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

                             CONCURRING OPINION

      The plurality holds that when a person is arrested on a misdemeanor traffic
violation, the person can be subjected to a battery of field sobriety tests, even if those
tests are administered two hours after the arrest. There are gaps in the plurality’s
analysis. I would add the following two points.

      First, under our statutory law, an officer has only two options when a
misdemeanor traffic arrest is made: (1) release the person if he signs a written
promise to appear in court, or (2) immediately bring the person before a magistrate.
See Tex. Transp. Code §§ 543.002–.003; see also Azeez v. State, 248 S.W.3d 182,
189–90 (Tex. Crim. App. 2005) (discussing these statutes).

      Second, under our case law, an officer may continue the person’s detention if
the continued detention is supported by reasonable suspicion of other criminal
activity. See Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017)
(“A seizure justified only by a traffic violation becomes unlawful if prolonged
beyond the time reasonably required to conduct the traffic stop. Thus, continuing a
brief investigatory detention beyond the time necessary to conduct a traffic stop
requires reasonable suspicion of criminal activity apart from the traffic violation.”);
see also State v. Sanchez, 538 S.W.3d 545, 551 (Tex. Crim. App. 2017) (after a
person’s arrest for a traffic violation, an officer may conduct a search for evidence
of a newly-discovered drug offense if the officer has probable cause that the drug
offense was committed); Medina v. State, 565 S.W.3d 868, 877 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d) (same).

      The evidence in this case showed that appellant was not released upon a
written promise to appear in court for a traffic violation, or that he was immediately
brought before a magistrate to answer for a traffic violation. Instead, appellant was
transported to “central intox,” and his vehicle was inventoried and towed away. The
evidence accordingly established that the traffic investigation was over, and that
appellant was then taken into custody for driving while intoxicated.

      The plurality only considers whether the officer had probable cause to arrest
appellant for the traffic violation. Although I agree with the plurality’s conclusion
with regards to that question (and even despite the officer’s testimony that he did not
complete an arrest), this court should also consider whether the officer had probable
cause to arrest appellant for driving while intoxicated, even before appellant was

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transported to central intox. As to that question, I believe that the answer is clearly
“yes,” and that the officer did so arrest appellant.

      Before transporting appellant to central intox, the officer was aware of the
following facts: (1) appellant committed three traffic violations; (2) appellant
continued to drive for almost a mile before stopping, even though the officer had
activated his emergency lights and siren; (3) appellant was slow to respond to a
request for his driver’s license and proof of financial responsibility; (4) appellant
smelled of alcohol; (5) appellant’s eyes were glassy; (6) appellant slurred his speech;
and (7) appellant swayed on his feet when he stepped out of his vehicle. These facts
are more than sufficient to establish probable cause for driving while intoxicated.
See State v. Ballard, 987 S.W.2d 889, 891, 893 n.4 (Tex. Crim. App. 1999).

      The absence of field sobriety tests does not defeat a finding of probable cause.
It has long been the rule in Texas that even a lay witness can testify that a person is
intoxicated based on what the lay witness observed. See Ritchie v. State, 296 S.W.2d
551, 553 (Tex. Crim. App. 1956). In fact, lay testimony may be the only evidence to
support a conviction. See Vaughn v. State, 493 S.W.2d 524, 525–26 (Tex. Crim.
App. 1972) (the evidence was sufficient because there was testimony that the
defendant was weaving on the road, the defendant’s eyes were bloodshot, and the
defendant said that he had been drinking); McCown v. State, 192 S.W.3d 158, 165
(Tex. App.—Dallas 2006, pet. ref’d) (the evidence was sufficient even though the
defendant refused to perform a field sobriety test); see also Perkins v. State, 19
S.W.3d 854, 857–58 (Tex. App.—Waco 2000, pet. ref’d) (the defendant “did fine
on the sobriety tests” and yet the defendant was still convicted).

      The record supports an implied finding that there was an arrest for driving
while intoxicated, supported by probable cause, before appellant was transported to
central intox. Because appellant was already under arrest when he arrived at central

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intox, there was no unconstitutional seizure of his person as he waited for the field
sobriety tests to be administered. Accordingly, the trial court did not abuse its
discretion by denying the motion to suppress.

       I concur in the court’s judgment.




                                          /s/       Tracy Christopher
                                                    Justice



Panel consists of Chief Justice Frost and Justices Christopher and Bourliot. (Frost,
C.J., plurality). (Bourliot, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




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