IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0510-25
THE STATE OF TEXAS
v.
GRADY JACK BARBER, Appellee
ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS LIBERTY COUNTY
PARKER, J., delivered the opinion of the Court in which YEARY, NEWELL, WALKER, MCCLURE, and FINLEY, JJ., joined. YEARY, J., filed a concurring opinion. FINLEY, J., filed a concurring opinion. SCHENCK, P.J., filed a dissenting opinion in which RICHARDSON, J., joined and KEEL, J., joined as to part IIB.
OPINION
Certain statutes authorizing warrantless arrests require that an offense be
committed within the arresting person’s “presence” or “view.” Does a DWI or
intoxication-manslaughter offense occur in the officer’s “presence or view” if the BARBER — 2
officer arrives 40 minutes after the defendant has crashed and is no longer
operating his vehicle? Does a public intoxication offense occur in the officer’s
presence or view if, when the officer arrives, the defendant is no longer at a place
in which he poses a danger to himself or others due to his intoxication? The
obvious answer to these two questions is “no,” but the court of appeals said
“yes.”1 The court of appeals based its holding on this Court’s prior decision in
State v. Woodard and construed that decision to hold that an offense need not occur
in the officer’s presence or view to satisfy the “presence or view” requirement.2
We now conclude that, to the extent Woodard construed the “presence or view”
requirement, the decision was obviously wrong, and we now disavow it.
Consequently, we reverse the judgment of the court of appeals and remand for
further proceedings.
I. BACKGROUND
A. Trial
A witness saw Appellee consume two alcoholic beverages at a bar in Liberty
County. The witness also saw Appellee drive off and strike another vehicle (on a
1 State v. Barber, No. 09-24-00313-CR, 2025 WL 1749999, *5 (Tex. App.—Beaumont June 25, 2025) (not designated for publication). 2 Id.; see also State v. Woodard, 341 S.W.3d 404, 414 (Tex. Crim. App. 2011). BARBER — 3
Liberty County highway). The driver of the other vehicle died from the crash.
After the crash, Appellee was transported by ambulance to a hospital in Harris
County. A Dayton (Liberty County) police officer, E.L. Ibarra, arrived at the scene
40 minutes after the crash and interviewed the witness who saw Appellee consume
alcohol and drive. Officer Ibarra performed no field sobriety tests due to Appellee
being transported to the hospital.3
Officer Ibarra alleged all of these facts (except the hospital’s location) in a
probable-cause affidavit for a search warrant to test Appellee’s blood for alcohol.
The officer marked a checkbox next to the language, “Observed, indicated
impaired driver,” but he struck through the word “observed” and wrote his
initials. A Liberty County judge issued a warrant. The warrant was executed at the
hospital (in Harris County), and a sample of Appellee’s blood was drawn and
tested.
Appellee was indicted for intoxication manslaughter. He filed a motion to
suppress the test results. The parties called no witnesses at the suppression
hearing. Instead, they submitted documentary evidence, including the probable-
cause affidavit, and a written stipulation of facts.
3 The record is silent on whether Appellee was even at the scene when the officer arrived. BARBER — 4
At the time of the warrant, Article 18.067 provided that a warrant for blood
testing may be executed in any county adjacent to the county in which the warrant
issued and by “any law enforcement officer authorized to make an arrest in the
county of execution.”4 Appellee argued that the Liberty County police officer was
not authorized to make an arrest in Harris County—where the warrant was
executed—because Article 14.03(d) permits an out-of-county police officer to
make such an arrest only for certain offenses committed “within the officer’s
presence or view.”5 Consequently, Appellee argued, the execution of the warrant
was invalid. We pause to observe that the issue wasn’t whether Appellee was
validly arrested; the issue was whether the search warrant was validly executed.
But a portion of Article 18.067 tied the validity of a search warrant’s execution to
whether the officer had the (hypothetical) authority to arrest the defendant,
whether or not such an arrest took place. After hearing arguments, the trial court
took the case under advisement.
The trial court made written findings, which included:
4 See TEX. CODE CRIM. PROC. art. 18.067 (West 2022). The second part of the statute has since been removed by amendment. See id. art. 18.067 (West 2024). 5 See id. art. 14.03(d) (“A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace.”). BARBER — 5
7. [P]robable cause was shown for the issuance of the blood search warrant.
*** 13. Officer lbarra arrived on the scene of the motor vehicle crash after it had occurred.
14. [T]he motor vehicle crash did not occur within Officer lbarra’s physical presence or view.
15. Officer Ibarra did not observe the Defendant prior to or at the time of the motor vehicle crash.
The trial court ultimately granted the motion to suppress.
