In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-19-00429-CR

___________________________

On Appeal from the 271st District Court

Jack County, Texas

Trial Court No. 4815

Before Bassel and Womack, JJ.; Lee Ann Dauphinot (Senior Justice, 

Retired, Sitting by Assignment).

Memorandum Opinion by Justice Dauphinot

WILLIAM BRUCE GLEASON, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

The trial court convicted Appellant William Bruce Gleason of felony driving 

while intoxicated (DWI), enhanced by a prior felony DWI conviction, and sentenced 

him to seven years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice. Appellant brings a single point on appeal, arguing 

that the trial court abused its discretion in denying his motion to suppress evidence 

seized from his illegal traffic stop. He does not challenge the sufficiency of the 

evidence to support his conviction. Because the trial court committed no reversible 

error in denying Appellant’s motion to suppress the evidence complained of, we 

affirm the trial court’s judgment.

Brief Facts

Tracie Pippin, the Jack County District Clerk, grew up in Jack County and 

personally knew Appellant. On June 30, 2017, Pippin saw Appellant at a local funeral 

home visitation. She spoke to Appellant there and noticed the smell of alcohol that 

she thought came from his breath. Appellant was also unsteady. Out of concern, she 

asked Appellant to step outside, where she offered to give him a ride home. He 

declined the offer.

At the same time, Jack County Sheriff Tom Spurlock was also in the lobby of

the funeral home to provide security during a visitation. He testified that he noticed 

Appellant in the lobby and became suspicious that Appellant might be intoxicated 

because he was unsteady on his feet, he stumbled, and his voice was loud and slurred. 
3

Sheriff Spurlock also testified that Appellant appeared to avoid him, walking further 

down the hallway and “peeking around the corner” at him. One of the family 

members at the funeral home expressed concern to Sheriff Spurlock that Appellant 

was intoxicated.

Jack County Deputy Jack Randall Hunter arrived at the funeral home to issue a 

criminal-trespass warning unrelated to this case. Sheriff Spurlock told Deputy Hunter 

to “keep an eye” on Appellant. According to Sheriff Spurlock, he also told Deputy 

Hunter “what [Appellant’s] actions had been like since [Sheriff Spurlock] had seen 

him come in.” But Deputy Hunter testified that Sheriff Spurlock told him only that

he thought Appellant appeared to be intoxicated.

While Sheriff Spurlock and Deputy Hunter were occupied with the person 

receiving the criminal-trespass warning, Appellant got into his pickup and started to 

back out. Deputy Hunter did not see Appellant getting in his truck, but he did see the 

truck leaving the funeral-home parking lot. He followed Appellant until Appellant 

stopped in the parking lot at the VFW.

Deputy Hunter described the route Appellant took, referencing street names 

and landmarks in detail, but he did not say how long it took for him to follow 

Appellant to the VFW. Deputy Hunter testified that he did not see any instances of 

impaired driving by Appellant while he was following him. Indeed, although Deputy 

Hunter’s unit was equipped with a functioning dash camera, he did not activate the 
4

camera until after both he and Appellant had already pulled into the parking lot and 

stopped.

Deputy Hunter testified that he stopped behind Appellant and then walked up 

to the driver’s side of Appellant’s truck. When asked what Appellant did then, 

Deputy Hunter said, “Well, I announced -- told him who I was and what was going 

on. He seemed a little confused, a little -- I don’t know what the word -- maybe a 

little incoherent about who I was and where we were and what was going on.” 

According to Deputy Hunter, when the truck’s door opened, he “could smell the 

odor of alcoholic beverage from inside there.”

Deputy Hunter testified further that Appellant’s eyes were “a little red at the 

time from looking -- when I looked at him there.” Deputy Hunter asked Appellant to 

“step out of the truck and come to the back of his vehicle to visit with [him].” He 

described Appellant’s exiting the truck as follows:

After several times of asking him and kind of coaching him come on

back here in the back, he did. He did make his way to the back of the 

truck.

. . . .

