      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00118-CR




                                Jeffery Dwayne Sharp, Appellant

                                                 v.

                                   The State of Texas, Appellee



                FROM THE COUNTY COURT AT LAW OF COMAL COUNTY,
              NO. 99CR-714, HONORABLE FRED A. MOORE, JUDGE PRESIDING



               A jury found appellant guilty of the misdemeanor offense of driving while

intoxicated—second offense. See Tex. Pen. Code Ann. §§ 49.04, .09(a) (West Supp. 2002). The

court assessed punishment at 180 days in jail and a $1200 fine, suspended imposition of the sentence,

and placed appellant on probation. Appellant contends (1) that the court erred in admitting the

evidence obtained following his improper warrantless arrest, and (2) that the evidence was legally and

factually insufficient to prove the corpus delicti of the offense. We will affirm the judgment of

conviction.


                                            Background

               At trial, three individuals testified, Texas Department of Public Safety Trooper James

Armstrong, Comal County Sheriff’s Officer Wayne Lehman, and Department of Public Safety

employee Melinda Casarez, who maintains the breath alcohol testing program for ten counties

including Comal County.
                On April 3, 1999, at 9:06 p.m. Trooper Armstrong was dispatched to investigate a

one-vehicle, rollover accident on River Road. When he arrived at 9:19 p.m. he observed an

overturned, customized pickup truck facing north in the southbound lane. Appellant was standing

close by the truck visiting with an unidentified individual. Appellant was telling the person that he

was very upset about the wreck and damaging his truck. He discussed how sorry he was that he had

wrecked the truck. EMS was treating an injured person who was later identified as having been a

passenger in the truck. Appellant told Armstrong that he had been driving the truck northbound on

River Road along a very narrow, two-lane section of the road. Appellant told Armstrong that a

southbound vehicle crossed into his lane and that in order to avoid a collision he swerved off the road.

As he drove off the road, he lost control of the truck and it overturned. Based on his experience and

the accident scene when he arrived, Armstrong estimated that the accident occurred between 8:45

p.m. and 9:00 p.m. As Armstrong talked with appellant he smelled a strong odor of alcohol on his

breath, noticed appellant’s speech was slurred, and that his eyes were bloodshot and glassy.

Appellant admitted to Armstrong that he had been drinking beer earlier in the evening. Armstrong

administered a preliminary breath test and the horizontal gaze nystagmus test. Based on his

observations of appellant and the results of the tests, he arrested appellant for driving while

intoxicated.

               Armstrong took appellant to the Comal County Sheriff’s Office where Deputy Lehman

administered other sobriety tests, and Armstrong interrogated and videotaped appellant. Additionally,

appellant gave breath samples. At the sheriff’s office, appellant stated that he had consumed three

or four beers during the evening and had eaten barbeque at about 8:30 p.m.



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                Casarez testified about the physiology of absorption factors of alcohol. Casarez

extrapolated that appellant’s 0.118 grams of alcohol over 210 liters of breath at the time of the test

yielded a result of 0.128 grams over 210 liters of breath at the time of the accident.


                                              Discussion

Warrantless Arrest

                Appellant first contends that because Armstrong did not see appellant operate the

truck, there was no exception to the warrant requirement that would have justified appellant’s

warrantless arrest. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 1977). The State responds

that because Armstrong observed appellant in an intoxicated state and believed that he was a danger

to himself and others a warrantless arrest for public intoxication was proper. See Tex. Pen. Code

Ann. § 49.02(a) (West Supp. 2002). Appellant contends, however, that a warrantless arrest for

public intoxication would not have been proper because there was no evidence that he posed a danger

to himself or to others. See id. Appellant contends further that, consequently, all evidence obtained

by the State after his arrest was the product of an illegal arrest and should have been excluded at trial.

The State responds that, based on the totality of the evidence at the scene of the accident, Armstrong

was justified in making a warrantless arrest for public intoxication and all evidence obtained after the

arrest was properly admitted.

