrived, it is possible that he became intoxicated after
stopping.  It was because of this possibility that the trial court concluded that Riley did not have
probable cause to believe that Drewy had driven while intoxicated.  But Drewy's vehicle was on fire,
a circumstance that suggests that emergency help was called soon after he stopped and that only a
few minutes had passed before the firefighters arrived and Riley was dispatched to the scene.  Drewy
was unquestionably intoxicated when Riley spoke to him.  We conclude that under the totality of the
circumstances shown by the record, a person of reasonable caution would be warranted in the belief
that, more likely than not, Drewy had been driving while intoxicated.  In other words, even if Riley
could not be certain that Drewy had been driving while intoxicated, Riley could reasonably believe
that Drewy had probably been doing so.
Although we conclude that Riley had probable cause to arrest Drewy for driving while
intoxicated, this is not sufficient to warrant reversing the trial court's suppression order.  In Texas,
warrantless arrests are permissible only when authorized by statute.  Dyar v. State, 125 S.W.3d 460,
463 (Tex. Crim. App. 2003).  Article 14.01(b), the statute having widest application, permits an
officer to arrest an offender without a warrant for any offense committed in the officer's presence
or within the officer's view.  Tex. Code Crim. Proc. Ann. art. 14.01(b).  This statute did not
authorize Riley to arrest Drewy for driving while intoxicated, even though the officer had probable
cause to do so, because Riley was not present and did not see Drewy while he was driving.  See
Elliott v. State, 908 S.W.2d 590, 591-92 (Tex. App.--Austin 1995, pet. ref'd).  Conceding this point,
the State argues that Drewy was lawfully arrested pursuant to article 14.03(a)(1) for public
intoxication.

Public Intoxication
Article 14.03(a)(1) authorizes a police officer to arrest without a warrant persons
found in suspicious places and under circumstances that reasonably show that such persons "have
been guilty of" a felony, disorderly conduct, a breach of the peace, or public intoxication.  Tex. Code
Crim. Proc. Ann. art. 14.03(a)(1).  A person is guilty of public intoxication if he appears in a public
place while intoxicated to the degree that he may endanger himself or another.  Tex. Penal Code
Ann. § 49.02(a) (West Supp. 2008).  Drewy argues that article 14.03(a)(1) does not apply here
because he was not in a suspicious place when he was found and arrested.
Very few places are inherently suspicious.  Dyar v. State, 59 S.W.3d 713, 715
(Tex. App.--Austin 2001), aff'd, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003).  Instead, a place
becomes "suspicious" within the meaning of article 14.03 based on the surrounding circumstances. 
Id. at 715-16 (collecting cases); see also Dyar, 125 S.W.3d at 464-66 (same).  In Thomas v. State,
for example, three men walking along a sidewalk during the middle of the day were deemed to be
in a "suspicious place" because the arresting officer knew that a house in the neighborhood had
recently been burglarized, one of the men was carrying a television set, and the men had been seen
depositing property in an abandoned house.  681 S.W.2d 672, 676 (Tex. App.--Houston [14th Dist.]
1984, pet. ref'd).  In State v. Parson, the circumstances that gave the arresting officer probable cause
to believe that the defendant was guilty of a hit-and-run accident three hours earlier were held to
support the conclusion that the defendant's front yard, where he was found and arrested, was a
"suspicious place."  988 S.W.2d 264, 268-69 (Tex. App.--San Antonio 1998, no pet.).
In Dyar, the defendant was arrested without a warrant in a hospital.  59 S.W.3d at
714.  He had been taken to the hospital shortly after midnight on New Year's Eve from the scene of a
one-car rollover accident in which he had been driving.  He exhibited several signs of intoxication,
and he admitted to the officer that he had been "partying."  Id.  We held that these circumstances
warranted the determination that Dyar had been found in a "suspicious place" under circumstances
that reasonably showed that he was guilty of driving while intoxicated, which is a breach of
the peace.  Id. at 716-17.  The court of criminal appeals reached the same conclusion.  Dyar,
125 S.W.3d at 468. (5)
We have held that Riley had probable cause to believe that Drewy had been operating
a motor vehicle in a public place while intoxicated.  There can be no dispute that an intoxicated
person who drives a motor vehicle on a busy street in the rain is a danger both to himself and to
others.  Moreover, the evidence shows that Drewy was still intoxicated as he stood near his disabled
vehicle.  Riley testified that "there was no parking lot where I could conduct an investigation safely." 
According to the officer, Drewy was "combative, just not real cooperative."  We hold that these
circumstances warrant the conclusion that Drewy had been found in a "suspicious place" under
circumstances that reasonably showed that he was guilty of public intoxication. Therefore, Riley was
authorized to arrest Drewy without a warrant for public intoxication pursuant to article 14.03(a)(1). 
We do not reach the State's contention that an arrest for public intoxication was authorized by
article 14.01(b).
Drewy argues that even if Riley had probable cause to arrest him for public
intoxication, the officer had a limited discretion to release him instead of arresting him.  See
Tex. Code Crim. Proc. Ann. art. 14.031(a) (West 2005).  Drewy argues that the State offered no
evidence regarding the application of article 14.031(a) and complains that, because no witnesses
were called at the hearing on the State's motion for reconsideration, he did not have the opportunity
to cross-examine Riley regarding the application of the statute.  However, article 14.031(a) states
only that an officer may release a publicly intoxicated person under the appropriate circumstances;
Drewy cites no authority holding that an officer is required to do so.
For the reasons stated, we sustain the State's contention that the county court at law
erred by granting Drewy's motion to suppress evidence.  The suppression order is reversed and the
cause is remanded to the trial court for further proceedings.


				__________________________________________
				W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Reversed and Remanded
Filed:   October 23, 2008
Do Not Publish
1.   Riley testified that he never saw the scissors or shears mentioned by the firefighter.
2.   The prosecutor asked Riley, "How long had he said he'd been driving before he was pulled
over or before the officers arrived on the scene?"  Riley answered, "Approximately 15 minutes." 
The trial court understood this question and answer to mean that Drewy "[had] been driving for 15
minutes before he stopped."
3.  Riley was asked the grounds for Drewy's arrest.  He answered, "At that time, for DWI and
DWLS, which I believed he was driving with a suspended license."  Riley explained that a driver's
license check indicated that Drewy's license had been suspended.  Riley did not say when the license
check was conducted, and he acknowledged during cross-examination that the suspended license
charge had been dropped.  The State does not contend that Drewy was lawfully arrested for driving
with a suspended license.
4.   Drewy challenges the State's arguments, but he does not contend that the arguments were
not preserved for appeal.
5.   Despite the holding in Dyar, the State does not argue that article 14.03(a)(1) authorized
Drewy's arrest for driving while intoxicated.

