### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00764- CR

Jose Luis S osa, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 11- 2053 90, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Fo l l owing the denial of his motion to suppress evidenc e, a jury found appellan t J ose Sosa g uilty of possession of a contr olled substance, a second- deg ree felony

. See Tex. Health & Safety Code § 481.115(d). The tr i al co u rt assessed punishment at five y ear s’ imprisonment, probate d. I n two issues, Sosa contends that the trial court should have g rante d his motion to suppress and that the e vidence was not l eg ally sufficie nt to support the jury ’s implied finding tha t probable

cause exis ted for his a

rre st. W e will aff

irm the trial cour

t’s judgme nt.

BACK GR OUND 1 I n October 2011, Sosa and his friend wer e involved in a disturbance on Six th Street in downtown Austin. The tw o m en al leg edly touched the brea sts of a y oung woman, and Sosa’s friend alleg edly struck the y oung woman in the fac e. When Offic er Ronald Enriquez of the Austin

The fa cts rec ited here in are taken f rom the testimony

prese nted at trial. 1Police Depa rtment tried to approa ch Sosa to question him about the disturbance , Sosa ran into a bar. Offic er Enriquez pursued Sosa throug h the b ar an d ca u ght up with him in an alley behind the bar. Offic er Enr iquez spoke with Sosa and observe d what he be lieved to be signs of intox ication. After speaking with additional witnesses, Offic er Enriquez place d Sosa under arr est fo r p u b lic intox ication. Off

icer Enriquez sear ched Sosa a nd discovere d a plastic bag holding smaller plastic bag s containing what was later deter mined to be coca ine. Sosa was then also place d under arr est for possession of a c ontrolled substance

.

So s a w a s c h a

r g e d w it h p o s s e s s io n o f a c o n

tr o ll e d s u b s ta n c e w it h in te n t to d e li v e r in a

n amount of four g rams or more but less than 200 g rams. Sosa filed a motion to suppress, arg uing that the coca ine was discovere d in a sear ch incident to an unlawful arr est beca use there was no probable

cause to arre st him for public intox ication. The tria l court denie d the motion following a hear ing. Sosa later reque sted the submissi on of a jury instruction pur suant to Texas Code of Criminal Procedure article 38.23, and the tria l court g rante d Sosa’s reque st. See Tex. Code Crim. Proc. art. 38

. 2 3 (“I n any case wher e the leg al evidence raises an issue here under, the jury shall be instructed that if it be lieves, or has a re asonable doubt, that the evidenc e was obtained in violation

o f th e p r o v is io n s o f th is A r ti c le

. . . th e ju

r y s h a ll d is r e g a

r d a ny s u c h e v id e n c e s o o b ta in e d

. ” )

. T h e ju r y found Sosa not g uilty

of poss ession of a controlled subst ance with intent to deliver but found him g uilty of the lesser included offe nse of possession of a controlled substance. This appea l followed.

STANDARD OF REVIEW I n his first issue, Sosa contends that the trial court err ed b y d en y i n g his motion to suppress evidenc e beca us e Offic er Enriquez lacke d probable cause to arr est him for public

2intox ication. We revie w a trial court’s ruling on a motion to suppress for abuse of discretion, using

a bifurca ted standard. Goodwin v. State , 376 S.W .3d 259, 266 (Tex. App.—Austin 2012, pet. ref ’d). I n doing so, we view the evidenc e in the light most favor able to the trial court’s ruling

. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013). We g ive almost total defe renc e to r ulings on application of the law to questions of fac t and to mix ed questions of law and fac t if resolution of those questions depends on an ass es s m en t o f cre dibilit y and demeanor of witnesses. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. Ap p . 2013). We revie w de novo pure questions of law and mix ed questions of law and fac t that do not depend on evalua ting cre dibilit y and demea n o r. Martinez v. Stat e , 348 S.W .3d 919, 923 (Tex

. C ri m . Ap p . 2011). “The ultimate deter mination of whether probable cause exis ts is subject to de novo revie w on appea l.” Baldwin v. State , 278 S.W .3d 367, 371 (Tex. Crim. App. 2009). We will aff irm the trial court’s ruling if the re co rd rea sonably supports it and it is corr ect on any theory of law applicable to the case . State v. Duran , 396 S.W .3d 563, 571 (Tex. Crim. App. 2013).