                A police officer may arrest an offender without a warrant for any offense committed

in the officer’s presence or view. Tex. Code Crim. Proc. Ann. art. 14.01(b). While Armstrong had

probable cause to believe appellant had been driving while intoxicated, he did not see appellant

driving, therefore, it cannot be said that the driving-while-intoxicated offense was committed within

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Armstrong’s presence or view. Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. 1986). It

does not follow, however, that appellant’s arrest was necessarily unlawful. A person commits the

offense of public intoxication if the person appears in a public place while intoxicated to the degree

that the person may endanger himself or another. Tex. Pen. Code Ann. § 49.02(a). If Armstrong had

probable cause to believe appellant was intoxicated in a public place to the degree that he might

endanger himself or another, then, pursuant to article 14.01(b), Armstrong was authorized to arrest

appellant without a warrant for public intoxication despite the fact that he testified he arrested

appellant for driving while intoxicated. See Tex. Code Crim. Proc. art. 14.01(b); Warrick, 634

S.W.2d at 709; Peddicord v. State, 942 S.W.2d 100, 109-10 (Tex. App.—Amarillo 1997, no pet.);

Elliott v. State, 908 S.W.2d 590, 592 (Tex. App.—Austin 1995, pet. ref’d) (warrantless arrest

justified when officer did not observe defendant operating motor vehicle in his presence but did

observe defendant and had probable cause for warrantless arrest for public intoxication).

               Armstrong found appellant on the side of a public roadway in a public place in Comal

County. Appellant told the officer he was driving the pickup truck involved in the one-vehicle,

rollover accident. A passenger in appellant’s truck had apparently been injured in the accident.

Appellant admitted drinking prior to the accident. Armstrong smelled alcohol on appellant’s breath,

and noticed appellant’s slurred speech, and bloodshot, glassy eyes. Appellant exhibited all six clues

for intoxication following the horizontal gaze nystagmus test and the portable breath test detected

the presence of alcohol on appellant’s breath. Based on this evidence, appellant posed a danger to

himself or others. Based on the totality of the evidence at the scene of the accident, Armstrong was




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justified in making the warrantless arrest. See Elliott, 908 S.W.2d at 592. Appellant’s first issue is

overruled.

Corpus Delicti

                 Appellant contends that there was legally and factually insufficient evidence to prove

the corpus delicti of the offense of driving while intoxicated. Specifically, appellant contends that

there was legally and factually insufficient evidence to corroborate his extrajudicial statement that he

drove the truck.

                 The corpus delicti of driving while intoxicated is that someone drove or operated a

motor vehicle in a public place while intoxicated. Folk v. State, 797 S.W.2d 141, 144 (Tex.

App.—Austin 1990, pet. ref’d) (citing Threet v. State, 250 S.W.2d 200, 200 (Tex. Crim. App.

1952)). While proof of the corpus delicti may not solely depend on an extrajudicial statement, if

there is some evidence tending to corroborate the statement, then the statement may be used along

with other evidence to establish the corpus delicti. Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim.

App. 1993); Self v. State, 513 S.W.2d 832, 834-35 (Tex. Crim. App. 1974).                   Indeed, the

corroborating evidence does not have to be sufficient by itself to prove the offense charged. See Self,

513 S.W.2d at 834-37. The corroborating evidence is sufficient if it permits a rational finding of guilt,

beyond a reasonable doubt, when joined with the extrajudicial confession. Folk, 797 S.W.2d at 144.

Provided that there is other evidence that a crime was committed, the identity of the defendant as the

perpetrator may rest alone upon his extrajudicial statement, as identity of the perpetrator is not part

of the corpus delicti and may be established by the extrajudicial statement alone. Thomas v. State,

458 S.W.2d 817, 819 (Tex. Crim. App. 1970). The task of the reviewing court is to consider all of



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the evidence in the light most favorable to the conviction to determine whether the evidence tended

to show that someone drove or operated a motor vehicle in a public place while intoxicated. See

Fisher, 851 S.W.2d at 303.

               Appellant was standing beside the wrecked pickup truck when Armstrong arrived at

the scene of the accident. Appellant was obviously intoxicated. These facts corroborate appellant’s

extrajudicial statement and, therefore, his statement could be considered in establishing the corpus

delicti of the offense of driving while intoxicated. Appellant’s second and third issues are overruled.

The judgment of conviction is affirmed.




                                               Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: February 14, 2002

Do Not Publish




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