B. Appeal
On appeal, the State contended that Article 14.03(d) gave the Liberty
County police officer the authority to arrest Appellee in Harris County for
intoxication manslaughter. The court of appeals agreed.6 Relying upon Woodard,
the court of appeals held that Article 14.03(d) did not require the police officer to
see the offense or even be in the vicinity when the offense was committed:
The fact that Ibarra did not see Barber commit the offense does not determine whether Ibarra could arrest Barber without a warrant for an offense committed “in his presence or in his view,” because Ibarra could consider all the information he knew before the arrest to determine whether there was sufficient information for him to believe
6 Barber, 2025 WL 1749999, at *4-5. BARBER — 6
Barber committed the offense.7
The court of appeals concluded that Ibarra “had the authority to arrest Barber
without a warrant in Harris County for committing an offense in violation of
Chapter 49 within Ibarra’s presence or view.”8 Sustaining the State’s issue, the
court of appeals reversed the trial court’s suppression order and remanded the case
for further proceedings.9
7 Id. at *5. The court of appeals also said that Officer Ibarra stated in the probable-cause affidavit that Appellee “indicated signs of impaired driving.” Id. at *1. But as explained earlier, the officer struck through the word “observed,” indicating that he did not in fact observe any impaired driving but was inferring impairment from information he obtained from a witness. And in line with the State’s arguments before it, the court of appeals said, “Ibarra also relied on his personal observations of Barber at the hospital,” id. at *4-5, but nothing in the record explicitly substantiates the assertion that Ibarra observed Appellee at the hospital. 8 Id. at *5. 9 Id. We granted review of the following issue:
Is an officer authorized to make an arrest for an alleged offense as “within his presence or view” when he has probable cause to arrest due to his post-incident investigation, even though the alleged offense occurred neither in his actual presence nor in his actual view?
The dissent seeks to address other issues, and it claims that we avoid answering the issue in the case, but, in fact, we resolve the only issue upon which discretionary review was granted. The dissent claims that we misconstrue former Art. 18.067 to conjunctively impose the “adjacent county” and “authorized officer” requirements instead of permitting either to be satisfied. But in fact, we do not construe former Art. 18.067 at all. The trial court, the parties (at least on appeal and discretionary review), and the court of appeals have all read the statute to impose these requirements conjunctively, and it seems entirely possible that they hadn’t even conceived of a disjunctive reading. See e.g., State’s brief to the court of appeals at vii-viii (“Thus, in compliance with the plain language of Article 18.067, in the case at hand the warrant for a blood specimen in an intoxication offense was issued from an adjacent county and executed by an officer with the authority to make an arrest in the executing county.”); Barber, 2025 WL BARBER — 7
1749999, at *4 (“We agree that an officer with the Dayton Police Department, who is not authorized to make an arrest in Harris County, needs the assistance of an officer with jurisdiction in Harris County to execute a search warrant to seize a blood specimen.”). Alternatively, the dissent contends that we should hold that Art. 38.23 is unavailable as an enforcement mechanism for violations of Art. 18.067 or that the good faith exception in Art. 38.23 applies. But the court of appeals did not address either of these Art. 38.23 issues and, instead, found no law violation to trigger Article 38.23—due to its construction of the words “presence” and “view” in Art. 14.03(d). Further, the State did not raise any of the dissent’s issues to this Court in a petition or briefing, and those issues can be addressed by the court of appeals on remand, if they are properly before that court. See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (Error- preservation rules apply to the State when it is the appellant.). The dissent also says that we should address the good-faith issue because our disavowing of Woodard has made its resolution clear, but while the State prosecuting attorney, as amicus, has raised the good faith issue, it seeks only a remand for the court of appeals to address it, and Appellee, in response, advances an argument against the good-faith exception that purports not to turn on the viability of Woodard (arguing that the good faith exception turns on reliance on a warrant and “does not protect reliance on a mistaken reading of the statutes that define an officer’s jurisdiction”). Assuming there is no preservation obstacle to asserting the good faith issue, we nevertheless find it appropriate to adhere to our usual practice of leaving issues not previously addressed by the court of appeals to the court of appeals on remand, especially when the unaddressed issue has not been raised in a petition for discretionary review. See Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022) (“[T]his Court reviews only decisions of the courts of appeal unless ‘the proper resolution of the remaining issue is clear.’”) (brackets inserted); McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014) (“The parties make a number of substantial arguments in support of their respective positions in this Court, and our resolution of the issue (if any should even be necessary after a remand) would benefit from a carefully wrought decision from the court of appeals.”); cf. Contreras v. State, 312 S.W.3d 566, 574 n.17 (Tex. Crim. App. 2010) (declining to address issues raised in a brief because they were not raised in the petition for discretionary review); Whatley v. State, 946 S.W.2d 73, 76 n.6 (Tex. Crim. App. 1997) (finding it inappropriate to address an issue that was neither addressed by the court of appeals nor raised in a petition to this Court). Ultimately, the dissent’s approach seems to be “appeal de novo”—similar to a “trial de novo” that sometimes occurs in an appeal from a low-level trial court or an administrative agency to a higher level trial court (such as an appeal from a justice court to a statutory county court). See In re A.L.M.