Opinion filed December 7, 2023

In The

Eleventh Court of Appeals __________

No. 11-22-00234-CR

__________

RICARDO OLIVA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR55426

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

Appellant, Ricardo Oliva, was indicted for the third-degree felony offense of 

harassment of a public servant. See TEX. PENAL CODE ANN. §§ 22.11(a)(3), (b)

(West 2019). Appellant subsequently filed a motion to suppress all evidence relating 

to his detention and arrest, wherein he contended that (1) the City of Midland Police 

Department violated his rights under the United States Constitution, the Texas 

constitution, and Article 38.23 of the Texas Code of Criminal Procedure, and (2) he 
2

was “arrested and/or detained” without a warrant, probable cause, or other lawful 

authority. At the pretrial hearing on the motion, Appellant argued that his “detention 

[was] constitutionally invalid” because law enforcement officers did not have 

probable cause to initially arrest him for public intoxication—an offense that he

committed prior to committing the harassment offense. The trial court denied 

Appellant’s motion. Appellant later pleaded guilty to the indicted offense and 

elected to have the trial court assess his punishment. Following a punishment trial, 

the trial court sentenced Appellant to five years’ imprisonment in the Institutional 

Division of the Texas Department of Criminal Justice.

On appeal, Appellant contends that the trial court erred when it denied his 

motion to suppress because (1) the law enforcement officers lacked probable cause 

to arrest him for public intoxication; therefore, his arrest was unlawful; and (2) the

statements he made after his unlawful arrest should have been suppressed under 

Article 38.23 of the Texas Code of Criminal Procedure. Appellant further contends 

that his statements were used to establish his intent to assault or harass the officers 

and as the basis for the State’s argument for the sentence that the trial court imposed. 

We affirm.

I. Factual Background

On June 20, 2020, Appellant had been drinking at a bar with his friends, and

according to Appellant, with the intention to “find girls.” Appellant remained at the 

bar for approximately four hours and left when it closed. That same night, Midland 

County Police Sergeants Steven Sanders and Michael Ball received a dispatch 

concerning a disturbance outside a local hotel bar involving a hispanic male and a 

white female. 

Sergeant Sanders testified that, although he did not observe an active 

disturbance upon his arrival at the hotel’s parking lot, he did observe a white female 

standing in the parking lot along with other people who were inside their vehicles.
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Sergeant Ball then approached an occupied pickup to speak with the occupants and 

investigate the reported disturbance. At this time, Appellant was seated in the 

backseat of that pickup. 

Sergeant Sanders testified that he observed that Appellant’s speech was “very 

slurred” and that he “had mood swings.” Initially Appellant “said everything was 

fine” but later he pointed his finger at Sergeant Ball, threatened to call othersto come 

to the scene, became angry, and shouted at the officers. Sergeant Sanders’s bodycam 

footage shows him walking over to two vehicles, a large black pickup and a white 

vehicle, where multiple parties are shouting or talking loudly. Three men, including 

Appellant, are seen in the pickup and Appellant appears to be leaning out of the back 

passenger’s side window. After Sergeant Sanders checks on the men and women,

Appellant responds with “yes, sir, all good, all good, all good.” Sergeant Sanders 

walks by two women, and one of them asks the other if she is okay, to which the 

other responds “yes,” but she appears exasperated or frustrated, shakes her head, and 

sighs. As is shown in the bodycam footage, Sergeant Sanders testified that after he 

walked around the pickup, Appellant’s demeanor toward the officers changed—

Appellant became angry, and he began interjecting and interrupting Sergeant Ball as 

he was investigating the reported disturbance.

During this interaction, the officers asked the individuals in the pickup for 

identification, to which Appellant told the officers that he had a “green card” and 

was from Mexico. The officer’s bodycam footage shows that Appellant does not 

appear to provide the officers with any form of identification at that time. Sergeant

Sanders testified that he then pulled Appellant out of the pickup because of safety 

concerns and Appellant’s continuous interruptions to their efforts to investigate the 

reported disturbance. Appellant “pulled away” from the officers, and Sergeant

Sanders handcuffed Appellant. Sergeant Sanders testified that it was at this moment 

that he decided to arrest Appellant for public intoxication.
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Appellant then began yelling expletives and obscenities toward the officers, 

which continued throughout his interaction with them. Because of Appellant’s 

aggressive behavior, Sergeant Sanders and Sergeant Ball decided to transfer the 

custody of Appellant to another group of officers who had arrived at the scene. 

