The STATE of Texas v. Roger Anthony MARTINEZ, Appellee

NO. PD-0324-17

Court of Criminal Appeals of Texas.

Delivered: January 9, 2019

Walker, J., delivered the opinion for a unanimous Court.

Appellee, Roger Anthony Martinez, filed a motion to suppress challenging the legality of his arrest for public intoxication. The motion was granted by the trial court, and the court of appeals affirmed. Because there was probable cause to arrest Appellee for public intoxication, we reverse the judgment of the court of appeals and remand the case to that court for further proceedings.

**I - The Motion to Suppress**

After Appellee was arrested for public intoxication without a warrant, he filed a motion to suppress. As we stated over thirty years ago in *Russell v. State* :

> When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct *624and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.

> Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the State is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure.

*Russell v. State* , 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986) (citations omitted), *disavowed on other grounds by**Handy v. State* , 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006).

In the case before us, it was undisputed that Appellee was arrested without a warrant. Indeed, at the beginning of the hearing on the motion to suppress, the State readily acknowledged that it had the burden.1 Thus, the burden shifted to the State to prove that the arrest fell within an exception to the warrant requirement. *Ford v. State* , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) ; *Russell* , 717 S.W.2d at 9.

To satisfy its burden, the State tried to show that Appellee was committing the offense of public intoxication, apparently relying upon the exception for offenses committed in the presence of the police. *See* TEX. CODE CRIM. PROC. ANN. art. 14.01(b) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."). The State presented the testimony of Officers Guerrero and Ramirez that they saw facts constituting the offense of public intoxication: that Appellee was in a public place, that Appellee was intoxicated, and that Appellee posed a danger to himself or others.

Toward the end of the State's closing argument, the trial court interrupted, disagreeing with the State's reference to the "arresting officers."2 Next, during Appellee's closing argument, counsel continued on that front and began by focusing on the fact that Officer Quinn, who physically arrested Appellee, did not testify. Defense counsel argued that Appellee's right to confront his accusers was being violated. Defense counsel also contended that the State failed to show that Appellee was a danger to himself or others.

As the State was about to begin its rebuttal argument, the trial court asked *625whether Officer Quinn would testify at trial. The trial court also asked the State to again confirm that only Officer Quinn arrested Appellee.

After closing arguments, the trial court quoted from article 14.01(b) of the Code of Criminal Procedure ; informed the parties that it looked at cases discussing article 14.01(b) ;3 and concluded that article 14.01(b) appeared to be limited to the officer who made the arrest, Officer Quinn. Because the trial court believed there was no evidence showing whether Officer Quinn had knowledge of sufficient facts to constitute probable cause, the trial court granted Appellee's motion to suppress.

On appeal, the Thirteenth Court of Appeals affirmed the trial court's ruling due to a lack of direct evidence about Officer Quinn's observations of Appellee's intoxication or what, if anything, the testifying officers, Guerrero and Ramirez, told Quinn about their own observations of Appellee's intoxication. *State v. Martinez* , No. 13-15-00069-CR, 2015 WL 5797604 at *5 (Tex. App.-Corpus Christi-Edinburg Oct. 1, 2015) (mem. op., not designated for publication) ( *Martinez I* ), *vacated* , No. PD-1337-15, 2016 WL 7234085 (Tex. Crim. App. Dec. 14, 2016) (plurality op.) (not designated for publication) ( *Martinez II* ). We vacated the judgment of the court of appeals and remanded to that court because probable cause can be shown by circumstantial as well as direct evidence, and a finding of probable cause did not necessarily depend on direct evidence about Officer Quinn's observations or what the testifying officers told him about their observations of Appellee's intoxication. *Martinez II* , 2016 WL 7234085 at *6, *8. We instructed the court of appeals to abate the appeal for supplemental findings from the trial court. *Id.* at *8.