-F., 593 S.W.3d 271, 277-79 (Tex. 2019) (setting out examples of “trial de novo” situations). “A ‘trial de novo’ is a new and independent action in the reviewing court with ‘all the attributes of an original action’ as if no trial of any kind has occurred in the court below.” Id. at 277. It is essentially a “redo” of the trial. Similarly, the dissent wishes to “start over” and “redo” this appeal. But that is not how a discretionary-review court operates, which only sparingly and in unusual circumstances addresses issues that have neither been raised in a petition nor addressed by the court of appeals. See Osorio-Lopez, 663 S.W.3d at 757; Davison v. BARBER — 8
II. ANALYSIS
A. “Presence or View”
Article 14.03(d), a key statute upon which the court of appeals relied,
provides that a warrantless arrest can be made for certain offenses committed
within an officer’s “presence or view”:
A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace.10
At least five other provisions contain similar language:
! Article 14.01(a):
A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
! Article 14.01(b):
A peace officer may arrest an offender without a warrant for any offense
State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013) (saying that we “ordinarily” do not address issues not addressed by the court of appeals but that there are “exceptions” to that practice); Ex parte Doster, 303 S.W.3d 720, 721 & n.2 (Tex. Crim. App. 2010) (noting that a “threshold” issue—such as pretrial habeas cognizability—can be granted on the Court’s own motion even though it was neither raised by the parties nor addressed by the court of appeals). 10 TEX. CODE CRIM. PROC. art. 14.03(d) (emphasis added). BARBER — 9
committed in his presence or within his view.
! Article 14.03(b):
A peace officer shall arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under Section 25.07, Penal Code, if the offense is committed in the presence of the peace officer.
! Article 14.03(g)(1):
A peace officer described by Article 2A.001(1), (2), or (5), who is licensed under Chapter 1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, other than a violation of Subtitle C, Title 7, Transportation Code.
! Article 14.03(g)(2):
A peace officer described by Article 2A.001(3), who is licensed under Chapter 1701, Occupations Code, and is outside of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within the officer’s presence or view, except that an officer described in this subdivision who is outside of that officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.11
Another statute allows an officer to arrest for an offense committed in a
magistrate’s presence or view:
A peace officer may arrest, without warrant, when a felony or breach
11 Id. arts. 14.01(a), (b); 14.03(b), (g) (emphasis added). BARBER — 10
of the peace has been committed in the presence or within the view of a magistrate, and such magistrate verbally orders the arrest of the offender.12
Other warrantless arrest provisions do not contain a “presence or view”
requirement.13 And two provisions explicitly negate a “presence or view”
requirement:
Any peace officer may arrest, without warrant:
*** (3) persons who the peace officer has probable cause to believe have committed an offense defined by Section 25.07, Penal Code, if the offense is not committed in the presence of the peace officer; *** (5) persons who the peace officer has probable cause to believe have prevented or interfered with an individual's ability to place a telephone call in an emergency, as defined by Section 42.062(d), Penal Code, if the offense is not committed in the presence of the peace officer.14
One of these provisions that negates a “presence or view” requirement is a
counterpart to a provision that makes arrest mandatory if “presence or view” is
satisfied—that is, for certain offenses, an officer may arrest if the offense is not
committed in presence or view but shall arrest if the offense is committed within
12 Id. art. 14.02 (emphasis added). 13 Id. arts. 14.03(a)(1), (2), (4), (6), (7), 14.04. 14 Id. art. 14.03(a)(3), (5) (emphasis added). BARBER — 11
presence or view.15 Most “presence or view” provisions, however, permit an
arrest but do not require one.16
B. Plain Meaning
So, it is rather important to correctly construe what this “presence or view”
language means. The standard for construing a statute is set out in our seminal
case of Boykin v. State: courts must give effect to the plain meaning of its text,
unless the text is ambiguous or the plain meaning leads to absurd results that the
Legislature could not have possibly intended.17 The Legislature is constitutionally
entitled to have us faithfully construe the text of a statute.18 And in conducting a
plain-meaning analysis, we presume that “every word in a statute has been used for
a purpose and that each word, phrase, clause, and sentence should be given effect if
reasonably possible.”19
15 Compare id. art. 14.03(a)(3) (arrest permitted if not in presence or view) to id. art. 14.03(b) (arrest required if in presence or view). 16 Id. arts. 14.01(a), (b); 14.03(d), (g). 17 Milton v. State, 721 S.W.3d 300, 303 (Tex. Crim. App. 2025); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 18 See Milton, supra at 306 (quoting from Boykin, supra (“[T]he Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.”)) (brackets inserted). 19 Ex parte Bodden, 707 S.W.3d 399, 405 (Tex. Crim. App. 2025); see also Milton, supra at 303 (“Plain meaning is determined by reading the statute in context, reasonably giving effect to BARBER — 12
