      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



                            MEMORANDUM OPINION


               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.


       1
           Riley testified that he never saw the scissors or shears mentioned by the firefighter.

                                                   2
                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



        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.

                                                  3
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,




                                                  4
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


       4
         Drewy challenges the State’s arguments, but he does not contend that the arguments were
not preserved for appeal.

                                                  5
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

                                                 6
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.

                                                  7
               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




                                                  8
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




       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.

                                                  9
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




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