The trial court, accordingly, made those supplemental findings, and it concluded, again, that Officer Quinn did not have probable cause to arrest Appellee for public intoxication. The court of appeals affirmed. *State v. Martinez* , No. 13-15-00069-CR, 2017 WL 2200298 (Tex. App.-Corpus Christi-Edinburg Mar. 16, 2017, pet. granted) (mem. op., not designated for publication) ( *Martinez III* ). The State filed another petition for discretionary review, and we granted review on both grounds:

> 1. The Court of Appeals erroneously decided an important question of state law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals, by finding that the knowledge of supporting officers cannot be used to establish probable cause.

> 2. The Court of Appeals failed to conduct the required *de novo* review of whether the evidence known to Officer Quinn was sufficient to establish probable cause and that failure constitutes a departure from the accepted and usual course of judicial proceedings that calls for an exercise of the Court of Criminal Appeals' power of supervision.

*626We conclude that consideration of the first ground resolves the probable cause question. Under the facts of this case, Officer Quinn's knowledge is not determinative. Whatever his knowledge of the facts may have been, that information, in combination with the knowledge of Officers Guerrero and Ramirez, showed probable cause to arrest Appellee for public intoxication.

**II - Probable Cause Can Be Established Without Officer Quinn**

In support of the first ground for review, the State argues that the "collective knowledge" doctrine applies in this case, and the knowledge of both Officers Guerrero and Ramirez should be added to the knowledge of Officer Quinn (which is unknown). The State contends that the sum total of the knowledge of all three officers would add up to probable cause, and the arrest should be upheld. Appellee's initial response is that the applicability of the collective knowledge doctrine is not before the Court, because it was not explicitly part of our prior opinion remanding this matter to the court of appeals. Appellee points out that our opinion on first submission faulted the lower courts for failing to consider whether circumstantial evidence of Officer Quinn's knowledge could amount to probable cause, and we remanded "for supplemental findings of fact and conclusions of law consistent with this opinion." *Martinez II* , 2016 WL 7234085 at *8. While it is true that our opinion, remanding this case to the court of appeals, did not direct that court to address the collective knowledge issue, the State nevertheless raised it as an issue on remand, and the court of appeals considered and rejected the State's argument. *See**Martinez III* , 2017 WL 2200298 at *5 (rejecting the State's collective knowledge argument, which at that time relied upon *Willis* and *Astran* ).4 Additionally, in its current petition for discretionary review, the State's argument in favor of review on the first ground asserted that the court of appeals erred by failing to take into account the collective knowledge doctrine. State's Pet. for Discretionary Review at 21-23. That first ground was granted review by this Court, and, even though it was not part of our prior opinion remanding this case, the issue has been addressed by the court of appeals, is before us now, and should be addressed.

In *Woodward v. State* , we held "that when there has been some cooperation between law enforcement agencies or between members of the same agency, the sum of the information known to the cooperating agencies or officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient probable cause therefor." *Woodward v. State* , 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (op. on reh'g). In other words, under this "collective knowledge" doctrine, when several officers are cooperating, their cumulative information may be considered in assessing reasonable suspicion or probable cause. *State v. Duran* , 396 S.W.3d 563, 569 n.12 (Tex. Crim. App. 2013) ; *see also**Illinois v. Andreas* , 463 U.S. 765, 771-72 n.5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ("where law enforcement authorities are cooperating in an investigation, ... the knowledge of one is presumed shared by all"). The State argues that the collective knowledge doctrine applies in this case because the arresting officer, Officer *627Quinn, is clearly cooperating with Officers Guerrero and Ramirez.