Adding to our general presumption that each word has meaning is the fact
that a “presence or view” requirement (or some facsimile) exists in some arrest
statutes, is absent from other arrest statutes, and is expressly negated in a couple of
arrest statutes. Given this distribution, it stands to reason that the Legislature
specifically intended the “presence or view” language to add meaning beyond the
standard probable-cause requirement (that a crime was committed in the past) that
many of the Texas arrest statutes contain.20 And whatever else the “presence or
view” language might mean, it plainly appears to exclude an officer who did not
perceive the offense through one of his five senses and did not arrive at the scene
until after the offense was complete and no longer being committed. This plain
reading comports with caselaw decided before Woodard that holds, “An offense is
each word, phrase, clause, and sentence, and construing the text according to applicable rules of grammar and common usage.”). 20 See TEX. CODE CRIM. PROC. arts. 14.03(a)(1) (“found in suspicious places and under circumstances which reasonably show that such persons have been guilty of . . .” certain types of offenses), (a)(2) (“probable cause to believe have committed an assault resulting in bodily injury to another person and . . . probable cause to believe that there is danger of further bodily injury to that person”), (a)(3) (“probable cause to believe have committed an offense defined by Section 25.07”), (a)(4) (“probable cause to believe have committed an offense involving family violence”), (a)(5) (“probable cause to believe have prevented or interfered with an individual’s ability to place a telephone call in an emergency”), (a)(6) (“probable cause to believe that the person has committed a felony”), (a)(7) (“probable cause to believe has committed a felony offense while civilly committed as a sexually violent predator”), (b) (“probable cause to believe has committed an offense under Section 25.07”); 14.04 (“upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape”). BARBER — 13
deemed to have occurred within the presence or view of an officer when any of his
senses afford him an awareness of its occurrence.”21
In the present case, the officer did not see the accident and was not present
when it occurred (arriving 40 minutes later). And while the crime of DWI could be
a sufficient offense to justify arrest under Article 14.03(d), and an officer could
view such a crime if he merely saw a conscious but intoxicated defendant in the
vehicle with the engine running,22 we cannot conclude that Officer Ibarra saw or
was present during a DWI. There is in fact no evidence in this record that
Appellee was even at the scene when the officer arrived, much less that he was in
his vehicle with the engine running. All we know from the record is that the officer
talked to a witness who saw Appellee drink, drive, and collide. And we know that
Appellee was taken to the hospital, though we do not know how the officer knew
that. For the same reason, we cannot conclude that Officer Ibarra saw the crime of
public intoxication, which requires that the defendant “appear[] in a public place
21 State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). 22 See State v. Espinosa, 666 S.W.3d 659, 667-68 (Tex. Crim. App. 2023) (“A person is guilty of DWI if he operates a motor vehicle in a public place while intoxicated. To determine if a person operated a motor vehicle, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.”) (citing Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995); citations and internal quotation marks omitted). BARBER — 14
while intoxicated to the degree that the person may endanger the person or
another.”23 Nothing in the record suggests whether the officer ever saw Appellee,
and if he did, what the circumstances were. And even if we inferred, as the State
wishes us to do,24 that the officer saw Appellee in the hospital, the trial court would
be well within its discretion on this record to decide that Appellee no longer posed
a danger to himself or others at the hospital.
In its briefing, the State contended that Officer Ibarra could take advantage
of the “collective knowledge” doctrine to find that the offense was committed in
his presence or view. This doctrine allows the knowledge of other law-
enforcement officers to be imputed to the officer who makes the arrest, at least as
long as there is some degree of cooperation between them.25 We have indicated
that the doctrine applies to a statutory warrantless-arrest provision that
incorporates the “presence or view” requirement.26 But there is no evidence in
23 See TEX. PENAL CODE § 49.02(a). 24 See infra, discussing a contention made by the State at oral argument. 25 See State v. Martinez, 569 S.W.3d 621, 627 (Tex. Crim. App. 2019). 26 See id. at 625, 627, 630 (noting trial court’s reliance on Article 14.01(b) [which contained a presence-or-view requirement], holding “Under the facts of this case, the sum of the information known to the cooperating officers—their cumulative information—should be considered in assessing probable cause,” concluding that “the sum total of the knowledge of Officers Guerrero, Ramirez, and Quinn amounted to probable cause” that the defendant committed public intoxication, and concluding that “Appellee’s motion to suppress should have BARBER — 15
this case that any other law-enforcement officer witnessed events that could be
construed as the commission of a crime within that officer’s presence or view.
