TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00178-CR
Tracie Blankenship, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NO. 2C97-3623, HONORABLE JOHN BARINA, JR., JUDGE PRESIDING
Appellant Tracie K. Blankenship was convicted of driving while intoxicated and sentenced to 180 days in county jail, probated for 18 months, and fined $1500, of which $750 is probated. She contends the trial court should have suppressed her intoxilyzer test result because she initially refused to take the test and because it was administered following a citizen's arrest she believes was illegal. She also contends the trial court should have given a jury instruction on her contention that her arrest was illegal. We will affirm the judgment.
The citizen who arrested Blankenship, Jedidah Boyd, first saw Blankenship at a stoplight in an adjacent car. She said she saw Blankenship drink out of a flask-like glass bottle, but did not know what was in the flask. Boyd drove on and parked in front of her friend's house. As Boyd got out of her car, Blankenship drove into the rear of Boyd's car. Blankenship used a mobile phone in her own car, but then got out and stumbled to Boyd's friend's house to ask to use their phone. Before they could get the phone to her, Blankenship stumbled back to her car, bumping into it before getting in. Boyd said Blankenship appeared intoxicated.
When the police arrived and administered field sobriety tests, Boyd watched as Blankenship had difficulty walking one foot in front of the other or standing on one foot. Boyd admitted she did not see the line Blankenship was attempting to walk and was never close enough to smell her breath. She also did not see whether Blankenship was injured in the collision. Boyd's only previous exposure to field sobriety tests was by watching the television show "Cops."
The police officers did not arrest Blankenship for DWI based on their observations. Officer Kevin Tramp was first on the scene. He approached Blankenship in her car, and smelled the odor of alcohol coming from her car. He believed her car was driveable. He asked her about her condition. Based on their brief conversation, he did not believe she was intoxicated, but called for another officer to investigate more thoroughly because the witnesses believed she was intoxicated. Officer Jim Hatfield, who conducted the field sobriety tests, including a horizontal gaze nystagmus test, believed Blankenship's performance on all the tests showed intoxication. He said she stumbled so badly toward the street during the walking tests that he feared for her safety and discontinued the tests. He also smelled a strong odor of alcohol on her breath. Because he believed her intoxication made her dangerous to herself and others, he stated he knew he could have arrested her for public intoxication. Police department policy prevented him from arresting her for DWI because he had not seen her while she was driving. The officers did not find an open container of alcohol in the car, but did find a Listerine bottle. (Blankenship's daughter testified that Blankenship had her tongue pierced shortly before the accident. As a result, Blankenship was taking painkilling medication and had to rinse her mouth out with Listerine to prevent infection.)
The police officers asked if Boyd would like to make a citizen's arrest for DWI. Boyd had never made a citizen's arrest before, but agreed to make this one because she thought Blankenship was intoxicated and had seen her drive in that condition.
The police took Blankenship to the police station where they administered the sobriety tests again, this time on videotape. They requested she submit to an intoxilyzer examination to test the level of alcohol in her breath. She at first declined and signed a DIC-24 test refusal form. The police turned off the videotape and filled out forms for a minute or two without conversation. During this period, Blankenship changed her mind and decided to take the intoxilyzer test. It showed she had .235 grams of alcohol per 210 liters of breath. The statute defines intoxication as above .10 grams per 210 liters of breath. Tex. Penal Code Ann. § 49.01 (West 1994).
Blankenship's three points of error emanate from the admission of the intoxilyzer test results. By two points, she contends the trial court should have suppressed the result of the test because the citizen's arrest was improper and because she initially refused to submit to the test. By her third point, she contends the trial court should have submitted her requested instruction that jurors should disregard all evidence derived from an illegal arrest or illegal seizure.
We review the denial of the motion to suppress against a two-tiered standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.1997). If a trial court's decision on a mixed question of law and fact turns on an evaluation of credibility and demeanor, we will defer almost completely to that decision. Id. If, however, the trial court's decision on a mixed question of fact and law does not turn on an evaluation of credibility and demeanor, we may review the decision de novo. Id.
