State v. Woodard

Ratsavong, 176 S.W.3d at 666 argument);

(issues party briefed when inadequately at trial followed the evidence recited any sup without eonclusory statements only stating and case law porting of was abuse discre of review standard tion); Hosp., v. Methodist Wheeler (Tex.App.-Houston [1st (issue inadequately pet.) no Dist.] little than party when did more briefed error, point his summarily state without authority or substantive legal citations Accordingly, overrule each analysis). we issues.3 Appellants’

CONCLUSION judgment trial is affirmed. Texas, State, The STATE Wayne WOODARD, Appellee. David

No. 2-09-052-CR. Texas, Appeals Court of Fort Worth. April Discretionary Review Granted

Sept. However, trial, Eight). Ap Appellants 3. We further note that we overrule fourth, fifth, third, seventh, under set pellants’ contended that their intention Indeed, agreement grant grounds. we eighth other tlement was to issues on title, complaints Appellants con may not issues that failed marketable their address Tex.R.App. cerning billing were Appellee’s trial P. statements present court. See (to preserve complaint apрellate Plastics 33.1 for never raised. See Bollner v. Solutions Texas, review, Inc., (Tex.App.- complaint must be made to Here, first). pet.) upon by (appellants cannot ruled El Paso Appellants appeal they appeal on did on that which was raised contend raise court); grant Ap- Refining, El Paso Inc. v. Scur not intend to marketable title to the trial Three, Four, Five), (Issues Corp., pellee nor lock Permian denied) they attorney's pet. pay Appellee’s App.-El (complaint should fees Paso comport complaint gleaned appeal with the from the firm’s bill must various reasons waived). error, (Issues any, ing at trial or if admitted at trial Seven made statement Macha, Barry L. Criminal At- District torney, John W. Brasher and Dusti He- bert, Assistant Attorneys District for Fall, TX, County, Wichita Wichita for State. Falls, TX,

Greg King, J. Wichita Appellee. GARDNER, DAUPHINOT,

Panel: and WALKER, JJ.

OPINION GARDNER,

ANNE Justice.

I. Introduction Appellee Wayne David Woodard charged with the misdemeanor offense of driving ap- while intoxicated. peals granting Ap- trial court’s order pellee’s suppress motion evidencе. In issue, one the State argues by community erred recognizing caretaking police function of a officer in description provided vague acci- reported to a automobile responding caller. anonymous recognize police failing dent citi- to fellow may pose questions Immediately upon encountering Appel- justification. We reverse zen without lee, Ap- whether inquired Officer Warner remand. involved in a collision Okla- pellee was Berry. Appellee

homa North Cut-Off Background driving the II. that he been admitted had Warner de- wrecked vehicle. Officer 17, 2008, May Shortly p.m. after 10 of “Yes” Appellee’s response as scribed Warner, John Burkburnett During the encoun- “freely volunteered.” Morgan responded Donald Jr. and ter, stated he was drunk and car in call a ditch dispatch regarding driving. have been should Street Y-shaped convergence Berry knowledge, said that based on his Warner anony- An the Oklahoma Cut-Off. experience, Appellee training, ap- dispatch, сall the phone prompted mous peared to be intoxicated. no additional de- provided but the caller the time Officer Warner encoun- About accident, vehicle, regarding the the tails Morgan Officer found a Appellee, tered location, passengers. or car’s the the drainage in vehicle nosedown ditch near dis- Officer Warner received second provided dispatch. the in the Offi- location the call as he drove to accident patch cer the car’s Morgan looked in windows anony- the dispatch reported scene. passengers. Upon noticing and saw caller’s of vehicle’s mous observation the vehicle, front the to the and damage driver, jeans wearing a T-shirt and dark the accident have caused believing walking six blocks approximately and the injuries, Morgan po- Officer followed the scene. The second north of accident procedure lice standard for department’s dispatch provided regard- no оther details wrecked, the unoc- identifying driver of features, attire, or ing physical the driver’s cupied by opening the driver’s door vehicle direction. license, card, to locate a driver’s insurance Officer other form identification. mile the quarter More than a from investigate intent was not to for Morgan’s car, more than blocks wrecked and six activity, but to determine the criminal the location of the reported west of last the car’s so the driver identity owner driver, Appellee wear- Officer saw Warner any possi- and might be located treated for jeans walking and on ing a dark T-shirt search, During the vehicle injuries. ble Officer Warner did public the sidewalk. an insurance card Morgan Officer found breaching initially Appellee not observe and one that empty and two beer cans-one in illegally, behaving the peace, walking three-quarters empty. and Offi- cold or oth- endangered a manner himself Warner of Morgan cer informed Officer testified he did not ers. Officer Warner findings his and remained with vehicle intoxicated Appellee publicly believe Morgan towed. Officer admit- until it was him, when he first nor did he have saw ted not know the beer was he did when “community caretaking reason to make a vehicle, consumed, the num- who drove the stop” Appellee. Officer Warner stated vehicle, in or when passengers ber of just Appellee that he to ask a few stopped occurred. accident he had “hunch” questions and admitted receiving Morgan’s report After Officer Appellee was the driver of Warner observing Appellee, and Officer wrecked vehicle his attire matched because Appellee perform asked standardized 855 (Tex.Crim.App.2000), on oth modified and, Cullen, sobriety testing on er Appel- grounds by field based State v. performance, Appellee Therefore, lee’s determined (Tex.Crim.App.2006). we Appellee to give was intoxicated. consented almost total deference to the trial test, (1) take a breath rulings Officer Warner questions court’s on of historical fact, placed Appellee custody. Officer if War- even the trial court’s determination that,

ner based on the of of totality testified those facts based on an evalua circumstances, (2) Appellee demeanor, he believed tion of credibility Morgan drove the vehicle in application-of-law-to-fact found questions Officer Warner ditch. admitted he did turn on an evaluation of credibility and Amador, possess personal knowledge Ap- 673; demeanor. 221 S.W.3d at car, pellee drove the drove while intoxicat- Montanez 108-09 ed, or (Tex.Crim.App.2006); consumed beers before the Johnson v.

