No. PD-1233-15

Court of Appeals No. 03-13-00764-CR

______________________________________________________

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

________________________________________________

JOSE SOSA,

Petitioner

v.

THE STATE OF TEXAS

________________________________________________

On Appeal from the District Court

403rd District Court

of Travis County, Texas

Trial Cause No. D1DC11205390

________________________________________________

PETITION FOR DISCRETIONARY REVIEW

 ______________________________ 

DAVID W. CRAWFORD

P.O. Box 686

Austin, Texas 78767

(512) 795-2000

FAX (512) 237-7792

dcrawford@crawfordcruz.com

Texas Bar No. 24031601

ATTORNEY FOR PETITIONER
ii

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would not be helpful in this case, and Petitioner does not 

request it.
iii

TABLE OF CONTENTS

Page

Statement Regarding Oral Argument.................................................................ii

Table of Contents...............................................................................................iii

Index of Authorities...........................................................................................iv

Statement of the Case.........................................................................................1

Statement of Procedural History........................................................................2

Grounds for Review...........................................................................................3

Reason for Review.............................................................................................3

Arguments and Authorities ...............................................................................4

I. The Court of Appeals incorrectly 

determined that the trial court had not 

abused its discretion in denying the motion 

to suppress.

II. The Court of Appeals incorrectly 

determined that there is no mandate for the 

appellate review of a jury determination of 

the admissibility of evidence that is subject 

to Texas Code of Criminal Procedure 38.23.

Conclusion and Prayer........................................................................................9

Certificate of Service.........................................................................................10

Certificate of Service..........................................................................................11

Appendix............................................................................................................12
iv

INDEX OF AUTHORITIES

Cases Page(s)

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 7

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) 7

Hanks v. State, 137 S.W.3d 668 (Tex.Crim.App. 2004) 7
1

No. PD-1233-15

Court of Appeals No. 03-13-00764-CR

______________________________________________________

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

______________________________________________________

JOSE SOSA,

Petitioner

V.

STATE OF TEXAS,

______________________________________________________

On Appeal from the District Court

403rd District Court

of Travis County, Texas

Trial Cause No. D1DC11205390

______________________________________________________

PETITION FOR DISCRETIONARY REVIEW

 ______________________________ 

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES Petitioner-Appellant Jose Sosa (“Sosa") and respectfully 

submits this his petition for discretionary review pursuant to Rule 68 of the Texas 

Rules of Appellate Procedure.
2

STATEMENT OF THE CASE

This is an appeal of a denied motion to suppress evidence and the verdict of 

the jury at trial. The motion was argued in front of the trial court. The trial court 

denied the defendant's motion to suppress evidence. At trial, the jury found Sosa 

guilty of a lesser included charge after determining the admissibility of evidence 

against him.

STATEMENT OF PROCEDURAL HISTORY

Sosa was accused of the offense of possession of a controlled substance with 

the intent to deliver. Sosa presented a motion to suppress evidence. The trial court 

heard evidence through testimony, and heard argument of the parties. The trial 

court denied the motion to suppress. Following the ruling on the motion to 

suppress, the case was heard by jury at trial. The jury was given an instruction 

under Texas Code of Criminal Procedure 38.23 to consider the admissibility of 

evidence. The jury found Sosa guilty of the lesser included offense of possession 

of a controlled substance, and implicitly ruled that the disputed evidence was 

admissible. Sosa appealed the case to the Third Court of Appeals in Austin. The 

Court of Appeals handed down its opinion affirming the district court on August 

18, 2015. The opinion of the Court of Appeals is unpublished. A copy of the 

Court’s opinion is attached hereto as Appendix A. No subsequent motion for 

rehearing was filed.
3

GROUNDS FOR REVIEW

I. The Court of Appeals incorrectly determined that the trial court had not abused 

its discretion in denying the motion to suppress.

II. The Court of Appeals incorrectly determined that there is no mandate for the 

appellate review of a jury determination of the admissibility of evidence that 

is subject to Texas Code of Criminal Procedure 38.23.

