Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-12-00717-CR

Carlos GUTIERREZ Jr.,

Appellant

v.

The STATE of 

The STATE of Texas,

Appellee

From the County Court at Law No. 2, Bell County, Texas

Trial Court No. 2C-11-01586

The Honorable John Mischtian, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: November 13, 2013

AFFIRMED

Appellant Carlos Gutierrez Jr. was charged by complaint and information with the offense 

of possession of marijuana, not more than two ounces. Gutierrez’s motion to suppress based on 

an unlawful arrest was denied, as was his motion to dismiss based on spoliation of evidence. 

Gutierrez was subsequently found guilty and sentenced to thirty days confinement in the county 

jail. We affirm the trial court’s judgment.
04-12-00717-CR

BACKGROUND

On January 15, 2011, Killeen Police Detective Manfred Stinehour was dispatched for a 

disturbance in connection with the attempted impound of a vehicle. Upon the officer’s arrival, the 

wrecker driver was attempting to tow and impound Gutierrez’s vehicle at the request of the 

apartment manager. Gutierrez and his wife were argumentative and visibly upset. Detective 

Stinehour testified Gutierrez exhibited signs of intoxication including bloodshot, glassy eyes;

dazed appearance; and slurred speech. 

After repeatedly instructing Gutierrez not to impede the wrecker driver, Detective 

Stinehour witnessed Mrs. Gutierrez again attempt to interfere with the wrecker driver. Based on 

the continued escalation, Detective Stinehour felt it necessary to handcuff Mrs. Gutierrez. 

Detective Stinehour testified that, while doing so, Gutierrez “grabbed my hand and tried to prevent 

the arrest [of Mrs. Gutierrez].” About that time, a second officer arrived at the scene and took 

custody of Mrs. Gutierrez. Based on Detective Stinehour’s belief that Gutierrez was a danger to 

himself and others, Detective Stinehour arrested Gutierrez for public intoxication and placed 

Gutierrez in his patrol car. 

While transporting Gutierrez and his wife to the police station, Detective Stinehour noticed 

a strong odor of marijuana. He also noted that Gutierrez kept shifting and continuously bending 

down during the transport. On several occasions, Detective Stinehour instructed Gutierrez to sit 

up and sit still. After Gutierrez was processed, Detective Stinehour returned to his vehicle and 

found marijuana located precisely where Gutierrez had been sitting. During direct and crossexamination, Detective Stinehour was adamant (1) the marijuana was not on the seat prior to 

transporting Gutierrez and his wife and (2) the marijuana was located exactly where Gutierrez was 

sitting. Gutierrez was subsequently arrested and charged with possession of marijuana under two 

ounces.

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04-12-00717-CR

On November 9, 2011, the trial court conducted a hearing on Gutierrez’s motion to 

suppress. Gutierrez argued the evidence was insufficient to show he was intoxicated and, 

therefore, the search subsequent to arrest should be suppressed. The court ultimately denied the 

motion and the case was set for trial. On September 4, 2012, prior to jury selection, Gutierrez’s 

Motion to Dismiss Based on Spoliation of Evidence was also denied by the trial court. After a 

three-day jury trial, the jury returned a guilty verdict and sentenced Gutierrez to confinement in 

the Bell County jail for a period of thirty days. Gutierrez appealed.

MOTION TO SUPPRESS

In his first issue, Gutierrez contends Detective Stinehour lacked probable cause to believe 

Gutierrez was publically intoxicated; thus, the arrest was unlawful and the trial court should have 

suppressed the evidence obtained during the search incident to arrest. The State argues there was 

more than ample evidence of Gutierrez’s intoxication for Detective Stinehour to determine 

Gutierrez was intoxicated in a public place and a danger to himself or others. See TEX. PENAL 

CODE ANN. § 49.02 (West 2011).

A. Standard of Review

An appellate court reviews a trial court’s decision to deny a motion to suppress for an abuse 

of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). Under a bifurcated 

standard of review, we afford almost total deference to the trial court’s determination of historical 

facts and conduct a de novo review of the trial court’s application of the law to those facts that are 

not based on an evaluation of credibility or demeanor. Id.; State v. Garcia-Cantu, 253 S.W.3d 

236, 241 (Tex. Crim. App. 2008); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). 

Because a trial court has the distinct advantage to make first-hand observations of a witness’s 

demeanor during testimony on a motion to suppress, “the trial court is the sole trier of fact and 

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judge of the credibility of the witnesses and the weight to be given their testimony.” Ross, 32 

S.W.3d at 855. 

B. Warrantless Arrests

A police officer may arrest an individual without a warrant if (1) probable cause exists with 

respect to the individual in question and (2) the arrest falls within one of the exceptions set out in 

chapter 14 of the Code of Criminal Procedure. See generally TEX. CODE CRIM. PROC. ANN. ch. 

14; Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). More specifically, article 14.01(b) 

permits a police officer to “arrest an offender without a warrant for any offense committed in his 

presence or within his view.” See TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (West 2005). A 

warrantless arrest for public intoxication is valid if the officer has reason to believe that a defendant 

was “in a public place while intoxicated to the degree that the person may endanger the person or 

another.” TEX. PENAL CODE ANN. § 49.02 (West 2011); Campbell v. State, 325 S.W.3d 223, 231–

32 (Tex. App.—Fort Worth 2010, no pet.).