His balance seemed off. He was -- he was having a difficult time

walking back. He actually used the bed rail of the truck to hold on to as 

he was walking, and he stopped a little bit. And I asked him to come 

back here to the back of the truck with me, and he finally made it there 

but he did -- didn’t have his balance with him at all there that day.

Deputy Hunter then testified he performed the horizontal gaze nystagmus 

(HGN) field sobriety test on Appellant and that he observed lack of smooth tracking
5

on both eyes and nystagmus onset prior to 45 degrees. After the HGN test, Deputy 

Hunter asked Appellant to perform the one-leg-stand. Deputy Hunter testified that 

Appellant did not attempt that test; he told Deputy Hunter he could not perform it 

because of a prior knee surgery and nerve damage in his feet. Deputy Hunter testified 

that on the walk-and-turn test, Appellant started early before Deputy Hunter had 

completed the instructions and also stepped off the line a few times. Deputy Hunter 

concluded it was “unsafe” for Appellant to continue performing the test. Deputy 

Hunter testified that he also had Appellant perform two additional, nonstandardized

sobriety tests and that after his interaction with Appellant, he believed Appellant was 

intoxicated by the introduction of alcohol into his body.

Instead of performing the tests within view of the patrol car’s dash camera, 

Deputy Hunter asked Appellant “to [go] out [to] the roadway that was a little more 

smooth and more level . . . to perform . . . testing.” According to Deputy Hunter, he 

did not think to move the dash camera at the time.

Although we cannot see Appellant’s performance on the field sobriety tests, we 

can hear what was said on the video. We have only a narrative of Deputy Hunter’s 

commentary on what he contends is Appellant’s performance. Deputy Hunter does 

explain on the video, however, that Appellant claimed he was recovering from knee 

surgery, had nerve damage in his feet, and could not perform the one-leg stand.

After Appellant had been taken into custody, and the officers were no longer 

outside their vehicles, the dash camera was shifted to record the area where the field 
6

sobriety tests had been conducted. No one contends the camera was incapable of

recording the field sobriety tests.

Trevor Wilson Topper, a Texas Department of Public Safety trooper and 

certified intoxilyzer operator, was requested to obtain a breath sample from Appellant. 

But when Trooper Topper arrived at the jail, Appellant declined to provide a breath 

sample to be tested.

Appellant was later charged with felony DWI. The indictment alleged, in 

pertinent part, that Appellant did

then and there operate a motor vehicle in a public place while [he] was 

intoxicated by not having the normal use of mental or physical faculties 

by reason of the introduction of alcohol, a controlled substance, a drug, 

a dangerous drug, or a combination of two or more of those substances 

into the body, or by having an alcohol concentration of at least 0.08.

Before testimony began at his trial, Appellant entered into a stipulation 

regarding his two prior jurisdictional DWI convictions. The State also waived the 

deadly-weapon allegation it had included in the indictment.

The trial court found Appellant guilty of felony DWI. Appellant then entered a 

plea of true to the enhancement paragraph, and following a brief punishment hearing,

the court sentenced him to seven years’ confinement.

We Correct a Clerical Error in the Trial Court’s Judgment

Before considering the appeal’s merits, we must correct an obvious clerical 

error in the trial court’s judgment. The case now before this court was tried to the 

judge, who found Appellant guilty of felony DWI and the enhancement allegations 
7

true. The court entered a verdict of guilty of felony DWI as alleged in the indictment. 

We note the judgment incorrectly reflects that a jury returned the verdict of guilty. 

Therefore, the judgment contains a clerical error.1

When the record provides the necessary information to correct a clerical error

in the trial court’s judgment, we may modify the judgment to speak the truth.2

Therefore, we correct the clerical error in the judgment to reflect that the judge, not a 

jury, heard the case and returned the guilty verdict.

Motion to Suppress

Appellant does not challenge the sufficiency of the evidence to support his

conviction for DWI. Rather, he challenges only the trial court’s denial of his motion 

to suppress the evidence obtained after what he argues was an illegal traffic stop.

