Alejandro Perez v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00022-CR
No. 10-09-00023-CR
No. 10-09-00024-CR
ALEJANDRO PEREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court Nos. 62,176, 62,177 and 62,178
MEMORANDUM OPINION
After his motion to suppress was denied, Appellant Alejandro Perez pleaded
guilty in three cases to driving while intoxicated, possession of a controlled substance
(less than 28 grams,) and possession of marijuana. In the same issue in these three
appeals, Perez asserts that the trial erred in denying his motion to suppress. We will
affirm.
We review a trial court’s suppression ruling under a bifurcated standard of
review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We do not engage
in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990);
Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge
is the sole trier of fact and judge of the credibility of the witnesses and the weight to be
given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007).
Therefore, we give almost total deference to the trial court’s rulings on (1) questions of
historical fact, even if the trial court’s determination of those facts was not based on an
evaluation of credibility and demeanor; and (2) application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673. But
when application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de novo. Id.
We must view the evidence in the light most favorable to the trial court’s ruling.
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When
the trial court makes explicit fact findings, we determine whether the evidence, when
viewed in the light most favorable to the trial court’s ruling, supports those fact
findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court’s legal ruling
de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Id. at 819. In the absence of explicit findings, the
appellate court assumes the trial court made implicit findings that support its ruling as
long as those findings are supported by the record. Valtierra v. State, 310 S.W.3d 442,
447 (Tex. Crim. App. 2010).
A defendant seeking to suppress evidence on the basis of an alleged Fourth
Perez v. State Page 2
Amendment violation bears the initial burden of rebutting the presumption of proper
police conduct; he meets this burden by demonstrating that the challenged search or
seizure occurred without a warrant. Young v. State, 283 S.W.3d 854, 872 (Tex. Crim.
App.) (per curiam), cert. denied, --- U.S. ---, 130 S. Ct. 1015 (2009). The burden then shifts
to the State to prove that the search or seizure was reasonable under the totality of the
circumstances. Amador, 221 S.W.3d at 672–73. This burden may be satisfied by a
showing that one of the statutory exceptions to the warrant requirement is met. See
Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). In this case, it is undisputed
that no warrant was issued for Perez’s arrest, so the State bore the burden of
establishing the reasonableness of Perez’s arrest. See Young, 283 S.W.3d at 872; Amador,
221 S.W.3d at 672–73.
Because the trial court did not make findings or conclusions, we assume it made
implicit findings that support its ruling if the record supports them. The suppression
hearing record consists of the testimony of DPS Trooper Dan Baker, who said he had
been a trooper for over seven years. On the evening in question, he was investigating
an 11:30 p.m. traffic accident in which several involved individuals were at a hospital.
They told Baker that Perez, who was involved in the accident, was at a residence. Baker
went there around 2:30 a.m., asked the homeowner if Perez was there, and the
homeowner said that he was and allowed Baker into the residence.
Perez was asleep—“passed out” in Baker’s words—on the floor, and Baker had
trouble waking him. Baker asked Perez to come outside, and he was free to decline to.
Perez came outside, and Baker told Perez that he was investigating a traffic accident.
Perez v. State Page 3
Perez admitted he had been driving and drinking alcohol, and Baker smelled alcohol on
Perez’s breath and person. Baker asked Perez to perform field-sobriety tests, after
which Baker concluded, based on his entire investigation and the field-sobriety tests,
that Perez was intoxicated. He arrested Perez for DWI.
Perez asserts that his motion to suppress should have been granted because his
arrest was warrantless, no probable cause to arrest existed, and no warrantless-arrest
exception applies. Probable cause for a warrantless arrest exists when the arresting
officer possesses reasonably trustworthy information sufficient to warrant a reasonable
belief that an offense has been or is being committed. Amador v. State, 275 S.W.3d 872,
878 (Tex. Crim. App. 2009); Paulea v. State, 278 S.W.3d 861, 864 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d). The State bears the burden of proving probable cause to
support a warrantless arrest. Paulea, 278 S.W.3d at 865. We review de novo whether
probable cause exists to justify a warrantless arrest after considering the totality of the
circumstances surrounding the arrest. Id.
