## 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

Be fore Bassel and Womack, JJ.; Lee Ann Dauphinot (Senior Justice, Retired, Sitting by Assignment)

. M emorandum Opinion by Justice Dauphinot 

### W ILLIAM 

### B RUCE 

### G LEASON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMOR ANDUM 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 Institut ional Division of the Texas
D epartment of Criminal Justice. Appellant brings a single point on appeal, arguing
that the t ri al court abused its discr etion in denying his motion to suppress evidence seized from his illegal traffic stop. He does not challenge the sufficiency of the
evidence to su pport hi s conviction. Because the trial court committed no reversible error in denying Appellant’s motio n to sup press the evidence c omplained o f, we affirm the trial court’s judgment.
Brief Facts Tracie Pippin, the Jack County District Clerk, grew up in J ack Co un ty and personally knew Appellant

. On June 30, 2017, Pippin saw Appellant at a local f uneral
h ome vis itation. She spoke to Appellant there and noticed the smell of alcohol that
she t hought came from his breath

. Appel l ant was also un steady. Out of concern, she
asked Appellant to step outside, where she offered to giv e him a ride home. He
decli ned the o ffer. At the same time, Jack County Sheriff Tom Spurloc k was also in the lobby of
the funeral home to pro vi de security during a visit ation

. He t e stified that he noticed Appellant in the lobby a nd became suspicious that Appellant might be intoxicated
becau se he was unsteady on his feet , he stu mbled, and his voice was loud and slurred.3 Sheriff Spu rlock also tes tified that Appellant appeared to avoid him , walking furth er dow n the hallway and “ pe e king around the cor ner ” at him

. One of the family
members at t he funeral home expressed concern to Sheriff S purloc k that Appellant
was intoxicated. Jack County Deputy Jack Randall Hunter arrived at the funeral home to issu e a criminal

- trespas s warning unrelated to this case. Sheriff Spurlock told Deputy Hunter
to “k eep an eye” o n A ppe ll ant. Accordin g to S heriff Spurlock, he also told Deputy
Hunter “ what [Appell ant ’ s] actions had been li ke since [Sheriff Sp urlock] had seen
him come in. ” But Deputy Hunter testified that Sheriff Spurlock told him o nly th at he thought Appellant appeared to be i ntoxicated.
While S heriff Spurlock and D eputy Hunter were occupied with the person

rec eiving the criminal

- trespass warning, Appellant got into his pickup and started to
back out. D eputy H unter did not see Appellant getting in his t r uck , but he did see the truck leaving the funeral

- ho me parking lot

. He followed Ap pellant until Appellant stopped in the parking lot at the VFW. Deputy H un ter described the route A ppel lan t took, referencing street names
and landmarks in detail, but he did not say how long it t ook for him to follow Appe llant to the VFW. Deputy Hunter testified that he d id not see any instances of impaired driving by Appellant while he was following him

. Indeed, although Deputy Hunter’s unit was equipped with a fu ncti on ing dash camera, he did not activate the4 cam era until after both he and Appellant had already pulled into the parking lot and
stoppe d.
De puty Hu nter testified that he stopped behind Appellant and then walked up

to the driver ’ s side of Appell ant’s truck . W hen asked w hat Appellant did th en, Deputy Hunter said , “ Well, I announced

-- told him who I was and what was going

on . He seemed a littl e confus ed, a little

-- I don ’ t know what the word

-- maybe a
little incoherent about who I was and where we were and w hat was goi ng on. ”
Accordi ng to Deputy Hunter , when the tr u ck ’ s door opened, he “ could smell the
odor o f alcoholic beverage f rom in sid e there. ” Deputy Hunter testified further that Appellant’s eyes were “a little red at the time from looking

-- when I loo ked at him the re.” Deputy Hunter asked Appellant to

“ step out of the truck and come to the back of h is vehicl e to visit with [h im ]. ” He described Appellant ’ s exiting the truck as follows:
After several tim es of asking him and kind of coa ching him come on ba ck here in the back, he did. He did make his way to the back of the truck.

