Cook, Dennis Ray ( 2015 )

NO. /tso-rt
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
DENNIS R. COOK,
Petitioner
v.
THE STATE OF TEXAS,
Respondent
PETITION FOR DISCRETIONARY REVIEW
Petition in Case No. 07-14-00149-CR,
from the Court Of Appeals
for the Seventh Judicial District
Amarillo, Texas
Dennis R. Cook
Pro Se Petitioner
4341 Red Oak Circle
Midlothian, TX 76065
Phone: (972)775-1571
Fax: (972)296-5402
dennis.cook777@gmail.com
Pro Se Petitioner
Petitioner Waives Oral Argument
« W .••?•# %* ^ \f
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Level, Cause No. 2012-472,011, The State ofTexas v. Dennis Ray Cook,
In the County Court at Law No. 1, Lubbock County, Texas
before the Honorable Judge Mark Hocker, (Presiding Judge)
PARTIES COUNSEL
A. Dennis R. Cook, Pro Se Defendant ProSe
4341 Red Oak Circle
Midlothian, TX 76065
dennis.cook777@gmail.com
(972)775-1571
B. The State of Texas Tom Brummett
Assistant District Attorney
Lubbock County, Texas
P.O. Box 10536
Lubbock, TX 79408
Phone: (806)775-1100
State Bar No. 24038790
Appellate Level No. 07-14-00149-CR, Dennis Ray Cook v. The State ofTexas,
In the Court of Appeals for the Seventh District of Texas at Amarillo,
before Justices Quinn, C.J., Campbell, and Hancock, JJ.
PARTIES COUNSEL
A. Dennis R. Cook, Pro Se Appellant ProSe
4341 Red Oak Circle
Midlothian, TX 76065
dennis.cook777@gmail.com
(972) 775-1571
B. The State of Texas Jeffrey S. Ford
Assistant District Attorney
P.O. Box 10536
Lubbock, TX 79408
Phone: (806)775-1000
Fax: (806)767-1118
JFord@co.lubbock.tx.us
State Bar No. 24047280
TABLE OF CONTENTS
PAGE
IDENTITY OF JUDGE, PARTIES, AND COUNSEL 1
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT REGARDING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF PROCEDURAL HISTORY 5
QUESTION PRESENTED FOR REVIEW 7
I. WHETHER THE COURT ERRED IN HOLDING THAT AN OFFICER'S
SPECULATION AS TO FUTURE HARM CAN SATISFY THE
"ENDANGERMENT" REQUIREMENT OF THE PUBLIC
INTOXICATION STATUTE 7
REASONS FOR REVIEW 7
ARGUMENT 9
I. DUELING INTERPRETATIONS 9
II. THE LAW 11
III. THE LAW APPLIED TO THIS CASE 16
PRAYER FOR RELIEF 19
CERTIFICATE OF SERVICE 21
CERTIFICATE OF COMPLIANCE 23
APPENDIX 25
3
INDEX OF AUTHORITIES
Texas Court of Criminal Appeals Cases
Balli v. State, 530 S.W.2d 123 (Tex. Crim. App. 1975)
Bentley v. State, 535 S.W.2d 651 (Tex. Crim. App. 1976)
Britton v. State, 578 S.W.2d 685 (Tex. Crim. App. 1979)
Davis v. State, 576 S.W.2d 378 (Tex. Crim. App. 1979)
Dickey v. State, 552 S.W.2d 467 (Tex. Crim. App. 1977)
State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011)
Texas Court of Appeals Cases
Berg v. State, 720 S.W.2d 199 (Tex. App.—Houston [14th Dist] 1986, pet. refd)
Collins v. State, 795 S.W.2d 777 (Tex. App.—Austin 1990, no pet.)
Commander v. State, 748 S.W.2d 270
(Tex. App.—Houston [14th Dist.] 1988, no pet.)
Simpson v. State, 886 S.W.2d 449 (Tex. App.—Houston [1st Dist.] 1994, pet refd)
Traylor v. State, 642 S.W.2d 250 (Tex. App.—Houston [14th Dist.] 1982, no pet.)