To the extent the State might be implying that Officer Ibarra could rely upon
non-law-enforcement civilians as part of a “collective knowledge,” we have never
extended the “collective knowledge” doctrine that far, and we decline to do so
under the facts before us. At least where, as here, the statute in question requires
that the offense occur in the officer’s presence or view, the statutory language
cannot support the idea that a non-officer’s observance of a crime can be imputed
to an officer to satisfy that requirement.27 And we point out that such an extension
of the “collective knowledge” doctrine would be quite expansive and would
ultimately seem to depart from the theoretical underpinnings of the doctrine—that
we can treat cooperating law enforcement as a collective unit when it comes to
justifying an individual officer’s acts.28
In oral argument, the State contended that the DWI or intoxication-
been denied.”). 27 Cf. TEX. CODE CRIM. PROC. art. 14.01(a) (permitting a warrantless arrest by a “peace officer or any other person” for certain types of offenses committed within his presence or view). 28 See Martinez, 569 S.W.3d at 626 (quoting Illinois v. Andreas, 463 U.S. 765, 771-72 n.5 (1983) (“[W]here law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all.”)) (ellipsis in Martinez, brackets inserted). BARBER — 16
manslaughter offense continued to occur while the officer observed Appellee’s
intoxication at the hospital. But the record does not substantiate the State’s
assertion about what the officer observed—neither the stipulation nor the
documentary evidence actually says that the officer observed Appellee at the
hospital. Even if it did, a defendant’s continued intoxication does not cause the
offenses of DWI and intoxication manslaughter to continue after the defendant’s
impermissible conduct during intoxication has ceased.29
29 See TEX. PENAL CODE §§ 49.04(a) (“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”) (emphasis added), 49.08 (“A person commits an offense if the person: (1) operates a motor vehicle in a public place . . . and (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”) (ellipsis inserted); Barnes v. State, 824 S.W.2d 560, 562 (Tex. Crim. App. 1991), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998) (quoting from Toussie v. United States, 397 U.S. 112, 115 (1970)) (“Generally, when each of the elements of a crime have occurred, the crime is complete. . . . ‘[T]he doctrine of continuing offenses should be applied in only limited circumstances. . . . [S]uch a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime is such that Congress must assuredly have intended that it be treated as continuing.’”) (first ellipsis inserted, second ellipsis in Barnes, brackets inserted); cf. Howlett v. State, 994 S.W.2d 663, 665, 667 (Tex. Crim. App. 1999) (“[W]e cannot say the Court of Appeal’s holding that ‘the offense continued to occur as long as the unauthorized valve was in place and the owner suffered pecuniary loss’ [from the continued diversion of gas] was clearly erroneous.”) (brackets inserted and bracketed material added for clarity); Spakes v. State, 913 S.W.2d 597, 598 n.* (Tex. Crim. App. 1996) (citing Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995) (concluding that escape is not a continuing offense but is complete at the time of the defendant’s “initial departure from custody” so that circumstances arising later cannot negate a necessity defense); Barnes, supra (“[W]e have never construed that section as an invitation to turn theft into a continuing offense and we decline to do so now. To do so would be to usurp the authority of the legislature in an area controlled exclusively by it. The explicit language of the statute does not compel such a conclusion and the nature of theft is not such that the legislature must have intended it to be treated as continuing.”) (brackets inserted). BARBER — 17
And since the trial court granted the motion to suppress and made fact
findings in the defendant’s favor (except for finding probable cause that a crime
had been committed in the past), we must view the evidence in the light most
favorable to the defendant with regard to whether the officer had any proximity to
the defendant that could be construed as being present during an offense.30 Given
the state of the evidence and especially in light of the standard of review, one
cannot find that Appellee “committed an offense within the officer’s presence or
view” under the plain meaning of those words.
