## NUMBER 13 - 17 - 00369 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

FRANCISCO GOMEZ A/K/ A FRANCISCO JAV IER GOMEZ , App ellant,

v. THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court o f Cameron County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez A Cameron County jury found appellant Francisco Gomez a/k/a Francisco Javier Gomez guilty of two counts of third

- degree assault of a public servant by ordering his dog to attack two police officers as they tried to arrest appellant. See T EX

. P ENAL C ODE A NN

. 22.01 (b)(1) (West, Westlaw through 2017 1st C.S.). After the jury's guilty verdict, the trial2 court pronounced a concurrent sentence of three years in prison on both counts. See id

. By one issue, appellant contends the trial court erred in denying his pretrial motion to
suppress. We affirm.
I. B ACKGROUND A. Suppression Hearing The trial court convened a hearing on appellant’s motion to suppress. The hearing was held before trial. The State adduced the following evidence at the hearing through the te s timony of an arresting officer. A fence separates the front yard of appellant’ s residence from the curb of the
stre et. On May 1, 2016, appellant, a dog owner, called officers to his residence allegi ng that his wife assaulted him. Officers arrived at the home a nd arrested appellant's wife. As officers escorted her to the police unit, which was parked on the street, appellant confronted the officers in the front yard and attempted to physically preve nt them from reaching the unit. Eventually, officers managed to get past appellant and they placed his wife in the back of a p olice unit. Notably, there were technical difficulties opening and playing a dash

- cam video, which de picted appellant's wife in the back seat of the unit. Consequently, this video was not admitted into evidence at the suppression hearing. With appellant's wife secured in the back of the unit, officers returned to arrest appellant for the offense of interfering with public duties based on his attempt to physically prevent his wife's arrest. See T EX

. P ENAL C ODE A NN

. § 38.15 (West, Westlaw through 2017 1st C.S.) (providing that a person commits “ [the offense of interference with public duties] if the person with criminal negligence

. . . interferes with

. . . a peace officer while
the peace officer is performing a duty or exercising authori ty imposed or granted by law”).3 However, by that point, appellant locked the officers out of his property by closing the gate to the fence that separated the front yard and the street. Officers push ed the gate open and encountered appel lant in the f ront yard. Appellant began swinging at the officers. During the melee, appellant ordered his dogs to attack

. One dog bit the testifying officer o n th e leg and an assisting officer o n the arm. The tr ial court denied appellant’s motion to suppress , and the case proceeded to trial before a jury

. B. Trial On the day of trial, the prosecutor informed the court and the parties that the arresting agency was able to fix the technical problems with the dash

- cam video and that the video was now playable. The trial court allow ed appellant to view the video. Appe llant did not object to the introduction of the video in evi dence. The video shows appellant's wife sitting handcuffed in the back of the police unit, and the audio portion captures the verbal exchange between appellant and the officers before officers pu shed the fro nt gate
open and arrested appellant. One officer told appellant to go back in the house, and when appellant refuses, the officers told appellant that he would be taken in for “threats.” The jury heard all the evidence and found appellant guil ty of both counts of assault of a public servant. This appeal followed.
II. M OTION TO S UPPRESS By his sole issue, appellant contends the trial court erred in denying his pretrial motion to suppress because the dash

- cam video , not admitted at the suppression hearing but later admitted at trial, conclusively established that the officers lacked probable cause
to arrest him. A ppellant does not specify what evidence should be suppressed if we4 reverse the suppression ruling or why the jury's verdict must be r ever sed without that evidence. Nevertheless, we address appellant’s argument below.
A. Applicable Law The code of criminal procedure provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in hi s presence or within his view.”
T EX

. C ODE C RIM

. P ROC

. A NN . art. 14.01 (b) (West, Westlaw through 2017 1st C.S.). The test for probable cause for a warrantless arrest is if “ the facts and circumstances within the officer's knowledge and of which he had re asonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.” State v. Woodard , 314 S.W.3d 86, 97 (Tex. App.

- Fort Worth 2010), aff'd , 341 S.W.3d 404 (Tex. Crim. App. 2 011). In determining whether a police officer had probable cause to effect a warrantless arrest, a court scrutinizes “ the objective facts known to the officer at the time of the arrest, not the officer's subjective
conclusions.” Moreno v. State , 1 24 S.W.3d 339, 348 (Tex. App.

— Corpus Christi 2003, no pet.).
B. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a standard of abuse of discretion and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement. See Martinez v. State , 348 S.W.3d 919, 922

– 23 (Tex. Crim. App. 2011). We must apply a bifurcated standard of review, “ giving almost total deference to a trial court's determination of historic facts and mixed questions of law an d fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure5 questions of law and mixed questions that do not depend on credibili ty determinations.” Id

. Questions sometimes arise regarding the scope of evidence av ailable to us in reviewing the trial court's ruling on a motion to suppress. In Black v . State , the Texas Court of Criminal Appeals set out the “general rule,” the “exception,” and the “corollary
rule” to resolve the question: The general rule: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presen ted at the p retrial hearing

— the evidence that was before the court at the time of its decision. The exception: If the parties consensually broach the suppression issue again before the fact

- finder at trial, the reviewing court should also consider the evidence adduced before the fact

- finder at trial in gauging the propriety of the trial court's ruling on the motion to suppress. [T]he corollary rule: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretio nary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court's ultimate ruling on the motion to suppress. 362 S.W.3d 626, 63 5

– 36 (Tex. Crim. App. 2012). C. Discussion Appellant asserts that: (1) we should consider the dash

- cam video in gauging the propriety of the trial court's ruling on the motion to suppress; and (2) the trial court's ruling cannot withstand scrutiny because the video conclusively proves that the testifying officer fabricated the basis for probable ca u se at the suppression hearing. We disagree on both fronts. First, the video was not admitted at the suppression he aring, only at trial. Appellant directs us t o nothing in the trial record to trigger Black ’s e xception or corollary rule, which6 would expand our review to include the dash

- cam video. See id

. Appellant's argument on appeal depends entirely on th is video, but he fails to address the rules that would make a review of that video possible on appeal as it relates to the trial court’s ruling on the motion to suppress

. Second, th e trial court's ruling would withstand scrutiny even factoring in the dash

cam video. The reason is that t he officer's testim ony at the suppression hearing and the video depict different sequential eve nts giving rise to this appeal. Specifically, t he officer testified that probable cause to arrest occurred in the front yard when appellant physically interfered with the officers ’ attempt to escort his wife to the police unit, whereas the video
starts after appellant's wife was placed in the back of the unit. Thus, it is temporally impossible for the video to conclusively establish the suppres sion testimony was false, as appellan t claims. At best, the video casts doubt on the officer's subjective intent with respect to the offense of appellant’s arrest because the audio portion of the video captures the officer stating “threats” as the basis for arrest

. But a court scrutinizes “ the objective facts known to the officer at the time of the arrest, not the of ficer's subjective conclusions.”
Moreno , 124 S.W.3d at 348. The objective facts known to the officer included appellant’s interference with his wife’s arrest

— facts which relate to an event that occurred before the video began playing. Therefore, the video would not offer legally significant help to appellant in ga u ging the proprie ty of the trial court's ru ling. See id

. We overrule appellant's sole issue.
III. C ONCLUSION We affirm the trial court's judgment.7 /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice Do not publish. T EX

. R. A PP

. P. 47.2(b).
Delivered and filed this 23rd day of August, 2018.