NO. 07-06-0039-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 3, 2007
______________________________
VALERIE L. MAY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2004-489912; HONORABLE L. B. RUSTY LADD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Valerie L. May appeals her conviction of driving while intoxicated. Finding no merit
in her challenges to the denial of her motion to suppress, we affirm.
Police found appellant asleep in the driver’s seat of a vehicle stopped in a lane of
traffic. When an officer asked why she was parked in the street, appellant replied she was
too drunk to drive. The police concurred and arrested her for driving while intoxicated.
Appellant filed a pretrial motion to suppress evidence arising from the contact. The only
reporter’s record before us is from the hearing on the motion to suppress. It showed Texas
Tech Police Department officer Michael McAlister saw a vehicle stopped in a lane of traffic
on Avenue Q in Lubbock about 3 a.m. The engine was running and lights were on. After
McAlister woke appellant and she said she was too drunk to drive, McAlister contacted the
Lubbock Police Department to investigate. City police officer James Green performed field
sobriety tests and arrested appellant. At the hearing appellant stipulated she was
intoxicated at the time she was interviewed by officer Green. There was no evidence of
how long appellant had been stopped in the roadway, or when she had been drinking
alcohol.
At the close of the hearing appellant cited Reddie v. State, 736 S.W.2d 923
(Tex.App.–San Antonio 1987, pet. ref’d), for the proposition that evidence a driver is
intoxicated behind the wheel is insufficient to show operation of a vehicle while intoxicated.
The trial judge informed the parties he would review the arguments presented and rule on
the motion. The record does not contain a signed order ruling on the motion.1 Nor is there
a reporter’s record from the subsequent hearing at which appellant pled guilty.2 The
judgment reflects appellant’s plea, punishment of 120 days confinement and $500 fine,
with confinement and half of the fine suspended for twelve months.
1
The record does contain a handwritten note directing the preparation of a written
order denying the motion. The State does not challenge appellant’s representation the
motion was denied and we will assume the trial court ruled as indicated in the note. See
Tex. R. App. P. 33.1(a)(2) (adverse ruling is prerequisite to complaint on appeal).
2
See Tex. R. App. P. 34.6(c)(5); McDougal v. State, 105 S.W.3d 119, 121
(Tex.App.--Fort Worth 2003, no pet.) (addressing requirement that all evidence admitted
at trial be included in appellate record when challenge to sufficiency of evidence is raised).
2
Appellant now presents three issues challenging her conviction. Although each
assigns error to the trial court’s denial of her motion to suppress, the substance of
appellant’s argument in support of each issue contends the evidence was insufficient to
establish she operated the vehicle while she was intoxicated.3
The State responds that any issue concerning the sufficiency of the evidence was
resolved conclusively by appellant’s plea of guilty to the misdemeanor offense of driving
while intoxicated. We agree.
Appellant’s motion to suppress sought to exclude evidence obtained as a result of
the seizure of appellant, asserting, inter alia, that her detention and warrantless arrest were
not supported by reasonable suspicion or probable cause. As noted, however, at the
hearing on her motion, appellant asserted the position that the evidence she operated the
vehicle while intoxicated was insufficient under the standard set out in Denton v. State, 911
S.W.2d 388, 390 (Tex.Crim.App. 1995).
In support of its contention that appellant admitted to each and every element of the
misdemeanor offense by pleading guilty, the State cites Ex parte Williams, 703 S.W.2d
674, 682 (Tex.Crim.App. 1986), and Brown v. State, 507 S.W.2d 235, 238 (Tex.Crim.App.
1974). Both cases point to the statutory provision that in a misdemeanor case punishment
may be assessed by the court “either upon or without evidence, at the discretion of the
3
The State’s brief also cites Montoya v. State, No. 02-03-0151-CR, 2004 Tex.App.
Lexis 3464, 2004 WL 814957 (Tex.App.–Fort Worth 2004, no pet.) (memo op., not
designated for publication), and Avila, 884 S.W.2d at 898, in support of an argument that
appeal of the denial of a motion to suppress is not a proper vehicle to challenge the
sufficiency of the evidence supporting a conviction. We need not address that argument.
3
court” after a plea of guilty or nolo contendere in open court and waiver of a jury. Tex.
Code Crim. Proc. Ann. art. 27.14(a). To those cases can be added former Presiding Judge
Onion’s opinion for the San Antonio Court of Appeals in Avila v. State, 884 S.W.2d 896,
897 (Tex.App.--San Antonio 1994, no pet.), stating, “A plea of guilty in a misdemeanor
case constitutes an admission of every element of the charged offenses and is conclusive
of a defendant’s guilt,” and the cases there cited.
We do not overlook appellant’s reference at oral argument to the statement in Ex
parte Williams that “normally on appeal from a misdemeanor conviction based on a plea
of guilty or nolo contendere there can be no question of the sufficiency of the evidence.”
703 S.W.2d at 678 (emphasis added). We are unable to perceive any reason in this case,
however, to deviate from that normal rule. Finding appellant’s guilty plea left no question
of the sufficiency of the evidence, we overrule her three issues and affirm the trial court’s
judgment.
James T. Campbell
Justice
Do not publish.
4