Vasquez v. State, 682 S.W.2d 407 (Tex. App.—Houston [1st Dist.] 1984, no pet.)
State Statutes
Tex. Penal Code § 49.02 (2007)
STATEMENT REGARDING ORAL ARGUMENT
The Petitioner waives oral argument.
STATEMENT OF THE CASE
This Court is being asked to reverse the Seventh Court of Appeals judgment
that the Petitioner was not entitled to suppress evidence on the ground that there
was no probable cause for an arrest. The relevant issue is whether the
endangerment requirement of the Public Intoxication statute can be satisfied by the
speculation of the arresting officer.
STATEMENT OF PROCEDURAL HISTORY
A panel of the Seventh Court of Appeals affirmed the judgment of the trial
court in a memorandum opinion rendered on October 30, 2014. No motion for
rehearing was filed.
QUESTION PRESENTED FOR REVIEW
WHETHER THE COURT ERRED IN HOLDING THAT AN OFFICER'S
SPECULATION AS TO FUTURE HARM CAN SATISFY THE
"ENDANGERMENT" REQUIREMENT OF THE PUBLIC
INTOXICATION STATUTE.
REASONS FOR REVIEW
(1) The Court of Appeals has decided an important question of state or federal
law that has not been, but should be, settled by the Court of Criminal
Appeals.
(2) The Court of Appeals has decided an important question of state or federal
law in a way that conflicts with the applicable decisions of the Court of
Criminal Appeals or the Supreme Court of the United States.
(3) The Court of Appeals has so far departed from the accepted and usual course
of judicial proceedings, or so far sanctioned such a departure by a lower
court, as to call for an exercise of the Court of Criminal Appeals' power of
supervision.
ARGUMENT
The sole issue in this petition results from the trial court's refusal to grant a
motion to suppress based on a lack of probable cause. It was the Petitioner's
position that while he may have been intoxicated, he did not endanger himself or
others. Because a petition for discretionary review must be as brief as possible,
please consider the following scenario as both a brief introduction and an
encapsulation of this petition in a nutshell.
I. DUELING INTERPRETATIONS
Two police officers are on patrol in a small Texas municipality when the
town drunk, Kooter, is seen leaving the local bar at closing time. Officer One says,
"I'll bet you ten bucks that Kooter is publically intoxicated again." Officer Two
speaks up, "I'll take your bet, because I happen to know that Kooter got off work
late tonight and didn't have enough time to drink his customary belly-full."
Kooter exits the bar smelling of booze, his eyes red and watery. He sways
as he begins walking down the middle of the sidewalk to his home at the end of the
block. Just as he gets to his house, Officer One arrests him for Public Intoxication.
Officer Two exclaims, "Hey, that ain't fair! He never did nothing to endanger
himself or others." Smiling, Officer One retorts, "He doesn't have to—the way the
statute is written, all I have to decide is that he may."
The Texas Penal Code states that 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 the person or another." Tex. Penal Code § 49.02
(2007) (emphasis added). It is the unfortunate use of the word "may" in the Public
Intoxication statute that has led many officers, district attorneys, judges, and
indeed appeals court justices to believe that the endangerment requirement can be
satisfied by the sheer speculation of the arresting officer.
Under this interpretation, if the officer speculates that an individual may
become a potential danger in the future, then the officer has probable cause to
arrest even though the person has done nothing potentially dangerous. In other
words, this interpretation of the statute gives the officer license to predict the
future, and whether the officer decides there is probable cause to arrest depends
upon that officer's speculation. The flaw with this interpretation is that it allows a
person to be arrested for something they have not done, and may never have done.
The arresting officer in this case testified that this was his interpretation of
the statute. He stated that the Petitioner was a danger to himself or others because
he may choose to walk out into the street or a busy parking lot, while admitting
that he had not yet done so. (RR vol. 1 of 1, pp. 29-31). During closing arguments
of the suppression hearing, the prosecutor argued this interpretation as the proper
10
law the judge should follow in deciding the motion to suppress.1 On appeal to the
Seventh Court of Appeals in Amarillo, the State reiterated this same argument. .