Baker possessed sufficient facts to form a reasonable inference that Perez drove
while intoxicated based on Perez’s performance of the field-sobriety tests and his
admission that he had been drinking, driving, and in the traffic accident. See Banda v.
State, --- S.W.3d ---, ---, 2010 WL 2899000, at *5 (Tex. App.—Houston [14th Dist.] July 27,
2010, no pet. h.) (citing Diaz v. State, No. 05-09-00750-CR, 2010 WL 1714001, at *2 (Tex.
App.—Dallas Apr. 28, 2010, no pet.) (not designated for publication) (concluding officer
had probable cause to arrest appellant for driving while intoxicated based on results of
field-sobriety tests, appellant’s breath smelling of alcohol, and appellant’s unsteady
Perez v. State Page 4
balance), and Johnson v. State, No. 14-07-00818-CR, 2008 WL 5085561, at *2 (Tex. App.—
Houston [14th Dist.] Nov. 25, 2008, pet. dism’d) (mem. op.) (not designated for
publication) (appellant’s failure of the field-sobriety test also provided a basis for
probable cause to arrest him)). He thus had probable cause to arrest Perez.
Warrantless arrests are authorized only in limited circumstances outlined
primarily in Chapter 14 of the Code of Criminal Procedure. Swain v. State, 181 S.W.3d
359, 366 (Tex. Crim. App. 2005). The State contends that Perez’s arrest is justified under
article 14.03(a)(1) of the Code of Criminal Procedure, which authorizes the warrantless
arrest of an individual found in a suspicious place under circumstances reasonably
showing the individual committed a breach of the peace. See TEX. CODE CRIM. PROC.
ANN. art. 14.03(a)(1) (Vernon Supp. 2009). DWI is a breach of the peace. Gallups v. State,
151 S.W.3d 196, 201 (Tex. Crim. App. 2004); Trent v. State, 925 S.W.2d 130, 133 (Tex.
App.—Waco 1996, no pet.).
For a warrantless arrest to be justified under article 14.03(a)(1), the totality of the
circumstances must show (1) the existence of probable cause that the defendant
committed a crime and (2) the defendant must be found in a suspicious place. Dyar v.
State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003). Having already concluded that
probable cause existed to arrest Perez, we must now determine whether appellant was
found in a suspicious place. Few places, if any, are inherently suspicious. Id. at 464–65.
The determination of whether a place is suspicious requires a highly fact-specific
analysis. Id. at 468. Any place may become suspicious when an individual at the
location and the accompanying circumstances raise a reasonable belief that the
Perez v. State Page 5
individual committed a crime. Id. at 464-68; Hollis v. State, 219 S.W.3d 446, 459 (Tex.
App.—Austin 2007, no pet.). A key factor used to justify the determination of a place as
suspicious is whether the time frame between the crime and the apprehension of the
suspect is short, but there is no specific time limit. See Dyar, 125 S.W.3d at 468.
Under the particular facts of this case, we conclude, based on the totality of the
circumstances set forth above (as have many courts addressing similar facts), that Perez
was found in a suspicious place and that his warrantless arrest was therefore lawful.
See, e.g., Gallups, 151 S.W.3d at 201–02; Dyar, 125 S.W.3d at 461-62; Banda, --- S.W.3d at --
-, 2010 WL 2899000, at *6-7; Morgan v. State, No. 07-07-00429-CR, 2009 WL 1361578, at *6
(Tex. App.—Amarillo May 14, 2009, no pet.); Layland v. State, 144 S.W.3d 647, 650-51
(Tex. App.—Beaumont 2004, no pet.); Sandoval v. State, 35 S.W.3d 763, 768–69 (Tex.
App.—El Paso 2000, pet. ref’d).
The trial court did not err in denying Perez’s motion to suppress. We overrule
Perez’s sole issue in each appeal and affirm the judgment in each appeal.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 25, 2010
Do not publish
[CR25]
Perez v. State Page 6