The State also suggested in oral argument that police officers would often be
without the ability to arrest for intoxication offenses if the words “presence” and
“view” are interpreted literally. But as we have explained earlier, several statutes
that confer the ability to arrest without a warrant do not contain a “presence or
view” requirement—but have other requirements—and at least a couple of those
could apply to intoxication offenses in some circumstances.31 Or an officer could
obtain an arrest warrant. And for an out-of-geographic-jurisdiction officer, as in
30 See Sandoval v. State, 665 S.W.3d 496, 515 (Tex. Crim. App. 2022) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)) (Appellate court must accord deference to the trial court’s resolution of questions of historical fact and application-of-law-to-fact questions that turn on credibility and demeanor.); State v. Lujan, 634 S.W.3d 862, 865 (Tex. Crim. App. 2021) (Evidence must be viewed in the light most favorable to the trial court’s ruling and findings.). 31 See TEX. CODE CRIM. PROC. arts. 14.03(a), 14.04. BARBER — 18
the present case, the officer could obtain the assistance of a local officer. Thus, to
the extent the State might be advancing an “absurd results” argument, we find
such an argument to lack merit.
C. Woodard
In Woodard, the defendant drove his vehicle into a ditch and walked away.32
A tipster notified the police of someone matching the defendant’s description
walking away from the scene and where he was last spotted.33 A police officer
found the defendant six to eight blocks from the accident.34 The defendant
admitted that he was drunk and should not have been driving.35 The officer
smelled alcohol on the defendant’s body and breath, the defendant’s eyes were
bloodshot and glazed, and the defendant was unsteady on his feet and staggered
when he walked.36 The officer conducted field sobriety tests, which the defendant
failed.37 The officer asked the defendant if he would be willing to take a breath test,
32 341 S.W.3d at 407. 33 Id. 34 Id. 35 Id. at 408. 36 Id. 37 Id. BARBER — 19
and he said he would.38 The defendant was then arrested.39
The trial court concluded that the initial interaction between the officer and
the defendant was not a consensual encounter and that the defendant was detained
without reasonable suspicion.40 The trial court also concluded that no officer
observed the defendant operating a motor vehicle while intoxicated and that the
arresting officer did not have probable cause to arrest the defendant for public
intoxication.41
The court of appeals reversed, concluding that the initial interaction
between the officer and the defendant was a consensual encounter, the officer had
reasonable suspicion to conduct field sobriety tests, and after those tests the officer
had probable cause to arrest.42 With respect to Article 14.01(b), this Court
summarized the court of appeals’s decision as “reject[ing] Woodard’s argument
that his arrest for DWI was unlawful because Officer Warner did not actually
38 Id. 39 Id. 40 Id. at 408-09. 41 Id. at 409. 42 Id. at 409-10. BARBER — 20
witness Woodard driving while intoxicated as required by” Article 14.01(b).43 In
fact, quoting one of its earlier decisions, the court of appeals essentially wrote the
words “presence or view” out of the statute:
[A]lthough the statute states that the offense must be one that is committed within the officer’s presence or view, an officer can make a warrantless arrest based on an offense that was committed at an earlier time and further, the officer does not even have to personally see the offense committed before the warrantless arrest is justified under article 14.01(b).44
A dissenting justice contended that the court-of-appeals majority made mistakes in
deciding that the encounter began as consensual, and the dissent concluded that
the arrest was illegal under Article 14.01(b) because the defendant had not
committed a DWI offense in the officer’s presence.45 The dissent argued that
public intoxication could not be considered as an offense forming a basis for arrest
because the State had procedurally defaulted that argument.46
Echoing the arguments of the dissent, the defendant petitioned for
43 Id. at 409. 44 State v. Woodard, 314 S.W.3d 86, 98 (Tex. App.—Fort Worth (quoting Akins v. State, 202 S.W.3d 879, 889 (Tex. App.—Fort Worth 2006, pet. ref’d)) (brackets inserted). 45 Woodard, 341 S.W.3d at 410 (citing Woodard, 314 S.W.3d at 100-03 (Dauphinot, J., dissenting)). 46 Id. BARBER — 21
discretionary review.47 This Court affirmed.48 In doing so, the Court found that
the initial interaction between the officer and the defendant was a consensual
encounter,49 that the officer had developed at least reasonable suspicion for a
detention by the time he administered field sobriety tests,50 and that the
information obtained before and during the field sobriety tests provided probable
cause to believe that the defendant “had driven the now-wrecked car while
intoxicated.”51 In a general-law section of the opinion regarding Article 14.01(b),
the Court relied solely on our prior decisions in Beverly and Steelman for the
proposition that “all of the information to support probable cause does not have to
be within the officer’s personal knowledge” and that the officer can rely upon
“reasonably trustworthy information.”52 In its analysis section, the Court
concluded, after finding probable cause that a DWI offense had been committed,
47 Id. 48 Id. at 412. 49 Id. at 412-13. 50 Id. at 414. 51 Id. 52 Id. at 412 (citing and quoting Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990) and Steelman, 93 S.W.3d at 107). BARBER — 22
that “Article 14.01(b) was not violated.”53 The Court further found that the court
of appeals did not resolve the case on the issue of public intoxication, having validly
found that the arrest was supported by probable cause to conclude that the
defendant had committed the offense of DWI.54 The Court said nothing in its
analysis section about Article 14.01(b)’s “presence or view” requirement.55
In a one-paragraph dissent, Presiding Judge Keller said it was “undisputed
that the arrest was without a warrant and that a DWI was not committed in the
presence or view of any police officer, since appellant was first spotted walking six
to eight blocks from the accident.”56 She therefore disagreed with the Court’s
holding that Article 14.01(b) was not violated.57
D. Disavowing Woodard
Some of Woodard’s holdings were correct. Woodard correctly found that the
interaction between the officer and the defendant began as a consensual encounter.