The Court of Appeals was careful to avoid a direct answer to the question of
whether an officer's speculation could satisfy the endangerment requirement.
Instead, the Court upheld the trial court by writing a "totality of circumstances"
opinion that spliced the Petitioner's level of intoxication with the officer's
speculation. As a consequence, it is unclear whether the Court accepts the
proposition that an officer's speculation can satisfy the endangerment requirement,
or believes that a totality of circumstances can replace an element of an offense. In
either event, the Petitioner would request that this Court provide direction.
II. THE LAW
The Texas Court of Criminal Appeals has ruled time and time again that the
endangerment requirement must actually exist in order to establish probable cause.
It is though the Court strikes the troublesome word "may" from the statute entirely.
In order to establish probable cause to arrest for public intoxication, the statute
"requires the intoxicated person to endanger himselfor herselfor another." State
v. Woodard, 341 S.W.3d 404, 409 (Tex. Crim. App. 2011) (emphasis added). This
1 During closing arguments of the suppression hearing, Assistant District Attorney Mr. Tom
Brummett argued the polar opposite of the law as given by Appellant: "I will take exception to
the argument of the Defense to indicate that there needs to be some immediacy of danger, or in
his words, the situation needs to be inherently dangerous or extremely intoxicated." (RR vol. 1
of 1, pp. 54-55).
11
must be the only legal interpretation of the statute, for to rule otherwise would
allow speculation to serve as evidence in a court of law, and allow every
intoxicated individual to be arrested, (if indicated by the officer's tea leaves).
In Davis v. State, the appellant was walking alongside a four lane highway in
an industrial area of Houston on which were travelling all kinds of cars, trucks, and
trailer rigs. 576 S.W.2d 378, 381 (Tex. Crim. App. 1979). "The appellant's
speech was slurred, he was running his words together, he appeared to be 'cotton
mouthed,' he was unsteady on his feet, and leaned against the patrol car." Id.
Though intoxicated, the Court found no potential danger. "There was no
indication that he was in any way a danger to himself or anyone else. There was no
probable cause for an arrest for public intoxication...." Id. at 382 n.2. The Court
was obviously unwilling to allow the speculation that Davis may wander out into
traffic to serve as the required element of potential danger.
While it is true that there is a long line of Texas cases finding probable cause
for a warrantless arrest for Public Intoxication, the theme common to all of them is
that they embody two components: (1) a description of the appellant's behavior or
appearance indicating intoxication; and (2) an ongoing potential danger—i.e., a
setting likely to produce imminent harm, usually because the appellant is in a car
or in the street. SeeBritton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App.
1979) (op. on rehearing) (glassy, bloodshot eyes, incoherent, head bobbing; sitting
12
in car blocking traffic); Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App.
1977) (wobbling, slurred speech, unable to walk without assistance when
awakened; passed out in front seat of car parked on street); Bentley
v. State, 535 S.W.2d 651, 652-53 (Tex. Crim. App. 1976) (strong odor of alcohol,
bloodshot eyes, slurred speech, swaying; while attempting to buy snow chains for
tires at gas station); Balli v. State, 530 S.W.2d 123, 126 (Tex. Crim. App. 1975)
(alcohol on breath, slurred speech, swaying, difficulty walking; walking down
middle of street); Simpson v. State, 886 S.W.2d 449, 455 (Tex. App.—Houston
[1st Dist.] 1994, pet refd) (strong odor of alcohol, bloodshot eyes, slurred speech;
engaged in violent argument in middle of public street).
There is also a minority line of cases that hold extreme intoxication alone
can provide the necessary element of potential danger. In these cases, although the
appellant was not in an ongoing potentially dangerous setting, (e.g., in the middle
of the street, in a car, or in a busy parking lot), the appellant was in such an
extreme state of intoxication that he or she was incoherent, and/or violent, abusive,
and belligerent. See Traylor v. State, 642 S.W.2d 250, 250-51 (Tex. App.—
Houston [14th Dist.] 1982, no pet.) (staggering and using abusive language;
refusing to provide identification); Vasquez v. State, 682 S.W.2d 407, 410 (Tex.
