affirming conviction based on article 4476-15 for possession of heroin, with enhanced sentence under section 12.42
How later courts described this case
- affirming conviction based on article 4476-15 for possession of heroin, with enhanced sentence under section 12.42
- glassy, bloodshot eyes, incoherent, head bobbing; sitting 12 in car blocking traffic
- glassy, bloodshot eyes, incoherent, head bobbing; sitting in car blocking traffic
- glassy, bloodshot eyes, incoherent, head bobbing; sitting in ear blocking traffic
Written by the judges who cited it.
The opinion
PHILLIPS, Judge,
dissenting.
The majority misconstrues the original panel opinion as having placed an unjustified and stringent standard on the discretion of peace officers to make an arrest. Reliance was had on this Court’s opinions in 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.), in order to make clear what the elements of the offense of public intoxication were. That offense consists of more than mere intoxication in a public place. It requires extreme intoxication and public presence under circumstances that indicate a danger to self or others. The question presented in this search and seizure issue was whether the police officer had a reasonable and rational basis for making an arrest for that offense.
The facts showed appellant was a passenger in a vehicle which was stopped improperly on a public street. However, when the officer made his observations and arrested appellant, the vehicle was safely curbed. Further, the driver of the offending vehicle was not arrested, which did not hinder appellant’s safe passage to wherever he was journeying. Finally, there was no testimony that appellant appeared in danger or as a threat to the security of others. The majority relies heavily on a new legal duty for passengers to correct a driver’s errors or exit.
To be frank, this arrest appears to be a pretext to permit a further exploratory pat-down or search. Once the traffic violation was cured and the decision made to release the driver, the police had no business rousting the passenger.
The liberal construction placed on the probable cause required for an arrest for public intoxication effectively resurrects the former vagrancy statutes which had been ruled unconstitutional. See Papachristou v. City of Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972). Our citizens who imbibe are now subject to erratic and capricious interference from peace officers, notwithstanding hitherto respected constitutional protections (see Amendment IV, U.S. Constitution; Article I, Section 9, Texas Constitution) and a legislative effort to establish objective standards for law enforcement (see V.T.C.A., Penal Code, Section 42.01).
I adhere to my original opinion and incorporate it by reference herein as further reason to dissent.