While these officers were restraining Appellant in their patrol unit, Appellant spat 

in the face of one of the officers. The officers then transported Appellant to the City 

of Midland police station. Appellant later testified that he was intoxicated on the 

night of his arrest.

II. Standard of Review

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

discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In 

reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review. 

Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348 

S.W.3d at 922–23. We give almost total deference to the trial court’s determination 

of the historical facts that the record supports, especially when the trial court’s fact 

findings are based on an evaluation of credibility and demeanor. Derichsweiler v. 

State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011); Amador v. State, 221 S.W.3d 

666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. 

Crim. App. 1997)). We also defer to the trial court’s findings as to questions of fact 

and mixed questions of law and fact that turn on the weight or credibility of the 

evidence. Brodnex, 485 S.W.3d at 436; Wade v. State, 422 S.W.3d 661, 666–67 

(Tex. Crim. App. 2013); Derichsweiler, 348 S.W.3d at 913.

We review de novo the trial court’s determination of pure questions of law, 

the application of the law to established facts, and the legal significance of those 

facts. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Wade, 422 

S.W.3d at 667; Derichsweiler, 348 S.W.3d at 913; Kothe v. State, 152 S.W.3d 54, 

62 (Tex. Crim. App. 2004) (citing United States v. Sharpe, 470 U.S. 675, 682 
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(1985)). We also review de novo mixed questions of law and fact that are not 

dependent upon credibility determinations. Brodnex, 485 S.W.3d at 436; 

Derichsweiler, 348 S.W.3d at 913 (citing Amador, 221 S.W.3d at 673).

If the record is silent as to the reasons for the trial court’s ruling, as in the case 

before us, we review the evidence in the light most favorable to the trial court’s 

ruling, infer the necessary fact findings that support the trial court’s ruling if the 

evidence supports those findings, and assume that the trial court made implicit 

findings to support its ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. 

Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); 

Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000). When 

considering a motion to suppress, the trial court is the exclusive trier of fact and 

judge of witness credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 

2002). As such, the trial court may choose to believe or to disbelieve all or any part 

of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); 

Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990). Therefore, we will 

sustain the trial court’s ruling on a motion to suppress, regardless of whether the trial 

court granted or denied the motion, if it is supported by the record and if it is correct 

under any applicable theory of law. Lerma, 543 S.W.3d at 190; Ross, 32 S.W.3d at 

855–56.

III. Analysis

On appeal, Appellant asserts that the trial court abused its discretion when it 

denied his motion to suppress because (1) Appellant’s arrest was unlawful in that

the arresting officers lacked probable cause to arrest him for public intoxication; and 

(2) Appellant’s statements that stemmed from his unlawful arrest should be 

suppressed under Article 38.23 of the Code of Criminal Procedure. We disagree. 

The Fourth Amendment guarantees protection against unreasonable searches 

and seizures. U.S. CONST. amend. IV; see Hubert v. State, 312 S.W.3d 554, 560 
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(Tex. Crim. App. 2010). When a defendant seeks to suppress evidence based on an

alleged Fourth Amendment violation, the defendant initially bears the burden of 

proof to show a constitutional violation. State v. Martinez, 569 S.W.3d 621, 623–

24 (Tex. Crim. App. 2019). The defendant meets his initial burden by establishing 

that a search or seizure occurred without a warrant. Id. at 624. If the defendant 

meets this burden, the burden then shifts to the State to produce a warrant or show 

the reasonableness of the search or seizure. Id. Here, it is undisputed that Appellant

was arrested without a warrant. Thus, the burden shifted to the State to show the 

reasonableness of seizing Appellant. Id. 

“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.” Id. at 628 (citing 

Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005)); State v. Steelman, 93 

S.W.3d 102, 107 (Tex. Crim. App. 2002); State v. Whitman, 606 S.W.3d 791, 798 

(Tex. App.—Eastland 2020, pet. ref’d). 

Probable cause for a warrantless arrest exists if, at the moment the arrest is 

made, the facts and circumstances within the arresting officer’s knowledge, and of 

which he has reasonably trustworthy information, are sufficient to inform a prudent 

officer to believe that the person arrested has committed or was in the process of 

committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 

2009). The test for probable cause is an objective one, unrelated to the arresting 

officer’s subjective beliefs, and requires a consideration of the totality of the 

circumstances that the arresting officer must consider. Id. Probable cause for a 

warrantless arrest 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 his or her overall probable cause 

determination. Martinez, 569 S.W.3d at 628 (citing State v. Woodard, 341 S.W.3d 
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404, 412 (Tex. Crim. App. 2011)). A finding of probable cause requires more than 

bare suspicion. Id. (citing Brinegar v. United States, 338 U.S. 160, 175 (1949)). 

