Opinion
No. 05-11-00366-CR
06-13-2012
SYLVESTER JOKEITH ALFORD, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Reformed; Opinion Filed June 13, 2012.
On Appeal from the County Criminal Court No. 4
Dallas County, Texas
Trial Court Cause No. MB08-23254-E
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
Appellant was convicted of driving while intoxicated, and the court assessed punishment at ninety days' confinement in the county jail, probated for fifteen months, and a fine of $800. In a single issue on appeal, appellant asserts the trial court erred in denying his motion to suppress because the State failed to establish probable cause for his warrantless arrest. In a cross-point, the State requests that we reform the judgment to reflect that there was no plea bargain in this case. We reform the trial court's judgment, and as reformed, affirm. Background
On January 1, 2008, at around 5:30 a.m., Kenneth Cramer was in the left lane of northbound Garland Avenue at its intersection with Miller Road. There was a car in the middle lane next to Cramer. Cramer saw another vehicle, an SUV, strike the car in the middle lane from behind. After hitting the car, the driver of the SUV reversed, pulled into the right lane, and turned right onto Miller Road.
Cramer and his passengers contacted 911 and followed the SUV. Cramer observed that the SUV turned right into a Shell station, paused for a few moments, and then started to pull back onto Miller Road. Cramer had his eyes on the SUV at all times, and no one got out of the vehicle. When the SUV pulled back onto Miller Road, it turned right while accelerating and the vehicle swerved to the right. When the driver tried to correct the swerve, he overcorrected, crossed the median and the road, went through a fence and then drove into a cemetery. The SUV stopped on top of a gravestone, so the front wheels had no contact with the ground.
Cramer pulled over near a store across from the cemetery, sat there observing the SUV, and waited for the police to arrive. No one got out of the SUV or opened any doors of the SUV before the police arrived. Appellant was subsequently identified as the driver of the vehicle.
Garland Police Officer Victor Lauresdorf was the first person on the scene. Officer Lauresdorf testified that he was dispatched to a hit-and-run call and observed a vehicle that had wrecked onto a couple of headstones in a cemetery. When Officer Lauresdorf arrived, appellant was attempting to get out of the vehicle, which was still running. Officer Lauresdorf immediately noticed a detectable odor of alcohol coming from appellant and from the cab of his vehicle. Appellant was unsure of himself, he was incoherent as to how he ended up in the cemetery, and he had unsteady balance. Because he believed that appellant was intoxicated, Officer Lauresdorf requested that DWI officers come to the scene.
Officer Gloria Delmar testified that she received a call regarding a hit-and-run accident. She was told that the hit-and-run driver was fleeing, a citizen was following him, and the driver had a second accident and ended up in the cemetery. When Officer Delmar arrived, another officer, Officer Hunter was having appellant perform field sobriety tests. Officer Delmar observed that appellant's balance was unsteady, he had trouble following directions, he was confused, his breath smelled strongly of alcohol, his eyes were bloodshot, and he appeared to be very intoxicated. Appellant's vehicle was wrecked and was sitting on top of a tombstone. Officer Delmar spoke to Cramer, who told her what he had observed. An in-car video was made at the scene and Officer Delmar reviewed the in-car video.
Officer Delmar also spoke to Officer Lauresdorf. Officer Lauresdorf said that appellant was very intoxicated and they found him out by the car in the cemetery, where he ran over a bunch of tombstones.
After completing the field sobriety tests, Officer Hunter arrested appellant. Officer Hunter did not have a warrant for the arrest.
Appellant moved to suppress all evidence of the arrest, and the trial court denied the motion. In denying the motion, the court noted that the civilian witness gave very credible testimony, the officers' testimony was credible, there was no one else in the car, and there was no plausible testimony that someone else could have been driving the car. Appellant was subsequently convicted for driving while intoxicated. Discussion
Motion to Suppress
In a single issue, appellant contends the trial court erred in denying his motion to suppress because the State failed to establish probable cause for his warrantless arrest. In particular, appellant argues that article 14.01(b) precludes arrest unless an officer views the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005) Appellant also complains the State failed to establish that the arresting officer observed appellant exercise control over a motor vehicle or that he had trustworthy information that appellant exercised control over a motor vehicle. Finally, appellant contends the State failed to establish the arresting officer had probable cause to believe appellant was intoxicated because the officer did not testify and there was no evidence that trustworthy information concerning intoxication was provided to the arresting officer. The State responds that the trial court properly overruled the motion to suppress. We agree with the State.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review. Id. The trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions. Beverly v. State, 792 S.W.2d 103, 104-105 (Tex. Crim. App. 1990); Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987) (plurality opinion). One of those exceptions, article 14.01(b), provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b). In Beverly, the Court explained that:
The test for probable cause for a warrantless arrest [under article 14.01(b)] is whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.Beverly, 79 S.W.2d at 105; see also State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
Here, appellant asserts the article 14.01 exception is inapplicable because the arresting officer did not personally view the commission of the offense. But where there has been some cooperation and communication between police officers during their investigation, the collective information, including hearsay, known to the officers at the time of the stop or arrest is considered in determining whether the stop or arrest is justified. Woodward v. State , 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (opinion on rehearing); Carter v. State , 713 S.W.2d 442,446 (Tex. App. -Fort Worth 1986), pet. ref'd , 742 S.W.2d 398 (Tex. Crim. App. 1987). Thus, under article 14.01, the arresting officer does not have to be the officer who views the commission of the offense. Henderson v. State , 864 S.W.2d 227, 228 (Tex. App. -Waco 1993, pet. ref'd); Birdwell v. State , 819 S.W.2d 641,643 (Tex. App. -Fort Worth 1991, pet. ref'd); Caraballo v. State , 706 S.W.2d 773,774 (Tex. App. -Houston [14th Dist.]1986, pet. ref'd). An officer who does not personally possess probable cause to make a warrantless arrest may act on information relayed to him by other officers to effect a lawful arrest. Pyles v. State , 755 S.W.2d 98,109 (Tex. Crim. App. 1988).