REASON FOR REVIEW

Facts of the case. An arrest was initially made for the offense of 

public intoxication on October 7, 2011. During the search of the appellant 

following that arrest, an amount of a controlled substance, namely cocaine, was 

found on his person. Appellant was subsequently arrested for possession of a 

controlled substance with the intent to deliver. A pretrial hearing was held on the 

appellant's motion to suppress the evidence on the grounds that was not sufficient 

probable cause to sustain his arrest for public intoxication. The trial court denied 

the motion to suppress, and the case was subsequently tried to a jury. The jury was 

presented with a charge under Texas Code of Criminal Procedure 38.23 regarding 

the admissibility of the evidence against the appellant. The jury found appellant 

guilty of the lesser included offense of possession of a controlled substance, and 

implicitly ruled that the arrest for public intoxication was valid. The court of 
4

appeals ruled that the trial court did not abuse its discretion in denying the motion 

to suppress and that it had no standing to review the jury's imolicit finding under 

38.23.

ARGUMENT AND AUTHORITIES

I. The Court of Appeals incorrectly determined that the trial court had not 

abused its discretion in denying the motion to suppress. 

The Court of Appeals found that the trial court in this circumstance had not 

abused its discretion in finding that there existed probable cause for the initial 

arrest and detention of Sosa for the offense of public intoxication. This initial 

detention led to the search of Sosa and the seizure of the controlled substance that 

was admitted as evidence in the trial against him.

The officer testified that the factors he relied upon to determine intoxication 

were that he could smell alcohol on Sosa’s breath, that his eyes were bloodshot, 

that he had impaired balance, and impaired speech. The officer was unable to 

provide an explanation for how Sosa was able to quickly run into the bar, wind his 

way through a crowded bar without running into anyone, but then immediately 

afterward display impaired balance outside the bar. The officer did not recall how 

Sosa’s speech was impaired. The officer did not see Sosa drinking, nor did he note 
5

that he ever admitted to consuming alcohol that evening. The officer did not 

perform any field sobriety tests or test Sosa’s blood or breath to determine that he 

was intoxicated. The officer testified that there was nothing about Sosa’s actions 

that he personally observed that would indicate he was a danger to himself or 

anyone else.

In addition, there was another witness who testified at the motion to suppress 

who provided testimony that contradicted much of the officer’s testimony. 

Gerardo Perez was the doorman at the back of Shakespeare’s Pub and he testified 

that he had two separate interactions with Sosa that evening, about 20 minutes 

apart. Mr. Perez had received TABC training, part of which is determining 

whether or not an individual is intoxicated. Mr. Perez testified that he had known 

Sosa for approximately a year, from seeing him come into the bar where he worked 

downtown. Mr. Perez testified that Sosa initially entered Shakespeare’s Pub 

through the back entrance, and that he observed Sosa and that he was not 

intoxicated at that time. Mr. Perez then saw Sosa twenty minutes later, when he

exited through the back entrance, and subsequently saw the officer detain Sosa. 

Mr. Perez testified that in his observation at that time, Sosa was not intoxicated. 

Mr. Perez testified that no one would be allowed to just run into the bar, as the 

officer indicated.
6

In light of all the facts given to the trial court and even in giving much deference to 

the trial court's ruling, the Court of Appeals erred in finding that the trial court did 

not abuse its discretion. The officer’s own testimony by itself does not establish 

probable cause to arrest Sosa for public intoxication. The officer himself admits 

that nothing about Sosa’s behavior that he observed indicated to him that the 

Appellant was a danger to himself or to anyone else. Sosa was not engaging in 

behaviors such as walking down the middle of the street that would obviously 

indicate a danger to himself or others. Taken in combination with the other 

testimony presented, it was unreasonable for the trial court to find probable cause 

in this case, and it was an error by the appellate court to not find that such a ruling 

was an abuse of discretion.