“An unarticulated ‘hunch,’ a suspicion, or the good faith of the arresting officer is 

insufficient to support probable cause to justify a warrantless arrest.” Torres v. State, 

182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (citing McDougald v. State, 547 

S.W.2d 40, 42 (Tex. Crim. App. 1977)).

The Code of Criminal Procedure sets out statutory exceptions to the warrant 

requirement. See generally TEX. CODE CRIM. PROC. ANN. art. 14.01 (West 2015)

et seq. Thus, if the trial court’s ruling is correct on any theory of law that is 

applicable to the case and is reasonably supported by the record, we will uphold its

decision. Ross, 32 S.W.3d at 855–56; see Gallups v. State, 151 S.W.3d 196, 199 

(Tex. Crim. App. 2004).

A person commits the offense of public intoxication if the person appears in 

a public place while intoxicated to the degree that the person may endanger himself 

or another person. See PENAL § 49.02(a) (West 2011). Generally, a public place is 

defined as “any place to which the public or a substantial group of the public has 

access.” Id. § 1.07(40) (West Supp. 2023). A location may also be determined to 

be a “public place” based on the circumstances. Banda v. State, 890 S.W.2d 42, 52 

(Tex. Crim. App. 1994); see York v. State, 342 S.W.3d 528, 537 (Tex. Crim. App. 

2011) (holding that a parking lot and sidewalk area outside of an Exxon convenience 

station was a public place); see also Kindle v. State, No. 05-01-01818-CR, 2003 

WL 22707234, at *3 (Tex. App.—Dallas Nov. 18, 2003, no pet.) (mem. op., not 

designated for publication) (holding that a rational trier of fact could have found that 

a hotel parking lot was a public place beyond a reasonable doubt). “As for the 

element of danger, it is sufficient that the person merely rendered himself or others 

subject to [a] potential danger.” Martinez, 569 S.W.3d at 628 (citing Dickey v. State, 

552 S.W.2d 467, 468 (Tex. Crim. App. 1977)).
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The evidence shows that Appellant was in a public place at the time of his 

arrest. Appellant testified that on the night of his arrest he was in the backseat of a 

black pickup, which was parked in the hotel parking lot. Sergeant Sanders testified

that he observed people standing in the hotel parking lot and several people inside

other vehicles that were parked there. The public had access to—and were actively 

using—the hotel parking lot on the night of Appellant’s arrest. Therefore, we 

conclude that Appellant was in a public place at the time of his arrest for public 

intoxication within the meaning of Section 49.02(a). See PENAL § 1.07(a)(40); 

Martinez, 569 S.W.3d at 628–29; Kindle, 2003 WL 22707234, at *3.

Appellant contends that the State evidence presented by the State is

insufficient to show that the officers had probable cause to believe Appellant was 

intoxicated at the time of his arrest. To support his contention, Appellant argues that

(1) the arresting officers had limited contact with Appellant before his arrest; (2) the 

State did not present any evidence regarding the arresting officers’ knowledge of 

Appellant’s alcohol consumption, bloodshot eyes, or difficulty standing; and (3) the 

bodycam footage does not show Appellant’s slurred speech, contrary to Sergeant 

Sanders’s testimony, thus the arresting officers did not have probable cause to 

believe Appellant was intoxicated. We disagree. 

“Intoxicated” is defined as one (1) not having the normal use of one’s mental 

or physical faculties by reason of the introduction of alcohol or other substances into 

one’s body or (2) having an alcohol concentration of 0.08 or more. See PENAL

§ 49.01(2). Thus, for purposes of intoxication, a person is impaired if he has lost the 

normal use of his mental or physical faculties. See id. Intoxication may be proven 

by direct or circumstantial evidence, and to establish a person’s guilt, the latter is as 

probative as the former. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 

2010); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). 
9

Texas courts have consistently held that a peace officer’s testimony that a 

person is intoxicated can provide sufficient evidence to establish intoxication. 

Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Kiffe v. 

State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see 

also Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, 

pet. ref’d) (holding that a peace officer’s testimony that an individual is intoxicated 

is probative evidence of intoxication). Here, the State presented bodycam footage

and the testimony of the arresting officer to show the state of Appellant’s 

intoxication at the time of his arrest. Sergeant Sanders testified that he observed an 

open can of beer on the ground outside of the pickup that Appellant was sitting in. 