Standard of Review

We review a trial court’s ruling on a motion to suppress for an abuse of 

discretion.3 We view the evidence in the light most favorable to the trial court’s

ruling, and we will reverse only if the ruling is arbitrary, unreasonable, or “outside the 

1

See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (“A clerical error 

is [an error that] does not result from judicial reasoning or determination.”); Cain v. 

State, 621 S.W.3d 75, 88 (Tex. App.—Fort Worth 2021, pet. ref’d).

2

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Cain, 621 S.W.3d 

at 88.

3

State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018).
8

zone of reasonable disagreement.”4

 Because the trial court is the sole trier of fact at a 

suppression hearing, we give almost total deference to the trial court’s determinations

of historical facts, especially when those determinations are based on assessments of 

credibility and demeanor.5

 The trial court is entitled to believe or disbelieve all or any 

part of a witness’s testimony, whether that testimony is controverted or 

uncontroverted, because the court has the opportunity to observe the witness’s 

demeanor and appearance.6 This deferential standard of review also applies to a trial 

court’s determination of historical facts based on a videotape recording admitted into 

evidence at a suppression hearing, although we may review de novo “‘indisputable 

visual evidence’ contained in a videotape.”7

If the trial court makes express findings of fact, we view the evidence in the 

light most favorable to its ruling and determine whether evidence supports the fact 

4

State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. 

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

5

Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017); Story, 445

S.W.3d at 732; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“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.”).

6

Valtierra, 310 S.W.3d at 447.

7

State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Carmouche 

v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)); State v. Fikes, 585 S.W.3d 636, 

641 (Tex. App.––Austin 2019, no pet.).
9

findings.8 If the trial court does not make express findings, we still view the evidence 

in the light most favorable to the ruling, and we assume that the trial court made 

implied findings of fact that support its ruling as long as those findings are supported 

by the record.9

 Here, the trial court did not make express findings of fact.

We review de novo the trial court’s application of the law to facts that do not 

turn on credibility and demeanor.10 “[A] question ‘turns’ on an evaluation of 

credibility and demeanor ‘when the testimony of one or more witnesses, if believed, is 

always enough to add up to what is needed to decide the substantive issue.’”11 We will 

uphold the trial court’s ruling if it is correct under any theory of applicable law.12

Applicable Fourth Amendment Law

In determining whether a search or seizure is reasonable, we must know what 

type of encounter the defendant had with the police: a consensual encounter, 

investigatory detention, or arrest.

13 Both investigative detentions—most commonly, 

8

Valtierra, 310 S.W.3d at 447.

9

Ramirez-Tamayo, 537 S.W.3d at 35–36 (quoting Harrison v. State, 205 S.W.3d 

549, 552 (Tex. Crim. App. 2006)).

10Story, 445 S.W.3d at 732.

11Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013) (quoting Loserth v. 

State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998)).

12Cortez, 543 S.W.3d at 203.

13See State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011).
10

Terry stops—and arrests are restraints on a person’s freedom, but an arrest involves 

the greater degree of restraint.

14

To determine whether an encounter is an investigative detention or an arrest, 

Texas courts examine the totality of the circumstances from an objective viewpoint 

on an ad hoc basis.15 Generally, a detention that seems to be something more than 

would be necessary to simply safeguard the officers and assure the suspect’s presence 

during an investigatory period is an arrest.16 The primary question in determining 

whether a person has been detained to the degree associated with an arrest is whether 

a reasonable innocent person would perceive the detention to be a restraint on 

movement comparable to a formal arrest, under all of the objective circumstances.17

A person may be arrested––in custody, necessitating Miranda and Article 38.22 

warnings––when the person is physically deprived of his freedom of action in any 

14State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008); Melton v. State, 

790 S.W.2d 322, 326 (Tex. Crim. App. 1990); White v. State, 395 S.W.3d 828, 834 (Tex. 

App.—Fort Worth 2013, no pet.).

15Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).

16Sheppard, 271 S.W.3d at 291.

17Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528–29 (1994); 

Florida v. Bostick, 501 U.S. 429, 436, 438, 111 S. Ct. 2382, 2387–88 (1991); Dowthitt v. 