The Court also correctly found that the defendant’s physical demeanor and
53 Id. at 414. 54 Id. 55 See id. at 412-14. 56 Id. at 415 (Keller, P.J., dissenting). 57 Id. BARBER — 23
admissions during that consensual encounter gave the officer reasonable suspicion
to require the defendant to perform field sobriety tests. So, to the extent the trial
court suppressed evidence about the field sobriety tests, it erred, and the Court was
correct to affirm the overturning of that ruling.
But the breath testing was another matter. That testing happened after arrest,
and unless the defendant’s pre-arrest consent attenuated the taint (an issue that
was not addressed), a valid basis for arrest would be needed. The Court was
correct to conclude that, after the defendant failed the field-sobriety tests, the
officer had probable cause to believe that the defendant had committed a DWI in
the past. But Article 14.01(b) required more: that the offense be committed in the
officer’s “presence” or “view.” Looking back at the facts of Woodard, it seems
likely that the offense of public intoxication was committed in the officer’s presence
or view when the officer saw the defendant walking on the street six to eight blocks
from the accident. However, since the State has to preserve error when it is an
appealing party,58 reliance on public intoxication as a basis for arrest might
conceivably have been procedurally defaulted, as the dissent in the Woodard court
of appeals suggested. In any event, this Court did not rely upon public intoxication
58 Mercado, 972 S.W.2d at 78. BARBER — 24
as an offense supporting arrest but relied solely on DWI.
If the Court in Woodard in fact avoided addressing the “presence or view”
question, it erred. The defendant raised it at trial, the trial court suppressed on
that basis, the court of appeals addressed the issue and found that “presence or
view” doesn’t mean what the words say, a dissent in the court of appeals relied on
this statutory language, and a dissent in this Court relied on that language as well.
The issue was staring the Court in the face. Given that the Court should have
addressed the issue, the court of appeals in this case was not unreasonable in
thinking that the Court did address the issue, especially when the Court cited
earlier cases that had construed “the presence or view” requirement and cited
them for the proposition that the information the officer receives need not be
within his personal knowledge.59 But if the Court did not in fact address the
“presence or view” issue—even though it should have—then its decision is not
authoritative on that issue.
If the Court in Woodard did in fact address the “presence or view” question,
then it wrote those words out of the statute. Because courts can reasonably
construe Woodard as impliedly doing so, we now disavow Woodard to the extent it
59 See Woodard, 341 S.W.3d at 412 (quoting from Beverly and Steelman). BARBER — 25
can be read that way. It is true that “the doctrine of stare decisis indicates a judicial
preference for maintaining consistency with past decisions”60 and that “the
interests of stare decisis are at their height for judicial constructions of legislative
enactments upon which the parties rely for guidance in conforming to those
enactments.”61 But even in the area of statutory construction, “[p]recedent may
be overruled if the reasons for doing so are weighty enough.”62 Factors that
support overruling precedent include that the original decision was flawed from the
outset and that the decision conflicts with other precedent.63 Both of those factors
are true here.
In determining whether a decision was “flawed from the outset,” the issue is
not whether we agree with it.64 Rather, we look to whether the decision is
“defensible.”65 A decision that is not defensible is flawed.66 A statutory-
60 In re Green, 713 S.W.3d 843, 853 (Tex. Crim. App. 2025). 61 Id. at 854. 62 Id. 63 Id. 64 See id. 65 See id. 66 Id. BARBER — 26
construction decision is more likely to be defensible if it explicitly utilizes the
correct statutory-construction framework, articulated by our seminal Boykin case.67
And a decision utilizing that framework is likely to be defensible if the various
analyses under that framework are “at least facially legitimate.”68
Woodard failed to even recognize that the defendant had a serious argument
that the court of appeals disregarded the plain language of Article 14.01(b). The
opinion did not even purport to conduct a Boykin analysis. And to the extent
Woodard impliedly construed Article 14.01(b) by writing the words “presence”
and “view” out of the statute, that construction was, under the Boykin standard,
very obviously wrong.