Appellee argues that communication is key to the collective knowledge doctrine, and, because there is no evidence that either Officer Guerrero or Officer Ramirez communicated with Officer Quinn before the arrest, the doctrine cannot be applied in this case. In support of this argument, Appellee points out the fact that the collective knowledge cases cited by the State all involved some level of communication. Specifically, Appellee notes that in *Pyles v. State* , the officer who made the warrantless arrest was aware that a sheriff's deputy had been murdered in the area where he found the defendant. *Pyles v. State* , 755 S.W.2d 98, 109-10 (Tex. Crim. App. 1988). Similarly, the officer who made the investigative detention in *Derichsweiler v. State* was relying upon a 9-1-1 dispatcher. *Derichsweiler v. State* , 348 S.W.3d 906, 915 (Tex. Crim. App. 2011). Finally, Appellee is correct that the warrantless arrests in *Willis* and *Astran* were upheld because the undercover officers in those cases relayed information to the arresting officers. *Willis v. State* , 669 S.W.2d 728, 730-31 (Tex. Crim. App. 1984) ; *Astran v. State* , 799 S.W.2d 761, 764 (Tex. Crim. App. 1990). Appellee also quotes *United States v. Ortiz* , in which the Fifth Circuit Court of Appeals stated: " 'Under the collective knowledge doctrine, it is not necessary for the arresting officer to know all of the facts amounting to probable cause, as long as there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts.' " *United States v. Ortiz* , 781 F.3d 221, 228 (5th Cir. 2015) (quoting *United States v. Ibarra* , 493 F.3d 526, 530 (5th Cir. 2007) ).

The State argues that communication is not a necessary requirement of the collective knowledge doctrine. Instead, communication serves to prove cooperation between the officers, which is the true cornerstone of the doctrine. If cooperation is proven in some other way, the collective knowledge doctrine can be applied without affirmative evidence showing communication. Appellee criticizes this approach as endorsing a "hive thinking" standard.

Although Appellee poses legitimate concerns about an overly broad expansion of the collective knowledge doctrine, the State's argument in the case before us does not ask us to go to the outer limits of that rule. Applying it in this case does not go so far as authorizing use of the doctrine in other cases in which officers are not even in the same place at the same time and have relatively little communication. In this case, all of the officers were responding to the same call, all were present at the scene, all had some degree of communication with Appellee, and all were present at the time of the arrest. Therefore, it is apparent that Officer Quinn was cooperating with Officers Guerrero and Ramirez, and all of the officers present were working as a team responding to the call. We hold that evidence of communication between officers is not always a necessary requirement to apply the collective knowledge doctrine. Under the facts of this case, the sum of the information known to the cooperating officers-their cumulative information-should be considered in assessing probable cause. *See**Woodward* , 668 S.W.2d at 344 ; *Duran* , 396 S.W.3d at 569 n.12.

**III - There Was Probable Cause to Arrest**

It is not disputed whether Officer Guerrero or Officer Ramirez had probable cause to arrest Appellee. However, before determining the cumulative knowledge of the three officers, we will briefly examine *628whether Officers Guerrero and Ramirez provided sufficient facts to show probable cause to arrest Appellee for public intoxication.

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. *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). Probable cause for a warrantless arrest under article 14.01(b) 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 the overall probable cause determination. *State v. Woodard* , 341 S.W.3d 404, 412 (Tex. Crim. App. 2011) (quoting *Beverly v. State* , 792 S.W.2d 103, 105 (Tex. Crim. App. 1990) ). "Thus, all of the information to support probable cause does not have to be within an officer's personal knowledge." *Id.* "The ultimate question under Article 14.01(b) is 'whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.' " *Id.* (quoting *Steelman* , 93 S.W.3d at 107 ).

A person commits public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. TEX. PENAL CODE ANN. § 49.02(a). A public place means any place to which the public or a substantial group of the public has access. *Id.* § 1.07(40). These places include, but are not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. *Id.* As for the element of danger, it is sufficient that the person merely rendered himself or others subject to potential danger. *Dickey v. State* , 552 S.W.2d 467, 468 (Tex. Crim. App. 1977).