DISCUSSIO N

Motion to suppress

I n his motion to suppress, Sosa arg ued that there was no probable cause to arr est him for public intox ication and, there fore , any drug s that wer e discovere d during the sear ch incident to

arr est wer e inadmissible. See U.S. Const. amend. I V. Probable cause exis ts w hen the police have

rea sonably trustworthy information, considere d as a whole, sufficie nt to war rant a rea sonable person to believe that t he person arr ested has committed or is committing an offe nse. Amador v. State ,

3275 S.W .3d 872, 878 (Tex. Crim. App. 2009). “Probable cause deals with probabilities.” Guzman

v. State , 955 S.W .2d 85, 87 (Tex. Crim. App. 1997). I t “re quires more than mere suspicion but far less evidenc e than that neede d to support a conviction or even tha t neede d to support a finding by

a preponde ranc e of the evidenc e.” Hughes v. State , 24 S.W .3d 833, 838–39 (Tex. Crim. App. 2000). I n other words, in order to overc ome Sosa’s motion to suppress, the State did not need to prove that Sosa was publi cly intox icated, only that probable cause exis ted t o believe th at h e was. See Texas D e p ’ t o f P u b

. S a fe ty v . M c H u g h , N o . 0 3

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- 0 0 2 6 1

- CV , 2 0 1 4 WL 5 4 2 0 4 0 7 , a t * 4 ( T e x. A

p p . — A u s ti n Oct. 24, 2014, no pet.) (mem. op.). A person commits the offe nse of public intox ication if the person “appe ars in a public place while intox icated to the deg ree that the person may endang er the person or anothe r.” Te x . Penal Code § 49.02(a ).

At the hear ing on Sosa’s motion, Offic er Enriquez testified to the fol l o wing fac ts. A staff member from a bar flag g ed En ri quez down and called his attention to a disturbance happening outside the bar. The staff member pointed S o s a o u t as someone involved in the disturbance , and Offic er Enriquez saw Sosa arg uin g wi t h a group of people. When Sosa saw the office r approa ching , he turned and ran into t h e b ar . Offic er Enriquez followed Sosa throug h the bar and caug ht up to him in an alley

. Sosa exhibi ted signs of intox ication, includin g “[ i ] m p ai red speec h, impaired balanc e, bloodshot and g lassy ey es, [and] a strong odor of an alcoholic bever ag e.” Sosa also admitted to being involved in the disturbance

. I n addition, Offic er Enriquez spoke to the victim of the alleg ed assault, who confirme d that she was assaulted. Ba sed on the totality of the circ umstances, Offic er Enriquez conclude d that Sosa was a dang er to himself or others and place d him under ar

rest for public intox ication.

4Viewing the evidenc e in the light most favor able to the trial court’s ruling and

defe rring to the trial court’s ev al u at i o n of the cre dibilit y and demea nor of witnesses, we cannot conclude that the trial court abused its discretion by d en y i n g Sosa’s motion to suppress. Offic er Enriquez’s own observa tions and the statements he rec eived from witnesses constituted rea sonably trustworthy information t h at Sosa was intox icated and had just been involved in an assault. Although Offic er Enriquez did not perf orm a field sobriety test or brea thaly z er t es t , h e testified that Sosa exhibi ted sever al signs of intox ication. See Harris v. State , 204 S

. W

. 3 d 1 9 , 2 5 (Tex. App.—Houston [14t h Dist.] 2006, pet. ref ’d) (“Evide nce of intox ication may include (1) sl u rre d speec h, (2) bloodshot ey es, (3) the o d o r of alcohol on the person, (4) the odor of alcohol on the brea th, (5) unste ad y b al an ce, or (6) a stag g ere d g ait.”); see also Tex. Penal Code § 49.01(2)( A) (“‘ I ntox icated’ means . . . not having the normal use of mental or phy sical fac ul t i es by rea son of the introduction of alcohol

. . . into the body

. . . .”); Bris t er v. State , 414 S.W .3d 336, 341 (Tex. App.—B eaumont 2013), aff’d , 449 S.W .3d 490 (Tex. Crim. App. 2014) (“When ba sed upon fac ts

an experience d office r observe s and then descr ibes t o t h e j u ry , an office r’s opinion conce rning a person’ s intox ication provides sufficie nt evidenc e of intox ication.”)

. Ba sed on this evidenc e, we conclude that Offic er Enriquez had probable cause to arr est Sosa for public intox ication beca use the office r rea sonably believed that Sosa was intox icated in a public place and was a dang er to himself or others. See Tex. P enal Code § 49.02( a) ( listi ng elements of public intoxication).

Sosa points out what he perc eives to be wea knesses in the State’s evidenc e, including the fac t that Offic er Enriquez did not rec ord the name of ever y witness that he spoke to, that a friend of Sosa’s testified at the hear ing that he had observe d Sosa on the evening of the disturbance and

5does not believe that Sosa was intox icated, and that Sosa’s ability to quickly maneuve r throug h a

crow ded bar underc uts Offic er Enriquez’s deter mination that Sosa was intox icated. Howeve r, these alleg ed defe cts d o n o t indicate that Offic er Enriquez lacke d rea sonably trustworthy information that Sosa had committed a crime. Moreover, all of these observa tions addre ss the cre dibilit y or weig ht of the State’s evidenc e, not its admissibili ty
. At a hear ing on a motion to suppress, the trial court is “the sole trier of fac t and judge of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony .” W

illiams v. State , 257 S.W .3d 426, 432 (Tex. App.—Austin 2008, no pet.). There fore , the trial court could have found Offic er Enriquez to be a cre dible witness and could have disreg arde d conflicting testimony

.