wreck. (Tex.Crim.App.2002). 652-53 But when application-of-law-to-fact ques Appellee The State indicted mis- tions do not turn on credibility of driving demeanor offense while intoxi- witnesses, demeanor we review cated. ‍​‌‌‌‌​​‌​‌​​‌​‌​‌​​​​​‌‌​​‌‌‌​​​​‌‌‌​​‌​‌​​​‌‌‌‌‍filed a to suppress motion rulings questions those de evidence, claiming a lack of Amador, 673; novo. 221 S.W.3d at Estra cause, consent, scope аnd that “the of the (Tex.Crim. da v. seizure search exceeded author- Johnson, App.2005); 68 at S.W.3d 652-53. law.” by Following evidentiary ized hearing, only at which Officers Warner way, Stated when another review testified, Morgan grant- and the trial court ing the trial a ruling court’s on motion to Appellee’s ed and findings motion entered suppress, we view the evidence the must of fact and of conclusions law.1 light most favorable to the trial court’s Wiede, 24; ruling. 214 S.W.3d at v. State

III. of Standard Review 808, 204 Kelly, S.W.3d 818 (Tex.Crim.App. review a trial court’s ruling We on 2006). When trial grants the a mo a to suppress motion evidence a under suppress tion to accompanying files bifurcated of standard review. Amador v. law, of findings fact and of conclusions State, 666, 221 (Tex.Crim.App. S.W.3d 673 the the to suppress sole witness at motion 2007); State, 85, v. 955 officer, Guzman S.W.2d 89 is the hearing arresting the (Tex.Crim.App.1997). In reviewing the question before us is the whether trial decision, trial we engage court’s do not in court properly applied the law to the facts State, our own factual review. Romero v. it Gray, found. See State v. 158 S.W.3d 465, 467, 800 (Tex.Crim.App.1990); S.W.2d (Tex.Crim.App.2005); Guz man, 86-87, v. Best 118 S.W.3d at 89. We must App.-Fort Worth no pet.). uphold ruling sup The trial the trial if it judge is the sole trier of judge ported by fact and of the record and correct under case, credibility of the any theory applicable witnesses and the to the law be weight given testimony. their wrong Wiede even if the gave trial court (Tex.Crim. Stevens, S.W.3d ruling. 24-25 reason for its Ross, App.2007); State v. (Tex.Crim.App.2007); Ar adopted findings sixty-one findings The trial court all total of fact for a fact and proposed by Appellee and conclusions of law forty-nine conclusions of law. and added one additional conclusion of law 401, 404 must whether the officer’s belief determine mendariz denied, was rea required cert. 541 U.S. his assistance was (Tex.Crim.App.2003), S.Ct. L.Ed.2d sonable. Id. (2004). Here, record that at reflects time Officer War- approached Appellee, he Suppression of Evidence IV. (1) if existed ner was unsure a wreck Arguments location, (2) per- alleged possessed argues trial the State aрpeal, On knowledge operat- had Appellee sonal by sup- the motion to granting court erred (3) vehicle, ed the admitted drivei’’s (1) recognize because it failed press (4) description extremely vague, was func- community caretaking officer’s police Appellee’s safety. concerned for reported to a automo- responding tion of Moreover, record Officer War- reflects (2) that a accident and bile initially Appellee ner did not observe stop as citizen to just as free other endangering himself or others. citizen without questions ask fellow court, as the We conclude justification. for any the need judge finder of fact exclusive credi- sup- the trial court’s decision to contends bility, have that Officer War- could found correct the in- press evidence is because primarily ner motivated com- Appellee was vestigative detention of caretaking when he munity concerns made hunch after he based on Officer Warner’s Appellee. pose question decision relaying dispatch information received Ross, 855). (citing See id. tipster. an anonymous provided Thus, with disagree we the' State Community Exception A. Caretaker caretaking permitted community function Inapplicable temporarily Ap- detain Warner pellee. community caretaking ex officers, police part allows as ception B. or Investi- Encounter Consensual duty protect,” stop their “serve and gative Detention? an individual whom a temporarily or detain also contends the court The State person would believe is in need reasonable motion to by granting Appellee’s erred given totality of circumstances. help, suppress evidence because Officer War- 148, (Tex. State, v. 7 S.W.3d 151 Wright with was a Appellee interaction con- ner’s Dombrowski, v. Crim.App.1999); Cady see Officer permitted sensual encounter that 433, 2528, 441, 2523, 93 37 413 U.S. S.Ct. Appellee questions without Warner to ask (1973). community 706 The care- L.Ed.2d suspicion Appellee reasonable com- having exception taking narrowly applied. is to be We to the trial mitted a crime. defer 7 at 152. To invoke the Wright, S.W.3d conclusion, apparent on its based motive exception, primary officer’s part at least disbelief of War- well- must be concern for individual’s testimony, officer did not ner’s State, 272, 277 being. Corbin v. 85 S.W.3d stop Appellee. have reasonable (Tex.Crim.App.2002). Determining wheth conclude, however, Officer War- We er an com properly officer has invoked his justified approaching ner was two-step munity caretaking function interaction police-citizen because the First, Id. process. reviewing initially a consensual encounter. must whether the officer was determine Fourth to the community care- Amendment primarily motivated Second, protects States Constitution taking purpose. Id. the court United