A non-police officer may without a warrant arrest an individual for a misdemeanor offense when that individual commits a breach of the peace. Tex. Code Crim. Proc. Ann. art. 14.01(a) (West 1977); Heck v. State, 507 S.W.2d 737, 740 (Tex. Crim. App.1974). Driving while intoxicated is such a breach of the peace. Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); Heck, 507 S.W.2d at 740. The right of a private citizen to make a warrantless arrest for a breach of the peace committed in his view is limited to the time the offense is committed or while there is danger of its renewal. Woods v. State, 213 S.W.2d 685, 688 (Tex. Crim. App. 1948).
We conclude that Boyd had probable cause to arrest Blankenship for DWI. A person commits DWI by operating a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann. § 49.04 (West 1994). Intoxication is defined either by alcohol concentration or as "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. at 49.01(2). Boyd saw Blankenship drive into a car parked on a public street. Boyd saw her stumbling while walking before the police arrived, then saw her wobbling and stumbling while attempting to perform the field sobriety tests. She saw her use a phone in her car, ask for a phone from the house, leave before the house phone arrived, and bump into her own car while walking. Boyd had grounds to believe that Blankenship did not have normal use of her mental or physical faculties by reason of ingestion of some substance and that she posed a danger to herself or others.
Even if Boyd lacked probable cause to arrest Blankenship for DWI, the police could have arrested Blankenship. A peace officer may arrest without a warrant any person who commits an offense in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 1977). A person commits public intoxication by appearing in a public place while intoxicated to the degree that she may endanger herself or another. Tex. Penal Code Ann. § 49.02 (West 1994). Officer Hatfield saw Blankenship intoxicated in public and determined that she had access to her car; he also had been told she had driven that car into a parked car. He saw her stumbling so badly that he thought she was in danger of walking out into the street. These facts provide a basis for him to determine she was a danger to herself or others; taken together, the facts support a warrantless arrest for public intoxication. See Elliott v. State, 908 S.W.2d 590, 592 (Tex. App.--Austin 1995, pet. ref'd). Once she was properly in custody they could request she take the intoxilyzer test to confirm the suspicion of intoxication. See id. at 593.
The citizen's arrest was legal. Even if it were not, the police were entitled to arrest her. In either case, the arrest does not provide a basis on which to suppress the intoxilyzer test. We overrule point one.
Blankenship's initial refusal to take the test did not bar the police from administering the test when, without any prompting or persuasion by police, she changed her mind and consented to the test. Though in her appellate brief she describes as "incredible" the testimony that she simply changed her mind, the record lacks support for that critical description. She relies on the statutory provision that "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer." Tex. Transp. Code Ann. § 724.013 (West 1998). A change of mind wrought by police pressure does not constitute valid consent. State v. Schaeffer, 839 S.W.2d 113, 117 (Tex. App.--Dallas 1992, pet. ref'd). This record, however, lacks any evidence of police pressure. Neither the statute nor Schaeffer bars a person from voluntarily rescinding her refusal to submit to the test. If a person can rescind the invocation of her constitutional right to remain silent, she surely can revoke her statutory right not to take a breath test. See Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995); see also Trevino v. State, 815 S.W.2d 592, 619 (Tex. Crim. App. 1991) (no violation of rights when defendant invoked right to silence and counsel, then initiated conversation and confessed to police officer), rev'd on other grounds, 503 U.S. 562, 567-68 (1992) (remanded for consideration of challenge to strikes of minority jury panelists). The only evidence in the record before us is that, moments after signing the refusal form, without any urging by police, Blankenship changed her mind and agreed to take the breath test. The court did not abuse its discretion by refusing to suppress the breath test. We overrule point two.
