      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-02-00373-CR




                                  Raymond Edwards, Appellant

                                                  v.

                                   The State of Texas, Appellee




            FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
          NO. 573,648, HONORABLE FRANK J. MALONEY, JR., JUDGE PRESIDING



                              MEMORANDUM OPINION


               Raymond Edwards appeals his conviction for misdemeanor driving while intoxicated.

See Tex. Pen. Code Ann. § 49.04 (West 2003). Edwards filed a motion to suppress a DWI video

made at the scene and the results of an intoxilizer test. After the trial court denied the motion,

Edwards pleaded nolo contendere in a plea bargain agreement, conditioned on his right to appeal the

denial of the motion. He was sentenced to two years of community service. In one issue on appeal,

Edwards contends that the trial court erred in overruling the motion to suppress because no probable

cause existed to justify his arrest without a warrant. We hold that probable cause did exist and affirm

the trial court’s judgment.
                                        BACKGROUND

               Early one morning, DPS Trooper Jeffrey Lyde responded to a complaint that

someone’s vehicle had become stuck in the construction zone immediately outside of a nearby

convenience store. Upon arriving, he observed a car stuck in a pile of dirt located within a

barricaded construction area. The car’s engine was running, and the driver of the car was

unsuccessfully attempting to extricate it by repeatedly shifting from forward to reverse. Trooper

Lyde testified that although he did not observe Edwards actually driving the car, he did observe the

tires spinning forward and in reverse in an unsuccessful attempt to remove the car from the pile.

               Shortly after Trooper Lyde’s arrival, Trooper Jason Robbins arrived on the scene.

Trooper Robbins approached the vehicle and asked the passenger and the driver, Edwards, to exit

the vehicle. Trooper Robbins then led the occupants from the construction area to the parking lot

at the convenience store. He immediately performed field sobriety tests on Edwards. After the

sobriety tests, Trooper Robbins placed Edwards under arrest for DWI and transported him to jail.

Trooper Lyde followed, and at the jail he administered the intoxilizer test to Edwards.


                                   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). While viewing 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),

and affording almost total deference to the trial court’s determination of facts which the record

supports, State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

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85, 89 (Tex. Crim. App. 1997), we “review de novo the court’s application of the law of search and

seizure to those facts.” Ross, 32 S.W.3d at 856. If the judge’s decision is correct on any theory of

law applicable to the case, the decision will be sustained. Id. at 855-56.


                                          DISCUSSION

               Edwards asserts that because neither Trooper Lyde nor Trooper Robbins observed

him actually driving the vehicle, his subsequent warrantless arrest for DWI was illegal for lack of

adequate probable cause. His assertion rests on the fact that a police officer may only make an arrest

without a warrant when an offense has been committed in the presence or view of the officer. Tex.

Code Crim. Proc. Ann. art. 14.01(b) (West 1977). However, the DWI statute does not require proof

of driving but of operating. See Tex. Pen. Code Ann. § 49.04(a) (West 2003) (“A person commits

the offense if the person is intoxicated while operating a motor vehicle in a public place.”).

Although Trooper Lyde did not see Edwards actually driving his vehicle, he did witness Edwards

operating the vehicle.

               A person operates a vehicle if the totality of the circumstances indicates that the

person took action to affect the functioning of a vehicle in a manner that would enable the vehicle’s

use. Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995) (holding evidence sufficient to

demonstrate operation because defendant had taken action to affect vehicle’s functioning by starting

ignition and revving accelerator despite fact that vehicle never actually moved). The transportation

code similarly defines the term “operate” as “to drive or be in actual control of a motor vehicle.”

Tex. Transp. Code Ann. § 724.001(11) (West 1999). Under either definition, the totality of the

circumstances in this case compels us to find that Trooper Lyde observed Edwards operating the

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vehicle. Edwards was behind the wheel of a running automobile. He repeatedly shifted gears

between forward and reverse and accelerated, causing the wheels to spin, but failing to dislodge it

from the dirt pile. It is irrelevant whether Trooper Lyde observed Edwards drive the vehicle into the

pile because he witnessed Edwards operating the vehicle at the time he arrived on the scene. These

facts are sufficient to demonstrate that when Trooper Lyde observed Edwards’s futile attempt to

remove the vehicle he had reason to believe that Edwards was, at that instant, operating a motor

vehicle.

                Edwards’s appeal is predicated on the belief that no probable cause existed that could

justify his warrantless arrest because the State had only a suspicion that he was driving while

intoxicated. Probable cause 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.) (citing Hughes

v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1992)). Probable cause is determined by the totality

of the circumstances established by the evidence. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim.

App. 1991). In his appeal, Edwards challenges neither the troopers’ determination that he was

intoxicated nor the fact that the incident occurred in a public place. On these facts, the totality of the

circumstances indicates that Edwards was operating a vehicle in the presence of Trooper Lyde, and

that all of the elements necessary to prove driving while intoxicated as it is defined in the penal code

were present when Edwards was arrested.




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               The evidence is sufficient to support a finding of probable cause to arrest Edwards

for driving while intoxicated. Thus, the trial court did not err in denying the appellant’s motion to

suppress.

               We affirm the judgment of the trial court.




                                              Bea Ann Smith, Justice

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

Affirmed

Filed: October 2, 2003

Do Not Publish




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