93 questions searches sei- ask or against request unreasonable even to a search. Const, tempo- amend. A 491, zures. U.S. IV. See v. Royer, 497-98, Florida 460 U.S. rary 1319, purposes investigа- 1324, detention for 103 S.Ct. 75 L.Ed.2d 229 (1983); tion constitutes a seizure for Fourth v. 994 Velasquez, 676, State S.W.2d Ohio, purposes. Terry Amendment See v. Hunter, 678 (Tex.Crim.App.1999); 955 1, 16, 1877, 1868, 104; Johnson, 392 U.S. 88 S.Ct. 20 S.W.2d S.W.2d at (1968). However, 235; Horton, every L.Ed.2d 889 16 S.W.3d at 851. Such an civilian police encounter between a and a any encounter does not require justifica implicates the Fourth tion Amendment. on the officer’s part. See United Bostick, 434, 429, Florida Mendenhall, See v. 501 U.S. 544, 553, States v. 446 U.S. 2382, 2386, 1870, 1877, S.Ct. L.Ed.2d 389 100 S.Ct. 64 L.Ed.2d 497 (1991); State, 102, (1980); Hunter v. State, 955 S.W.2d 702, Daniels v. 718 S.W.2d 104 (Tex.Crim.App.1997); denied, Horton v. 704 (Tex.Crim.App.1986), cert. 848, (Tex.App.-Austin 16 S.W.3d U.S. S.Ct. 93 L.Ed.2d 252 (1986), pet.). no overruled on grounds, other Juarez (Tex.Crim. Three categories interactions be App.1988). Police are as free as tween officers and citizens rec are citizen other to approach citizens on ognized the Texas Court of Criminal street ask for information. State arrests, detentions, Appeals: investigative Garcia-Cantu, Perez, and encounters. State (Tex.Crim.App.2008). Such interactions 817, 819 in (Tex.Crim.App.2002). Unlike may involve inconvenience embarrass vestigative arrests, detentions and which ment, they but do not involve official coer pur are seizures for Fourth Amendment Only implication cion. Id. when the arises poses, an is a encounter consensual inter that an officer’s authority cannot be ig action, which the citizen terminate at nored, avoided, ended, does Fourth any time. See Gurrola v. Amendment seizure Id. occur. (Tex.Crim.App.1994); 302-03 v. Bryant, Determining specific whether App.-Fort pet.). long Worth So amount a detention under the person disregard as remains free to Fourth Amendment police- or a consensual questions go the officer’s his about citizen encounter “is subject de novo business, the encounter consensual and review because that is an issue of law—the analysis. merits no further constitutional of application legal to a principles specific State, 227, See Johnson v. 235 set of facts.”2 Id. at 241. The occurrence (Tex.Crim.App.1995) (citing v. California of a by consensual encounter is determined D., 621, 628, 499 Hodari U.S. 111 S.Ct. totality of the circumstances and 1547, 1552, 113 (1991)). L.Ed.2d 690 “whether reasonable pеrson would feel Law enforcement are réquests free to decline the officer’s or permitted approach individuals without terminate otherwise the encounter.” St. 806, George cause or reasonable v. 819 S.W.3d Thus, Wiede, 24; findings ruling. of the court's Kelly, of fact See at S.W.3d 818; stating 469; investigatory that Gray, oc- detention 204 S.W.3d at S.W.3d at 33, actually curred are conclusions law review- see Woods v. also Sailo, considering totality (Tex.Crim.App.1997); able this court State 184, viewing 1995, (Tex.App.-Fort circumstances and the evidence in Worth ref'd). light most favorable to the trial court’s writ unlawful for him to 2006), formed him that it was aff'd, 237 S.W.3d

App.-Fort Worth Bostick, motorcycle park.” within the (quoting operate (Tex.Crim.App.2007) ‍​‌‌‌‌​​‌​‌​​‌​‌​‌​​​​​‌‌​​‌‌‌​​​​‌‌‌​​‌​‌​​​‌‌‌‌‍2387); admitted that “the mo- Murphy at Id. at *1. S.Ct. 501 U.S. at 2-06-00267-CV, him, ... he was belonged 2007 WL that torcycle No. Murphy, it,” Aug. riding and that he (Tex.App.-Fort *2 Worth the one [who] at (mem. op., designated helped push the officer pet.) dizzy. no Id. As embankment, motorcycle up the publication). for intoxi- suspected Murphy that officer indicate Circumstances bloodshot, that he had noticing cated after seizure, rath interaction is police-citizen disoriented, had watery eyes, was slurred encounter, include a consensual er than of alcohol on his speech, and had the smell officers, several threatening presence of Id. The officer then administered breath. display weapon, physical of a officer’s Murphy sobriety field and arrested tests officer, the the citizen touching of driving while intoxicated. Id. We con- for indicating of voice or tone officer’s words cluded, totality of circum- based on requests with the officer’s compliance stances, in justified the officer was or compelled, flashing lights might be the initial Murphy and that approaching Mendenhall, suspect’s vehicle. blocking be- a consensual encounter interaction was 1877; at at 100 S.Ct. Juarez 446 U.S. Mur- merely engaged officer had cause the 14-05-00196-CR, 14-05- Nos. conversation, informed him of a phy in a 14-05-00198-CR, 00197-CR, 2006 WL unaware, might be law of which he (Tex.App.-Houston *2 [14th at motorcycle. Id. at *3. helped him with his (not 9, 2006, рet.) designated Feb. Dist.] the officer no evidence that There was Carter, State v. No. publication); for see weapon, physically threat- displayed his 02-04-00063-CR, *2 at 2005 WL language or Murphy, ened used harsh 20, 2005, pet. Oct. (Tex.App.-Fort Worth touch, flashing lights, prevent- activated ref'd) (mem. publi op., designated leaving, and no evidence Murphy ed from evidence, cation). type this Absent feel free to Murphy did not existed however, conduct be inoffensive otherwise concluded that leave. Id. We further cannot, and a tween a citizen en- in the initial consensual facts learned law, amount to a seizure as a matter ample specific, articula- provided counter Mendenhall, 446 person. U.S. reasonably facts that led the officer ble 1877; Murphy, WL 100 S.Ct. engaged had Murphy conclude that been 2405120,at *2. activity. Id. in criminal Encounter Oc- AC. Consensual curred in the evidence Murphy, Like that, initially, War case shows this case, we reversed Murphy,