And, to the extent the opinion relied on Beverly and Steelman to support
eliminating the “presence or view” requirement, it misconstrued those cases.
Beverly did quote a generic “test” for probable cause (“. . . reasonably trustworthy
information . . . sufficient to warrant a prudent man in believing . . .”) that included
believing that an offense had been committed in the past,69 but immediately
67 See id. at 854-55 (citing Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) and discussing the use of the framework in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex. Crim. App. 1993)). 68 See id. at 856. 69 792 S.W.2d at 104-05. BARBER — 27
afterwards the Court explicitly stated that an arrest under Article 14.01(b) requires
the officer to have “probable cause to believe that the arrested person is
committing an offense.”70 The Court further said that probable cause under
Article 14.01(b) “may be based upon the officer’s personal knowledge coupled
with personally observed behavior.”71 And Beverly concluded that Article 14.01(b)
was satisfied when “police officers personally observed behavior that although not
overtly criminal, was, when coupled with the officers’ prior knowledge, sufficient
to establish probable cause that an offense was then occurring.”72 Applying the law
to the facts, Beverly concluded that, when the officer saw the defendant at the
apartment complex, he reasonably believed, based on his prior knowledge of
trespass warnings and his subsequent observations, that the defendant “was
committing an offense”— trespassing at the apartment complex.73 Thus Beverly
held that prior knowledge can be used to support a conclusion that what the officer
is seeing is a crime, but the officer still has to believe that he is actually perceiving a
crime. Ditto for Steelman. Steelman quoted the general probable-cause test quoted
70 Id. at 105 (emphasis added). 71 Id. 72 Id. (emphasis added). 73 Id. at 105-06. BARBER — 28
in Beverly,74 but immediately after quoting the generic test, the Court stated more
specifically that “[a]n offense is deemed to have occurred within the presence or
view of an officer when any of his senses afford him an awareness of its
occurrence.”75 Both Beverly and Steelman used the generic test for probable cause
as background for the standard of confidence an officer must have but then
modified that test to require that standard of confidence to relate to whether the
officer was actually observing an offense. And because Woodard relied solely on
Beverly and Steelman for the proposition that we can look to the past to determine
“presence or view,” a conclusion that it misconstrued those cases is fatal to any
holding it might have made regarding the “presence or view” requirement.
Moreover, the “presence or view” language is old, preceding the turn of the
twentieth century.76 Early on, in Russell v. State, this Court interpreted that
language in a predecessor statute to mean that the officer is actually observing the
crime:
Instead thereof, it would appear, because the court submitted the question of the legality of the arrest to the jury, that in the opinion of the court the fact that the testimony tended to show that the person
74 93 S.W.3d at 107. 75 Id. 76 See State v. Coffey, 41 Tex. 46, 49 (1874). BARBER — 29
who did the shooting was near by, and that at least two of the parties were on the outside of the house at the time of the shooting, near enough to have seen the person, and that these parties were with the posse making the arrest, that the shooting occurred in their presence, and that this was what the statute meant when it authorized a person to arrest a party without warrant when the offense is committed in his presence and within his view, if it is one classed as a felony. In our opinion, the statute does not mean this; but in order to authorize an arrest without warrant in such case the crime must be committed in the actual presence and within the actual view of the person making the arrest.77
Steelman’s “any of his senses afford him an awareness of its occurrence” is the
Russell standard in modern language. To the extent Woodard deviated from
Russell, Beverly, and Steelman, it is the outlier.
E. Conclusion
The court of appeals wrote the “presence or view” requirement out of
Article 14.03(d), contrary to the plain meaning of the text. The court relied upon
Woodard to do so, and to the extent Woodard can be read to address the issue, its
analysis was very obviously flawed and wrong and conflicted with over a century’s
worth of precedent. Consequently, we disavow Woodard to the extent it suggests
that the “presence or view” language does not mean what it literally says. And
because the record supports the trial court’s conclusion that the offenses of
intoxication manslaughter, DWI, and public intoxication were not committed in
77 Russell v. State, 37 Tex. Crim. 314, 317 (1897) (emphasis added). BARBER — 30
Officer Ibarra’s presence or view, the court of appeals erred to hold otherwise. We
reverse the judgment of the court of appeals and remand the case to that court for
further proceedings consistent with this opinion.
Delivered: April 16, 2026
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