. . . . His balance seemed of f. He was

-- he w as having a difficult time walking back. He actually used the bed rail of the truck to hold on to as he was wa lking, and he sto ppe d a little bit. And I asked him to come back here to the back of the truck with me, a nd he finall y made it there but he did

-- didn ’ t have his balance with him at all there that day. Deputy Hunter then testified he perf orm ed the hori zontal gaze nystag mus ( HGN ) field sobriety test on Appellant and that he obse rved lack of smooth tracking5 on both eyes and nyst agmus onset prio r to 45 degrees. A fter the H GN test , Deputy Hunter asked Appellant to perform the one

- leg

- s tand . Deputy Hunter testified that App ellant did not att empt that test ; he told Dep uty Hunter he could not perform it because of a prior knee surgery an d nerve damage in hi s feet

. Deputy Hunter testified
that on the walk

- and

- turn te st, Appellant started early before Deputy Hunter had complete d the in structions a nd also step ped off the lin e a few times

. Deputy Hunter

co ncluded it was “uns afe” for Appellant to continue perform ing the test

. Deputy Hunter testified that he also had App ellant perform t wo additional, nons tandardized

so briety tests and that after his interaction with Appellant, he believed Appellant was intoxicated by the intro duction of alcohol into his body. Instead of performing the tests withi n v iew o f the pa trol car ’ s dash camera, Deputy Hunter as k ed Appellan t “ to [go] out [ t o ] the roa dway that was a little more
smooth and more level . . . to perform

. . . t est ing. ” According to Deputy Hunter, he
did not think to move th e dash camera at th e time

. Although w e cannot see Appellan t ’ s performance on the field sobr iety tests, we

can hear what was s aid on the video . We hav e only a narrat ive 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 kne e
surgery , had ner ve damage in his feet , and could not perform the one

- leg st and. After Appellant ha d been taken into custody, and the officers were no lon ger outside their vehicles, the dash camera wa s shifted to reco rd the area where the field6 sobriety tests had been c ond ucted. No one contends the camer a was incapable of recording the field sobriety tests.
Tr evor Wilson Topper, a Texas Department o f Public Safety t rooper and certified intoxilyzer operator , was requeste d to obtain a br e ath sample from A ppellant.
But w hen Trooper T opper arrived at the jail , Appellant d eclined to p rovide a breath sample to be tested. Appellant was later ch arged with felony DWI

. The indictment alleged , i n pertinent part, that Appellant d id then and there operate a motor vehicl e in a public p lace while [he] was intoxicated by not having the normal use of mental or physical f aculties by reason of the introduction of alcohol, a contr olled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body, or b y having an alcohol concentration of at least 0.08

. Before testimony bega n at his trial , Appellant entered into a stipulation regardi ng his two prior jurisd ictional DWI convictions

. The State also waive d the
de adly

- weapon allegation it had inclu ded in th e indictment.
The trial court fo und Appellant guilty of felony DWI. Appell ant then entered a plea of true to the enhancement paragraph, and following a brief punishment hearing , the co urt sentenced him to seven years’ confinement

. We Correct a Cle rical Er ror in the Trial Court’s Judgment Before considering the appeal ’s merits, w e mus t correct an obvious clerical

e rror in the trial court ’s judg ment. The case now before this court was tried to the judge, who found Appellant guilty of felony DWI and t he enha ncement alle gations7 true . The court entered a ve rdict of guilty of felony DWI as alleged in the indictment. We note the judgment incorr ectly reflects that a jury returned the verd ict of guilty.
The refore, the judgment cont ains a clerical error. 1
When th e record p rov ides the ne cessa ry information to cor rect a clerical error
in the trial c ourt ’s judgment, we may m odify th e judgm ent to speak the truth. 2 Therefore, we corr ect the clerical error in the judgment to reflect tha t the judge, not a jury, heard th e case and returned the guilty verdi ct
. Motion to Suppress Appellant does not challeng e the sufficiency of the evidence to sup port his
conviction for DWI . Rather, he challenges only the trial court’s denial of his motion

t o suppress the evidence obtained a fter what he argues wa s an illegal traffic stop

. Standard of Review
We review a tri al court ’ s ruling on a motion to suppres s for an abuse of
discretio n. 3 We view the evidence in the light most favorable to the trial co u rt ’ s ruling , and we will reverse on ly if the ruling is arbitrary, unreasonable, or “ out side the

1 See Ex p arte Poe , 751 S.W.2d 873, 876 (Tex. Crim . App. 1988) ( “ A c lerical erro r is [ an e rr o r that ] does not result from judicial reasonin g or determination

. ” ) ; Cain v

. State , 621 S.W.3d 75, 8 8 (Tex. App.