In a similar Appellee in conversa merely engaged ner of a motion to granting a trial court’s in justified ap Officer Warner was tion. police held the offi- suppress evidence and public on a sidewalk proaching Appellee a in that case was approach cer’s initial he need asking questions; him a few into and that escalated consensual encounter engage Ap- to suspicion no articulable supported by ed investigative an detention See, 2405120, v. e.g., in this manner. Ashton pellee suspicion. 2007 WL reasonable case, (Tex.App.-Houston ap- S.W.2d police at *2. In that ref'd) no (holding pet. his push Dist.] as he tried to proached Murphy [1st occurred, and detention city investigatory in a an embankment motorcycle up needed, suspicion no reasonable “in- therefore happened,” had and park, asked “what approached appellant sitting when officer in Mr. Woodard’s situation would a parked public place in a car in and not asked have believed that he was free to leave window); roll her v. her to down Roe when Officer Warner to stop decided him.” State, 738 (Tex.App.-Cor S.W.2d There is no evidence in the Ap- record of ref'd) pus pet. (holding pellee’s subjective Christi offi perception that he did approaching in suspect’s Garcia-Cantu, cer’s actions free feel to leave. See van, parked asking for examining and his 253 at n. S.W.3d 48. The record is license, speaking driver’s and to him did devoid of a threatening presence of numer detention); to of not rise the level Thomas ous Appellee, officers around Officer War any 335 (Tex.App. display ner’s of weapon, physical ref'd) 1982, pet. (holding touching Warner, -Dallas investiga Appellee by tory began detention after police smelled Officer Warner’s words or tone of voice marijuana, police initially not when officers indicating compliance that with re his in stopped their car front car in quests might which compelled, flashing be sitting). defendant was lights blocking Appellee’s path. No evidence indicates Officer Warner’s Appellee argues Officer Warner approach mere Appellee’s interfered with suspicion approach needed reasonable to freedom movement or caused inconven question him and that “hunch” a time, ience and loss of nor officer’s driver Appellee wrecked initial questioning an constituted unconsti vehicle not sufficient to form a reason- tutional seizure. See Stewart suspicion. able The fact that Officer War- 862 (Tex.Crim.App.1980) Appellee ner a “hunch” had was the driver (holding a initially consensual encounter of the wrecked not preclude vehicle does occurred when approached officers permissible the interaction from being a parked van and shined their spotlights into Hunter, consensual encounter. See van, but it became a reasonable and reasonable, (holding S.W.2d at 104 inno- investigatory valid detention when the cent feel person would free to leave when driver exited the vehicle plain two clothes officers approached and marijuana). smelled Nor do the facts indi questioned suspect plans about travel cate Officer Warner an manifested intent he carrying drugs, whether told sus- formally Appellee questions detain until pect they were conducting “narcotics further, that, gave rise to articulable facts interview,” requested search sus- light experience Officer Warner’s pect’s bag); Murphy, WL at officer, training as a would create *2; Salinas, 12-02-00275-CR, No. Appellee reasonable had WL *3 (Tex.App.-Tyler driving been while intoxicated. See Gar 18, 2004, (mem. pet.) Feb. op., not cia-Cantu, see, 41; 253 S.W.3d at n. designated publication) (noting officer’s Roe, 381; Thomas, e.g., 738 S.W.2d at questions suspects’ about involvement in of property destruction would commu- nicate they individuals that were not Similar in Murphy, leave). free to encounter between and Offi

Here, the erroneously trial court applied cer into investigative Warner escalated law the facts and concluded that after detention Officer Warner had interaction between “[t]he Officer John reasonable had Warner and David a driving Woodard was not been Murphy, while intoxicated. 2405120, *2; see, Roe, consensual encounter a because reasonable 2007 at e.g., WL 738 96 Id.; 381; Thomas, be at sonableness must determined. St. 633 S.W.2d at