II. The Court of Appeals incorrectly determined that there is no mandate for the 

appellate review of a jury determination of the admissibility of evidence that 

is subject to Texas Code of Criminal Procedure 38.23.

The Court of Appeals found that Sosa's second point regarding the legal 

sufficiency of the evidence utilized by the jury in making an implicit ruling under 

Texas Code of Criminal Procedure 38.23 was not reviewable. This finding was 
7

based on a number of unpublished opinions from a variety of Courts of Appeal in 

Texas. The Court of Appeals also relies on the ruling of this court in Hanks v. 

State, 137 S.W.3d 668 (Tex.Crim.App. 2004). In Hanks, this court ruled that 

review was not appropriate as to the admission of evidence when the question was 

submitted to the jury pursuant to 38.23(a). Id. at 672. In rendering its decision, this 

court followed the guidance of Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 

1996).

However, this court should reevaluate its position in Hanks. This court has 

subsequently overruled Clewis and held that the standard put forth in Jackson v. 

Virginia would be the only standard a reviewing court should apply when 

determining the sufficiency of evidence. Brooks v. State, 323 S.W.3d 893, 895 

(Tex.Crim.App. 2010). The question of applying the Jackson standard to jury 

findings under 38.23 does not appear to be one decided by this court since then, 

and should be examined to determine if the logic of Hanks should still apply if the 

Clewis standard of review is not utilized.

In addition, Judge Womack's dissent in Hanks should bear reconsideration 

of this court. As Judge Womack points out, there is no authority to explain why 

the appellate courts' authority should be limited to the sufficiency of evidence on 

the elements of the case. There is no statutory or constitutional authority for the 

limitation of review to determining the sufficiency of evidence only on the 
8

elements, and not also considering the sufficiency of the evidence heard by a jury 

in determining a question under 38.23. Moreover, under the current standard, there 

is no way to review a jury's decision under 38.23, which provides a total deference 

to the findings of the jury. While determinations made by the jury should have a 

great amount of deference, rendering these determinations unreviewable provides 

too much deference to the jury's decisions. The determination that a jury's decision 

under 38.23 cannot be reviewed by an appellate court runs against the protections 

afforded defendants by both the United States and the Texas constitutions and this 

court should provide a manner that, admittedly with great deference, such 

decisions could be reviewed by the appellate courts. 
9

PRAYER FOR RELIEF

For the foregoing reasons, Petitioner request that the petition and review be 

granted, and that upon review of the grounds of error the judgment of the Court 

of Appeals be reversed, and that the evidence in this case be suppressed or found 

not to be sufficient, or that the case be remanded to the appropriate court for a 

decision in accord with this court's ruling.

 Respectfully submitted,

/s/ David W. Crawford

David W. Crawford

State Bar No. 24031601

Crawford and Cruz PLLC

P.O. Box 686

Austin, Texas 78767

Telephone (512) 795-2000

Telefacsimile (512) 237-7792

Email: dcrawford@crawfordcruz.com

Attorney for Appellant
10

CERTIFICATE OF SERVICE

I, David W. Crawford, do hereby certify that a true and correct copy of the 

foregoing instrument has been served on the following named attorney(s) in 

accordance with the Texas Rules of Appellate Procedure, by United States Mail, 

first class:

Rosemary Lehmberg, Travis County District Attorney

PO Box 1748

Austin TX 78767

and to:

State’s Prosecuting Attorney

PO Box 12405

Austin TX 78711

on this the 19th day of October, 2015.

/s/ David W. Crawford

David W. Crawford
11

Certificate of Compliance

As Attorney of Record for Appellant, I do hereby Certify by my signature 

that this brief contains 1,585 words, in accordance with Tex. Rules of Appellate 

Procedure 9.4(i).

