# Davis v. State

> Texas Court of Appeals, 1st District (Houston) · October 3, 1996 · 930 S.W.2d 765

URL: https://www.frixlaw.com/law-library/cases/9665872

## Case

- **Full name:** Donnel DAVIS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** October 3, 1996
- **Citations:** 930 S.W.2d 765; 1996 WL 477009
- **Precedential status:** Published
- **Opinion:** Dissent by Andell
- **Judges:** Hutson-Dunn, Andell, O'Connor, Schneider, Cohen, Mira-Bal, Wilson, Hedges, Taft, Hutson-Dunn'S
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9665872

## How later opinions describe it (automated extraction)

- holding counsel not ineffective for failure to request lesser- included offense because all-or-nothing approach was strategy decision
- finding defendant failed to satisfy the first prong of Strickland because, without testimony by trial counsel, the court could not meaningfully address his reasons for not filing a motion to suppress
- holding that without testimony from trial counsel, the reasons for counsel’s actions cannot be meaningfully addressed

## Opinion text

ANDELL, Justice,
dissenting.
I respectfully dissent. Based on the record, I would hold counsel’s representation was ineffective. Appellant was arrested without a warrant for the offense of public intoxication. The crack pipe was discovered during a search of appellant made pursuant to that arrest. Counsel did not file a motion to suppress the crack pipe. He asked but one question on voir dire to the panel as a whole: ‘Would you give greater weight to the testimony of a police officer just because he was a police officer?” — using an analogy in which an officer testifies a traffic light was red and a defendant testifies it was green— and sought a show of hands in response, row by row. He later advised his client not to *770 take the stand, so there was no greater or lesser weight to actually be given by the jury to testimony. He did not except to the trial court’s denial of his request to take Officer Hampton on voir dire. In closing argument, counsel focused his energy on only two points: the inappropriateness of a search into appellant’s underwear by a female officer and the miniscule amount of cocaine obtained by washing out the pipe. He did not discuss suppression of the evidence based on an absence of probable cause to arrest appellant. He did not raise a fact issue concerning the legality of the arrest.
When the crack pipe containing the 1.6 milligrams of cocaine residue was offered for admission, counsel made a perfunctory objection to its introduction, saying he “renewed” his objection on the grounds it was “illegally obtained by an illegal search and seizure going much further than Terry, the guiding case, ever intended.” No previous objection is in the record. More importantly, the objection was not made on the proper grounds. Terry 1 is inapplicable to this case because appellant was arrested for public intoxication, not temporarily detained for investigation. When counsel did not raise a fact issue regarding the legality of the arrest, he could not seek a jury instruction on the issue of illegally obtained evidence, as authorized by article 38.23 of the Code of Criminal Procedure.
In a case recently decided by the Fourteenth Court of Appeals, the court held counsel was ineffective when he did not file a motion to suppress a crack pipe, object to its introduction, argue illegal arrest to the jury, or seek a jury instruction on illegally obtained evidence. Jackson v. State, 921 S.W.2d 809, 814 (Tex.App.—Houston [14th Dist.] 1996, no pet.). A criminal defense lawyer must have a firm command of the facts of a case and the governing law before he can render reasonably effective assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 398 (Tex.Crim.App.1990). Here, the record shows counsel did not have a firm command of either the facts or the governing law, as demonstrated by his misunderstanding of the suppression issue. When counsel did not properly pursue the issue of illegal arrest, his representation fell below an objective standard of reasonableness. I would hold the first prong of Strickland is satisfied. The question, then, is whether there is a reasonable probability the outcome would have been different had counsel argued the arrest was illegal.
An individual is publicly intoxicated if: (1) he appears in a public place; (2) under the influence of alcohol or any other substance; (3) to the degree he may endanger himself or another. Tex.Penal Code Ann. § 49.02(a) (Vernon 1994). A warrantless arrest for public intoxication is valid only if the arresting officer has reason to believe the suspect is not merely intoxicated, but intoxicated to the degree he may endanger himself or another. Berg v. State, 720 S.W.2d 199, 201 (Tex-App.—Houston [14th Dist.] 1986, pet. ref d). An officer’s determination as to possible danger is not reviewed under the same standard as the standard used to judicially determine guilt. Simpson v. State, 886 S.W.2d 449, 454-65 (Tex.App.—Houston [1st Dist.] 1994, pet ref d). The test is whether, at the moment of the arrest, the facts and circumstances were sufficient to cause a prudent man to believe the person was committing the offense. Id. at 454 . We look to the totality of the circumstances to determine probable cause. Id. An officer’s hunch, suspicion, or good faith perception is not enough, without more, to constitute probable cause. Id.