S.W.2d that, 819; Royer; at George, testified after 197 S.W.3d see 460 Officer Warner 335. (1983).3 Appel- 497-98, he observed 103 1319 Appellee, approaching U.S. at S.Ct. eyes, glazed unsteadi- bloodshot and no justification lee’s “An needs a walk, ness, and odor of alcohol staggering encounter, triggers which no consensual body. These observa- his breath and Penny well v. protections.” constitutional tions, admission he drove Appellee’s State, 149, (Tex.App.- 127 S.W.3d 152 intoxicated, while wrecked vehicle 2003, pet.). no Dist.] Houston [1st cold, finding a Morgan’s report Officer in the open consumed container partially pre police conduct Proper ample, specific, created vehicle wrеcked Amador, at 672- 221 S.W.3d sumed. See Officer facts that led Warner articulable evidence because suppress 73. To Appellee had been reasonably to conclude violation, alleged Fourth Amendment Officer driving while intoxicated. Warner pro the initial burden defendant bears sobriety until perform field tests did presump that rebuts the ducing evidence suspicion Appel- a after he had reasonable (citing Id. proper tion of conduct. driving while intoxicated. Fi- lee had been (Tex. State, 7, 9 v. S.W.2d Russell he nally, Appellee was arrested after State, v. Crim.App.1986); Derichsweiler sobriety the field tests. failed Worth, (Tex.App.-Fort S.W.3d Not State, D. Encounter Does filed); Consensual v. pet. Morris 50 S.W.3d Require Reasonableness Burden pet.)). no Worth (Tex.App.-Fort appears to overlook first dissent Appellee further contends presumption: of this defendant prong to carry proof failed to its burden of (1) must a search seizure establish encounter between consensual establish (2) See Ama oсcurred without warrant. sup To Appellee. Warner and dor, 672; State, at Davidson because of a Fourth evidence press (Tex.App.-Austin 249 S.W.3d 717-18 violation, the State Amendment bears Russell, (citing pet.) establishing the reasonableness burden 9). has made this Once defendant ac detention after the of a warrantless showing, proof the burden of shifts initial individual meets the cused burden required then to establish which is rebutting the presump evidence producing or seizure was conducted the search by proper police producing conduct tion of a warrant reasonable. pursuant or was of a seizure or arrest. evidence warrantless 673; Torres, 902; Id. at 182 S.W.3d Ford Ford, at 492. Crim.App.2005). Here, erroneously applied the trial However, a consensual encoun concluding seizure, the law to the detention, ter is not a warrantless John Warner failed articulate “Officer 994 S.W.2d at 678. Velasquez, or arrest. specific supported facts that reasonable Thus, it does violate the Fourth had committed suspicion that [Woodard] no articulable requires Amendment and performed by [he] cause rea- criminal offense suspicion or which before voluntary questions.” Gear do answers such not violate ‘‘[L]aw enforcement (Tex.Crim. merely ing approach- the Fourth Amendment ..., (quoting Royer, U.S. at by putting App.1985) ing an the street individual on 1324), grounds willing overruled on other questions if the S.Ct. at some to him Woods, listen, S.W.2d at by offering in ... his evidence of Mr. were investigative permitted detention Woodard because that conduct did May [Emphasis 2008.” investigative detention, added.] on constitute an Appellee evidence that There no but was instead a consensual encounter.4 asking prior “seized” to Officer Warner explained, As we previously this consensu- Appellee so- perform to standardized field al encounter between Officer Warner and Thus, briety testing. presume up we that Appellee transitioned a warrantless de- point requested to the that Officer Warner tention and arrest after reasonable Appellee perform sobriety testing, field suspicion became apparent to Officer War- upon constitutionally protect- “no intrusion through totality ner of the circum- rights Terry, ed occurred.” See had enabling State to fulfill its stances — U.S. at 20 n. n. 16 S.Ct. of establishing burden the reasonableness (holding that because un- the record was of Appellee’s warrantless detention and ar- any clear “whether ... ‘seizure’ took Ford, rest. See 158 S.W.3d at 492. before an officer initiated place” physical E. Evidence Admissible a After Val- search, contact to conduct the court as- id Arrest constitutionally any sumed violation of that Appellee argues because Officer protected rights). Appellee Warner did not driving see while be Appellee’s Because detention intoxicated, the officer’s Appellee arrest of when gan Officer Warner asked him was unlawful “the which evidence sobriety standardized field perform test State seeks to introduce was the fruit of ing, initially ap not when Officer Warner ... unlаwful arrest.” posed proached questions Appellee, specific Warner did articulate Officer procedure The code criminal supported suspicion that a reasonable that provides may peace officer arrest “[a] [Appellee] had committed criminal of an any offender -without a warrant detaining Appellee. Specifi fense before presence offense committed in his or with that, cally, Warner Officer testified after in view.” his Tex.Code Crim. Proc. Ann. approaching Appellee, he Appel- observed 14.01(b) (Vernon 2005). art. The test for glazed eyes, lee’s bloodshot and unsteadi probable cause for a warrantless arrest ness, walk, odor staggering of alcohol provision under this “[w]hether body. on his breath and These observa moment the facts and circumstances within tions, Appellee’s that he admission drove knowledge the officer’s which and of he intoxicated, vehicle wrecked while reasonably had trustworthy information сold, report Morgan’s finding were man prudent sufficient to warrant open in the partially consumed container believing in the arrested had ample, wrecked vehicle specific, created committing committed or offense.” articulable facts that led Officer Warner (Tex. Beverly reasonably to conclude had Appellee been Crim.App.1990); Astran see driving while intoxicated. (not (Tex.Crim.App.1990) arrest,

We ing conclude Officer Warner’s ini- an article making 14.01 approach questioning tial may rely on other and on review, hearing suppress, preserved 4. At the on the motion to court and for our we argued ‍​‌‌‌‌​​‌​‌​​‌​‌​‌​​​​​‌‌​​‌‌‌​​​​‌‌‌​​‌​‌​​​‌‌‌‌‍the State Officer Warner did not need theory. judgment See reverse this reasonable cause Bailey, Appellee. talk to en- Because the consensual Crim.App.2006). theory presented counter to the trial 98 can of beer in the wrecked vehicle.5 determining probable that cold

lay citizens (Tex. was com- to believe an offense 104-05 Beverly, cause еxists See at S.W.2d mitted). Thus, Penal Crim.App.1990); also Tex. Code see 49.04(a) (Vernon 2003) (“A statute states that of-

although person § Ann. that is must be one committed fense driving while commits the offense of intoxi view, an presence the officer’s within if the intoxicated while cated make a warrantless arrest officer can public in a operating motor vehicle that on offense was committed based Thus, the demonstrates place.”). evidence further, time the offi- at an earlier Appellee cause to for driv probable arrest personally not even have to see cer does upon the ing while intoxicated based offi before the war- the offense committed knowledge personal personal cer’s ob justified arrest under article rantless behavior. See Appellee’s servations 14.01(b). Akins, 104-05; Beverly, 792 S.W.2d (Tex. State, Akins v. S.W.3d Accordingly, at 889.6 we hold that 5.W.3d 'd). 2006, pet. Worth ref App.-Fort of Appellee Officer Warner’s arrest Here, the erroneously trial court lawful. the law to the facts and concluded applied argument with agree We the State’s that “[bjecause [Appellee] no officer saw questions may pose to a operating or otherwise a motor driving justification. fellow citizen without