 Date: October 19, 2015

/s/ David W. Crawford

David W. Crawford

State Bar No. 24031601

Crawford and Cruz PLLC

P.O. Box 686

Austin, Texas 78767

Telephone (512) 795-2000

Telefacsimile (512) 237-7792

Email: dcrawford@crawfordcruz.com

Attorney for Appellant
12

A P P E N D I X
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00764-CR

Jose Luis Sosa, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. D-1-DC-11-205390, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

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

Following the denial of his motion to suppress evidence, a jury found appellant

Jose Sosa guilty of possession of a controlled substance, a second-degree felony. See Tex. Health

& Safety Code § 481.115(d). The trial court assessed punishment at five years’ imprisonment,

probated. In two issues, Sosa contends that the trial court should have granted his motion to suppress

and that the evidence was not legally sufficient to support the jury’s implied finding that probable

cause existed for his arrest. We will affirm the trial court’s judgment.

BACKGROUND1

In October 2011, Sosa and his friend were involved in a disturbance on Sixth Street

in downtown Austin. The two men allegedly touched the breasts of a young woman, and Sosa’s

friend allegedly struck the young woman in the face. When Officer Ronald Enriquez of the Austin

 The facts recited herein are taken from the testimony presented at trial. 1
Police Department tried to approach Sosa to question him about the disturbance, Sosa ran into a bar.

Officer Enriquez pursued Sosa through the bar and caught up with him in an alley behind the

bar. Officer Enriquez spoke with Sosa and observed what he believed to be signs of intoxication.

After speaking with additional witnesses, Officer Enriquez placed Sosa under arrest for public

intoxication. Officer Enriquez searched Sosa and discovered a plastic bag holding smaller plastic

bags containing what was later determined to be cocaine. Sosa was then also placed under arrest for

possession of a controlled substance.

Sosa was charged with possession of a controlled substance with intent to deliver in an

amount of four grams or more but less than 200 grams. Sosa filed a motion to suppress, arguing that

the cocaine was discovered in a search incident to an unlawful arrest because there was no probable

cause to arrest him for public intoxication. The trial court denied the motion following a hearing.

Sosa later requested the submission of a jury instruction pursuant to Texas Code of

Criminal Procedure article 38.23, and the trial court granted Sosa’s request. See Tex. Code Crim.

Proc. art. 38.23 (“In any case where the legal evidence raises an issue hereunder, the jury shall be

instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation

of the provisions of this Article . . . the jury shall disregard any such evidence so obtained.”). The jury

found Sosa not guilty of possession of a controlled substance with intent to deliver but found him

guilty of the lesser included offense of possession of a controlled substance. This appeal followed.

STANDARD OF REVIEW

In his first issue, Sosa contends that the trial court erred by denying his motion

to suppress evidence because Officer Enriquez lacked probable cause to arrest him for public

2
intoxication. We review a trial court’s ruling on a motion to suppress for abuse of discretion, using

a bifurcated standard. Goodwin v. State, 376 S.W.3d 259, 266 (Tex. App.—Austin 2012, pet. ref’d).

In doing so, we view the evidence in the light most favorable to the trial court’s ruling. Johnson v.

State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We give almost total deference to rulings on

application of the law to questions of fact and to mixed questions of law and fact if resolution of

those questions depends on an assessment of credibility and demeanor of witnesses. Arguellez v.

State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We review de novo pure questions of law

and mixed questions of law and fact that do not depend on evaluating credibility and demeanor.

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). “The ultimate determination of

whether probable cause exists is subject to de novo review on appeal.” Baldwin v. State, 278 S.W.3d

367, 371 (Tex. Crim. App. 2009). We will affirm the trial court’s ruling if the record reasonably

supports it and it is correct on any theory of law applicable to the case. State v. Duran, 396 S.W.3d

563, 571 (Tex. Crim. App. 2013).