Moreover, in determining whether there is probable cause that an offense has been committed, the arresting officer may also rely on information provided by private citizens. See Astran v. State , 799 S.W.2d 761,764 (Tex. Crim. App. 1990); see also Akins v. State, 202 S.W.3d 879, 889 (Tex. App.-Fort Worth 2006, pet ref'd) (stating officer's information may come from private citizens). A private citizen who gives police information about something he has just witnessed is deemed reliable. See Webb v. State , 760 S.W.2d 263,274 (Tex. Crim. App. 1988) .
Appellant claims that none of the officers who testified at the suppression hearing acknowledged having any conversation with the arresting officer prior to his arrest of appellant. The record, however, reflects otherwise. Officer Lauresdorf specifically testified that he had a conversation with Officer Hunter about what he observed at the scene and that he told Officer Hunter what he observed. Officer Lauresdorf initially agreed that he told Officer Hunter that he contacted appellant "in the cemetery by his vehicle" but then stated that he could have said, "by, inside, what have you." Then, Officer Lauresdorf clarified that appellant was inside his vehicle when the officer arrived. Officer Lauresdorf stated that the driver's side door of appellant's vehicle was open and he was on the verge of getting out. When Officer Lauresdorf arrived, the vehicle was still running. Officer Lauresdorf noted that appellant was the driver and the only person in the vehicle. Officer Lauresdorf also noted that appellant was very intoxicated. Thus, Officer Lauresdorf's observation of an intoxicated appellant behind the wheel of a car that was still running, and his communication of this information to Officer Hunter, gave Officer Hunter probable cause to arrest appellant.
Appellant also argues that "there is no evidence that the arresting officer observed the HGN test and the one-legged stand test that are shown on the in-car video." Officer Delmar testified that when she arrived at the scene, Officer Hunter was performing the field sobriety tests on appellant. The in-car video, State's Exhibit 6, was admitted into evidence and reviewed by the court during the suppression hearing. This video shows Officer Hunter performing the field sobriety tests on appellant. Thus, Officer Hunter not only observed the tests; he was the officer who administered them.
Appellant asks this Court to conclude that because Officer Hunter did not testify at the suppression hearing, "there is no evidence as to what was personally known to the arresting officer." Despite the absence of testimony from Officer Hunter, the record does reflect what was communicated to Officer Hunter. In addition to the evidence of intoxication, there is evidence to establish that appellant exercised control over a motor vehicle. Officer Lauresdorf told Officer Hunter what he observed at the scene - that appellant was still in the vehicle when he arrived and the vehicle's engine was running. Officer Delmar spoke to Cramer, who told her what he had seen appellant do, including running into the back of another car at an intersection and then running onto the tombstone in the cemetery. Given the combined observations of Cramer, Officer Hunter, Officer Delmar, and Officer Lauresdorf, the evidence showed that appellant was driving a motor vehicle and that he was intoxicated when he did so. Therefore, the record supports the trial court's conclusion that Officer Hunter had probable cause to arrest appellant without a warrant. Appellant's sole issue is overruled.
Reformation of the Judgment
In a cross-point, the State requests that we reform the judgment to reflect that there was no plea bargain in this case. The judgment states that this was a "negotiated plea" in which the plea bargain was followed. But the trial court's certifications reflect that this "is not a plea bargain case" and appellant has the right to appeal. The reporter's record consists only of the hearing on the motion to suppress; it does not contain any transcription of the plea hearing. The docket sheet does not reflect that there was a plea bargain. And there are no plea papers contained in the clerk's record. Therefore, the record supports the State's suggestion that the judgment is incorrect.
This Court has the authority to modify or reform a judgment to make the record speak the truth when the matter has been called to its attention. T EX . R. A PP . P. 43.2(b); French v. State , 830 S.W.2d 607,609 (Tex. Crim. App. 1992); Asberry v. State , 813 S.W.2d 526, 531 (Tex. App. -Dallas 1991, pet. ref'd). Therefore, we sustain the State's cross-point and reform the judgment to reflect that there was no plea bargain in this case. As reformed, the trial court's judgment is affirmed.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110366F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SYLVESTER JOEKEITH ALFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00366-CR
Appeal from the County Criminal Court No. 4 of Dallas County, Texas. (Tr.Ct.No. MB08- 23254-E).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is reformed to reflect that there was no plea bargain in this case. As reformed, the trial court's judgment is AFFIRMED.
Judgment entered June 13, 2012.
MARTIN RICHTER
JUSTICE