OPINION
Ira Hudson Dansby appeals his conviction for driving while intoxicated. In ten issues, Appellant challenges the denial .of his motion to suppress, the admission of certain evidence, whether the corpus de-licti rule- was satisfied, and the legal sufficiency of the evidence. We affirm.
Background
Smith County Sheriffs Deputy Gerald Atchison,- while on patrol, stopped at a convenience store. He noticed an unoccupied vehicle running in the parking lot. Atchison asked several people inside the store and the adjoining Whataburger restaurant whether the vehicle belonged- to them! Appellant, who was inside Whata-burger, admitted owning the vehicle. At-chison noticed that Appellant’s eyes were red and watery, and he smelled of alcohol. He asked Appellant where he had been that night. Appеllant said that he had been at the Half Moon Grill and Saloon, about a half block away. He said he had .a few beers, went home, changed clothes, and returned to Whataburger for food.
Deputy Atchison, believing that Appellant might be guilty of public intoxication, asked Deputy Fire Marshal Londoff
Appellant was charged by information with DWI and pleaded “not guilty.” After a bénch trial, the trial' court found Appellant guilty and assessed his punishment at confinement for 180 days, suspended for a term of twenty months, and a $300 fine. This appeal followed.
Motion to Suppress
In Appellant’s first through fifth issues, he argues that the trial court erred in denying his motion to suppress because (1) the police had no probable cause to arrest him for driving while intoxicated or public Intoxication, (2) he was arrested without a warrant or valid warrant exception, and (3)
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Hubert v. State,
When a trial court does not make express findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume the trial court madе implicit findings of fact that support its ruling as long as those findings are supported by the record. Lujan v. State,
Warrantless Arrest Law
The initial burdеn of proof on a motion to suppress evidence on the basis of a Fourth Amendment violation rests with the defendant. Torres v. State,
Probable cause for "a warrant-less arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. Amador v. State, 275 S.W.3d
DWI Arrest
In this case, after the suppression hearing, the trial court issued an order granting in part and denying in part Appellant’s motion to suppress. In the order, the trial court did not explicitly name which parts of the motion it was granting and denying. Instead, the trial court named the evidence being suppressed. Based on our review of the grounds in Appellant’s motion, the evidence suppressed by the trial court’s order, and trial court’s statements on the record, we conclude that the trial court implicitly denied the motion on the grounds that are the subject of Appellant’s first through fifth issues.
In his first issue, Appellant argues that the evidence does not show that Trooper Hartman had probable cause to arrest him for DWI because (1) the officers nor any other witness saw Appellant driving, (2) Hartman had no information regarding how long Appellant’s truck had been at the scene, and (3) Hartman had no information regarding .whether Appellant consumed alcohоl after arriving at the scene. However, there is evidence in the record to support a finding of probable cause to arrest for DWI.
A person commits DWI if he operates a motor vehicle in a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a)
(West Supp. 2016). “Intoxicated” is defined as “(A) 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; or (B) having an alcohol concentration of 0.08 or more.” M § 49.01(2) (West 2011).
Trooper Hartman testified that prior to the DWI arrest, Appellant told him he had consumed a few beers and two shots of alcohol at the Half Moon. Hartman was also told that Appellant’s vеhicle was found running in the parking lot. The vehicle was registered to Appellant, and Appellant said he had been driving. No one approached Hartman to claim any connection with Appellant or the vehicle. Appellant said that after he left the Half Moon, he went to his house and returned to Whataburger. Hartman administered three standard field sobriety tests on Appellant and formed an opinion that he was intoxicated. Appellant showed signs of intoxication on all three tests.
Based on the evidence' of Appellant’s intoxication, along with Appellant’s statements- that he consumed alcohol at the Half Moon and then drove home and back to Whataburger, the trial court could reasonably infer that Appellant was intoxicated when he drove the vehiclе. Therefore, based- on the evidence adduced and the reasonable inferences that can be made from it, the trial court could reasonably conclude the facts and circumstances within Trooper Hartman’s knowledge were sufficient to warrant a belief that Appellant committed DWI. See Amador, 275 S.W.3d at 878. Accordingly, the record reasonably supports the trial court’s implicit conclusion that -the- State carried its burden of proving that Hartman’s warrantless arrest of Appellant was properly supported ,by probable cause to arrest for DWI. See Tex.