— Fort Worth 2021, pet. ref ’d).

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

. 3 d at 88

.
3 S tate v. Cort ez

, 543 S. W. 3 d 198, 203 (Tex. Cr im. App. 2018).8 zone of reasonable disa greement. ” 4 Because the trial court is the sole trier of fa ct at a suppression hearing, we give almost total deference to the trial co urt ’ s de termination s of historical fa cts, especially when those determinations are ba sed on asse ssments of credibility an d demeanor. 5 The trial court is entitled to b elieve or disbelieve all or any part of a witness ’ s testimony, whether that testimony is c ontro ve rted or uncontroverted, becau se the court has the opportunity to observe the witness ’ s d emeanor and appearance. 6 This deferential standard of review also appl ies to a trial

court ’ s determination of historical facts based on a videotape recording ad mitte d into evidence at a suppressio n hearing, although we may review de novo “ ‘ indi sputable

v

isual evidence ’ contained in a videotape. ” 7
If the trial court makes e xpress findings of fa ct, we view the evidence in the light most favorable to its ruling an d det er mine whether evidence supports the fact

4 St ate v. S tory , 445 S.W.3d 729, 732 (Te x. Crim . App . 2014) (quoting State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 200 6)).

5 Ramirez

- Tamayo v. State , 537 S.W.3d 29, 35 (Tex. Crim. App. 2017) ; Story , 445 S.W.3d at 7 3 2; Valtierra v. State , 310 S.W.3d 442, 447 (Te x. Crim. App. 2010) ( “ The tri al judg e 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 44 7.

7 State v. Duran , 39 6 S .W.3d 563, 570 (Tex. Crim. A pp. 2013) (quoting Carmouche v. State , 10 S.W.3 d 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 n ot make exp ress findings, we still v iew the evidence in the light most favorable t o the ruling, and we assume that the trial court made implied findings of fact tha t sup port its r uling as long as those findings are supported by the record. 9 Here, the tria l court did not make express finding s of fact.
We review de no vo the trial court ’ s application of the law to facts that do not turn on credibility and demeanor. 10 “ [A] q uestion ‘ t urns ’ on an evaluation of
credi bility and demeanor ‘ when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to d ecide the sub stantive issue. ’ ” 11 We will uphold the trial court ’ s ruling if it is correct under a ny theory of applicable law. 12
A pplica b l e Fourth Amendment L aw In determining whether a search or seizure is reaso nable, we must know what type of encounter the de fendant had with the police : a consensual encounter , investigatory d etent ion , or arrest
. 13 Bo th investigative detentions

— mos t commonly,

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

9 Ramire z
- Tamayo , 537 S. W.3d at 35

– 36 ( q uo t ing Harrison v. State , 205 S.W.3d 549, 552 (Tex . Crim. App. 2006)).

10 Story , 445 S.W .3d a t 732

.

11 Abney v. State , 394 S.W.3d 542, 547 (Tex. Crim. Ap p. 2013) (quoting Loserth v. State , 963 S.W.2d 770, 773 (Tex. Crim. App

. 1998)).

12 Cor tez , 543 S.W .3d a t 203

.
13 See State v. Woodard , 341 S.W.3d 404, 410

– 11 ( Tex. Crim. App. 2011).10 Terry stops

— and arrests are restra ints on a person ’ s freedom, but an a rrest involves the greater degree of restraint

. 14 To determine whether an encounter is an investigative detention or an arrest,
Texas courts ex amine the totality of the circum stances from an o bjective viewpoint
on an ad hoc basis. 15 Generally, a detention that seems to be somethin g mor e than
would be nec essary to simply safeguard the officers and assure the suspect ’ s presence during an investigat ory period is an arrest. 16 The p rimary question in determining whether a pers on has been detained to the degree a ssociated with an arrest is wh ether
a reasonab le innocent person would perceive the detention to be a rest raint on movement comparable to a for mal arrest, under all of the obj ective circumstances. 17 A person may be arres ted

–– in custody, necessitating Miran da and Article 38.22 warnings

–– when the person is physicall y deprived of his freedom of action in any

14 St ate v. Shep pard , 271 S.W.3d 281, 290 (Tex. Crim. App. 2008); Melton v. Sta te , 790 S.W .2d 322, 326 (Tex. Crim. App. 1990); White v. State , 395 S.W .3d 828, 834 ( Tex. App.

