Opinion filed December 7 , 20 2 3



### In The 

# Eleventh Court of Appeals

__________ No. 1 1

- 2 2

- 00 234

- C R

__________
RICARDO OLIVA , Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court Midland County , Texas Trial Court Cause No. CR55 426

M E M O R A N D U M O P I N I O N Appellant, R icardo Oliva , was indicted for the third

- degree felony offense of
harassment of a public servant

. See T EX

. P ENAL C ODE A NN

. § § 22.11 (a)(3) , (b) (West 2019 )

. Appellant subsequently filed a motion to suppress all evidence relating
to his detention and arrest, wherein he contend ed that (1) the City of Midland Police Department violated his rights under the United States Constitution , the Texas

c onstitution, and Article 38.23 of the Texas Code of Criminal Procedure, and (2) he2 was “arrested and/or detained” without a warrant, probable cause , or o ther lawful authority

. A t 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

. T he 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,

t he trial court sentenced Appellant to five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
O n appeal, Appellant contends that the trial court erred when it denied h is motion to suppress because (1) the law enforcement officers lacked probable cau se
to arrest him for public intoxication ; therefore, his arrest was unlawful; and (2) the

statements he made after his unlawful arrest should have been suppress ed under
A rticle 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 sentenc e that the trial court imposed

. We affirm.
I. Factual Background
On June 20, 2020 , Appellant had been drink ing at a bar with his friends , and according to Appellant, with the intention to “find girls.” Appellant remain ed at the
bar for a pproximately four hours and left when it closed

. That same night , Midland County Police Sergeant s Steven Sanders and Michael Ball received a dispatch concerning a disturbance outside a local hotel bar involving a h ispanic 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.3 Sergeant Ball then approached an occupied pickup to speak with the occupants and investigate the reported disturbance

. At th is time, Appellant was seated in the
backseat of th at pickup. Sergeant Sanders testified that he observ ed that Appellant ’s speech was “very
slurred” and that he “ had mood swings

. ” I nitially Appellant “said everything was
fine” but later he pointed his finger at Sergeant Ball, threaten ed to call others to come to the scene, became angry , and shouted at the officers. Sergeant Sander s ’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 respond s with “ yes, sir, all good , all good, all good

. ” Sergeant Sanders
walk s by two women , and one of them asks the other if she is okay , to which the
other responds “ye s ,” but she appears exasperated or frustrated , sh ak es her head , and sigh s

. 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 investigati ng the reported disturbance

. During this interaction, the officers ask ed the individuals in the pickup for identification, to which Appellant told the officers that he had a “ green card ” and

wa s from Mexico. T he officer’s bodycam footage shows that Appellant does not appear to provide the officers with any form of identification at that time. Sergeant
Sa nders testified that he then pulled Appellant out of the pickup because of safety
concerns and Appellant’s continuous interruptions to the ir efforts to investigat e the reported disturbance

. Appellant “ pulled away ” from the officers , and Sergeant
Sanders handcuff ed Appellant

. Sergeant Sanders testified that it was at this moment
that he decided to a rrest Appellant for public intoxication

.4 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 deci ded to transfer the custody of Appellant to another group of officers who had arrived at the scene

. While these officers were restraining Appellant in the ir p atrol 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, e specially 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. Sta te , 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, 6825 (1985)). We also review de novo mixed qu estions 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 cour t’ 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); s ee 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 s uch, 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, w e will
sustain the t rial 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 a sserts 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 lack ed probable cause to arrest him for public intoxication; and (2) Appellant’s statements that stem med from his unlawful arrest should be suppressed under A rticle 38.23 of the Code of Criminal Procedure. We disagree. The Fourth Amendment guarantees protection against unreasonable sear ches
and seizures. U.S. C ONST . amend. IV; see Hubert v. State , 312 S.W.3d 554, 5606 (Tex. Crim. App. 2010). When a defendant seeks to suppress evidence based on a n 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 b urden, the burden then shifts to the State to produce a warrant or show
the reasonableness of the search or seizure. Id. Here, i t is undisputed that Appell ant was arrested without a warrant. Thus, the burden shifted to the State to show the
reasonableness of seiz ing 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 Cri minal 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 trustw orthy 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.3d7 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)).
T he Code of Criminal Procedure sets out statutory exceptions to the warrant requirement