DISCUSSION

Motion to suppress

In his motion to suppress, Sosa argued that there was no probable cause to arrest him

for public intoxication and, therefore, any drugs that were discovered during the search incident to

arrest were inadmissible. See U.S. Const. amend. IV. Probable cause exists when the police have

reasonably trustworthyinformation, considered as a whole, sufficient to warrant a reasonable person

to believe that the person arrested has committed or is committing an offense. Amador v. State,

3
275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “Probable cause deals with probabilities.” Guzman

v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). It “requires more than mere suspicion but far

less evidence than that needed to support a conviction or even that needed to support a finding by

a preponderance of the evidence.” Hughes v. State, 24 S.W.3d 833, 838–39 (Tex. Crim. App. 2000).

In other words, in order to overcome Sosa’s motion to suppress, the State did not need to prove that

Sosa was publicly intoxicated, only that probable cause existed to believe that he was. See Texas

Dep’t of Pub. Safety v. McHugh, No. 03-13-00261-CV, 2014 WL 5420407, at *4 (Tex. App.—Austin

Oct. 24, 2014, no pet.) (mem. op.). 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 the person

or another.” Tex. Penal Code § 49.02(a).

At the hearing on Sosa’s motion, Officer Enriquez testified to the following facts.

A staff member from a bar flagged Enriquez down and called his attention to a disturbance

happening outside the bar. The staff member pointed Sosa out as someone involved in the

disturbance, and Officer Enriquez saw Sosa arguing with a group of people. When Sosa saw the

officer approaching, he turned and ran into the bar. Officer Enriquez followed Sosa through the

bar and caught up to him in an alley. Sosa exhibited signs of intoxication, including “[i]mpaired

speech, impaired balance, bloodshot and glassy eyes, [and] a strong odor of an alcoholic beverage.”

Sosa also admitted to being involved in the disturbance. In addition, Officer Enriquez spoke to the

victim of the alleged assault, who confirmed that she was assaulted. Based on the totality of the

circumstances, Officer Enriquez concluded that Sosa was a danger to himself or others and placed

him under arrest for public intoxication.

4
Viewing the evidence in the light most favorable to the trial court’s ruling and

deferring to the trial court’s evaluation of the credibility and demeanor of witnesses, we cannot

conclude that the trial court abused its discretion by denying Sosa’s motion to suppress. Officer

Enriquez’s own observations and the statements he received from witnesses constituted reasonably

trustworthy information that Sosa was intoxicated and had just been involved in an assault.

Although Officer Enriquez did not perform a field sobriety test or breathalyzer test, he testified

that Sosa exhibited several signs of intoxication. See Harris v. State, 204 S.W.3d 19, 25 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d) (“Evidence of intoxication may include (1) slurred

speech, (2) bloodshot eyes, (3) the odor of alcohol on the person, (4) the odor of alcohol on the

breath, (5) unsteady balance, or (6) a staggered gait.”); see also Tex. Penal Code § 49.01(2)(A)

(“‘Intoxicated’ means . . . not having the normal use of mental or physical faculties by reason of

the introduction of alcohol . . . into the body . . . .”); Brister v. State, 414 S.W.3d 336, 341 (Tex.

App.—Beaumont 2013), aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014) (“When based upon facts

an experienced officer observes and then describes to the jury, an officer’s opinion concerning a

person’s intoxication provides sufficient evidence of intoxication.”). Based on this evidence, we

conclude that Officer Enriquez had probable cause to arrest Sosa for public intoxication because the

officer reasonably believed that Sosa was intoxicated in a public place and was a danger to himself

or others. See Tex. Penal Code § 49.02(a) (listing elements of public intoxication).

Sosa points out what he perceives to be weaknesses in the State’s evidence, including

the fact that Officer Enriquez did not record the name of every witness that he spoke to, that a friend

of Sosa’s testified at the hearing that he had observed Sosa on the evening of the disturbance and

5
does not believe that Sosa was intoxicated, and that Sosa’s ability to quickly maneuver through a

crowded bar undercuts Officer Enriquez’s determination that Sosa was intoxicated. However, these

alleged defects do not indicate that Officer Enriquez lacked reasonably trustworthy information

that Sosa had committed a crime. Moreover, all of these observations address the credibility or

weight of the State’s evidence, not its admissibility. At a hearing on a motion to suppress, the trial

court is “the sole trier of fact and judge of the witnesses’ credibility and the weight to be given their

testimony.” Williams v. State, 257 S.W.3d 426, 432 (Tex. App.—Austin 2008, no pet.). Therefore,

the trial court could have found Officer Enriquez to be a credible witness and could have disregarded

conflicting testimony.