— Fo rt Wo rth 2 01 3 , no pet.).

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

16 Sheppar d

, 27 1 S.W.3d at 291.

17 Stansbury v. California , 511 U.S. 318, 3 22, 114 S. Ct. 1526, 1528

– 29 (1994); Florida v. Bostick , 501 U.S. 429 , 436, 43 8 , 111 S. Ct. 2382, 238 7

– 8 8 ( 1 9 9 1); Dow thitt v. State , 931 S.W.2d 244, 254 (Tex. Cri m. App. 1996).11 significant way or when an officer create s a situation that w ould lead a reasonable person to believe that his freedom of movement has been significantly restricted. 18
As to the valid ity of an arrest , t he law is well established that [a] police officer may arrest an individual without a warrant only if pro bable cause exists wi th respect to the indiv idual in question, and the arrest falls within one of the exceptions set out in the Code of Criminal Pro cedure. Probable cause for a warrantless arrest under article 14.01(b)
m ay be based on an office r ’ s prior k nowledge and personal observati ons, and an o fficer may rely on rea sonably trustworthy information prov ided by another person in making the overall p robable cause determination.

“ Thus, all of the information to support probable cause does not ha ve to be wi thin an officer ’ s per sonal know ledge. ” “ The ultimate question und er Article 14.01(b) is ‘ whether at t hat moment the facts and circumstances within the off icer ’ s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believ ing that t he arrested p erson had committed or was committing an offense. ’ ” 19
A de tention, as oppos ed to an arrest, may be justi fied on less than probable cause if a person is reasonably suspected of criminal activity based o n specific,
articulable facts. 20 An officer conducts a lawful temporary deten tion when he reasonably suspects tha t an individual i s vio lating the law. 21 R eason able suspicion

18 See Dowthi tt

, 9 31 S. W.2d at 255.

19 State v. Martinez , 569 S.W.3d 621, 628 (Tex. Crim. A pp. 2019) (citations omitted) ( quoting Woodard , 3 41 S.W.3d at 412).

20 Terry v . Ohi o , 392 U.S. 1, 2 1 , 8 8 S. Ct. 1868, 1880 (1968); Carmouche , 10 S.W.3d at 3 28

.

21 Crain v. Stat e , 315 S.W. 3d 43 , 52 (Tex. Crim. App. 2010); For d v. Stat e , 158 S.W.3d 488 , 4 9 2 (T ex. Crim. App. 2005 )

.12 exists when, based on the totality of the circumstances, the officer has specific, articulable facts that, when co mbined with rational inferences from those fa cts, would lead him to reasonably co nclude that a par ticul ar person is, has b een, 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 office r has an objective basi s for the sto p. 23 The f acts re lied on to support reaso nable su spicion

must amount to more than a general su spicion or hunch. 24 Analys is
Pretrial Ev idence Ap pellant contends that the “ traff ic stop ” was illegal because “ [a] ccording to his affidavit to support the detenti on [,] the law enforcement officer af fiant did not identify specific, articulable facts to justify detaining Appellant. ”
The fi rst page of the affidavit is included in the cler k ’ s record as part of
Def e ndant ’ s Pretrial Exhibit 1 , an attach men t to his p retri al motion to suppress

. The
remain der of the affidavit is missing fro m the clerk ’ s record , but page 3 of the exhibit
contains a “ Probable Caus e Determination , ” sign ed by a mag i strate, that after the

warra ntles s arrest, “ [s] ufficient facts ha ve been presented to [the magistrate] un der

22 For d

, 158 S.W.3d at 4 92.