App.—Houston [1st Dist.] 1984, no pet.) (heavily intoxicated, belligerent, and
cursing).
13
But in cases where there is neither an ongoing potential danger, nor extreme
intoxication, the courts consistently say there is no probable cause for arrest.
In Collins v. State, the defendant was confronted by an Officer Burris at a gas
station. 795 S.W.2d 777, 779 n.l, 4 (Tex. App.—Austin 1990, no pet.). Officer
Burris observed that Collins smelled strongly of alcohol; that his eyes were
bloodshot; that his speech was slurred; that he was barefoot and his foot was cut;
that he had an unsteady walk; that he moderately swayed; and that he did not have
full balance. Id. at n.4.
The Court noted that Collins did not attempt to move toward the street and
that although he seemed confused, he seemed to understand the officer and was
cooperative. Id. The Court reasoned that "[although officer Burris may have
honestly believed Collins could have been a danger to himself, a prudent person
would not have so concluded. . . . Accordingly, officer Burris did not have
probable cause to arrest Collins." Id. Here, the setting was not potentially
dangerous (not in a car, in the street, or in a parking lot), and the intoxication was
not extreme.
Commander v. State is a case in which the officer approached the defendant
in the driveway of a private residence. 748 S.W.2d 270, 271-72 (Tex. App.—
Houston [14th Dist.] 1988, no pet.). The officer observed that the defendant was
glassy eyed and smelled of alcohol. Id. The officer also noted that the defendant
14
was unsteady and leaning against a car in the driveway. Id. The Court held the
following: "Unlike the cases cited by the state, appellant was not in any risky or
precarious circumstance from which he needed to be protected. There is no
testimony even intimating a real possibility ofdanger to appellant or to the public."
Id. at 272 (emphasis added). Once again, the setting was not potentially
dangerous, and the intoxication was not extreme.
And finally, in Berg v. State, the officer came upon the defendant in
an airport gift shop. 720 S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.] 1986,
pet. refd). The officer stated that the defendant had an odor of alcohol, was thick-
tongued, unbalanced, and unsteady on his feet. Id. The state cited several cases
showing probable cause for the arrest, but the Court responded as follows:
The State cites and we are aware of cases which have affirmed
public intoxication arrests. E.g., Britton v. State, 578 S.W.2d 685, 689
(Tex. Crim. App. 1978), cert, denied, 444 U.S. 955, 100 S. Ct. 435, 62
L. Ed. 2d 328 (1979); Dickey v. State, 552 S.W.2d 467 (Tex. Crim.
App. 1977); Balli v. State, 530 S.W.2d 123 (Tex. Crim. App.1975);
Bentley v. State, 535 S.W.2d 651 (Tex. Crim. App. 1976); Traylor v.
State, 642 S.W.2d 250 (Tex. App.—Houston [14th Dist.] 1982, no
pet.); Vasquez v. State, 682 S.W.2d 407 (Tex. App.—Houston [1st
Dist.] 1984, no pet.).
However, these cases deal with circumstances in which the
intoxicated suspect was obviously in a position to be a danger to
himself or another—walking down the middle of the street, in a car,
attempting to purchase tire chains for a car—or was in such an
extreme state of intoxication that the suspect was incoherent and/or
staggering and swaying.
In this case we do not have either situation. Appellant was not
in a precarious position while waiting in the airport gift shop for his
flight. Further, there is no testimony or other evidence of extreme or
15
heavy intoxication. The officers' observations of appellant being
unbalanced and thick-tongued were not sufficient to allow them to
conclude appellant was intoxicated to the degree that would justify his
warrantless arrest for public intoxication.
Id. at 201. Consequently, the Court held that there was no probable cause to arrest
because the setting was not potentially dangerous and the level of intoxication was
not extreme. See id.