Because we cannot conclude that the trial court abused its discretion by denying

Sosa’s motion to suppress, we overrule Sosa’s first issue.

Legal sufficiency of the jury’s implied finding

In his second issue, Sosa argues that the evidence was not legallysufficient to support

the jury’s implied finding, pursuant to the article 38.23 instruction, that probable cause existed for

his arrest. “When a contested fact issue regarding the legality of the state’s procurement of the

primary evidence of guilt is submitted to the jury, a guilty verdict indicates an implied finding that

the procurement of the evidence was lawful.” Crain v. State, No. 12-13-00110-CR, 2013 WL

6207835, at *1 (Tex. App.—Tyler Nov. 26, 2013, no pet.) (mem. op., not designated for publication).

However, “[t]he Texas Court of Criminal Appeals has recognized that evidentiary

sufficiency and admissibility of evidence are distinct issues.” Price v. State, No. 06-11-00120-CR,

2012 WL 112534, at *1 (Tex. App.—Texarkana Jan. 12, 2012, no pet.) (mem. op., not designated

6
for publication); see Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004) (noting that

sufficiency and admissibility are distinct issues). “Accordingly, a sufficiency review is appropriate

only as to the sufficiency of the State’s proof as to elements of the offense,” and “[t]he legality of

appellant’s detention is not an element of the offense charged, but relates to the admissibility of

evidence.” Price, 2012 WL 112534, at *1; see Hanks, 137 S.W.3d at 672 (“We hold that factualsufficiency review is appropriate only as to the sufficiency of the state’s proof as to elements of the

offense. Such a review is not appropriate as to the admissibility of evidence when such a question

is submitted to the jury pursuant to Article 38.23(a).”). Therefore, courts of appeals do not review

the sufficiency of the evidence supporting the jury’s implied finding that probable cause existed for

the defendant’s arrest. See Churchill v. State, No. 03-03-00746-CR, 2006 WL 305022, at *4 (Tex.

App.—Austin Feb. 9, 2006, pet. ref’d) (mem. op., not designated for publication) (“[W]e may only

conduct a factual-sufficiency review regarding the sufficiency of the State’s proof of elements of the

offense. We may not conduct a factual-sufficiency review of the admissibility of evidence when a

question is submitted to the jury pursuant to article 38.23(a).”) (citation omitted); see also Crain,

2013 WL 6207835, at *1 (“[A] legal sufficiency review is not an appropriate vehicle to review a

jury’s implied finding under article 38.23.”); Price, 2012 WL 112534, at *1 (“[A]n evidentiary

sufficiency review is not available for an Article 38.23 jury instruction.”); Gonzales v. State,

No. 13-09-00640-CR, 2011WL5843686, at *6 (Tex. App.—CorpusChristi Nov. 22, 2011, pet.ref’d)

(mem. op., not designated for publication) (“An appellate court maynot conduct a sufficiencyreview

of a jury’s determination under article 38.23; rather, a sufficiency review appliesto whethersufficient

evidence shows the elements of a criminal offense.”); Saylor v. State, No. 05-09-01558-CR,

7
2011 WL 505453, at *1 (Tex. App.—Dallas Feb. 15, 2011, no pet.) (mem. op., not designated for

publication) (“[A] jury instruction concerning the legality of appellant’s detention should not be

used to measure the sufficiency of the evidence.”).

Accordingly, we overrule Sosa’s second issue.

CONCLUSION

Having overruled both of Sosa’s issues, we affirm the judgment of conviction.

__________________________________________

Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: August 18, 2015

Do Not Publish

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