Here, there was evidence that Appellee was in a public place. Officer Guerrero testified that he was responding to a call about a possible fight in the parking lot of the G & G Lounge, a bar in Victoria.5 He and the other officers met with Appellee in the back parking lot of the bar.6 According to Officer Guerrero, the parking lot was in use.7 Highway 185 ran directly in front of the bar, and on the other side of the bar is a local road where the parking lot is.8 There were cars in the parking lot, and cars were free to go in and out.9 Officer Ramirez also testified that the officers met with Appellee in the back parking lot of the G & G Lounge.10 The parking lot was directly north of the bar, and although Officer Ramirez did not see any cars actively pulling in and out, there were cars in the parking lot.11 The parking lot was approximately fifteen feet from the roadway.12 As for the bar itself, Officer Ramirez testified that the bar was not closed,13 and we have held that a bar open to the public for business is a public *629place. *Loden v. State* , 561 S.W.2d 2, 3 (Tex. Crim. App. [Panel Op.] 1978).

Next, there was evidence that Appellee was intoxicated. Officer Guerrero testified that Appellee appeared to be intoxicated.14 Guerrero said that he could smell alcohol from Appellee's breath and that Appellee had trouble standing and was swaying.15 Appellee's eyes were glassy, and his voice was slurred-both signs of intoxication.16 His behavior was aggressive; he did not comply with instructions; and he was uncooperative.17 Additionally, not only was there an odor of alcohol on Appellee's breath, the odor was also on his person.18 Officer Ramirez also opined that Appellee appeared to be intoxicated.19 Appellee had slurred speech, a swayed stance, and his eyes were red and glassy.20 Officer Ramirez could smell the odor of alcohol emitting from Appellee's breath and person.21 Appellee's behavior was "very aggressive and belligerent."22 He would not cooperate with the investigation, and he kept pacing and yelling.23

Finally, there was evidence that Appellee was intoxicated to the extent that he was a danger to himself or to others. In addition to Officer Guerrero's testimony that the parking lot was close to a road and a highway, there were cars in the parking lot, and cars were free to go in and out, Officer Guerrero opined that Appellee could not safely walk home in the condition that he was in.24 According to Officer Ramirez, the parking lot was close to the roadway, which was in use.25 The roadway, in turn, generally got very heavy traffic and connected to Highway 185.26 Officer Ramirez submitted that the traffic could possibly be heavy, even at that particular time in the evening.27 Finally, in Officer Ramirez's opinion, Appellee was not in any condition to drive or to walk home.28 Based on the evidence then,29 Appellee rendered himself subject to potential danger by being intoxicated in a parking lot of a public place, where it is reasonable to assume that cars would travel in and out. *See**White v. State* , 714 S.W.2d 78, 79 (Tex. App.-San Antonio 1986, no pet.).30 Indeed, Officer Ramirez *630explicitly stated that Appellee "could possibly pose a danger to himself and possibly others that close to an active roadway."31 As we said in *Britton* , "when an officer is confronted with a person intoxicated in a public place, his determination as to probable 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. 1979) (op. on reh'g).

The State met its burden to show that article 14.01(b)'s "offense committed in presence or view" exception to the warrant requirement applied. Sufficient facts show that Appellee was committing the offense of public intoxication in the presence of the officers. For Officers Guerrero and Ramirez, probable cause was clearly established; but, it was Officer Quinn who arrested Appellee. However, because all three officers were cooperating, even if there is no direct evidence regarding Officer Quinn's knowledge, his knowledge (whatever it was), in addition to the knowledge of Officers Guerrero and Ramirez (which clearly amounted to probable cause), totaled up to probable cause to arrest Appellee for public intoxication. The State met its burden to show an exception to the warrant requirement. Thus, the trial court should have denied Appellee's motion to suppress, and the court of appeals erred in failing to recognize this fact.

**IV - Conclusion**

In conclusion, even if the State failed to prove that Officer Quinn personally had probable cause to arrest Appellee, and there was no evidence that he was directed to arrest Appellee, the sum total of the knowledge of Officers Guerrero, Ramirez, and Quinn amounted to probable cause. Appellee's motion to suppress should have been denied. The judgment of the court of appeals, upholding the trial court's grant of Appellee's motion to suppress, is reversed. Because resolution of the first ground leads to this conclusion, consideration of the second ground is not necessary to the final disposition of the case. *See* Tex. R. App. P. 47.1. The matter is remanded to the court of appeals for further proceedings.