Probable cause requires the officer have a reasonable belief that, based on facts and 

circumstances within the officer’s personal knowledge, the individual committed or will soon 

commit an offense. Neal, 256 S.W.3d at 280; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005). This reasonable belief must be founded on specific, articulable facts and not on the 

mere opinion of the officer. Torres, 182 S.W.3d at 902; Ford v. State, 158 S.W.3d 488, 493 (Tex.

Crim. App. 2005). In determining whether probable cause exists, we examine the totality of the 

circumstances. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492–93.

C. Analysis

Detective Stinehour testified that not only did Gutierrez’s argumentative behavior continue 

to escalate, but he also exhibited slurred speech; a dazed appearance; and glassy, bloodshot eyes. 

In conjunction with Detective Stinehour’s training and experience as a military and police officer, 

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04-12-00717-CR

and based on Gutierrez’s condition and actions that he personally observed, Detective Stinehour 

believed Gutierrez to be a danger to himself and others. Detective Stinehour also explained that, 

although Gutierrez’s grabbing of an officer’s hand constituted an assault and interference with 

public duties, he elected to charge Gutierrez with the lesser offense of public intoxication. 

The defense called Sean McClain who testified that Gutierrez had not been drinking and 

that Gutierrez did not have any indicators of having consumed alcohol. Although Detective 

Stinehour and McClain provided somewhat different versions of events, it was within the trial 

court’s sole discretion to resolve any conflict in the testimony. See Ross, 32 S.W.3d at 855.

Viewed in the light most favorable to the trial court’s ruling, and with deference thereto, 

we conclude that the trial court did not abuse its discretion in deciding that Detective Stinehour 

possessed a reasonable belief that Gutierrez was intoxicated and was a danger to himself or others. 

See id. Accordingly, we overrule Gutierrez’s first issue.

MOTION TO DISMISS BASED ON SPOLIATION

Gutierrez next contends the Killeen Police Department violated its own mandatory 

operating procedures regarding the preservation of evidence and, in doing so, violated his 

constitutional Due Process rights. The State argues Gutierrez failed to establish (1) the alleged 

evidence was material and (2) the State acted in bad faith in destroying the evidence.

A. Standard of Review

We review the trial court’s denial of a motion to dismiss a charging instrument for an abuse 

of discretion. Rogers v. State, 113 S.W.3d 452, 459 (Tex. App.—San Antonio 2003, no pet.). “A 

trial [court] abuses [its] discretion when [its] decision is so clearly wrong as to lie outside the zone 

within which reasonable persons might disagree.” Howell v. State, 175 S.W.3d 786, 790 (Tex.

Crim. App. 2005).

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04-12-00717-CR

B. Spoliation

In cases involving the State’s failure to preserve evidence in a criminal trial, the United 

States Supreme Court has drawn a distinction between “material exculpatory evidence” and 

“potentially useful evidence.” See Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988); Ex parte 

Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010). A federal Due Process violation occurs if 

the State fails to disclose material exculpatory evidence, regardless of whether the State acted in 

bad faith. Illinois v. Fisher, 540 U.S. 544, 547–48 (2004); see Ex parte Napper, 322 S.W.3d at 

229. “[T]o show a violation of the Texas Due Course of Law provision, an appellant must show 

that the State acted in bad faith.” Snell v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 

2010, no pet.); accord Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no 

pet.); see also Fisher, 540 U.S. at 547–48 (requiring defense show State acted in bad faith in regard 

to alleged Due Process violation based on the State’s loss or destruction of potentially useful 

evidence); Youngblood, 488 U.S. at 57–58; Jackson v. State, 50 S.W.3d 579, 589 (Tex. App.—

Fort Worth 2001, pet. ref’d). 

C. Analysis

“[A]n appellate court review[s] a trial court’s ruling on the admission or exclusion of 

evidence . . . in light of the arguments, information, and evidence that was available to the trial 

court at the time it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Here, 

the only evidence offered by Gutierrez came well after the trial court’s ruling on the motion to 

dismiss. Detective Stinehour clarified that it was the police department, not he, that maintained 

possession of the videotape in question. In this case, however, Detective Stinehour explained the 

Killeen police department experienced difficulties transferring old videotapes to a new computer 

system and lost some videotapes in the process. The videotape from the night of Gutierrez’s arrest 

was one of those videotapes.

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04-12-00717-CR

Gutierrez also failed to present evidence that the recording would have been favorable to 

his defense. Evidence is material only if it creates a reasonable probability that had the evidence 

been disclosed, the outcome would have been different. Peña v. State, 353 S.W.3d 797, 809 (Tex. 

Crim. App. 2011). There is no such evidence or testimony in this case. Because Gutierrez has 

failed to show any evidence that the State acted in bad faith, or that the outcome would have been 

different, we overrule his second issue. 

CONCLUSION

The evidence supports that Gutierrez was not only argumentative, but also exhibited slurred 

speech; a dazed appearance; and glassy, bloodshot eyes. Detective Stinehour testified to his belief 

that Gutierrez was a threat to himself and others. The trial court, therefore, did not abuse its 

discretion in denying Gutierrez’s motion to suppress the search incident to arrest. See Martinez, 

348 S.W.3d at 922. Additionally, Gutierrez failed to present evidence that either the State acted 

in bad faith in destroying the videotape in question or that the alleged evidence was material. As 

such, we cannot say the trial court’s denial of the motion to dismiss was so clearly wrong as to lie 

outside the zone within which reasonable persons might disagree. See Howell, 175 S.W.3d at 790. 

Accordingly, the trial court’s judgment is affirmed.

Patricia O. Alvarez, Justice

PUBLISH

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