Dissenting Opinion by
Justice BRIDGES.I respectfully dissent. Because I conclude the State did not present clear and convincing evidence that Perkins properly arrested appellant without a warrant in his home or that appellant consented to Perkins’ entry into appellant’s residence, I would reverse and remand this cause for further proceedings.
As discussed by the majority, I must give almost total deference to the trial court’s determination of historical facts and consider the evidence in the light most favorable to the trial court’s ruling. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). However, I would review de novo the trial court’s application of the law of search and seizure and the law authorizing arrest without a warrant to those facts. See id. Further, appellant challenges the constitutionality of his arrest both under the Texas Constitution and articles 14.01 through 14.05 of the code of criminal procedure. See Tex. Const. art. I, § 9; Tex.Code Crim. Proc. Ann. arts. 14.01-14.05 (Vernon 1977 & Supp.2003). Under appellant’s state constitutional argument, the proper inquiry is “the reasonableness of the search or seizure under the totality of the circumstances.” Hulit v. State, 982 S.W.2d 431, 436 (Tex.Crim.App.1998). As to appellant’s statutory argument, the proper inquiry is (1) whether there was probable cause with respect to that individual and (2) whether the arrest fell within one of the statutory exceptions. Beverly v. State, 792 S.W.2d 103, 104-05 (Tex.Crim.App.1990).
At the hearing on appellant’s motion to suppress, McKinney police officer Robbie Butler testified he arrived at a one-vehicle accident scene on December 8, 1999. A 1989 Dodge Ram Charger had run into a telephone pole, but the driver was not present. A witness, Ray Ramos, said he had seen the accident and described the driver as a white male with short brown hair wearing a gray and blue sweatshirt and blue jeans. According to Ramos, the driver had a white spot in the front of his hair, was bleeding from the mouth, and smelled of alcohol. Ramos said the driver had run north and turned east through an alleyway.
In the truck’s glove compartment, Butler found an insurance card bearing appellant’s name and address. Appellant’s address indicated a location three blocks away in the same direction as Ramos said the driver had gone. Butler ran a search to determine to whom the truck belonged, and once again it appeared the truck belonged to appellant. Butler contacted Perkins, who went to appellant’s residence. Perkins approached the glass front door of the residence, requested that appellant come outside, observed appellant make a hand gesture, entered the residence, and arrested appellant. Perkins testified that, as he stood outside appellant’s door, “[Appellant] motioned for [Perkins] to come forward, and [Perkins] pushed the door open.” In response to the prosecutor’s questioning, Perkins answered that appellant did not tell Perkins he could not come inside. Also, when the prosecutor asked how appellant motioned for Perkins to come in, Perkins responded “He just kind of indicated.” The prosecutor then asked Perkins, “That meant open the door? For purposes of the record, you have your hand being extended out and coming back toward you.” Perkins answered affirmatively. After Perkins arrested appellant, *370he brought him back to the scene of the accident, but Ramos had departed.
The majority addresses the issue of whether appellant consented to Perkins’ entry of appellant’s residence. However, because this case involves appellant’s arrest without a warrant inside his residence, I believe the proper inquiry is whether appellant’s consent authorized Perkins to arrest him without a warrant pursuant to article 14.05 of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 14.05 (Vernon Supp.2003). Article 14.05 provides that, in each “case enumerated where arrests may lawfully be made without a warrant,” a police officer making an arrest without a warrant may not enter a residence to make the arrest unless a person who resides in the residence consents to the entry or exigent circumstances require the officer to enter the residence without a warrant and without consent. Id. DWI is not a “case enumerated” in articles 14.01 through 14.04 of the code of criminal procedure. See id. arts. 14.01~.04. Thus, whether or not appellant consented to Perkins’ entry, such consent did not authorize Perkins to arrest appellant without a warrant inside his residence for the offense of DWI. See id. art. 14.05.
Even if appellant consented to a search, however, I would not conclude appellant’s consent to Perkins’ entry into his home authorized Perkins to arrest him there. The cases cited by the majority relevant to searches conducted pursuant to consent involve searches for evidence or drugs outside the home or the discovery of drugs inside the home. See Schneckloth v. Bustamonte, 412 U.S. 218, 220, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (search of car for stolen checks); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App.1997) (search of car for drugs); Juarez v. State, 758 S.W.2d 772, 774 (Tex.Crim.App.1988) (search of car for drugs); Meeks v. State, 692 S.W.2d 504, 506-07 (Tex.Crim.App.1985) (search of car for drugs); Dawson v. State, 868 S.W.2d 363, 366 (Tex.App.-Dallas 1993, pet. ref'd) (search of locker for drugs); Fontenot v. State, 792 S.W.2d 250, 253 (Tex.App.-Dallas 1990, no pet.) (search of motel bathroom for possible armed individual revealed drugs in plain view). In contrast, Perkins discovered only appellant himself inside the residence. While appellant may have appeared intoxicated, it is not an offense to become intoxicated inside one’s own residence.