At the time of Appellant’s arrest, Sergeant Sanders believed that Appellant was 

intoxicated because of (1) Appellant’s slurred speech, (2) Appellant’s “wild mood 

swings” and aggressive behavior toward the officers while they were conducting 

their investigation, and (3) Appellant’s presence outside of a bar. The officers 

arrived at the scene around 2:16 a.m., minutes after the bar closed. Based on his

training and nineteen years’ experience as a police officer, Sergeant Sanders opined 

that individuals who are involved in disturbances at this particular location are 

usually intoxicated. The bodycam footage shows that Appellant was uncooperative 

and aggressive with the officers and their investigation, and he did not provide any

form of identification to the officers upon their request. Additionally, Appellant 

testified that he had consumed approximately seven beers on the night of his arrest 

and admitted during the suppression hearing that he was intoxicated when arrested.

Appellant contends that the officers’ knowledge of his alleged intoxication 

was limited, and, in support, argues that (1) there was no disturbance upon the 

officers’ arrival at the scene; (2) notwithstanding Sergeant Sanders’s testimony 

regarding Appellant’s slurred speech, “it isn’t observed on the video”; and 

(3) notwithstanding officers’ “repeated assertions that [Appellant] was trying to pick 
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a fight with police,” that fact is not “born [sic] by the evidence.” Appellant requests 

that we review the videos and bodycam footage that were admitted at the suppression 

hearing and at trial. As we do in all cases, we have reviewed the videos and the 

bodycam footage, and we disagree with Appellant’s assessment of this evidence. 

On the bodycam footage, people are heard shouting or talking loudly as 

officers approached, Appellant is leaning out of the back passenger’s side window

of a pickup, and a woman seems exasperated. Appellant’s speech is slurred and at 

times slow, and he repeats his words. Appellant’s uncooperative behavior and 

aggression towards the officers is also apparent. We conclude that this visual 

evidence supports the trial court’s decision to deny Appellant’s motion to suppress. 

At a suppression hearing, the trial court is the exclusive trier of fact and judge 

of the witnesses’ credibility, and we review the evidence presented during the 

hearing in the light most favorable to the trial court’s ruling. See Garcia-Cantu, 253 

S.W.3d at 241; Maxwell, 73 S.W.3d at 281. When there are factual disputes 

regarding testimony or the contents of a recording, the trial court’s findings of 

historical facts are afforded almost total deference. Miller v. State, 393 S.W.3d 255, 

263 (Tex. Crim. App. 2012) (citing Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. 

App. 2012) (Alcala, J., concurring)). But when the evidence is conclusive, such as 

with indisputable visual evidence, then any trial court findings that are inconsistent 

with such conclusive evidence may be disregarded as unsupported by the record, 

even when that record is viewed in a light most favorable to the trial court’s ruling. 

Id.; see also Tucker, 369 S.W.3d at 187 n.1. Thus, to the extent that there is any fact 

issue regarding the evidence depicted on the bodycam footage, we must defer to the 

trial court’s determination as to whether the bodycam footage corroborated (1) the 

officers’ testimony regarding the reported disturbance, (2) that Appellant’s speech 

was slurred, and (3) that Appellant was aggressive toward the officers. See Miller, 

393 S.W.3d at 263. 
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Along with the additional facts and circumstances articulated by the arresting 

officers, we conclude that there is sufficient evidence to support the trial court’s 

determination that, at the time of Appellant’s arrest, the officers had reason to believe 

that Appellant was intoxicated. See Martinez, 569 S.W.3d at 629 (holding that

aggressive behavior, yelling, noncompliance with officer instructions, 

uncooperative behavior during a police investigation, an odor of alcohol, and slurred 

speech are all factors to be considered in concluding that an individual is 

intoxicated).

Appellant further contends that the arresting officers could not have 

concluded that Appellant was a danger to himself or others, as is required by 

Section 49.02(a), because Appellant was in the backseat of a pickup and “the 

[bodycam footage] does not show anything that appears like [Appellant] was going 

to fight with [the] officers.” See PENAL § 49.02(a). Appellant argues that evidence 

of his intoxicated state alone does not show that he was a danger to himself or others.

Despite Appellant’s contentions, there is sufficient evidence to support the trial 

court’s determination that the officers believed Appellant was a danger to himself or 

others at the time of his arrest. 