Be cause we cannot conclude that the trial court abused its discretion by deny ing Sosa’s motion to suppress, we over rule Sosa’s f

irst issue. Legal sufficiency

of the jury’s im

plied findin g I n his second issue, Sosa arg ues that the evidenc e was not leg ally sufficie nt to support the jury ’s implied f

inding, pursuant to the article 38.23 instruction, tha t pr obable cause exis ted for his arr est. “When a contested fac t issue reg arding the leg ali t y of the state’s procur ement of the primary evidenc e of g uilt is submitt ed to the jury , a g uilty verdic t indicates an implied finding that t h e procur ement of the evidenc e was lawful.” Crain v. State , No. 12-13-00110- CR, 20 1 3 W L 6 2 0 7 8 3 5 , a

t *1 (Tex. App.—Ty ler Nov. 26, 2013, no pet.) (mem. op., not desig nated for publication). Howeve r, “[t] he Texas Court of Criminal Ap p ea l s has rec og nized that evidentiar y sufficie ncy and admissibili ty of evidenc e are distinct issues.” Price v. State , No. 06-11-00120- CR, 2012 WL 112534, at *1 (Te x . App.—Texarkana J an. 12, 2012, no pet.) (mem. op., not de signa ted
6for publication); see Hanks v. State , 137 S.W .3d 6 6 8 , 6 7 1 (T ex . Crim. App. 2004) (noting that

sufficie ncy and admissibili ty are distinct issues). “Ac cording ly , a sufficie ncy revie w is appropr iate only as t o the s ufficie ncy of t he S tate’s proof as to elements of the offense,” and “[t] he lega lity of appellant’ s detention is not an element of the offe nse char g ed, but rela tes t o t h e ad missibi lity of evidenc e.” Price , 2012 WL 112534, at *1; see Hanks , 137 S.W .3d at 672 (“ We hold that factua lsufficie ncy revie w is appropr iate only as to the sufficie ncy of the state’s proof as to elements of the offe nse. Such a revie w is not appropr iate as to the admissibili ty of evidenc e when such a question is submitted to the jury pursuant to A rticle 38.23(a) .”). There fore , courts of appea ls do not r eview the sufficie ncy of the evidenc e supporting the jury ’s implied finding that probable cause exis ted for the defe ndant’s arr est. See Churchill v. State , No. 03-03-00746- CR, 2006 WL 305022, at *4 (Tex. App.—Austin Fe b. 9, 2006, pet. ref ’d) (mem. op., not desig nated for publication) (“[W] e may only conduct a fac tual-suffic iency revie w reg arding the sufficie ncy of the State’s proof of elements of the offe nse. We may not conduct a fac tual-suffic iency revie w of the admissibili ty of evidenc e when a question is submitt ed to the jury pursuant to article 38.23(a) .”) (cit ation omitted); see also Crain , 2 0 1 3 WL 6207835, at *1 (“[A] leg al sufficie ncy revie w is not an appropr iate vehicle to revie w a jur y ’s i m p l i ed finding under article 38.23.”); Price , 2012 WL 112534, at *1 (“[A]n evidentiar y sufficie ncy revie w is not available fo r an Article 38.23 jury instruction.”); Gonzales v. State , N o . 1 3

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- 0 0 6 4 0

- CR , 2 0 1 1 WL 5 8 4 3 6 8 6 , a t * 6 ( T e x. A

p p . — Co r p u s Ch r is ti N o v . 2 2 , 2 0 1 1 , p e t. r e f ’ d ) (mem. op., not desig nated for publication) (“A n appellate court may not conduct a sufficie ncy r e view

o f a ju r y ’ s d e te r mi n a ti o n u n d e r a r ti c le 3 8

. 2 3 ; r a

th e r , a s u f f ic ie n c y r e v ie w a

p p li e s to w h e th e r s u f

f ic ie n t evidenc e shows the elements of a criminal offe n s e. ”) ; Saylor v. State , No. 05-09-01558- CR,

72011 WL 505453, at *1 (Tex . App.—Dallas F eb. 15, 2011, no pet.) (mem. op., not desig nated f or publication) (“[A] jury instruction conce rning the leg ality of appellant’ s detention should not be used to measur e the suff

iciency of the e vidence .”). Acc ording ly , we ove rrule Sosa’ s second issue.

CONCLUSION Having overr

uled both of Sosa’s issues, we aff irm the judg ment of convic tion.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: Aug ust 18, 2015 Do Not Publish

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