III. THE LAW APPLIED TO THIS CASE
In this case, the Petitioner argued in both the suppression hearing and later to
the Court of Appeals that he State could not establish probable cause under either
the majority or minority line of cases. The State could not establish probable cause
under the majority line of cases because the Petitioner was on the sidewalk where a
pedestrian was supposed to be, and not in the street, parking lot, car, or some other
inherently dangerous setting. (RR vol. 1 of 1, pp. 29-30).
And the State could not establish probable cause under the minority line of
cases involving extreme intoxication because the only witness at the suppression
hearing, the arresting officer, testified that although the Petitioner was initially
found lying on the sidewalk, he got up within seconds of being asked, provided his
identification when asked, was coherent, spoke in a matter of fact tone, and did not
16
lose his balance or fall down. (RR vol. 1 of 1, 15, 29-31). The facts of this case
mirror those cases above that do not find probable cause to arrest.
Presently, the Public Intoxication statute is often used as punishment rather
than protection. Because a petition must be brief, the Petitioner will refrain from
presenting the long list of newspaper and magazine articles, blogs, and police
department statistics concerning complaints arising from alleged improper Public
Intoxication arrests. The statute can be utilized as a weapon because the
interpretation that an officer can speculate on the endangerment requirement has
been allowed to pervade the courts. The Petitioner humbly requests that this Court
of Criminal Appeals grant this petition and provide the lower Texas courts with
direction on how the Public Intoxication statute should properly be interpreted.
2The officer testified that after initially cooperating with officer on every request, the Petitioner
refused to say what had caused him to be found lying on the sidewalk. The officer further
testified that the Petitioner was arrested "within seconds" of exercising the right not to answer
that question. (RR vol. 1 of 1, pp. 17, 28).
3This is especially true when one considers that every individual arrested for Public Intoxication
is taken directly to the drunk tank of the county jail, perhaps the most violent square footage of
any Texas county.
17
18
PRAYER FOR RELIEF
The Petitioner respectfully prays that this Honorable Court of Criminal
Appeals will grant this Petition for Discretionary Review—the Appellant waives
oral argument. The Petitioner further prays that this Honorable Court of Criminal
Appeals will vacate the Judgment of the court below and will remand this case to
that court with instructions to grant the Petitioner's Motion to Suppress.
Respectfully submitted,
Dennis R. Cook
Pro Se Petitioner
4341 Red Oak Circle
Midlothian, TX 76065
Phone: (972)775-1571
Fax: (972)296-5402
dennis.cook777@gmail.com
19
20
CERTIFICATE OF SERVICE
I do hereby certify that on the 30th day of January, 2015, a true and correct
copy of this Petition for Discretionary Review of Pro Se Petitioner Dennis R. Cook
was forwarded by first class U.S. mail to:
Lubbock County District Attorney's Office
Matthew Powell, Director
P.O. Box 10536
Lubbock, TX 79408
State Prosecuting Attorney
Lisa C. McMinn
P. O. Box 13046
Austin, TX 78711-3046
Dennis R. Cook
Pro Se Petitioner
4341 Red Oak Circle
Midlothian, TX 76065
Phone: (972)775-1571
Fax: (972)296-5402
dennis.cook777@gmail.com
21
22
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was completed using Microsoft Word
software, Times New Roman font, in 14-point type, footnotes in 12-point type. It
contains 2,693 words. This Petition for Discretionary Review complies with the
length requirement of the Texas Court of Criminal Appeals.
^A^
Dennis R. Cook
Pro Se Petitioner
4341 Red Oak Circle
Midlothian, TX 76065
Phone: (972)775-1571
Fax: (972)296-5402
dennis.cook777@gmail.com
23
24
APPENDIX
Copy of the Seventh Court of Appeals memorandum opinion rendered on October
30, 2014, No. 07-14-00149-CR, Dennis Ray Cook, Appellant v. The State Of
Texas, Appellee.
25
Cotttt of appeal*
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No. 07-14-00149-CR
DENNIS RAY COOK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 1
Lubbock County, Texas
Trial Court No. 2012-472,011, Honorable Mark Hocker, Presiding
October 30,2014
MEMORANDUM OPINION
Before QUINN, CJ., and CAMPBELL and HANCOCK, JJ.