vehicle, warrantless arrest of Warner’s questioning initial approach Warner’s 17, 2008, May prop not [Appellee] consensual, this Appellee con- Instead, the demon er.” record evidence encounter into an sensual escalated inves- probable based on Officer strates cause tigative supported detention reasonable personal Ap- Warner’s observations driving had been appeared intoxicated and failed the pellee transaction, intoxicated. The from while tests, sobriety the offi coupled field with questioning by initial Officer Warner Appellee’s personal knowledge from cer’s arrest, Appellee’s through was lawful. that he had driven wrecked admission Thus, by granting the trial court erred from Officer vehicle while “drunk” and informing Appellee’s suppress that he found motion to evidence. Morgan’s him officers, findings probable Although the of fact did not cause. trial court's do constitute Ross, testimony, not a reference this this is case See S.W.3d at 856-57. imply we in which must that the testimony. believe the did not officers’ See 02-06-339-CR, Kelley No. See also Sheppard, (Tex.App.-Fort 2008 WL *2 Worth Ross, Crim.App.2008); at 856- cf. ref'd) (officer's labeling pet. of arrest as (noting grants that when trial court motion being DWI had not for when he observed explanation suppress providing without driving defendant did not invalidate arrest testimony, where evidence is officer's public probable because cause existed in- may have officer on trial court disbelieved arrest) (citing toxication Warrick v. material fact have found that least one (Tex.Crim.App. Op.] [Panel credible, testimony, while did not estab 1982)); Reynolds cause). does The record lish (Tex.App.-Houston pet. [1st Dist.] suggest trial court did not believe the ref'd) (officer’s testimony that he arrested de- testimony. Instead, Sheppard, 271 officers’ See DWI, public fendant for rather than intoxi- findings at 286. trial court’s cation, arrest where did not invalidate record by Appel- were drafted conclusions—which public supported arrest for warrantless intoxi- attorney the trial court con lee’s —show cation). facts, that the cluded as testified V. Conclusion all any part disbelieve a wit- of testimony, ness’s if testimony even issue, we Having sustained the State’s is not controverted. This is so because trial reverse the court’s order and remand the it is trial court observes first proceedings the case for further consistent hand the appearance demeanor and of a opinion. with this witness, as to an opposed appellate court which can only impersonal read rec- DAUPHINOT, J., a dissenting filed ord.2 opinion. findings The trial court filed written of DAUPHINOT, Justice, LEE ANN law, fact and clearly setting conclusions of dissenting. out the trial court’s determinations of court granted credibility. trial Woodard’s mo- Again, the law is well estab- “In tion lished: a trial suppress. appel- reviewing ruling to The State is the court’s on a suppress, appellate lant. Our mandate clear: motion to is courts view all light must of the evidence in the ruling If the regarding trial court’s most favorable to the trial ruling.”3 court’s suppress sup- motion reasonably is When, here, as ported by the record and is un- correct a motion to suppress hearing [i]n where any theory applicable der of law the only the presented evidence is the testi- case, reviewing court must affirm.1 (which, of mony arresting if Consequently, in we may this case reverse believed, cause) probable adds up to ... only replace the trial court if we the trial trial may court have [t]he disbelieved judge’s determinations of with credibility fact, the officer on at one least material if, our own or deferring to his determina- may or the trial court be in a situation in credibility tions of viewing all the evi- it exactly which does not know what dence in the light most favorable are, (on facts but it does know the basis the trial court’s ruling, we cоnclude that demeanor, of appearance, and credibili- theory supported there is no law ty) they are not as the witness record viewed trial as court that situation, describes. In appel- this support could the trial ruling. late court does necessarily have a Certain well govern established rules set of historical it which appellate our review: apply law. The determination of In a suppress motion to hearing, on the entirely cause rests trial the sole trier of fact and credibility of the lone witness. This sce- judge credibility fact, of the the witnesses question nario is mixed of law and weight and the given be their testimo- the resolution of turns eval- which on an ny. Accordingly, judge may believe of credibility uation and demeanor. The State, 854, (Tex.Crim.App.), denied, Young (Tex.Crim.App.1991), 283 S.W.3d 873 cert. U.S. 510 — denied, -, 831, 101, (1993); t. - U.S. 130 S.Ct. 114 126 L.Ed.2d 68 cer S.Ct. - 1015, (2009) (citing L.Ed.2d State, 618, (Tex.Crim. Meek v. 790 S.W.2d State, 539, Romero v. 800 S.W.2d 543-44 App.1990); Mattias 1990)). Crim.App. Fecci, (Tex.Crim.App.1987); State v. (Tex.App.-San Antonio Ross, (Tex.Crim. 2. State v. 32 S.W.3d pet.)). App.2000) (citing Garcia v. 15 S.W.3d (Tex.Crim.App.2000); State v. Bal Garсia-Cantu, 3.State lard, (Tex.Crim.App. (Tex.Crim.App.2008). 1999); Allridge v. We cannot must not substitute our standard of review therefore proper Guzman, “almost of the facts and the credibil- category the second determination ruling.4 to the trial deference” in order to achieve ity total witnesses that we the trial court result believe not make if the court does Even should have reached. fact, findings explicit necessary court infers the appellate the know the trial court We do that believed the findings support that trial factual he testified that Officer Warner when ruling if the record evidence court’s intoxicated that he Woodard not so (viewed in the favorable light most a threat to himself or to constituted others. ruling) supports implied these fact the know trial court We also that the believed Thus, findings. we afford almost total he testified Officer Warner when that judge’s trial determina- deference without walking staggering Woodard that the rec- tion of the historical facts indicating or otherwise that he was intоxi- implic- his supports, especially ord when cated. factfinding it is on an evaluation based part case is in article This controlled credibility and This same of demeanor. 14.01 of the of Criminal Proce Texas Code highly applies deferential standard re- of reasoning dure and State Steelm of whether the trial court gardless has Article provides, an.7 14.01 suppress or denied a motion to granted (a) other peace any per- A officer or Thus, pre- that party evidence. warrant, son, may, arrest an without in vailed the trial court is afforded the when offender the offense is committed strongest legitimate view of the evidence view, if presence in his or within his may and all reasonable inferences felony is one as a or offense classed as be drawn from that evidence.5 against public peace. an offense Although “whether a set of histori- given (b) peace A arrest an of- police- cal facts amounts to a consensual any fender without a warrant for offense or citizen encounter a detention under the within presence committed his his subject Amendment is to de novo Fourth view.8 review because is an issue of law-the suppres- court’s upholding In the trial application legal specific of to a principles evidence, of the Steelman held sion facts,”6 of we do not re-write the set officers did not have arresting legitimate police-citizen in order to cause to believe Steelman employing under the guise contact pres- their committed an offense in had activity. of correct A presumption police ence, though they received tip even had activity presumption correct was dealing that someone his residence presumption any not a witness tell- drugs personally and officers smelled the the truth. A of correct ing presumption marijuana air when odor of in the Steel- police activity is not a mandate that the opened man front door.9 judge automatically trial must believe wit- activity. knowledge regarding testify justify police personal nesses who had no who Ross, (Ver Tex.Code Crim. Proc. Ann. art. 14.01 4. 856. 7. Steelman, 2005); State v. 93 S.W.3d 102 non App.2002). Crim. Garcia-Cantu, 253 at 241. 5. Crim. Ann. art. 14.01. 8. Tex.Code Proc. Id. Steelman, at 108. smoking possessing marijuana.10 there are problems two with the .But majority’s relying on line Consequently, the officers had no authori- this of cases in reversing trial make Nor ty to a warrantless arrest.11 determinations credibility First, facts and law. justify could officers’ actions the State did not argue to the trial court theory on a relied on in based that Officer Warner observed Woodard court.12 intoxication, commit the offense of public court, In the case this now before and the State did not argue that Officer officer observed commit of- Woodard Warner could have arrested Woodard for Information about the car in the fense. public intoxication. The State is the appel- ditch came from a who “did lant. This court cannot reverse the trial (name, provide any contact informatiоn ad- ruling ground court’s on a raised dress, number, birth, telephone date of the appealing party below.16 etc.) to the dispatcher so that the tipster problem The second with the majority’s be a later The could located at date.” attempt to set aside the trial court’s deter- anonymous tip satisfy require- did the of credibility minations of facts and of the personally ment that the officers the view law is there that is no evidence that Officer commission of the misdemeanor in order commit Warner observed Woodard the of- justify the ar- warrantless misdemeanor intoxication, public fense of but there is rest.13 affirmative evidence that Officer Warner did not observe Woodard commit the of- majority, setting in aside the public fense of intoxication. A person finding determinations public commits the offense of intoxication credibility, relies on two cases in which person when “the in a appears public arresting did not see officer the defen- place degree while intoxicated to the dant commit the misdemeanor of- DWI person may endanger person or for which fense he arrested the defen- another.”17 dant.14 Because the officer in each case testified, Officer Warner testified that he observed offense Q. nothing And there was about the intoxication, public cases hold that way Mr. was walking Woodard who of- person sees a commit the was illegal, correct? of public may fense intoxication properly sir, No, A. nothing illegal. public arrest for intoxication though even ar- words, officer believes he is Q. right. In All other he wasn’t DWI; resting assigning wrong for in walking the street a manner to the name offense not invalidate the dangerous does which was to other peo- arrest.15 ple? ref'd) Id. (Tex.App.-Fort pet.