23 Id.

24 Hernandez v. S t ate , 376 S.W.3d 863, 869 (Tex. App.

–– Fo rt Worth 2012, n o pet.) (per c uriam)

.13 oat h by affidavit , sworn testimony, or other [] wise to show that probable cause existed
for the continued det e ntion of [Appellant] as to the follow i ng charges: Drivi n g W hile
Intoxicated 3rd or M ore . ” The State attached to its response to the m otion an affidavit from Sheriff Spurlock

. Although it appears the trial court di d not hold a hearing on Appellant ’ s pretrial motion to suppress, the p arties a l so c on sensually
rel itigated the motio n at t rial; there fore, we review not only the affidavit s but also the
facts adduced a t tri al. 25
The part of Deputy Hunter ’ s affidavit attached to Appellant ’ s moti on to
suppress re ads as follows : On 06

- 30

- 17 this Deputy was at Coker Funeral Home to serve a criminal trespass no tice to a n individual. While waiting to serve notice I wa s infor med that the driver of the maroon Chevy Colorado pick

- up truck park ed in the north lot was intoxicated; if I saw him in the area I sh o uld check on him and see if he was a danger to himself or o thers. This subject was described as a white male, wear ing a b lue shirt and blue shorts with a ball cap on. After serving the notice I was standing outside with Sheriff Spurl ock looking to see i f th e subject had left [t] he bu il ding and was outside. Whil e 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 t ruck to try and stop the vehicle. I noticed that the tr u ck had turned onto Hwy. 2 8 1 and was southbound toward Jacksbor o . I got into my truck and radioed officers with Jac ksboro Police Department; I advised what the situation was, a description of the veh i cle and last kno wn direction of tra vel. I got onto Hwy

. 28 1 and drove south. I saw that the vehicle had turned onto Oakwood A venue and continued north then east. I foll owed an d saw the vehicle on Oakwood Ave and tu rn south onto Jack Street. As I turne d ont o Jack Street I saw the vehicle in the east parking lot of the VFW. I pulled in behind the vehicle and noticed tha t there was one occupant inside the vehicle in the d river s eat, all doors t o the vehicle were closed [,] and no

25 See Bl ack v. S t ate , 362 S.W.3d 62 6 , 6 35

– 3 6 (Tex. Crim. App . 2012).14 one was walking or standi ng in the parking area. I notified the Sheriff ’ s Office dispatc h that I would be out with that vehicle at that location an d I approached the vehicle on its driver ’ s side. As I a pproached, I could see that the sole occupant of the vehicle was watching me in the side rearview mirror. He ope ned the driver [ ’ s] d o or [ ; ] I annou nced my self and asked him to step out of the vehicle and ta lk with me. I had to ask him several times to wa l k to the rear of the vehicle to visit with me [.] [O] nce at the rear of the v ehicle [ ,] I could smell an odor of a lcoholic beverage em i tting from his perso n. I advised him of the reason I was there and asked him i f he had been d rinking. He stated t hat he had taken Carrie to the beer store and dropped her off at the funeral home,
a nd then he came here. I advi sed him that I had been not i fied that he
was at the f uneral home and that he may be intoxicated [.] I explaine d to him that I had been looking and not iced his vehicle leaving the area. I asked him if he would mind stepping to a more level spot in the area to
con duct a few tests to d etermine if he was too in toxicated to be driving. He followed me to the level are a. I asked him to remove his hat and gl asse [s] and keep his feet together and hands to his side. I conducted a Hori zontal Gaze Nystag mus test on him [;] he had several clue s displayed. I then start ed to explain the next test I was going to have him attempt [;] as I was explaining, he int errupte d me and advised he knew what I was going to ask him to do but he would not b e able to do it becaus e he had had s urgery on his left k n ee and he also had diabet ic nerve pain in his feet. I advised him we would attempt ano ther test. I was trying to e xplain and demonstrate what I needed him to do [;] while demonstrating he was attempt ing to follow the [.]
Sheri ff Spurlock ’ s affidavit was m u ch shorter:
On F r iday, 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 s ecurity purposes due to a family
con flict. While seated in the l o bby your affia nt o bserved a white male speaking to various people attending the visitation. The white mal e was l ater identified as [Appellant]

. . . . [Appellant] was wearing a blue shirt and blue shorts with a ball cap and appeared to be intoxicated by being very unste ady [in his] gait and walk to the point he was stumbling. [Appellant ’ s] eyes appeared to be glas sy. One of the people attending the services approached your affiant and ask ed him if he had observed [Appellant ]

