Tatiana Bakhoum v. the State of Texas, 14-19-00762-CR

Background

Around 2:00 a.m. in July 2018, appellant Tatiana Bakhoum’s vehicle collided with a marked police vehicle (lights/sirens activated) driven by Officer Ken Neimeyer while he was changing lanes near a pursuit.
When Neimeyer approached, he observed a delayed reaction/distant stare, glassy/bloodshot eyes, and smelled a strong odor of alcohol; he immediately opened the door, handcuffed Bakhoum, and placed her in a patrol vehicle without giving Miranda-type warnings.
Neimeyer was not a DWI investigator; a DWI officer later conducted standardized field-sobriety tests and a breath test (about two hours later), which showed BAC above the legal limit.
Bakhoum was charged with DWI, convicted by a jury, and received a 180-day sentence that was suspended in favor of ten months community supervision and a fine.
On appeal Bakhoum challenged (1) denial of her motion to suppress evidence obtained after she was handcuffed (arguing lack of probable cause) and (2) jury-charge error for giving an Article 38.23(a) instruction that recited the statute but contained no application paragraph; the court also corrected a clerical conflict in the written judgment regarding execution vs. suspension of sentence.

Issues

Issue	Appellant's Argument	State's Argument	Held
Probable cause / motion to suppress evidence seized after handcuffing	Neimeyer lacked probable cause when he handcuffed and detained Bakhoum; therefore all evidence following the arrest (statements, SFSTs, breath test) should be suppressed.	Probable cause existed for DWI based on totality (collision with emergency vehicle, lack of reaction, glassy eyes, strong odor); alternatively probable cause for related traffic offense or at least reasonable suspicion for investigative detention.	Court held probable cause existed under the totality of circumstances for DWI; trial court did not abuse its discretion denying suppression of physical evidence (though statements were excluded for lack of warnings).
Jury charge — Article 38.23(a) instruction lacked application paragraph	Trial court erred by giving only statutory text without an application paragraph telling the jury what disputed facts to decide under Article 38.23(a).	The instruction mirrored Article 38.23(a) and, along with counsel’s argument, provided sufficient guidance; any omission was not preserved or was harmless.	Court found the charge defective (no application paragraph), but error was not preserved and, under Almanza, did not cause egregious harm; conviction affirmed.
Clerical conflict in written judgment (suspension vs. execution)	(Not raised by parties on appeal.)	(Not raised by parties.)	Court modified judgment sua sponte to delete execution/commitment language and to state sentence was suspended and defendant placed on community supervision.

Key Cases Cited

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) (defines probable cause for warrantless arrest; totality-of-circumstances test)
Ornelas v. United States, 517 U.S. 690 (U.S. 1996) (probable-cause and reasonable-suspicion determinations are reviewed de novo; focus on historical facts then legal application)
Hyland v. State, 574 S.W.3d 904 (Tex. Crim. App. 2019) (strong odor of alcohol plus serious accident can support probable cause for DWI)
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (requirements to obtain an Article 38.23(a) jury instruction: contested historical fact, affirmative evidence, and materiality)
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984) (odor of alcohol after collision supports probable-cause inference that DWI evidence will be found)
Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991) (appellate courts may reform judgments nunc pro tunc to make written judgment conform to trial court’s oral pronouncement)
Gates v. United States, 462 U.S. 213 (U.S. 1983) (probable cause analysis requires consideration of many variables; one decision is seldom precedent for another)