Sergeant Sanders testified that there were people in the hotel parking lot when 

the officers responded to the disturbance call. At this time, Appellant was sitting in 

the backseat passenger side of a pickup with his arm hanging out of an open window, 

on the same side where two women were standing in the parking lot near the same 

pickup. Sergeant Sanders also testified that during the officers’ investigation, 

Appellant exhibited “mood swings” and aggressive behavior toward the officers. 

Sergeant Sanders believed that Appellant was actively “picking a fight” with the 

officers, and, in his opinion, this behavior could cause Appellant to randomly “pick 

a fight” with another person—rendering both Appellant and others subject to 

potential danger. Moreover, in the bodycam footage, the officers told Appellant that 
12

he was being arrested because he had “been drinking and . . . [was] involved in a 

disturbance,” indicating that the officers believed that Appellant’s behavior was 

related to the reported disturbance.

“[W]hen an officer is confronted with a person intoxicated in a public place, 

his determination as to possible danger that may befall the individual is not reviewed 

under the same standard used in a judicial determination of guilt.” Britton v. State, 

578 S.W.2d 685, 689 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh’g). A person’s 

conduct that renders himself or others subject to a potential danger is sufficient to 

meet the “danger” element of a public intoxication offense. Martinez, 569 S.W.3d 

at 628.

Based on the officers’ testimony and our review of the bodycam footage from 

Appellant’s arrest, it is apparent that Appellant was aggressive and “picking a fight”

with the officers prior to his arrest. The evidence and the testimony articulated by 

the arresting officer supports the trial court’s determination that the officers had 

reason to believe that, due to Appellant’s aggressive behavior, Appellant was a 

danger to himself or others at the time of arrest for public intoxication. See Martinez,

569 S.W.3d at 629; see also Miller v. State, No. 05-11-00282-CR, 2012 WL 

2877633, at *4 (Tex. App.—Dallas July 16, 2012, no pet.) (mem. op., not designated 

for publication) (“The intoxicated individual need not commit any dangerous acts in 

the presence of an officer in order to pose a sufficient danger to himself and others. 

It is enough if the officer observes a degree of intoxication indicating the individual 

poses a potential danger to himself or others.”) (citations omitted).

We conclude that the State met its burden to show that the warrant exception 

for an offense committed in presence or view of a peace officer applied here because

there is sufficient evidence that Appellant committed the offense of public 

intoxication in the presence of law enforcement officers. See CRIM. PROC.
13

art. 14.01(b). Accordingly, the trial court did not abuse its discretion when it denied 

Appellant’s motion to suppress. See Martinez, 569 S.W.3d at 630.

Next, Appellant contends that, because his post-arrest statements were not

suppressed, as he claims they should have been, his statements were improperly used 

to (1) prove the elements of the offense for which he was convicted and (2) serve as

the basis for the trial court’s imposition of Appellant’s sentence because they were 

used in violation of Article 38.23 of the Code of Criminal Procedure. See CRIM.

PROC. art. 38.23 (West 2018).

As we have said, the trial court did not abuse its discretion when it denied 

Appellant’s motion to suppress. Furthermore, Appellant pleaded guilty to the 

offense of harassment of a public servant and elected for the trial court to assess his 

punishment. A trial court has “wide discretion in deciding the admissibility of 

evidence presented at the punishment phase of trial.” Williams v. State, 176 S.W.3d 

476, 480 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Henderson v. State, 29 

S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Moreover, the 

trial court when making a sentencing determination, is entitled to consider “any 

matter the court deems relevant to sentencing.” CRIM. PROC. art. 37.07 § 3(a)(1) 

(West Supp. 2023). These matters may include evidence of the defendant’s 

character, the circumstances of the offense for which he is being tried, and evidence 

pertaining to the defendant’s personal responsibility and moral culpability for the 

charged offense. Id.; see also Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. 

App. 1991) (per curiam). We conclude that the State did not improperly use either 

Appellant’s post-arrest statements or the bodycam footage to prove the elements of 

the offense for which Appellant was convicted, nor was this evidence improperly 

used by the trial court as the basis in determining Appellant’s sentence. 

We have reviewed the record in the light most favorable to the trial court’s 

ruling, and we conclude that the trial court did not abuse its discretion when it denied 
14

Appellant’s motion to suppress. See Martinez, 569 S.W.3d at 630. Accordingly, we 

overrule Appellant’s issue on appeal.

IV. This Court’s Ruling 

We affirm the judgment of the trial court. 

W. STACY TROTTER

JUSTICE

December 7, 2023

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.