Yeary, J., filed a concurring opinion.

Newell, J., filed a concurring opinion, in which Keller, P.J., and Hervey and Richardson, JJ., joined.

Yeary, J., filed a concurring opinion.

The first time we saw this case (hereinafter, "first submission"), the issue was "whether the facts and circumstances within an arresting officer's knowledge at the time of arrest may be shown, by implication, through the testimony of other officers who were present at the scene of the arrest." *State v. Martinez* , No. PD-1337-15, 2016 WL 7234085, at *1 (Tex. Crim. App. Dec. 14, 2016) (not designated for publication). In a plurality opinion that I authored for the Court, we held that: 1) if the trial court found the testimony of Officers Javier Guerrero and Timothy Ramirez credible, 2) if it believed their testimony about Appellee's apparent intoxication, and 3) if it also found that Officer Patrick Quinn was present to witness the *631same observations that Guerrero and Ramirez did, then 4) there existed a factual basis from which the trial court could conclude that Quinn had probable cause to arrest Appellee. *Id.* at *5. Because the concurring opinion agreed that a remand was appropriate so that the trial court could enter supplemental findings of fact and conclusions of law, that is what we did. *Id.* at *8 & *9.

The case has now returned to us following additional proceedings in the trial court and another appeal. The Majority today holds that "the sum total of the knowledge of" the three officers-the two officers who were available to testify at the suppression hearing (Guerrero and Ramirez) and the arresting officer (Quinn) who was not-amounts to probable cause under the "collective knowledge doctrine." Majority Opinion at 630. This conclusion relies on essentially the same inferences we recognized in our opinion on first submission. *Martinez* , 2016 WL 7234085, at *8. Judge Newell's Concurring Opinion today suggests that, because the Majority now reverses the court of appeals under the collective knowledge doctrine instead of on the trial court's findings after remand, our initial opinion was superfluous and tantamount to micro-managing. Concurring Opinion at 633-34. But the Majority's reasoning and the reasoning found in our plurality opinion on first submission-which was rooted in the notion that circumstantial evidence, *if* believed, would support a probable cause finding-are very similar. Had the trial court, on remand, found that Quinn was present when the other officers made their observations about Appellee, the court today could have reached the same result it does, but under our original reasoning.

In its supplemental findings on remand, the trial court found that Guerrero and Ramirez were credible and that their testimony was accurate. The only reason the Court could not resolve this case today under our original, circumstantial evidence approach is that the trial court did *not* find that Quinn was actually present at the time Guerrero and Ramirez observed Appellee's apparent intoxication. And because the trial court failed to find that Quinn was present, it must have found that Quinn did not have the same information about Appellee's apparent intoxication that Guerrero and Ramirez had, and thus it concluded that Quinn did not have probable cause to arrest Appellee.

In concluding today that the arrest was nevertheless justified by probable cause, the Majority resorts to the collective knowledge doctrine to impute Guerrero and Ramirez's knowledge of Appellee's apparent intoxication to Quinn. In doing so, the Majority acknowledges that the three officers "were responding to the same call, all were present at the scene, all had some degree of communication with Appellee, and all were present at the time of arrest." Majority Opinion at 627. Had the trial court found that Quinn was also present when the other two officers observed Appellee's intoxicated state, there would be no need to deploy the collective knowledge doctrine-the circumstantial evidence approach we took on first submission would have supported a conclusion that probable cause existed.

Many of the inferences the Majority relies on today would be equally applicable under our first-submission circumstantial evidence approach. The Majority cites the testimony of Guerrero and Ramirez that Appellee appeared to be intoxicated. Ramirez testified that Appellee exhibited "slurred speech, a swayed stance, and his eyes were red and glassy[,]" and Guerrero testified "that he could smell alcohol from Appellee's breath and that Appellee had trouble standing and was swaying."