10. Worth (mem. designated publication). ‍​‌‌‌‌​​‌​‌​​‌​‌​‌​​​​​‌‌​​‌‌‌​​​​‌‌‌​​‌​‌​​​‌‌‌‌‍op., not Id. 11. 3; Reynolds, 15. 560 & n. S.W.2d at Kel ley, Id. at WL 12. 107. at *2. Mercado, (Tex. 13. See 16. Tex.Code Crim. Proc. Ann. art. 14.01. Crim.App.1998). Reynolds 902 S.W.2d 558 ref'd); 49.02(a) (Vernon App.-Houston pet. Dist.] § [1st Tex. Penal Code Ann. 02-06-339-CR, Kelley v. Supp.2009). No. WL fact, applies I mandate whеn the tri- No, As a matter of The same sir. A. suppress.20 a motion grants al court walking he was a side- believe granting affirm the of the mo- walk, ‘We must sidewalk. public suppress tion to if it is correct under case, even if theory applicable of law to the endangering certainly So he wasn’t Q. in the trial court.”21 appellee not raised anyone? so, in part, must do because We No, sir, he was not. A. hearing, motion to suppress [i]n endangering wasn’t himself? Q. He trial court is the sole trier of fact and credibility of the witnesses judge of sir, No, he was not. A. weight given to be their testimo- think he was commit- Q. you So didn’t ny. Accordingly, judge believe public intoxi- ting the offense any part all or of a wit- or disbelieve time, cation at that correct? testimony, testimony even if that ness’s No, sir, A. I did not.18 not controverted. This is so because it is the trial court that observes first- specifically denied Officer Warner appearance hand the demeanor and commit personally he observed Woodard witness, opposed appellate as to an court intoxication. The public the offense of rec- impersonal which can read an State, therefore, trial rely did not the ord.22 theory on the that Officer Warner commit the personally observed Woodard findings fact The trial court entered public intoxication. The trial offense of clearly and conclusions of law that indicat- was court believed that Warner com- ed that no observed Woodard telling the truth. pres- mit a offense in their misdemeanor claimed, ence. At no time has the State