State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
11

significant way or when an officer creates a situation that would lead a reasonable 

person to believe that his freedom of movement has been significantly restricted.18

As to the validity of an arrest, the law is well established that 

[a] police officer may arrest an individual without a warrant only if

probable cause exists with respect to the individual in question, and the 

arrest falls within one of the exceptions set out in the Code of Criminal 

Procedure. Probable cause for a warrantless arrest under article 14.01(b) 

may be based on an officer’s prior knowledge and personal observations, 

and an officer may rely on reasonably trustworthy information provided 

by another person in making the overall probable cause determination. 

“Thus, all of the information to support probable cause does not have to 

be within an officer’s personal knowledge.” “The ultimate question 

under Article 14.01(b) is ‘whether at that moment the facts and 

circumstances within the officer’s knowledge and of which he had 

reasonably trustworthy information were sufficient to warrant a prudent 

man in believing that the arrested person had committed or was 

committing an offense.’”19

A detention, as opposed to an arrest, may be justified on less than probable 

cause if a person is reasonably suspected of criminal activity based on specific, 

articulable facts.20 An officer conducts a lawful temporary detention when he 

reasonably suspects that an individual is violating the law.21 Reasonable suspicion 

18See Dowthitt, 931 S.W.2d at 255.

19State v. Martinez, 569 S.W.3d 621, 628 (Tex. Crim. App. 2019) (citations 

omitted) (quoting Woodard, 341 S.W.3d at 412).

20Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10 S.W.3d 

at 328. 

21Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 

S.W.3d 488, 492 (Tex. Crim. App. 2005).
12

exists when, based on the totality of the circumstances, the officer has specific,

articulable facts that, when combined with rational inferences from those facts, would 

lead him to reasonably conclude that a particular person is, has been, or soon will be 

engaged in criminal activity.22 This is an objective standard that disregards the

detaining officer’s subjective intent and looks solely to whether the officer has an 

objective basis for the stop.23 The facts relied on to support reasonable suspicion 

must amount to more than a general suspicion or hunch.24

Analysis

Pretrial Evidence

Appellant contends that the “traffic stop” was illegal because “[a]ccording to 

his affidavit to support the detention[,] the law enforcement officer affiant did not

identify specific, articulable facts to justify detaining Appellant.”

The first page of the affidavit is included in the clerk’s record as part of 

Defendant’s Pretrial Exhibit 1, an attachment to his pretrial motion to suppress. The 

remainder of the affidavit is missing from the clerk’s record, but page 3 of the exhibit 

contains a “Probable Cause Determination,” signed by a magistrate, that after the 

warrantless arrest, “[s]ufficient facts have been presented to [the magistrate] under 

22Ford, 158 S.W.3d at 492.

23Id.

24Hernandez v. State, 376 S.W.3d 863, 869 (Tex. App.––Fort Worth 2012, no

pet.) (per curiam).
13

oath by affidavit, sworn testimony, or other[]wise to show that probable cause existed 

for the continued detention of [Appellant] as to the following charges: Driving While 

Intoxicated 3rd or More.” The State attached to its response to the motion an 

affidavit from Sheriff Spurlock. Although it appears the trial court did not hold a 

hearing on Appellant’s pretrial motion to suppress, the parties also consensually 

relitigated the motion at trial; therefore, we review not only the affidavits but also the 

facts adduced at trial.25

The part of Deputy Hunter’s affidavit attached to Appellant’s motion to 

suppress reads as follows:

On 06-30-17 this Deputy was at Coker Funeral Home to serve a criminal 

trespass notice to an individual. While waiting to serve notice I was 

informed that the driver of the maroon Chevy Colorado pick-up truck 

parked in the north lot was intoxicated; if I saw him in the area I should

check on him and see if he was a danger to himself or others. This 

subject was described as a white male, wearing a blue shirt and blue 

shorts with a ball cap on. After serving the notice I was standing outside 

with Sheriff Spurlock looking to see if the subject had left [t]he building 

and was outside. While looking for the subject I noticed the described 

truck driving out of the parking lot onto Hwy[.] 148. I left the Sheriff 

and went to my truck to try and stop the vehicle. I noticed that the 

truck had turned onto Hwy. 281 and was southbound toward Jacksboro. 