. This person stat ed that [ A ppellan t ’ s] into xication was typical as [Appellant] was always “ drunk ”

. While observing [ Appellant] ,15 Depu ty Rand y Hunter came into the funeral home to serve a Criminal Trespass Warning on a n individual that was at the visitat ion. I pointed
ou t [Appellan t ] to Hunte r and advised him that [Appellant] appeared to be intoxicated. It was also determined that [App ell a n t] 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 pe r son that Hunter
was there to serve the Criminal Trespass Warning [on] came into the lobby and Hunter had h er 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 unnot i ced by yo ur affi ant or Hunter. When we noticed that he was no longer in the building, Hunter and Spurlock went o utside and Hunter saw that [ Appellant] was driving out of the parking lot on Highway 148. Hunter then got back i nto his patrol unit and proce e ded to catch up with [Appellant]

. Your a ffiant went back into the funeral home at that point.
Not a Traffic Stop As we understand Appellant ’ s argument, the trial court was oblig ated to suppress evidence of everyth ing that occu rred after Appellant ’ s “ il l egal t r affic stop. ” 26 Deputy Hunter also refers to his encounter with Appellant as a traffi c stop , and the
State calls the encounter a traffic stop as well

. The record, ho wever, refle cts no traffic
stop. 27 Although De p uty Hunter ’ s intent was to try to st o p the vehicle Appellant was

26 Appellant ’ s brief cites Woods v. S t at

e , 956 S.W.2d 33 , 38 (Tex. Crim. App. 1997) , for th e proper test to use in d etermining when an officer has r easonable
sus picion to ju stify a t raffic stop
. A s we explain below, that test d oes n ot govern Deputy Hu nter ’ s initial interaction with Appellant at the parked truc k.

27 See Merideth v. State , 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980) (holding t hat there was no inv estigative sto p when police o fficer approached defendant in his p arked car i n 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 Wo rth July 7, 2 016, no pet.) (mem. o p. , not designa ted for pu blication) ( holding t hat o fficer did not detain Knox when officer approached Knox in parked car, but be fo re officer could communicate any intent to investigate, Knox had “ begun16 driving away from the fu neral h ome, he was unable to do so or changed his mind and decided merely to follow Appellant. The r ecord does not enlighten us or e xplain why Deputy Hunter did no t engage with Appellant un til aft er App e llant had pulled into the VFW parking lot. Nor does the record explai n why Deputy Hunter decided not

to r ecord Appellant’s operation of the pickup befo r e it was stopped. Depu ty Hunter conceded in response to the State’s questions that he h ad a
fu lly func t ioning camera mounted on the dash of his vehicle. Yet, he chose not to engage either the video or audio capabilities of the camera until Appe llant ha d stopped his pickup in t he parking lot. The truck Appellant was driv ing was already stopped and parked i n 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 t ra ffic stop, in the
int erest of j ustice, we shall address whether the detention of Appellant ’ s pers on in the VFW parking lot af t er he parked his truck was justified, although t here was no traffic
stop.
De tention Ju stified Appellant appears to co ntend that h e was arrested wi thout probable cau se the moment Deputy Hunter approached the truck

. However, he also challenges whet her Dep u ty Hunter had the reasonable sus picion required to in itiate and main tain a

tem porary detention.

to emit an odor o f a lcohol ” and em erged f rom the vehic le, unsteady an d with red , watery, a nd gl azed

- over droopy eyes ).17 Appellant was not detained at the fun eral home or while he was driving.
Nothi ng in the record indicat es that Deput y H unter instructed or ordered App ellant

to s top his vehicle or to pull into the VFW parking lot. After Appellan t parked his truck in the parking lot of the V FW, Deputy Hunter walked up to him and asked him
to g et out of the truck and talk to him. Deputy Hunter did not make any statement or take a n y physical action indicating tha t Appellant was n ot free to leave , n ot free to decline to speak with him , or not f ree to refuse any of his instructions. On the other
hand , Deputy Hunter did not tell Appellant h e was free to refuse t o speak to him or to f o llow his instructions. Appellan t made no effort to refuse to comply with Deputy Hunter’s instructions, to refuse to answer his questions, or to walk away fro m Deputy Hunter into the VFW building. Thus, the ini tial interac tion between Deputy Hunter
and A p pellant at the truck door was a cons ensual encounter
. 28 Deputy Hunter testified that when he approached the truck, Appellant seemed
confused . Wh en Appe llant opened the truck door , Dep uty Hunter smelled the odor

o f a lcohol

. B ecause Appellant declined an in t oxilyzer test an d no bodily flui ds were analyzed , th e o dor is t he on ly evidence from th e interaction between Deput y Hunter and Appellant that Ap pellant was i nto xicated by alcohol

