          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                         NO. 03-03-00190-CR



                                      Michael Ogden, Appellant


                                                    v.


                                    The State of Texas, Appellee




                FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
              NO. 2c01-08023, HONORABLE JOHN BARINA, JR., JUDGE PRESIDING




                              MEMORANDUM OPINION


                Michael Ogden appeals his conviction for misdemeanor driving while intoxicated (DWI).

See Tex. Pen. Code Ann. ' 49.04 (West 2003). Ogden filed a motion to suppress the evidence of his

arrest, which the trial court denied. Ogden then pled no contest and was found guilty of driving while

intoxicated. He was sentenced to three months of imprisonment, suspended for twelve months of

probation, and fined $600. In one issue on appeal, Ogden contends that the trial court erred in denying his

motion to suppress because no probable cause existed to justify his arrest without a warrant. We hold that

he was properly arrested for public intoxication and there was probable cause to charge him with DWI.

Therefore, we affirm the trial court=s judgment.
                                            BACKGROUND

                 Temple police officer Jeremy Gooch was called to the scene of a two-car traffic accident by

Officer Woods, who had arrived on the scene first but had to leave to attend to his other duties as a

physician at the local hospital. Woods briefed Gooch on his observations, including his suspicion that

Ogden was intoxicated. Gooch then approached Ogden, observed various signs of intoxication, and

conducted field-sobriety tests. Based on Ogden=s performance on these tests, Gooch placed him under

arrest for public intoxication.

                 As Gooch was arresting Ogden, two other Temple police officers arrived on the scene to

take witness statements from the driver and passenger of the other vehicle. Both witnesses described a near

head-on collision with their vehicle, initiated by a vehicle driven by Ogden. The passenger testified that he

believed Ogden was intoxicated at the scene. These statements, coupled with Ogden=s performance on the

field-sobriety tests, formed the basis of the DWI charge.

                 Ogden filed a motion to suppress the evidence of his arrest and search, alleging that there

was no probable cause to support the arrest without a warrant. After the trial court denied his motion,

Ogden pled no contest and was convicted for DWI.


                                      STANDARD OF REVIEW
                We review the trial court=s ruling on a motion to suppress under an abuse of discretion

standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Oles v. State, 993 S.W.2d

103, 106 (Tex. Crim. App. 1999). We view the evidence in the light most favorable to the trial court=s

ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Although we afford almost total

deference to the trial court=s determination of facts that the record supports, we Areview de novo the court=s

application of the law of search and seizure to those facts.@ State v. Ross, 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If the judge=s

decision is correct on any theory of law applicable to the case, the decision will be sustained. Ross, 32

S.W.3d at 855-56.


                                              DISCUSSION

                In one issue, Ogden contends that the trial court erred in denying his motion to suppress

because no officer observed him driving a vehicle and the field-sobriety tests were conducted forty-five

minutes after the accident occurred. Therefore, he argues, his warrantless arrest for DWI was illegal.

                The Texas Court of Criminal Appeals, however, has indicated that an arrest under these

circumstances may be valid even if the arresting officer did not see the defendant drive his car, because the

defendant may still be subject to a public intoxication charge. Warrick v. State, 634 S.W.2d 707, 709

(Tex. Crim. App. 1982) (citing United States v. Fossler, 597 F.2d 478 (5th Cir. 1979)). Whenever an

intoxicated person is in an officer=s presence and there is probable cause to arrest him for public

intoxication, the officer may do so without a warrant, even though a warrantless arrest of that person for

DWI would be unlawful. Elliott v. State, 908 S.W.2d 590, 592 (Tex. App.CAustin 1995, writ ref=d)

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(warrantless arrest for DWI upheld when arresting officer had probable cause to believe appellant was

intoxicated in public place to degree that he might endanger self or others); Reynolds v. State, 902 S.W.2d

558, 559-60 (Tex. App.CHouston [1st Dist.] 1995, writ ref=d). Therefore, the only real issue before us is

the validity of the initial arrest, not of the subsequent charge.1 Ogden does not contest the validity of his

arrest for public intoxication.

                 A peace officer may arrest any offender without warrant for an offense committed in his

presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01 (West 1977). A person commits

public intoxication if he appears in a public place while intoxicated to the degree that he may endanger

himself or another. Tex. Pen. Code Ann. ' 49.02 (West 2003). Ogden correctly cites the standard for

probable cause: 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.CAustin 2000, no pet.) (citing Hughes v. State, 878 S.W.2d 142, 154 (Tex.

Crim. App. 1992)).




        1
           In Reynolds, even though the arresting officer testified that he arrested the appellant for DWI
rather than public intoxication, the court nevertheless affirmed, on a determination that the record supported
a warrantless arrest for public intoxication. Reynolds v. State, 902 S.W.2d 558, 560 (Tex.
App.CHouston [1st Dist.] 1995, pet. ref=d).




                                                      4
                 Substantial evidence in the record supports a finding of probable cause for Ogden=s arrest

for public intoxication. Officer Gooch testified that his own observations of Ogden, as well as Ogden=s

performance on the field-sobriety tests, lead him to believe that Ogden was intoxicated at the scene.

Furthermore, Gooch knew that Ogden had been driving the vehicle that collided with that of the witnesses.

This knowledge provided sufficient probable cause for Gooch to believe that Ogden was intoxicated, and

that allowing Ogden to leave the scene in his vehicle would pose a danger to himself or others. See

Mathieu v. State, 992 S.W.2d 725, 728 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (officer observing

signs of intoxication in driver of car who caused four-car accident had sufficient probable cause to arrest

driver for public intoxication); Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986) (officers

who observed symptoms of intoxication in driver of car involved in one-car accident had sufficient probable

cause to believe she posed danger to herself or others to arrest for public intoxication). Thus, Ogden was

lawfully arrested for public intoxication, and the trial court did not err in denying his motion to suppress on

the ground that no officer observed him driving.2

                 Ogden also argues that the results of his field-sobriety tests should have been suppressed

because they cannot be regarded as Aretroactively specific@ for driving while intoxicated forty-five minutes

earlier. Yet Ogden cites no authority in support of his contention that field-sobriety tests performed forty-

five minutes after an alleged DWI offense are unreliable. On the contrary, the court of criminal appeals has

held that retrograde extrapolation, at least of breath-alcohol-concentration test results, can be reliable in a


        2
           We do not reach Ogden=s argument that he was not in a Asuspicious place@ for an arrest without a
warrant, see Tex. Code Crim. Proc. Ann. art. 14.03 (West Supp. 2004), because the offense of public
intoxication was committed in the officers= presence.

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given case. See Mata v. State, 46 S.W.3d 902, 916 (Tex. Crim. App. 2001). Furthermore, the field-

sobriety test results are not the only evidence upon which the trial court could have relied in finding probable

cause for this DWI charge. There was testimony from the passengers of the other vehicle supporting the

findings that Ogden was both intoxicated and operating his vehicle when it collided with theirs. Ogden

provides no support for the contention that his conviction for DWI would have relied exclusively on the

field-sobriety test results. Accordingly, we defer to the findings of the trial court.

                 Because the evidence is sufficient to support a warrantless arrest of Ogden for public

intoxication, the trial court did not err in denying the motion to suppress.

                 We affirm the judgment of the trial court.




                                                   __________________________________________

                                                   Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: February 20, 2004

Do Not Publish




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