I got into my truck and radioed officers with Jacksboro Police 

Department; I advised what the situation was, a description of the 

vehicle and last known direction of travel. I got onto Hwy. 281 and 

drove south. I saw that the vehicle had turned onto Oakwood Avenue 

and continued north then east. I followed and saw the vehicle on 

Oakwood Ave and turn south onto Jack Street. As I turned onto Jack 

Street I saw the vehicle in the east parking lot of the VFW. I pulled in 

behind the vehicle and noticed that there was one occupant inside the 

vehicle in the driver seat, all doors to the vehicle were closed[,] and no 

25See Black v. State, 362 S.W.3d 626, 635–36 (Tex. Crim. App. 2012).
14

one was walking or standing in the parking area. I notified the Sheriff’s 

Office dispatch that I would be out with that vehicle at that location and 

I approached the vehicle on its driver’s side. As I approached, I could 

see that the sole occupant of the vehicle was watching me in the side

rearview mirror. He opened the driver[’s] door[;] I announced myself 

and asked him to step out of the vehicle and talk with me. I had to ask 

him several times to walk to the rear of the vehicle to visit with me[.] 

[O]nce at the rear of the vehicle[,] I could smell an odor of alcoholic 

beverage emitting from his person. I advised him of the reason I was 

there and asked him if he had been drinking. He stated that he had 

taken Carrie to the beer store and dropped her off at the funeral home, 

and then he came here. I advised him that I had been notified that he 

was at the funeral home and that he may be intoxicated[.] I explained to 

him that I had been looking and noticed his vehicle leaving the area. I 

asked him if he would mind stepping to a more level spot in the area to 

conduct a few tests to determine if he was too intoxicated to be driving. 

He followed me to the level area. I asked him to remove his hat and 

glasse[s] and keep his feet together and hands to his side. I conducted a 

Horizontal Gaze Nystagmus test on him[;] he had several clues

displayed. I then started to explain the next test I was going to have him 

attempt[;] as I was explaining, he interrupted me and advised he knew 

what I was going to ask him to do but he would not be able to do it 

because he had had surgery on his left knee and he also had diabetic

nerve pain in his feet. I advised him we would attempt another test. I 

was trying to explain and demonstrate what I needed him to do[;] while 

demonstrating he was attempting to follow the[.]

Sheriff Spurlock’s affidavit was much shorter:

On Friday, 06302017, your affiant was attending a visitation at Coker’s 

Funeral Home, located at the corner of Highway 148 and North Main, 

Highway 281, in Jacksboro, Texas, for security purposes due to a family 

conflict. While seated in the lobby your affiant observed a white male

speaking to various people attending the visitation. The white male was 

later identified as [Appellant] . . . . [Appellant] was wearing a blue shirt 

and blue shorts with a ball cap and appeared to be intoxicated by being 

very unsteady [in his] gait and walk to the point he was stumbling. 

[Appellant’s] eyes appeared to be glassy. One of the people attending 

the services approached your affiant and asked him if he had observed 

[Appellant]. This person stated that [Appellant’s] intoxication was 

typical as [Appellant] was always “drunk”. While observing [Appellant], 
15

Deputy Randy Hunter came into the funeral home to serve a Criminal

Trespass Warning on an individual that was at the visitation. I pointed 

out [Appellant] to Hunter and advised him that [Appellant] appeared to 

be intoxicated. It was also determined that [Appellant] had arrived at the 

funeral home in a maroon Chevrolet Colorado pickup truck and that it 

was parked on the north side of the building. The person that Hunter 

was there to serve the Criminal Trespass Warning [on] came into the 

lobby and Hunter had her step into the office where he could complete 

the warning. While this took place, [Appellant] went out the front door

and went to the pickup unnoticed by your affiant or Hunter. When we 

noticed that he was no longer in the building, Hunter and Spurlock went 

outside and Hunter saw that [Appellant] was driving out of the parking 

lot on Highway 148. Hunter then got back into his patrol unit and 

proceeded to catch up with [Appellant]. Your affiant went back into the 

funeral home at that point.