*632To demonstrate that the State carried its burden to show probable cause as to the second element of public intoxication-that Appellee posed a risk to himself or another-the Majority cites the testimony of Guerrero and Ramirez. They testified that the bar parking lot where Appellee was arrested is located near a busy highway that often has heavy traffic. On that basis, the Majority concludes that because probable cause "was clearly established" for Guerrero and Ramirez, and these two officers were working in cooperation with Quinn, probable cause existed for Quinn to arrest Appellee-under the collective knowledge doctrine. Majority Opinion at 630.

This line of reasoning is not so different from what we said in our opinion on first submission. In that opinion, we held that circumstantial evidence, if believed by the trial court, could provide probable cause for Quinn to arrest Appellee. *Martinez* , 2016 WL 7234085, at *8. The existence of probable cause, we said, did not hinge on Quinn's availability to testify at the suppression hearing-the trial court was free to believe the testimony of Guerrero and Ramirez regarding Appellee's intoxication and the risk he posed to himself and others. *Id* . at *4-5. We further held that, based on the circumstantial testimony of the two officers working in cooperation with Quinn, the trial court was free to believe that probable cause existed for Quinn to arrest Appellee. *Id* . at *7.

It is simply incorrect to say that the approach in our plurality opinion on first submission was "wrong" or "unnecessary." Concurring Opinion at 633-34. The plurality opinion never said that the trial court was *required* to believe the testimony of Guerrero and Ramirez, or *required* to find that Quinn was also present to observe Appellee's apparent intoxication, or *required* to conclude on that basis that Quinn had probable cause to arrest Appellee. Instead, the plurality opinion held only that the trial court was free to do so-and that, if it did, there was in fact a basis to find probable cause. That made remand necessary so that the trial court could fulfill its institutional role as fact-finder. *See**State v. Cullen* , 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) ("[C]ourts of appeals should not be forced to make assumptions (or outright guesses) about a trial court's ruling on a motion to suppress evidence. *De novo* review of such a ruling does not resolve this issue because the trial court is still in the best position to judge the credibility and demeanor of the witnesses at a pretrial suppression hearing. Instead, the proper solution to this problem is to require the trial court to enter findings of fact and conclusions of law when ruling on a motion to suppress evidence."); *State v. Elias* , 339 S.W.3d 667, 677 (Tex. Crim. App. 2011) (holding, consistently with *Cullen* , that a remand for additional findings of fact was appropriate in order to "assure that appellate review of the legality of the initial stop will be based upon the actual findings of the judicial entity to which the fact finding function is institutionally assigned-the trial court").

It is only because the trial court ultimately refused-which was its institutional prerogative-to infer that Quinn was also present when the other two officers made their observations about Appellee that the Majority must now utilize the collective knowledge doctrine. That does not mean it was in any way inappropriate-indeed, it was manifestly the proper approach-to remand this case and give the trial court the opportunity to make additional findings in light of the circumstantial evidence approach we laid out in the plurality opinion on first submission.

Indeed, the court of appeals has still not addressed the collective knowledge doctrine.

*633This was not a surprise on first submission, because the State had not raised it in its brief in the court of appeals. The State raised the collective knowledge doctrine only for the first time on discretionary review following the court of appeals' first opinion. Because this Court usually addresses only actual "decisions" of the courts of appeal, *Davison v. State* , 405 S.W.3d 682, 691 (Tex. Crim. App. 2013), it is more than understandable that the plurality opinion would relegate its discussion of the collective knowledge doctrine to a footnote. *Martinez* , 2016 WL 7234085, at *7 n.11. The State then raised the issue in its brief to the court of appeals after remand, but the court of appeals failed to address it. *State v. Martinez* , No. 13-15-00069-CR, 2017 WL 2200298 (Tex. App.-Corpus Christi July 27, 2017).

