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Cunningham v. State12/8/2004
rking lot. Further, we need not address the issue of whether Hernandez had reasonable suspicion to detain Cunningham because the record supports the conclusion that this was an arrest, not a detention. The Court of Criminal Appeals has held that an "arrest" occurs when a person's liberty of movement is restricted or restrained. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); see also Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App. 1973) (citizen's arrest occurred where a security guard held defendant for police). By his own testimony, Cunningham stated he was held in the parking lot against his will and that Hernandez informed him he was being held for the police on suspicion of DWI. There was ample proof presented for the trial court to conclude that Hernandez effected a citizen's arrest of Cunningham and not merely a detention for investigative purposes. We therefore overrule Cunningham's first issue.
Alternatively, in his third issue, Cunningham contends that Hernandez was unauthorized by Texas law to make a citizen's arrest. Article 14.01 of the Texas Code of Criminal Procedure authorizes a citizen to arrest an offender when a felony or a breach of the peace is committed in his presence or view. Tex. Code Crim. Pro. Ann. art. 14.01(a). The statute is limited to the time the offense is committed or while there is continuing danger of its renewal. See id.; Turner v. State, 901 S.W.2d 767, 771 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). "Breach of the peace" has not been statutorily defined, but the Court of Criminal Appeals has explained:
Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed.
Woods v. State, 152 Tex. Crim. 338, 342, 213 S.W.2d 685, 687 (1948). Whether certain actions constitute a breach of the peace must be determined on a case-by-case basis, looking to the facts and circumstances surrounding the act. Turner, 901 S.W.2d at 770.
Traffic violations per se do not qualify as a breach of the peace under Texas law and do not justify a citizen's arrest. See Pierce v. State, 32 S.W.3d 247, 248 (Tex. Crim. App. 2000) (finding no breach of the peace where the defendant swerved in front of another vehicle, forcing an officer outside his jurisdiction to apply his breaks to avoid a collision); Perkins v. State, 812 S.W.2d 326 (Tex. Crim. App. 1991) (finding no breach of the peace when a car sped through a red light at 3:30 in the morning); Reichaert v. State, 830 S.W.2d 348, 352 (Tex. App.-San Antonio 1992, pet. ref'd) (arrest for breach of the peace not justified where a vehicle was speeding and almost hit a retaining wall). The law requires something more than witnessing mere traffic violations or temporary erratic driving to permit a private citizen to conduct an arrest. See Pierce, 32 S.W.3d at 253.
Depending on the circumstances of a case, traffic violations in the context of suspected DWI can give rise to a breach of the peace. Driving while intoxicated has been held to be a breach of the peace, and several courts have found that conduct suggesting that a motorist was driving while intoxicated could be classified as a breach of the peace. See, e.g., Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979) (holding that defendant committed a breach of the peace by driving while intoxicated where he drove erratically and swerved at the citizen's vehicle, forcing him off the road); McEathron v. State, 163 Tex. Crim. 619, 620, 294 S.W.2d 822, 823 (19
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