In his second issue, Appellant argues that his warrantless DWI arrest was unlawful because the offense was not committed in a peace officer’s presence or view. See Tex. Code Ceim. Proc; Ann. art. 14.01 (West 2005). However, the . commission of an оffense in an officer’s presence or view is not the only exception to the warrant requirement. See Stull,
' Driving while intoxicated is a breach of the peace. Gallups v. State,
In this case, Appellant was found inside Whataburger. He-showed signs of intoxication, and his vehicle was. running in the parking lot. We have held that- Trooper Hartman had probable cause to support a DWI arrest. Furthermore, exigent circumstances—the need to ascertain Appellant’s alcohol- concentration—existed to justify Appellant’s immediate arrest. See Gallups,
After giving almost total deference to the trial court’s determination of the historical facts, and reviewing de novo the trial court’s application of the law to facts not based on an evaluation of credibility and demeanor, we conclude that, given the totality of the circumstances, the State carried its burden to justify Appellant’s war-rantless arrest by Trooper Hartman. See Tex. Code Crim. Proc. Ann. art. 14.03(a); Neal,
Public Intoxication Arrest
In his third issue, Appellant argues that the trial court erred in denying his motion to suppress because Atchison had no probable cause to arrest him for public intoxication, He contends that the evidence adduced at the suppression hearing does not show that the facts known to Atchison at the timе of the arrest warranted a reasonable belief that Appellant was intoxicated to the degree that he was a danger to himself or others. We disagree.
“A person commits an offense if the person'appears in a public place while intoxicated to the degree that the person may endanger the person or another.” Tex. Penal Code Ann. § 49.02(a) (West 2011). “ ‘Intoxicated’ means; (A) 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
The State argues the record shows the officers had a reasonable belief that Appellant was intoxicated in a public place and constituted a danger ¡to himself or others because he would eventually drive home from Whataburger. It is undisputed that the Whataburger and parking lot were public places. See York v. State,
In pertinent part,, Deputy Atchison testified that when he arrived at the convenience store- and Whataburger, he noticed an -unoccupied vehicle running in the parking lot. The headlights and blinker were both turned on.-Atchison found Appellant sitting aloné inside Whataburger. Appellant claimed ownership of the unoccupied vehicle. Atchison noticed that Appellant’s eyes were red .and. watery, and he smelled of alcohol. Appellant said that he had been drinking beer.at the Half Moon, about a half block away. He told Atchison that he drove home, changed clothes, and returned to Whataburger. Atchison took Appellant outside and .asked Londoff. to administer an HGN test. After.the test, Atchison arrested Appellant for public intoxication.1
. The intoxication related Tacts known to Deputy Atchison at the time of the arrest are that (1) Appellant left his truck'running in the parking lot with the' blinker and headlights turned on, (2) Appellant’s eyes were red and watery, (3) Aрpellant smelled of alcohol, (4) Appellant stated he drank a few beers at a bar that night, and (5) Londoff administered an HGN test, after which. Atchison arrested Appellant. Based-on those facts, the trial court could reasonably infer that Appellant’s alcohol consumption impaired his mental faculties1 and caused him to leave his truck running in the parking lot with the blinker and headlights turned on. The trial court could further reasonably infer that Atchison observed Londoff administering the - HGN test, and that the test provided more evidence of intoxication.
Based on the evidence adduced and the reasonable inferences that can be made from it, the trial court could 'reasonably conclude the facts and circumstances within Atchison’s knowledge were sufficient to warrant a, belief that Appellant committed public., intoxication. , See Amador,
In his fourth issue, Appellant argues that his warrantless public intoxication arrest was unlawful because the offense was not committed in a peace officer’s presence or view. See Tex. Code Crim. Proc. Ann. art. 14.01. He contends this is so because his behavior in the officers’ presence did not demonstrate' that he was a danger to himself or others. We have held that Deputy Atchison had probable cause to arrest Appellant for public intoxication. The evidence shows that Appellant was intoxicated in Atchison’s presence while his truck was running in the Whataburger parking lot. We conclude that the public intoxication arrest was lawful without a warrant because the offense was committed in At-chison’s presence. See id.
After giving almost; total deference to the trial court’s determination of the historical facts, and reviewing de novo the trial court’s application of the law to facts not based on an evaluation of credibility and demeanor, we conclude that, given the totality of the circumstances, the State carried its burden to justify- Appellant’s war-rantless arrest by Atchison. See Neal,
Voluntariness of Consent
In his fifth issue, Appellant argues that the trial court erred by denying his motion to suppress on the ground that his consent to the breath test was involuntary. He contends the DIC-24 statutory warnings read to him were inapplicable and inaccurate because he was not lawfully arrested for an offense involving the operation of a motor vehicle while intoxicated. See Tex. Transp. Code Ann. § 724.002 (West 2011). Consequently, he argues that his consent was coerced by the inaccurate warning that his refusal would result in the suspension of his driver’s license.
However, because Appellant’s DWI arrest was lawful, the DIC-24 warnings were accurate and did not result in Appellant’s involuntary consent. Accordingly, we overrule Appellant’s fifth issue.