Typically, when a court of appeals fails to address an argument that is necessary to its disposition of the appeal, our practice is to remand to that court for further consideration rather than for this Court to address the merits of the argument in the first instance. *McClintock v. State* , 444 S.W.3d 15, 20 (Tex. Crim. App. 2014). But we will sometimes reach the issue for the first time on discretionary review, in the interest of judicial economy, when the proper disposition of the outstanding issue is clear. *Gilley v. State* , 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). Because the Court's opinion satisfies me that the proper disposition is clear, I am content to join its opinion today, rather than remand the cause a second time. I object only to the suggestion in the Concurring Opinion that there was anything inappropriate in the way the plurality opinion disposed of the case on first submission.

With these added remarks, I too join the Court's opinion.

Newell, J., filed a concurring opinion in which Keller, P.J., Hervey and Richardson, JJ., joined.

We initially remanded this case to the trial court because the trial court did not make factual determinations regarding the dispositive issues.1 A plurality of the Court also signaled to the trial court that it could infer probable cause based upon circumstantial evidence.2 Yet, in its new findings, the trial court refused to make those inferences. Now, instead of deferring to the findings we remanded for, we reverse under the doctrine of collective knowledge. I agree with the holding, and join the Court's opinion. I write separately to question why we remanded in the first place.

When the Court originally remanded this case, I thought it was inappropriate for the plurality to address the issue of whether probable cause could be based upon the circumstantial evidence before we had obtained dispositive findings.3 Now it is clear that addressing the issue was wrong because it was unnecessary.4 It is *634equally clear that our precedent requiring a remand for "necessary" findings provides an incentive for reviewing courts to micro-manage trial courts rather than defer to their findings.5 The requirement that trial courts enter findings and conclusions upon request is self-inflicted.6 So is the requirement that a reviewing court remand to the trial court for new findings when the reviewing court determines the existing findings are inadequate.7 This case is a good example of the trouble that our chosen approach can cause.

We should reconsider our holding in *State v. Elias* .8 Instead of remanding when a reviewing court determines that existing findings are inadequate, we should remand for "essential" findings only if there was some objection in the trial court regarding the inadequacy of the existing findings. If there wasn't, we should fall back on our standard in *State v. Ross* and simply view the evidence in the light most favorable to the trial court's ruling.9 We already do that when the parties fail to request findings altogether.10 I see no reason we shouldn't do so when they fail to draw the trial court's attention to problems with the findings it enters.11

With these thoughts, I join the Court's opinion.

1

After the parties announced ready and before opening statements, the following exchange occurred:

> THE COURT: Is this a warrant case?

> [Defense Counsel] MR. HATLEY: It is not.

> THE COURT: The State has the burden?

> [Prosecutor] MR. GUY: Yes, your Honor.

Rep. R. vol. 1, 6.

2

The State's closing argument ended as follows:

> [Prosecutor] MR. GUY: In the condition he was in, with the belligerence he was exhibiting, with the refusal to comply with instructions he was showing, with his confrontational attitude to the arresting officers, that, coupled with him being in a public -

> THE COURT: But it's arresting officer, right?

> It's not arresting officers. It's arresting officer.

> One officer arrested him, right?

> MR. GUY: Yes, sir; but the other officers were present. They witnessed the arrest. So they saw that there was no misconduct, nothing inappropriate. They saw that - and established all the facts supported the legitimacy of that arrest and that it was a proper arrest decision.

Rep. R. vol. 1, 46-47.

3

Specifically:

> THE COURT: The Court has also looked at cases discussing this provision, one of those being WARD V. STATE, 364 S.W.2d 709. It's an old case. It's still the law.

> It talks about public intoxication. However, it talks specifically about the officer arresting an individual for an offense committed in his presence or within his view. So it appears to limit that to the actual officer who arrested Mr. Martinez.

Rep. R. vol. 1, 54. We have not been able to determine to which case the trial court referred. The provided citation actually refers to a page in the middle of *Am. Cooperage Co. v. Clemons* , 364 S.W.2d 705, 709 (Tex. Civ. App.-Fort Worth 1963, writ ref'd n.r.e.), a case dealing with the assumption of the risk defense in negligence cases.

