# Britton v. State > Court of Criminal Appeals of Texas · March 21, 1979 · 578 S.W.2d 685 URL: https://www.frixlaw.com/law-library/cases/9682751 ## Case - **Full name:** Yancy Leroy BRITTON, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 21, 1979 - **Citations:** 578 S.W.2d 685 - **Precedential status:** Published - **Opinion:** On rehearing by Davis - **Judges:** Vollers, Davis, Clinton, Roberts, Phillips, Vol-Lers, Onion - **Cited by:** 79 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/9682751 ## How later opinions describe it (automated extraction) - affirming conviction based on article 4476-15 for possession of heroin, with enhanced sentence under section 12.42 ## Opinion text OPINION ON STATE’S MOTION FOR REHEARING TOM G. DAVIS, Judge. On original submission the panel reversed this case, relying on Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App.); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.), and Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.), insofar as these cases related to the essential elements of public intoxication. The panel relied on these cases to determine whether the appellant was shown to have been intoxicated “to the degree that he may endanger himself or another.” It must be borne in mind that we are here faced with the question of proof necessary to establish probable cause for arrest rather than proof essential to a judicial determination of guilt. The test of probable cause for an arrest without a warrant as stated by the United States Supreme Court in Beck v. Ohio, 379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 and McCray v. Illinois, 386 U.S. 300 , 87 S.Ct. 1056 , 18 L.Ed.2d 62 , is: “Whether at that moment the facts and circumstances within the officer’s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.” Thus, when an officer is confronted with a person intoxicated in a public place, his determination as to possible danger that may befall the individual is not reviewed under the same standard used in a judicial determination of guilt. In the instant case, the appellant was first observed at 1:50 a. m. sitting as a passenger in a car blocking both westbound lanes of Ross Avenue in Dallas. The car did not move through a changing of the traffic light while the appellant appeared to be conversing with a young woman standing on the corner. Only when the patrol ear turned on its red lights was the car driven to the curb. The driver got out of the vehicle and talked with the other officer while the arresting officer approached the passenger side of the car. He had observed that the appellant’s head was bobbing and weaving back and forth. The officer noticed that appellant’s eyes were bloodshot and glassy. The appellant was unable to respond to questions from the officer, only mumbling incoherently. The appellant stepped out of the car at the officer’s request. When asked for identification, the appellant fumbled around, patted his pocket, and finally stated that he had no identification. The officer arrested appellant and a search incident thereto resulted in the officer finding heroin in the appellant’s pocket. The appéllant was in a public place and the officer observed sufficient characteristics to support his belief that the appellant was intoxicated. This is not an arrest of an intoxicated person who was merely a passenger in a vehicle under ordinary circumstances, but rather an intoxicated person who was sitting in a car that had blocked two lanes of traffic and failed to move through a change of the traffic lights. Even though appellant was not the driver of the vehicle, the officer could have reasonably concluded that appellant was placed in a position of danger by sitting in a car blocking two lanes of traffic. It is reasonable to assume that had appellant not been intoxicated he would have urged the driver to correct the situation or removed himself from the vehicle. It would appear that the potential for danger to this appellant was as great as that of the defendant in Balli v. State, supra, who was walking down the middle of a vacant public street in Plain-view after dark. To determine the sufficiency of the evidence to establish the offense of public intoxication, this Court in Balli, Dickey, and Bentley looked to potential danger rather than present danger to the accused or others. The officer’s observations of the appellant were sufficient to support a conclusion that appellant was intoxicated. This, coupled with his view of appellant’s position of *690 peril as a passenger in a vehicle blocking two lanes of traffic on Ross Avenue in Dallas, was sufficient to warrant a prudent man in believing that appellant was committing an offense. There was probable cause for the officer to arrest appellant. No error is shown in the admission into evidence of the heroin seized in the search of appellant incident to such arrest. The contentions advanced by appellant in a pro se brief have been reviewed and found to be without merit. The State’s motion for rehearing is granted and the judgment is affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682751. Public record. Not legal advice.