Corpus Delicti
In Appellant’s sixth issue, he argues that the trial court erred by denying his motion for acquittal based on the State’s failure to establish the corpus delicti of DWI outside his extrajudicial confession.
Standard of Review and Applicable Law
The corpus delicti rule is one of evidentiary sufficiency and affects cases in which there is an extrajudicial confession. Miller v. State,
To satisfy the corpus delicti rule, there must be evidence independent
Every crime has three component parts: (1) the occurrence of a specific kind of injury or loss, (2) someone’s criminality as the source of the loss, and (3) the accused’s identity as thе perpetrator of the crime. Salazar v. State,
Analysis
To prove Appellant’s guilt, the State relied in part on his statements to Deputy Atchison prior to his arrest: Atchison testified Appellant told him that the truck outside was his. Appellant said that he had been at the Half Moon that night: He said he had a few beers, went home, changed clothes, and rеturned to Whataburger. At-chison testified, “The only way that I knew that he had remotely been in the car is just by him saying, you know, T was driving the car.’ ”
Appellant argues that the corpus delicti rule is not satisfied in this case because no independent evidence was adduced at trial to show that (1) Appellant was the one who drove, (2) the vehicle was operating, or (3) Appellant was intoxicated at the time of driving.' Our task as an appellate court is to consider all the record evidence, other than the extrajudicial confession, in the light most favorable to the verdict, and determine whether that evidence tends to establish that someone operated a motor vehicle in a public place while intoxicated. See Fisher,
Viewed in the light most favorable to the verdict, the evidence outside the extrajudicial confession shows that Appellant’s credit card was used to phy for six beers at the Half Moon at 12:54 a.m, Atchison found ’d vehicle running in the parking lot of a convenience store and Whataburger two doors down from the Half Moon at around 1:30 to 1:40 a.m. Atchison asked several people inside the store and restaurant whether the vehicle was theirs, but none of them claimed ownership. Atchison found Appellant sitting alone inside .Wha-taburger. He had red, watery eyes and smelled of alcohol; No one approached At-chison and told him that they were with Appellant, that the vehicle was theirs, or that they had driven Appellant to the location. .
The evidence similarly shows that 'no one approached Trooper Hartman and claimed any connection with Appellant or the vehicle. Hartman administered field sobriety tests on Appellant. He exhibited one of eight clues on the walk and turn test, two of four clues on the one leg stand test, and all six clues on the HGN test. Appellant submitted breath specimens at
Considering all the evidence independent of Appellant’s extrajudicial confession in the light most favorable to the trial court’s verdict, we,conclude that this evidence renders the corpus delicti more probable than it would be without the evidence. See Gribble,
Evidentiary Sufficiency .
In Appellant’s seventh, eighth, and ninth issues, he argues that the evidence is legally insufficient to support his conviction fоr DWI. Specifically, he argues that there is insufficient evidence that he was the driver of the vehicle, that.he “operated” the vehicle, or that he was intoxicated at the time of driving.
Standard of Review and Applicable Law
In reviewing the sufficiency of the evidence, the appellate court must determine whether, considering all the evidence in the light most favorable to. the verdict; the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia,
To satisfy the elements of DWI, the State was required to prove that Appellant operated a motor vehicle in a public place while intoxicated. See Tex Penal Code Ann. § 49.04(a). “Intoxicated” is defined as “(A) 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; or (B) having an alcohol concentration of 0.08 or more.” Id. § 49.01(2).
Analysis
At trial, Anthony Trovato testified that he was the ■ owner of and custodian of business records for the Half Moon, A credit card tab bearing Appellant’s name, a handwritten tip and total, an illegible signature, a time of 12:54 a.m., and the dates November 23 and 24 of 2013 was admitted in. evidence. The tab does not show what was purchased. A completely typewritten credit card, tab bearing the same subtotal, tip, and total amounts was also admitted. It shows the purchase of six Miller Lites. The time on the tab is 12:58 a.m., and the date is November 24, 2013. Trovato testified that the two tabs were for the same credit card.
Atchison testified that he suspected Appellant was guilty of public intoxication. He took Appellant outside and asked Lon-doff to administer an HGN test. Londoff administered the test and told Atchison something that confirmed his suspicion. Then Atchison arrested Appellant for public intoxication.
Trooper Davenport testified that he heard something on the sheriffs office radio channels that led him to go to the scene. Atchison related to Davenport what was happening. Based on the circumstances, Davenport believed that Appellant was guilty of DWI. Davenport’s shift was about to end, so Hartman investigated the possible DWI.
Trooper Hartman testified that when he contacted Appellant, he noticed that he smelled strongly of alcohol. He said that he was certified to -administer the HGN, walk-and turn, and one. leg stand tests. Hartman testified that he saw six of six clues on Appellant’s .HGN test, one of eight on the walk and turn, and two of four on the one leg stand. A DVD with Hartman’s in-car video without audio was admitted in evidence.