4

*See**Willis v. State* , 669 S.W.2d 728, 730-31 (Tex. Crim. App. 1984) ; *Astran v. State* , 799 S.W.2d 761, 764 (Tex. Crim. App. 1990) (both upholding arrest where arresting officer relied upon another officer he was participating with who viewed the offense).

5

Rep. R. vol. 1, 9-10.

6

*Id.* at 10-11.

7

*Id.* at 17.

8

*Id.*

9

*Id.*

10

*Id.* at 27-28.

11

*Id.* at 31.

12

*Id.* at 31-32.

13

*Id.* at 34.

14

Rep. R. vol. 1, 12.

15

*Id.* at 12-13.

16

*Id.* at 13.

17

*Id.* at 13-14.

18

*Id.* at 14.

19

*Id.* at 29.

20

*Id.*

21

*Id.*

22

*Id.*

23

*Id.*

24

*Id.* at 25.

25

*Id.* at 31.

26

*Id.* at 32.

27

*Id.*

28

*Id.* at 32-33.

29

Of course, much of the evidence showing danger overlapped with the evidence showing that the parking lot was a public place. This makes sense because: the parking lot was a public place; it was freely accessible for cars to come and go; and intoxication in such a place is inherently dangerous.

30

Although this Court has not held that danger can be based upon an intoxicated person's presence in a public parking lot, the San Antonio Court of Appeals's *White* decision has been consistently relied upon to find danger in such circumstances. *See, e.g.* , *Holmes v. State* , 795 S.W.2d 815, 817 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd) (danger shown where officer opined that defendant, in the parking lot of an apartment complex, might fall behind a vehicle and be run over or attempt to climb one of the stairs to the apartment buildings and fall off, and there was heavy traffic on the main street); *see also**Patterson v. State* , No. 01-11-00054-CR, 2012 WL 682262 (Tex. App.-Houston [1st Dist.] Mar. 1, 2012, no pet.) ; *Garcia v. State* , No. 14-09-00662-CR, 2010 WL 1223139 (Tex. App.-Houston [14th Dist.] Mar. 30, 2010, no pet.) ; *Flores v. State* , No. 05-00-00521-CR, 2001 WL 1021094 (Tex. App.-Dallas Sept. 7, 2001, pet. ref'd) (proximity to street and parking lot).

31

Rep. R. vol. 1, 33.

1

*State v. Martinez* , No. PD-1337-15, 2016 WL 7234085, at *7 (Tex. Crim. App. Dec. 14, 2016) (plurality op.) (not designated for publication).

2

*Id.* at *8 n.13.

3

*Id.* at *8 (Newell, J., concurring).

4

Rather than determine whether the arresting officer was aware of circumstantial evidence supporting a determination of intoxication, the Court's opinion makes clear that it doesn't matter what the arresting officer was aware of. The collective knowledge of all the officers involved provided specific facts supporting probable cause to believe that Appellant was intoxicated. Rather than virtue-signal to the trial court how we wanted it to analyze the case on remand, we should have viewed the evidence in a light most favorable to the trial court's ruling and held in the first instance that there was probable cause to arrest based upon the collective knowledge of all the officers involved.

5

*Id.* at *9 (Newell, J., concurring).

6

*State v. Cullen* , 195 S.W.3d 696, 699 (Tex. Crim. App. 2006).

7

*State v. Elias* , 339 S.W.3d 667, 676 (Tex. Crim. App. 2011) (holding that the court of appeals was required to remand to the trial court for additional, specific findings of fact to address a dispositive issue not addressed in the existing findings).

8

*Id.*

9

*See**State v. Ross* , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

10

*Cullen* , 195 S.W.3d at 699 (noting that the standard set out in *State v. Ross* controls when the non-prevailing party fails to make a request of findings and conclusions).

11

*See**Elias* , 339 S.W.3d at 680 (Keller, P.J., concurring) ("There is nothing unfair or unusual about requiring a party to object in a timely manner to what it finds objectionable.").