Not a Traffic Stop

As we understand Appellant’s argument, the trial court was obligated to 

suppress evidence of everything that occurred after Appellant’s “illegal traffic stop.”26 

Deputy Hunter also refers to his encounter with Appellant as a traffic stop, and the

State calls the encounter a traffic stop as well. The record, however, reflects no traffic 

stop.27 Although Deputy Hunter’s intent was to try to stop the vehicle Appellant was 

26Appellant’s brief cites Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 

1997), for the proper test to use in determining when an officer has reasonable 

suspicion to justify a traffic stop. As we explain below, that test does not govern 

Deputy Hunter’s initial interaction with Appellant at the parked truck.

27See Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980) 

(holding that there was no investigative stop when police officer approached 

defendant in his parked car in a parking lot and could see a marijuana cigarette in plain 

view); see also, e.g., Knox v. State, No. 02-15-00305-CR, 2016 WL 3658703, at *4 (Tex. 

App.—Fort Worth July 7, 2016, no pet.) (mem. op., not designated for publication) 

(holding that officer did not detain Knox when officer approached Knox in parked 

car, but before officer could communicate any intent to investigate, Knox had “begun 
16

driving away from the funeral home, he was unable to do so or changed his mind and 

decided merely to follow Appellant. The record does not enlighten us or explain why 

Deputy Hunter did not engage with Appellant until after Appellant had pulled into 

the VFW parking lot. Nor does the record explain why Deputy Hunter decided not 

to record Appellant’s operation of the pickup before it was stopped.

Deputy Hunter conceded in response to the State’s questions that he had a 

fully functioning camera mounted on the dash of his vehicle. Yet, he chose not to 

engage either the video or audio capabilities of the camera until Appellant had

stopped his pickup in the parking lot. The truck Appellant was driving was already 

stopped and parked in the parking lot of the VFW by the time Deputy Hunter would 

have been in a position to stop the truck. Although there was no traffic stop, in the 

interest of justice, we shall address whether the detention of Appellant’s person in the 

VFW parking lot after he parked his truck was justified, although there was no traffic 

stop.

Detention Justified

Appellant appears to contend that he was arrested without probable cause the 

moment Deputy Hunter approached the truck. However, he also challenges whether 

Deputy Hunter had the reasonable suspicion required to initiate and maintain a 

temporary detention.

to emit an odor of alcohol” and emerged from the vehicle, unsteady and with red, 

watery, and glazed-over droopy eyes).
17

Appellant was not detained at the funeral home or while he was driving. 

Nothing in the record indicates that Deputy Hunter instructed or ordered Appellant 

to stop his vehicle or to pull into the VFW parking lot. After Appellant parked his 

truck in the parking lot of the VFW, Deputy Hunter walked up to him and asked him 

to get out of the truck and talk to him. Deputy Hunter did not make any statement or 

take any physical action indicating that Appellant was not free to leave, not free to 

decline to speak with him, or not free to refuse any of his instructions. On the other 

hand, Deputy Hunter did not tell Appellant he was free to refuse to speak to him or 

to follow his instructions. Appellant made no effort to refuse to comply with Deputy 

Hunter’s instructions, to refuse to answer his questions, or to walk away from Deputy 

Hunter into the VFW building. Thus, the initial interaction between Deputy Hunter 

and Appellant at the truck door was a consensual encounter.

28

Deputy Hunter testified that when he approached the truck, Appellant seemed 

confused. When Appellant opened the truck door, Deputy Hunter smelled the odor 

of alcohol. Because Appellant declined an intoxilyzer test and no bodily fluids were 

analyzed, the odor is the only evidence from the interaction between Deputy Hunter 

and Appellant that Appellant was intoxicated by alcohol. The question of whether to 

believe the testimony of witnesses regarding the odor of an alcoholic beverage lies 

28See, e.g., Randall v. State, 440 S.W.3d 74, 79 (Tex. App.––Waco 2012, pet. ref’d).
18

squarely within the province of the trial judge.