Blankenship contends by point three that the trial court should have instructed the jury to ignore evidence resulting from an illegal seizure. She contends the "seizure" of her breath was illegal if her arrest was illegal. She argues that the evidence raised a fact issue regarding probable cause because Boyd did not smell alcohol on her breath nor was she able to make an independent determination of probable cause. The defendant is entitled to a jury instruction in any case in which the legal evidence raises an issue regarding whether evidence was obtained in violation of any constitutional or statutory provision; in such a case, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 1998). She is not entitled to an instruction when the evidence does not show an issue of disputed material fact. Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). If the facts are not disputed, the decision of whether the facts provided probable cause to arrest is one for the court, not for the jury. See Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971); McGlothlin v. State, 854 S.W.2d 190, 192 (Tex. App.--Fort Worth 1993, pet. ref'd).
Blankenship was not entitled to the instruction. The only evidence shows that her breath was "seized" with her consent. As discussed under point of error one, Blankenship's arrest was legal because there is no dispute about the facts showing her intoxication. Even if Boyd should not have arrested her for DWI, the police clearly were within their right to arrest Blankenship for public intoxication. The fact that the first officer did not think she was intoxicated does not create a fact issue because his opinion was not based on Blankenship's performance in the field sobriety tests. The trial court did not err by rejecting the requested instruction. We overrule point of error three.
We affirm the judgment of conviction.
Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: February 11, 1999
Do Not Publish
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Blankenship's initial refusal to take the test did not bar the police from administering the test when, without any prompting or persuasion by police, she changed her mind and consented to the test. Though in her appellate brief she describes as "incredible" the testimony that she simply changed her mind, the record lacks support for that critical description. She relies on the statutory provision that "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer." Tex. Transp. Code Ann. § 724.013 (West 1998). A change of mind wrought by police pressure does not constitute valid consent. State v. Schaeffer, 839 S.W.2d 113, 117 (Tex. App.--Dallas 1992, pet. ref'd). This record, however, lacks any evidence of police pressure. Neither the statute nor Schaeffer bars a person from voluntarily rescinding her refusal to submit to the test. If a person can rescind the invocation of her constitutional right to remain silent, she surely can revoke her statutory right not to take a breath test. See Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995); see also Trevino v. State, 815 S.W.2d 592, 619 (Tex. Crim. App. 1991) (no violation of rights when defendant invoked right to silence and counsel, then initiated conversation and confessed to police officer), rev'd on other grounds, 503 U.S. 562, 567-68 (1992) (remanded for consideration of challenge to strikes of minority jury panelists). The only evidence in the record before us is that, moments after signing the refusal form, without any urging by police, Blankenship changed her mind and agreed to take the breath test. The court did not abuse its discretion by refusing to suppress the breath test. We overrule point two.
Blankenship contends by point three that the trial court should have instructed the jury to ignore evidence resulting from an illegal seizure. She contends the "seizure" of her breath was illegal if her arrest was illegal. She argues that the evidence raised a fact issue regarding probable cause because Boyd did not smell alcohol on her breath nor was she able to make an independent determination of probable cause. The defendant is entitled to a jury instruction in any case in which the legal evidence raises an issue regarding whether evidence was obtained in violation of any constitutional or statutory provision; in such a case, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 1998). She is not entitled to an instruction when the evidence does not show an issue of disputed material fact. Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). If the facts are not disputed, the decision of whether the facts provided probable cause to arrest is one for the court, not for the jury. See Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971); McGlothlin v. State, 854 S.W.2d 190, 192 (Tex. App.--Fort Worth 1993, pet. ref'd).
Blankenship was not entitled to the instruction. The only evidence shows that her breath was "seized" with her consent. As discussed under point of error one, Blankenship's arrest was legal because there is no dispute about the facts showing her intoxication. Even if Boyd should not have arrested her for DWI, the police clearly were within their right to arrest Blankenship for public intoxication. The fact that the first officer did not think she was intoxicated does not create a fact issue because his opinion was not based on Blankenship's performance in the field sobriety tests. T