DOW WILLARD POINTER v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Moseley

Dow Willard Pointer waived his right to a jury and plead not guilty to driving while intoxicated.   See Tex. Penal Code Ann. § 49.04 (West 2011).   The trial court heard Pointer's motion to suppress along with the bench trial.   The trial court overruled Pointer's motion to suppress evidence, found him guilty of DWI, and set punishment at 180 days' confinement, probated for twenty-four months, and a $1,000 fine.   Pointer appeals, arguing in three issues that the evidence was insufficient to show he was intoxicated or that he operated a vehicle and that the trial court erred by denying his motion to suppress.   We affirm the trial court's judgment.

Pointer's first and second issues challenge the sufficiency of the evidence to show that, at the time of the offense he was intoxicated or that he had operated a vehicle.   We review all the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 895, 899 (Tex.Crim.App.2010) (plurality op.).   Our review of all the evidence includes evidence that was properly and improperly admitted.  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.  Tex. Penal Code Ann. § 49.04(a).  “Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.   Id. § 49.01(2)(A).

The record contains evidence that Irving police officer David Zimmerman was dispatched to the scene of an accident on the north service road on highway 635 east of MacArthur at about 9:30 p.m. on October 12, 2007.   Zimmerman arrived about 9:42 p.m. and observed Pointer standing at the scene in front of a wrecker truck.   Pointer stated he had been in an accident and struck a parked car.   Zimmerman noticed Pointer had a strong odor of alcohol on his breath, he staggered while walking, and his speech was mumbled.   No one else was in the car with Pointer and Pointer was the registered owner of the vehicle.   Pointer said he had consumed four or five drinks about two hours before talking to Zimmerman.   Pointer said he was coming from Northwest Highway, about two or three miles away.   Pointer also said he had taken some sleeping medication that night.

Pointer told Zimmerman he had not had anything to drink while he was at the scene of the accident.   There were no restaurants or bars in the immediate area that Pointer could have walked to and Pointer stated he had not left the scene of the accident.

Zimmerman, who is certified to administer standard field sobriety tests, testified Pointer failed the standard field sobriety tests.   Zimmerman concluded Pointer did not have the normal use of his mental and physical faculties due to the consumption of alcohol and arrested him for driving while intoxicated.   Pointer refused to provide a specimen of his breath for alcohol testing.   Zimmerman's in-car video of the encounter was admitted in evidence and viewed by the trial court.

Pointer contends the evidence was insufficient to establish a connection between the time of driving and the time of intoxication.   He also contends there was insufficient evidence he operated the vehicle because the only evidence he drove the vehicle came from his extra-judicial statement to Zimmerman, which was not corroborated.

To support a conviction for DWI, “there must be a temporal link between the a defendant's intoxication and his driving.   But a conviction can be supported solely by circumstantial evidence.”  Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App.2010).  “Being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object.”   Id.

The corpus delicti rule requires that a defendant's out-of-court confession be corroborated by some evidence that the offense actually was committed.   See Salazar v. State, 86 S.W.3d 640, 641, 644–45 (Tex.Crim.App.2002).   The corroborating evidence need not prove the offense, it must merely make the “ ‘commission of the offense more probable than it would be without the evidence.’ ”  Cardenas v. State, 30 S.W.3d 384, 390 (Tex.Crim.App.2000) (quoting Chambers v. State, 866 S.W.2d 9, 15–16 (Tex.Crim.App.1993)).   The rule is satisfied “if some evidence exists outside of the extra-judicial confession which, considered alone or in connection with the confession, shows that the crime actually occurred.”  Salazar, 86 S.W.3d at 645.

The record indicates Pointer was involved in a one-car accident with a parked car and was intoxicated at the scene.   Pointer was the registered owner of the vehicle and no one else was in the vehicle.   Pointer admitted having four or five drinks two hours before talking to Zimmerman and he failed the field sobriety tests.   Zimmerman testified that accidents were priority calls and it does not take very long after a report for an officer to be dispatched to the scene.   Zimmerman arrived at the scene twelve minutes after receiving the dispatch.   We conclude the evidence links Pointer's intoxication to his driving, see Kuciemba, 310 S.W.3d at 462, and corroborates his statement that he was driving the vehicle, see Salazar, 86 S.W.3d at 645.

Considering all the evidence (including that summarized above) in the light most favorable to the judgment, we conclude a rational trier of fact could have found beyond a reasonable doubt that Pointer was guilty of driving while intoxicated.   See Jackson, 443 U.S. at 319;  Brooks, 323 S.W.3d at 895.   Thus, the evidence is sufficient to support the conviction.   We overrule Pointer's first and second issues.

Pointer's third issue argues the trial court erred by denying his motion to suppress the evidence because his arrest was unlawful.   He argues he was arrested without a warrant and the arresting officer did not see him driving the vehicle.

We review the trial court's ruling on a motion to suppress under a bifurcated standard of review.   See Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007).   We give deference to the trial court's determination of historical facts and evaluation of credibility and demeanor, and review de novo questions of law and mixed questions of law and fact that do not depend on credibility and demeanor.  Id. We uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case.  Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003).

A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question and the arrest falls within one of the statutory exceptions to the warrant requirement.  Torres v. State, 182 S.W.3d 899, 901 (Tex.Crim.App.2005);  see Tex.Code Crim. Proc. Ann. arts. 14.01–.04 (West 2005 & Supp.2010).   A peace officer may lawfully arrest a person without a warrant for any offense committed in his presence or within his view.  Tex.Code Crim. Proc. Ann. art. 14.01(b).  When the offense of driving while intoxicated is not committed in the officer's presence, “an arrest for driving while intoxicated is not necessarily invalid merely because the arresting officer did not see the defendant drive his car, since the defendant may still be subject to a public intoxication charge.”  Warrick v. State, 634 S.W.2d 707, 709 (Tex.Crim.App. [Panel Op.] 1982) (quoting United States v. Fossler, 597 F.2d 478 (5th Cir.1979)).

The record supports the trial court's ruling under the legal theory that Zimmerman had probable cause for a warrantless arrest of Pointer for public intoxication committed in the officer's presence.   See Tex. Penal Code Ann. § 49.02(a) (a person commits public intoxication if “the person appears in a public place while intoxicated to the degree that the person may endanger the person or another”).   Zimmerman encountered Pointer in a public place and observed the signs of intoxication described above.   Pointer admitted he struck a parked car and had been drinking.   Under the totality of the circumstances in the record, Zimmerman had a reasonable belief based on his observations that Pointer appeared in a public place while intoxicated to the degree that he was a danger to himself or others.   See Torres, 182 S.W.3d at 902 (discussing test for probable cause).   Therefore, the trial court did not err by denying Pointer's motion to suppress evidence.   We overrule Pointer's third issue.

We affirm the trial court's judgment.

JIM MOSELEY JUSTICE