
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-01-049 CR

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GARY WAYNE FOUNTAIN, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the County Court at Law
Liberty County, Texas

Trial Cause No. 64344




OPINION
 After Gary Wayne Fountain pleaded nolo contendere to the misdemeanor offense
of Driving While Intoxicated (DWI), he was convicted and assessed a probated sentence,
the terms of which include suspension of his incarceration in the Liberty County Jail for
a term of one year.  Complaining of the trial court's denial of a pre-trial written motion
to suppress ruled on prior to his plea of nolo contendere, Fountain appeals his conviction
via a designation in his notice of appeal.  See Tex. R. App. P. 25.2(b)(3).  Fountain's
appellate issues complain that the deputies involved in the initial investigation lacked 
authority to detain him, and that the detention was rendered illegal because the Liberty
County deputy who ultimately detained appellant was outside his jurisdiction, had no
warrant, and observed no criminal offense.  
	It is unclear from either a reading of Fountain's written motion to suppress or from
an examination of the testimony before us exactly what "evidence" Fountain was
requesting the trial court to suppress in connection with the charged offense.  The written
motion cryptically refers to the "seizure of the vehicle of the Defendant," but we are not
told in what way Fountain's vehicle was used in his prosecution.  Furthermore, the record
is also silent as to which law enforcement agency transported Fountain to what facilities
or how Fountain eventually was charged with DWI, except that Liberty County ultimately
prosecuted him for DWI.  At any rate, the transcribed recorder's record before us of the
suppression hearing is an abbreviated one.  Said record contains the testimony of Deputy
Scott Paske of the Polk County Sheriff's Office, and Deputy Todd Mauthe of the Liberty
County Sheriff's Office. (1) 
	Deputy Paske was first to testify.  The record reveals that while on routine patrol
in Polk County, Paske received a dispatch to go to a residence in Polk County to locate a
person involved in a minor wreck in Liberty County in which a guard rail was apparently
damaged.  Paske proceeded to the address and observed a person matching the description
provided to him by the dispatcher, and also observed a vehicle matching the description
of the vehicle involved in the accident.  Paske stated that Fountain and several other
persons were standing outside of the residence.  During the course of interviewing
Fountain and another subject at the location, Paske determined that Fountain was driving
the vehicle, a damaged pick-up truck, and that Fountain was returning from a "club." 
Fountain ultimately admitted to having been involved in the accident.  Approximately
thirty minutes later, Deputy Mauthe arrived at Paske's location.  Paske also included the
fact that he believed Fountain to be very intoxicated.
	Deputy Mauthe was called as a witness and testified that he was dispatched not to
investigate the accident, but to "stand-by and hold the scene for a [Texas Department of
Public Safety (D.P.S.)] trooper."  Although the accident took place in Liberty County,
Mauthe was dispatched to the city of Ace in Polk County.  Specifically, Mauthe was
dispatched to a residence in Ace where Deputy Paske and the individual involved in the
accident were located.  At the location, Mauthe made contact with Fountain and also noted
that Fountain appeared to be intoxicated.  Mauthe also testified that when he arrived at the
residence where Deputy Paske and Fountain were located, Paske informed Mauthe that
Fountain had already admitted to being the driver of the vehicle involved in the accident. 
	When Paske initially arrived on the scene and personally observed Fountain and the
damaged vehicle, both matching the description provided Paske by his dispatcher, Fountain
was properly the subject of an investigative detention.  See Davis v. State, 947 S.W.2d
240, 242-43 (Tex. Crim. App. 1997).  Nevertheless, the mere fact that Fountain had
become the focus of a criminal investigation did not convert his encounter with Paske into
an arrest for Miranda (2) purposes.  See State v. Stevenson, 958 S.W.2d 824, 828 (Tex.
Crim. App. 1997).  From Paske's testimony, it appears he gathered enough information
from his personal observations and questioning of Fountain to indicate that Fountain was
indeed operating his vehicle while intoxicated. (3)  Therefore, the testimony of Deputy Paske
alone would be legally sufficient to sustain appellant's conviction for D.W.I.  Any further
evidence, potentially suppressible or otherwise, would not have been necessary had we
been asked to conduct an evidentiary review for legal sufficiency.  See Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  
	From the rather unique circumstances of the instant appeal, we find that the holding
announced in Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000), is applicable.  That
holding is as follows:  "Whether entered with or without an agreed recommendation of
punishment by the State, a valid plea of guilty or nolo contendere 'waives' or forfeits the
right to appeal a claim of error only when the judgment of guilt was rendered independent
of, and is not supported by, the error."  Id. at 666-67.  In the instant case, we find that
Fountain's judgment of guilt, resulting from his "no contest" plea, was rendered on the
independent admissible testimony of Deputy Paske, because the information received by
Paske was not the product of custodial interrogation, or of any police misconduct or
illegality.  From the holding in Young, we must dismiss Fountain's appeal as the judgment
of guilt was independent of any error alleged in his brief, and any error contemplated
under the abbreviated record before us.  
	APPEAL DISMISSED.       

							_______________________________
								RONALD L. WALKER
									Chief Justice		


Submitted on February 25, 2002
Opinion Delivered May 22, 2002
Publish

Before Walker, C.J., Burgess and Gaultney, JJ.
1. The transcribed portion of the suppression hearing also contains a very brief bit of
testimony from a Jimmy Munson, Fountain's brother-in-law, who was at the residential
location during the time Deputies Paske and Mauthe were present. 
2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3. See Purvis v. State, 4 S.W.3d 118, 121-22 (Tex. App.--Waco 1999, no pet.) (The
combination of the defendant's admissions along with other corroborative evidence was
held legally sufficient to sustain the defendant's conviction for D.W.I.)