Appellant Dennis Ray Cook, appearing pro se, appeals his conviction for the
offense of public intoxication and the resulting fine of $50. Through one issue, he
challenges the court's denial of his motion to suppress. We will affirm.
Background
Appellant was charged via information with the offense of public intoxication. He
filed a "motion to suppress illegal arrest," on which the court held a hearing. Officer
David Babcock with the Texas Tech University Police Department was the only witness
to testify at the hearing.
His testimony showed Babcock was on duty during a Texas Tech home football
game in November 2011 when he received a dispatch that a Department of Public
Safety trooper had reported a person was "passed out" on the sidewalk. Babcock and
two other officers responded to the location, "on a sidewalk near the north end of Dan
Law Field, near Drive of Champions and the entrance way into the parking lot of Dan
Law Field." When the officers arrived, they found appellant lying on the sidewalk, an
area Babcock testified was a public place.
Babcock approached appellant, finding him to be disoriented with a "dazed-type
look" and slurred speech. Babcock also smelled a strong odor of alcohol coming from
appellant's breath and body. Appellant's eyes were red, watery, glassy, and bloodshot.
Babcock told the court that once appellant had been helped to his feet, "he was swaying
and appeared to be unbalanced on his feet," and required assistance to walk.
Babcock testified he saw a cut on the bridge of appellant's nose and a bruise on
his cheek. He said he asked appellant "what happened," but appellant did not want to
answer. When Babcock attempted to question him further, appellant told him he was a
law student, that he knew the law, and that he did not have to answer any questions.
Appellant also told the officer that it was not any of his business and that he knew what
he could say and what he did not have to say. Babcock testified appellant said these
things with an "attitude."
Babcock placed appellant under arrest, handcuffed him, and placed him in a
police unit to await the EMS van. The officer explained to the court that the medical
responders would determine whether appellant should be taken to the hospital or could
be taken to jail. Appellant was taken to jail.
During testimony regarding the circumstances that caused him to believe
appellant was then a danger to himself or others, Babcock explained that appellant
could have walked out into the street, walked out in front of a car exiting or entering the
parking lot or been hit by a bus.
The trial court heard argument and denied the motion to suppress. The case was
heard by a jury in January 2014. Officer Babcock testified as the sole State's witness
during the guilt-innocence phase of trial; appellant testified as the sole defense witness.
The jury found appellant guilty of the offense of public intoxication and punishment was
assessed as noted. This appeal followed.
Analysis
Through his sole issue on appeal, appellant argues the trial court abused its
discretion in denying his motion to suppress because probable cause did not exist to
arrest him for the offense of public intoxication. Appellant challenges only the
reasonableness of Babcock's conclusion he was, at the time of his arrest, a danger to
himself or others. He does not contest the evidence he was intoxicated or that showing
he was in a public place.
A trial court's ruling on a motion to suppress is generally reviewed for abuse of
discretion. Tex. Code Crim. Proc. Ann. art. 28.01 (1)(6) (West 2012); Oles v. State, 993
S.W.2d 103, 106 (Tex. Crim. App. 1999). We review a trial court's ruling on a motion to
suppress under the bifurcated standard enunciated in Guzman v. State, 955 S.W.2d 85,
87-88 (Tex. Crim. App. 1997). In a suppression hearing, the trial judge is the sole trier
of fact and judge of the credibility of the witnesses and the weight to be given to their
testimony. Rodriguez v. State, 191 S.W.3d 428, 440 (Tex. App—Corpus Christi 2006,
pet. refd), citing State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
In reviewing a trial court's ruling on a motion to suppress, we give almost total
deference to the trial court's determination of historical facts and application-of-law-to-
fact questions that turn on credibility and demeanor. Perales v. State, 117 S.W.3d 434,
437 (Tex. App.—Corpus Christi 2003, no pet.). We review de novo application-of-law-to-
fact questions that do not turn on credibility and demeanor. Id. In the absence of explicit
fact findings, we assume that the trial court's ruling is based on implicit fact findings
supported in the record. Perales, 117 S.W.3d at 437; see Carmouche v. State, 10
S.W.3d 323, 332 (Tex. Crim. App. 2000) (recognizing implicit fact findings). We then
review de novo whether the facts, express or implied, are sufficient to provide legal
justification for admitting the complained-of evidence. Garcia v. State, 43 S.W.3d 527,
530 (Tex. Crim. App. 2001).