. T he question of whether to
bel ieve th e tes timony of witnesse s regarding th e odor of an alco holic beverage l ies

28 See, e.g. , Randall v. State , 440 S .W.3d 74, 79 (Tex. App.

–– W a co 2 012, pet. ref ’ d).18 squarely within the province of the trial judge

. 29 The trial judge clearly fou nd this testimony to be credible. Dep uty Hunter ’ s smelling the odor of an a lcoholic beverage , al ong wit h his observation of Appellant ’ s red e yes and con fused manner, provide d r eason able su spicion to detain and investigate App ella n t for p ublic
intoxication

. 30 We have closely examined the portion of the dashcam video that recorded the rest of the actions and interactions Deputy Hunter describ ed. 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 o f th e 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 b ed r a il 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

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

- finder is free to believe al l, part, or no ne of a witness ’ s testimony.”).

30 See Tex. P enal Code Ann. § 49.02(a) ( “ A person c ommits an offense if t he person app ears in a public place while intoxicated to the degree that the person may endanger the pers o n or another

. ” ) ; se e also id. § 1 .07(40) ( “ ‘ Pub lic pl ace ’ means any place to w hich the public or a subst antial group of the public has access and includes, but is n ot limited to, streets, highways, and the common ar eas of schools, hospitals, apartment hou ses, office bu ilding s , transport f acilities, an d shops. ” ) ; Martinez , 569 S.W.3d at 628 ( “ As for the element of danger, it is suffici ent that the person merely rendered himself or others subject to potential danger

. ” )

.19 from the truck. But as the conversation went on, Appellant leaned h is a r m 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 off

camera, Appellant indicated no particular difficulty walking throu gh th e 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. Th e testimony th at Appellant could not walk without using the bed rail of the truck to
hold on to as h e was walking is not support ed by the video. B ut whether t his testimony is accurate is not crucial to the trial court’s fin al determination of
intoxication . The remaind er of Deputy Hunter’s testimony regarding evidence of Appellant’s intoxicat ion refers to fi eld sobriety tests that , inexplicably, are performed

a fter Appellant was instructed to move to a location not visible o n the dashcam. The
trial court was forced to re l y only on Deputy Hunter’s testimony an d his run ning20 commentary on his op inion of Ap pella nt’s ability to perform the tests. We mus t therefore give total deference to the trial court’s determination of credib ility. 31
We have exam ined the ent i re record, in cl u ding the video recording, and
conclude that Dep uty Hunter did not need r easonable s u spic ion to approach Appellant in his truck, th at Deputy Hunter ’ s observations when Appellant opened the truck door gave him reasonable su spicio n to investi gate Appel lant f o r pu blic intoxication, th at Deputy Hun ter ’ s inv estigat ion did not exceed the scop e of th at

rea sonable su spicion, and that the resu lts of the tests

–– as determined by the trial

court

–– gave Dep uty Hunter probabl e cause to arrest A ppel lant. M oreover, under t h e totality of the cir cumstances as det er mined b y the trial court, Appellant was not

arre sted until after he had completed those po rtions of the field sobriety test s that Deputy Hunter administered.
Consider ing the re cord as a whole, and applying the app ro p riate standards of review, we hold the trial court committed no reversible error by de nying App ellant ’ s motion to supp ress . W e therefore overrule Appellant’s sole issue on appeal and
affirm the trial court ’s judgment.

31 See Guzm an v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 19 97)

.21 Co nclu sion Having overruled Appel la n t ’ s sole issue, we affirm th e trial co urt ’ s j udgment as
modified. /s/ Lee Ann Dauphinot Lee Ann Dauphi n ot Ju stice
Do Not Publish Tex. R. App. P. 47.2 (b)
Delivered : Septemb er 9 , 2021