Again, our mandate is that there was and there is no evidence ap- uphold ruling the trial court’s to otherwise, any suspicion, reasonable suppress if that rul- pellant’s motion to felony. committed a that Woodard record and ing supported the was videotape Additionally, there is neither a any theory of law correct under was de- recording nor an audio of Woodard’s That rule holds applicable to the case. admissions, purported or his tention gave if trial court the true even the that Offi- the record contains no indication task, ruling. its Our wrong reason for 2.133 or complied cer with article Warner then, whether the trial is to determine the article 2.135 of Texas Code Criminal reasonably ap- have denied court could Procedure.23 the suppress given pellant’s motion did majority The states that Woodard given applicable record evidence disprove representa- Officer Warner’s federal state law.19 Stevens, 21. State v. 187 S.W.3d 18. I R.R. at 37-38. 2006), App.-Houston rev'd on oth [14th Disl.] (Tex.Crim.App. grounds, er 235 S.W.3d 736 19. Armendariz 2007). (citations omitted), (Tex.Crim.App.2003) cert. denied, 974, 124 S.Ct. 541 U.S. Ross, at 22. 855. (2004). L.Ed.2d 469 2.133, Ann. arts. 23. Tex.Code Crim. Proc. Ross, (Vernon Supp.2009). 2.135 Ordinary procedural tion that the encounter was consensual. notions of default however, places The majority, improperly equally should apply to the defendant on the citizen proof burden of detained and the State. Therefore hold we law rather than on State. The is well in cases in which State is the party established that while the seized appealing, basic principle appel- originally proof the burden of bears late jurisprudence points not ar- suppression hearing, once the defendant gued at trial are deemed to be waived fact establishes the that his arrest was applies to the equally State and the de- warrantless, the “burden then shift[s] case, fense. In the instant Appel- once the State to establish that the seizure was lee standing premises established in the pursuant conducted to a warrant or was to be searched and that the search was reasonable.”24 This burden a burden warrant, conducted without he satis- persuasion. fied his establishing burden of his Fourth

It is Amendment claim the bur- uncontested Woodard de- tained den and then arrested without war- shifted to State to establish an Contrary rant. majority’s to the state- exception requirement. warrant ment, presumption proper there only theory argued The by the State and to justify conduct the warrantless presented presump- detentiоn. There was no such search proper inventory. was a The tion for Woodard overcome. bur- ruling specifically limit- den justify was on the the war- ed to legal arguments the facts and pre- rantless detention and arrest. The State sented to it. Thus the trial court cannot attempted by persuading to do this be held to have abused its discretion in trial court that the cause to ar- ruling only on theory present- of law lawfully rest was obtained as the result of ed to it.26 a consensual encounter that included vol- The burden was not on Woodard to untary responses questions to the officer’s prove his detention and arrest were Woodard, stopped after the officer who It is reasonable. that he uncontested

was walking down the The sidewalk. offi- prosecuted was arrested and for misde- cer he stopped admitted that and Woodard meanor The trial court so found. DWI. him, questioned but the officer claimed No officer any observed Woodard commit that the were answers volunteerеd.25 He misdemeanor offense. The trial court so also he required admitted that Woodard to found. perform sobriety field tests after Woodard responded questions. to his Although speak person’s courts of a be- ing free when police to leave a officer appealing,

Because the State is reversal him, approaches fairly if courts hold required only the trial also court abused its regularly walking running away by failing uphold discretion to the deten- ground proved approaches tion and on a when an officer rea- provides arrest and argued by State in trial to suspicion court. sonable for the officer detain is, indeed, lose, Appeals person. Texas of Criminal Court has It a lose explained any person this well established rule: situation for a officer police State, (Tex. 24.Bishop v. I.R.R. at 24. State, Crim.App.2002); see v. Sieffert (Tex.App.-Amarillo & n. Mercado, 972 S.W.2d at 78. pet.) (quoting Bishop). Hodari, leave, D.34 ‍​‌‌‌‌​​‌​‌​​‌​‌​‌​​​​​‌‌​​‌‌‌​​​​‌‌‌​​‌​‌​​​‌‌‌‌‍Perhaps, v. a He is to. free to speak

wants to California ap- slowly frоm a person away When the officer free to walk leaves. unless he encounter, v. Neal ran in Neal but not to run or to proached Neal consensual him asked for identifica- away. Running walking when the officer quickly walk suspicious circum- Running tion.27 suspicion. reasonable too fast creates this stance.28 In Clarke court, inBut the case now before this lawfully held the officer detained away. The State did not walk Woodard descrip- he matched because defendant could not rely therefore not and on did large thighs male with and tion of a white “walking away” justification. shorts wearing dark and white buttocks t-shirt, activity not as and “Clarke’s The trial court’s factual determinations activity innocent as with consistent with record, may supported by are and we activity away when he ran from criminal them. Nor this court disturb In the officer.”29 Guzman credibility substitute its determinations who, out a he drug pointed dealer And for those of the trial court. this court officer, had some reported police to the grounds is bound сonsider for him, approached heroin.30 As the affirming re- the detention away appeared Guzman walked go trial lied in the court. We cannot rea- These actions created both swallow. reversing ground out find a exigent circum- sonable not present trial the State did court that seizing the officer’s Guz- justifying stance The law and the trial court. the facts man.31 affirm the require that we State,32the ran In defendant Johnson suppress. the motion to Be- granting of appeared. Although they when the not, I majority cause does must re- no report saw and had no offense majority’s from the thor- spectfully dissent offense, yelled him the officers chased ough carefully opinion. written yield he stop. for him Because did not authority, there was no their show seizure, although they him down chased caught By the actually

until him.33 they him, they time tackled had reasonable they him for questioning detain something they carrying saw him because might purple thought gun, he have a suspiciously by running. acted he had followed the mandate courts Johnson 31. Id. (Tex.Crim.App.2008), 27. at 91-92. - -, denied, cert. U.S. 129 S.Ct. (2009). L.Ed.2d (Tex.App.-Dallas 32. 864 715-16 S.W.2d 1993) (Johnson I), aff’d, 912 28. Id. (Johnson II). 1995) Crim.App. (Tex.App.-Fort 29. 868-69 235; I, II, S.W.2d at Johnson Johnson 1990), (Tex.Crim. aff’d, 811 Worth 715-16. S.W.2d at denied, App.), 502 U.S. 112 S.Ct. cert. (1991). 116 L.Ed.2d 621, 626-28, 34. 499 S.Ct. U.S. (1991). L.Ed.2d 690 (Tex.Crim.App.1997).

Case Details

Case Name: State v. Woodard

Court Name: Court of Appeals of Texas

Date Published: Apr 1, 2010

Citation: 314 S.W.3d 86

Docket Number: 2-09-052-CR

Court Abbreviation: Tex. App.