29 The trial judge clearly found this 

testimony to be credible. Deputy Hunter’s smelling the odor of an alcoholic 

beverage, along with his observation of Appellant’s red eyes and confused manner,

provided reasonable suspicion to detain and investigate Appellant for public 

intoxication.

30

We have closely examined the portion of the dashcam video that recorded the 

rest of the actions and interactions Deputy Hunter described. This portion of the 

recording does not support all of Deputy Hunter’s testimony. Although Appellant 

opened the truck door when Deputy Hunter approached the driver’s side, he did not 

get out immediately. After only a short pause, though, he got out of the truck and 

complied with Deputy Hunter’s instruction to walk to the back. Although Appellant’s 

gait is a little slow and wide-legged, he did not appear to have a particularly difficult 

time walking. He did one time lean his arm against the truck’s bed rail while walking 

to the back of the truck, but he did not appear to “hang” onto the bedrail. Most of 

the time during the conversation with Deputy Hunter, Appellant was standing away 

29See Ex parte Mayhugh, 512 S.W.3d 285, 298 (Tex. Crim. App. 2016) (“[T]he

fact-finder is free to believe all, part, or none of a witness’s testimony.”).

30See Tex. Penal Code Ann. § 49.02(a) (“A person commits an offense if the

person appears in a public place while intoxicated to the degree that the person may 

endanger the person or another.”); see also id. § 1.07(40) (“‘Public place’ means any 

place to which the public or a substantial group of the public has access and includes, 

but is not limited to, streets, highways, and the common areas of schools, hospitals, 

apartment houses, office buildings, transport facilities, and shops.”); Martinez, 569 

S.W.3d at 628 (“As for the element of danger, it is sufficient that the person merely 

rendered himself or others subject to potential danger.”).
19

from the truck. But as the conversation went on, Appellant leaned his arm against the 

pickup’s back bedrail. But there was no indication on the video that he was having 

trouble maintaining his balance at the time, he did not appear to have any particular 

difficulty in carrying on the conversation, and his speech did not seem particularly 

slurred.

After Deputy Hunter asked Appellant to step out of the range of the camera to 

perform field sobriety tests, Appellant hesitated. But once he started walking offcamera, Appellant indicated no particular difficulty walking through the gravel. After 

that, we hear only Deputy Hunter’s commentary on Appellant’s performance, 

suggesting Appellant was having trouble performing some of the tests. Deputy 

Hunter also noted that Appellant had recently undergone knee surgery. The 

testimony that Appellant could not walk without using the bed rail of the truck to 

hold on to as he was walking is not supported by the video. But whether this 

testimony is accurate is not crucial to the trial court’s final determination of 

intoxication. The remainder of Deputy Hunter’s testimony regarding evidence of 

Appellant’s intoxication refers to field sobriety tests that, inexplicably, are performed 

after Appellant was instructed to move to a location not visible on the dashcam. The 

trial court was forced to rely only on Deputy Hunter’s testimony and his running 
20

commentary on his opinion of Appellant’s ability to perform the tests. We must 

therefore give total deference to the trial court’s determination of credibility.31

We have examined the entire record, including the video recording, and 

conclude that Deputy Hunter did not need reasonable suspicion to approach 

Appellant in his truck, that Deputy Hunter’s observations when Appellant opened the 

truck door gave him reasonable suspicion to investigate Appellant for public 

intoxication, that Deputy Hunter’s investigation did not exceed the scope of that 

reasonable suspicion, and that the results of the tests––as determined by the trial 

court––gave Deputy Hunter probable cause to arrest Appellant. Moreover, under the 

totality of the circumstances as determined by the trial court, Appellant was not

arrested until after he had completed those portions of the field sobriety tests that

Deputy Hunter administered.

Considering the record as a whole, and applying the appropriate standards of 

review, we hold the trial court committed no reversible error by denying Appellant’s

motion to suppress. We therefore overrule Appellant’s sole issue on appeal and 

affirm the trial court’s judgment.

31See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
21

Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment as 

modified.

/s/ Lee Ann Dauphinot

Lee Ann Dauphinot

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: September 9, 2021