Hartman testified that after the tests were completed, he arrested Appellant for DWI. He read Appellant' his Miranda and DIC-24 statutory warnings. Hartman requested and obtained consent for a breath test. He transported Appellant to jail and administered the breath test. Hartman testified that at some point, he “r[a]n a check on [Appellant’s] license” and confirmed the vehicle was registered to Appellant.
DPS technical supervisor Scott Brown testified that the breath testing instrument was operating properly. A printout' of Appellant’s test results was admitted in evidence. It shows alcohol concentrations of 0.117 and 0.123 at 2:44 and. 2:47, respectively. Brown said that he would have to make assumptions to be able to say whether Appellant was"intoxicated at the time he drove,
According to Appellant, outside of his extrajudicial statements, there is no admissible evidence that he was the person who drove the vehicle. An extrajudicial confession is sufficient to establish the identity of the perpetrator of a crime. Emery v. State,
Appellant also argues that evidence he “operated” the vehicle is insufficient. “Operation” of a vehicle is.shown when the totality of the circumstances demonstrates that the defendant took action to affect the functioning of the vehicle in a manner that would enable its use. Denton v. State,
Finally, Appellant challenges the sufficiency of the evidence that he was intoxicated at the time he drove. For evidence to be sufficient to support a DWI conviction, there must be a temporal link between the defendant’s intoxication and his driving. Kuciemba v. State,
Admissibility of Evidence
In Appellant’s tenth issue, he argues that the trial court erred by admitting Hartman’s testimony that the vehicle was registered to him over his hearsay and best evidence objections.
Standard of Review and Applicable Law
Generally, we review a trial court’s decision to admit evidence under an abuse of discretion standard. See Martin v. State,
Hearsay is generally not admissible. See Tex. R. Evid. 802. Once an opponent of hearsay objects, it becomes the burden of the proponent to establish that an exception makes the hearsay admissible. Taylor v. State,
Under the best evidence rule, an original writing, recording, or photograph is required to prove its content unless the rules or another law provides otherwise. Tex. R. Evid. 1002.
Analysis
At trial, the State elicited testimony from Trooper Hartman that he “r[a]n a check on [Appellant’s license” and “[was] able to confirm that that was his own vehicle.” Defеnse counsel timely objected to the testimony on the grounds of hearsay and best evidence. The' State argued that the testimony was admissible under the public records exception. No record of the vehicle’s ownership was admitted into evidence. And the appellate record indicates that no such record was produced in court.
By its explicit terms, Rule 803(8) provides a hearsay exception for certain “records” and “statements” of public offices. Testimony regarding the contents of such documents may also be admissible over hearsay objections when the documents are produced in court, even when the documents are not admitted into evidence. Butler v. State,
The court of criminal appeals considered a similar issue in Lumpkin v. State,
Although the records in Lumpkin were business records, the rationale behind the
Here, there is no indication that defense counsel ever saw the records in question. She apparently was afforded no opportunity, to. examine the records or use them .in cross-examining Trooper Hartman. Cf. id. Without the records being admitted into evidence or at. least produced at trial, Hartman’s testimony regarding their contents amounts to hearsay without an exception. See Lumpkin,
Having concluded that the trial court erred in admitting-the testimony, we must determine whether the error affects Appellant’s substantial rights. See Tex. R. App. P. 44.2(b).-To make this determination, we must decide whether the error had a substantial or injurious effect on the verdict. Morales v. State,
One of Appellant’s theories at trial was that the State could not establish the corpus delicti of DWI outside his extrajudicial confession. The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. Folk,
Another of Appellant’s theories at trial was thаt the evidence did not show beyond a reasonable doubt that Appellant was the driver, However, Appellant’s statements to
Accordingly, we conclude that the above evidence rendered the truck registration evidence harmless. See Cozby v. State,
Disposition
Having overruled Appellant’s ten issues, we affirm the trial court’s judgment.
Notes
. This individual is variously referred to in the record as "the fire marshal," “Londoff,” and “Landoff.” We will refer to him as “Lon-doff'’ in this opinion.
. The record shows that the trial court suppressed statеments made by Appellant after Atchison’s arrest because he was not Miran-dized.
. Below, we conclude that this evidence is inadmissible. But in a legal sufficiency review, we are required to consider all of the evidence in the record, whether it is admissible or not. See Dewberry,
. When objecting, defense counsel stated, “If they have a registration rather than testifying to the hearsay and best evidence, they need a copy of it, if it’s admissible in this court and reliable.” The prosecutor responded, “We don’t believe he has to have certified copies of those public records to get through the exception of hearsay.” The trial court asked the State, “Are you purporting or representing that it’s a public record based on his record alone, and you don’t have to have a document or it certified?"