When asked what drew her attention to appellant, Hampton testified, “Because he was kind of glassy-eyed, wasn’t really — acting high, basically, is what he was acting.” When asked what appellant was doing to indicate intoxication, she testified, ‘Well, he was lethargic, just kind of standing around. He wasn’t really stumbling over himself or anything. I just looked at his eyes and to me, being out here as long as I have, he appeared to be intoxicated.” When asked about appellant’s balance, she replied, “Kind of — he was just kind of standing there like, you know, in a dazed manner.” Hampton further testified appellant was “probably intoxicated on something” and “could get hurt *771 or he could hurt someone else.” She believed “he could fall out on the street or walk off into the street or something like that.” Watson testified appellant did not have normal use of his physical and mental capabilities and anything could have happened to appellant. He testified appellant was in a bad location. “He could have walked out into the street, somebody could have drove [sic] by and shot up the place or anything, because it’s just a bad comer.”
There is a long line of Texas cases holding danger to self or others justifies a warrant-less arrest for public intoxication. The theme common to these cases embodies two components: (1) a description of the defendant’s appearance or behavior indicating gross intoxication and (2) a setting likely to produce imminent harm, usually because the defendant is in a ear or the street. See Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim.App.1979) (op. on rehearing) (glassy, bloodshot eyes, incoherent, head bobbing; sitting in ear blocking traffic); Dickey v. State, 552 S.W.2d 467, 468 (Tex.Crim.App. 1977) (wobbling, slurred speech, unable to walk without assistance when awakened; passed out in front seat of car parked on street); Bentley v. State, 535 S.W.2d 651, 652-53 (Tex.CrimApp.1976) (strong odor of alcohol, bloodshot eyes, slurred speech, swaying; attempting to buy snow chains for tires at gas station); Balli v. State, 530 S.W.2d 123, 126 (Tex.Crim.App.1975) (alcohol on breath, slurred speech, swaying, difficulty walking; walking down middle of street); Simpson, 886 S.W.2d at 455 (strong odor of alcohol, bloodshot eyes, slurred speech; engaged in violent argument in middle of public street).
Less frequently, Texas courts have held a defendant was not intoxicated to the degree he posed a danger to himself or others. In these cases, the facts do not strongly support a holding of dangerousness either because the defendant did not appear to be extremely intoxicated or the setting was relatively benign. See Davis v. State, 576 S.W.2d 378, 380 (Tex.Crim.App.1978) (unsteady, slurred speech; walking on sidewalk); Commander v. State, 748 S.W.2d 270, 271-72 (Tex.App.— Houston [14th Dist.] 1988, no pet.) (glassy-eyed, smelled of alcohol, unsteady; leaning against car in driveway); Berg, 720 S.W.2d at 201 (odor of alcohol, thick-tongued, unsteady; browsing in airport gift shop).
The facts of this case are consistent with the facts in cases holding there was no probable cause to arrest. At the time of his arrest, appellant was standing in front of an apartment complex in a moderately-trafficked’ residential area. One officer testified appellant was a car length from the street; the other said appellant was 30 feet from the street. The officers did not describe appellant as slurring his speech, swaying, staggering, stumbling, incoherent, or unable to walk on his own. Appellant was standing outside but was not in a parking lot, in a car, or in the street. There was no testimony showing appellant was walking toward the street or preparing to drive a ear.
Despite the good faith concerns of the patrol officers, I am not convinced the element of danger to self or others was established sufficiently to justify the arrest. The State’s case rested entirely on the crack pipe found during the search of appellant. Without probable cause to arrest, the search was not legal and the fruits of the search would have been inadmissible. I would hold counsel’s error in not attacking the legality of the arrest was of a sufficient magnitude to raise a reasonable probability the outcome of the trial would have been different but for the error. I would sustain the point of error and reverse the judgment.
O’CONNOR, J., joins this en banc dissent.
. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9665872. Public record. Not legal advice.