. See generally T EX

. C ODE C RIM

. P ROC

. A NN

. art. 14 .01 (West 2015)

et seq

. Thus, i f the trial court ’ s ruling is correct on any theory of law that is applicable to th e case and is reasonably supported by the record, we will uphold i t s decision. Ross , 32 S.W.3d at 85 5

– 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 P ENAL § 49.02 (a) (West 2011 ). G eneral ly , 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) )

.8 The evidence show s 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 st anding in the hotel parking lot and several peopl e inside
other vehicles that were parked there

. T he 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 P ENAL § 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 officer s had limited contact with Appel lant 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 officer s did not have probable cause to believe Appellant was intoxicated. We disagree.
“I ntoxicat ed ” is defined a s 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 P ENAL § 49.01(2). Thus, f or 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 circumst antial 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. C rim. 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) ( hold ing 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.
A t 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 close d

. Based on his training and nineteen years ’ experience as a police officer , S e rge a nt Sanders opin ed
that individuals who a re involved in disturbances at this particular location a re 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 of ficers upon the ir 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 pick10 a fight with police ,” that fact is not “born [sic] by the evidence.” Appellant re quests tha t we review the videos and bodycam footage that were admitted at the suppression hearing and at trial. As we do in all cases, w e have reviewed the videos and the bodycam footage , and we disagree with Appellant’s assessment of th is evidence

. O n the bodycam footage, people are heard shouting or talking loudly as officers approach ed , 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, t he 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 a t 281. When there are factual disputes regarding testimony or the contents of a recording, the trial court’s findings of
historical fact s 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 t here is a ny fact issue regarding the evidence depicted on the bodycam footage, we must defer to the
trial court’s de termination as to whether the bodycam footage corroborated (1) the
officer s ’ 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

.11 A long with the additional facts and circumstances articulated by the arresting
officers , we conclude that there is sufficient evid ence 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 ,

un cooperative behavior during a police investigation , an odor of alcohol, and slurred speech are all factors to be considered in concludi ng that an individual is intoxicated). Appellant further contends that the arresting officers could not have
conclud ed 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 P ENAL § 49.02 (a)

. Appellant argues that evidence
of his intoxicat ed state alone does not show that he was a danger to himself or othe rs

. D espite A ppellant’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 exhibit ed “mood swings” and aggressive behavior toward the officers

. S e rge a nt 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 a nother person

— rendering both Appellant and others subject to potential danger

. More over , in the bodycam footage, the officers told Appellant that12 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 p ossible 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

. T h e evidence and the testimony articulated by
the arresting officer support s 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 ; s ee 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 designat ed for publication) (“The intoxicated individual need not comm it 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.”) (citat ions 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 i s sufficient evidence that Appellant committed the offense of public
intoxication in the presence of law enforcement officers

. See C RIM

. P ROC

.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 the y were used in violation of A rticle 38.23 of the Code of Criminal Procedure

. See C RIM

. P ROC

. art. 38.23 (West 2018)

. As we have said, t he trial court did not abuse its discretion when it denied Appellant’s motion to suppress. Furthermore , Appellant ple a d ed 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 Dis t.] 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. ” C RIM

. P RO C

. art. 37.07 § 3(a)(1) (West Supp. 202 3 ). 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). W e conclude that the S tate 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 convict ed , nor was this evidence i mproperly
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 w e conclude that the trial court did not abuse its discretion when it d enied14 Appellant’s motion to suppress. See Martinez , 569 S.W.3d at 630

. Accordingly , w e 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 , 20 2 3 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey , C.J., Trotter , J

. , a nd Williams , J

.