A person commits the offense of public intoxication if he appears in a public
place while intoxicated to the degree that he may endanger himself or another. Tex.
Penal Code Ann. § 49.02 (West 2003). The test for whether probable cause exists for a
public intoxication arrest is whether the officer's knowledge at the time of the arrest
4
would warrant a prudent person in believing that a suspect, albeit intoxicated, was in
any way a danger to himself or another person. Rodriguez, 191 S.W.3d at 445-46, citing
Britton v. State, 578 S.W.2d 685, 687 (Tex. Crim. App. [Panel Op.] 1978). Proof of
potential danger to the defendant or others is enough to satisfy the endangerment
requirement for the offense of public intoxication. Riggan v. State, No. 07-09-00227-CR,
2011 Tex. App. LEXIS 5497, at *5-6 (Tex. App.—Amarillo July 19, 2011, pet. refd)
(mem. op., not designated for publication), citing Segura v. State, 826 S.W.2d 178, 184
(Tex. App.—Dallas 1992, pet. refd) (applying former version of public intoxication
statute).
The existence of probable cause depends on the totality of the circumstances.
Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Probable cause for a
warrantless arrest requires that the officer have a reasonable belief that, based on facts
and circumstances within the officer's personal knowledge, or of which the officer has
reasonably trustworthy information, an offense has been committed. Torres v. State,
182 S.W.3d 899, 901 (Tex. Crim. App. 2005). When a court deals with probable cause,
it deals with probabilities. Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L.Ed
527(1982); Guzman, 955 S.W.2d at 87. A showing of probable cause requires less
evidence than is necessary to support a conviction. Guzman, 955 S.W.2d at 87,
Segura, 826 S.W.2d at 182.
From Babcock's testimony, the trial court could have determined that the officer
found appellant in an intoxicated and disoriented state lying on the sidewalk, at a
location1 and time of heavy traffic2 associated with a home football game; that appellant
then exhibited wounds to his nose and face, the cause of which were unknown; and that
appellant, when assisted to his feet, was unsteady and swaying. Based on those facts,
the trial court rather clearly could have agreed with Babcock's conclusion that appellant
was in danger of injury from the traffic.3 See Patterson v. State, No. 01-11-00054-CR,
2012 Tex. App. LEXIS 1584, at *11-12 (Tex. App.—Houston [1st Dist.] March 1, 2012,
no pet.) (mem. op., not designated for publication) (rejecting contention similar
testimony was "too speculative" to satisfy danger requirement; collecting cases).
The suppression hearing testimony gave the trial court evidence on which to
conclude the arresting officer had probable cause to believe appellant was intoxicated in
a public place to the degree he posed a danger to himself or others, and thus was
committing the offense of public intoxication. The court did not abuse its discretion in
denying appellant's motion to suppress.
1We take judicial notice that Dan Law Field is Texas Tech's baseball field, located about one
block west of its football stadium on the campus. See Tex. R. Evid. 201.
2 Babcock agreed, on cross-examination, that he considered "the amount of foot traffic and
vehicular traffic on [the adjacent street] to be "unsafe," and agreed he considered "a person
demonstrating the degree of intoxication that [appellant] did at that close proximity to a street with that
much vehicular, including busses, and pedestrian traffic in danger."
3
Indeed, we think Babcock's testimonythat appellant was in danger of being hit by a car or bus
in the adjacent street and parking lot entrance provided only a partial list of apparent dangers to himself
and others from appellant's circumstances. A person lying on the sidewalk in an area of such heavy
pedestrian traffic is at risk of being stepped on or stumbled over by passing pedestrians.
Conclusion
We resolve appellant's sole issue against him and affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.