Welsh v. Wisconsin, 466 U.S. 740, 742, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), involved a situation very similar to the facts of this case. In Welsh, a single witness saw Welsh driving erratically, swerving off the road, and stopping in an open field. Welsh left the scene before police arrived, but the witness gave police Welsh’s description and told them Welsh appeared either very inebriated or very sick. Police checked the vehicle’s registration and determined Welsh’s identity and address. Without securing a warrant, police went to Welsh’s residence and gained entry into the house when Welsh’s stepdaughter answered the door.1 The police found Welsh in bed and arrested him for DWI. Under these facts, the court in Welsh reasoned Welsh’s arrest was prohibited by the special protection provided an individual in his home and was, therefore, invalid. Id. at 754, 104 S.Ct. 2091. The court also noted that DWI was a misdemeanor, not a felony, and most of the courts that had addressed the issue refused to permit warrantless home arrests for nonfelonious crimes. Id. at 752, 104 S.Ct. 2091.
*371Unlike the eases involving warrantless searches for drugs, the police officer in this case came into appellant’s residence and did not find any drugs or other contraband which would constitute an offense. Nevertheless, the officer, without a warrant, arrested appellant for driving while intoxicated, a misdemeanor offense not committed within the officer’s view. See Tex. Pen.Code Ann. § 49.04(b) (Vernon 2003) (DWI first offense is Class B misdemeanor). As in Welsh, I would conclude appellant’s arrest under these circumstances was prohibited, and the trial court erred in denying appellant’s motion to suppress. See Welsh, 466 U.S. at 754, 104 S.Ct. 2091.
Further, even assuming that all Perkins needed to arrest appellant without a warrant was appellant’s consent to enter his residence, I disagree that the State has shown appellant gave such consent. The majority correctly states that the State must prove by clear and convincing evidence that consent to enter a residence is freely given in order to establish an exception to the requirement that police obtain a warrant before conducting a search. See Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000). I do not agree the State met its burden through Perkins’ testimony that appellant “motioned for [Perkins] to come forward,” “just kind of indicated,” and made some unspecified hand gesture. See Roth v. State, 917 S.W.2d 292, 300 (Tex.App.-Austin 1995, no pet.) (no clear and convincing evidence of consent where appellant “looked as though” he wanted officers to follow into his residence or did not “mind” if they did); Green v. State, 666 S.W.2d 291, 293 (Tex.App.-Houston [14th Dist.] 1984, no pet.) (no waiver of constitutional immunity inferred from singular act of appellant opening her front door). We still give deference to the idea that “a man’s house is his castle.” Newman v. State, 58 Tex.Crim. 443, 126 S.W. 578, 579 (1910).
Notably, Perkins arrived at the accident scene at approximately 2:46 p.m. on Wednesday, December 8, 1999, and there was no testimony showing why an arrest warrant could not have been secured. Further, no other exception to the warrant requirement applied in this case. Perkins was not in “hot pursuit” of appellant because there was no immediate or continuous pursuit of appellant from the scene of the crime. See Welsh, 466 U.S. at 753, 104 S.Ct. 2091. Because appellant had arrived home and had abandoned his vehicle at the scene of the accident, there was little remaining threat to public safety. See id. Appellant was not intoxicated in public. See Tex. Pen.Code Ann. § 49.02(a) (Vernon 2003); Tex.Code Crim. PRoc. Ann. art. 14.03(d) (Vernon Supp.2003) (among other things, peace officer outside his jurisdiction may arrest without warrant person publicly intoxicated within officer’s presence or view). Though Perkins could smell alcohol on appellant, appellant committed no offense within Perkins’ view. See Tex.Code Crim. Prog. Ann. art. 14.01(a) (Vernon 1977) (authorizing warrantless arrest of offender committing offense within peace officer’s presence or view). In short, I would conclude that the trial court erred in overruling appellant’s motion to suppress because no circumstances were present that would have authorized Perkins to arrest appellant without a warrant in his home.
Finding error, I would conduct a harm analysis to determine whether the error calls for reversal of the judgment. See Tex.R.App. P. 44.2. Because the error is constitutional, I would reverse unless I determined beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment. Tex.R.App. P. 44.2(a). Butler and Perkins were *372the State’s only witnesses at the hearing on appellant’s motion to suppress. At the time Perkins entered appellant’s house, all Perkins knew was that appellant’s truck was wrecked, and appellant matched the description of the driver. Only after Perkins entered appellant’s residence did he smell alcohol on appellant and notice appellant’s speech was slurred before arresting him for DWI. Based on this record, I could not conclude beyond a reasonable doubt that the evidence obtained by Perkins after he entered appellant’s residence did not contribute to appellant’s conviction. See Tex.R.App. P. 44.2(a).
Accordingly, I would reverse and remand this cause for further proceedings.
. Because of the procedural posture of the case, the court in Welsh assumed there was no valid consent to enter Welsh’s home. Id. at 743 n. 1, 104 S.Ct. 2091.