COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

 Appellant,

v.

MARISELA GARCIA,

 Appellee. 

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No. 08-10-00362-CR

Appeal from

County Court at Law No. 1

of El Paso County, Texas

(TC # 20100C02164)

O P I N I O N

Marisela Garcia was charged by information with the misdemeanor offense of theft. She 

filed a pre-trial motion to suppress which the trial court granted. The State has appealed and for 

the reasons that follow, we reverse.

FACTUAL SUMMARY

On March 3, 2010, Garcia was charged by information with misdemeanor theft for 

allegedly stealing a watch, earrings, and cosmetics from Wal-Mart. According to the 

information, the value of the allegedly stolen items was more than $50 but less than $500.

Garcia argued in her motion to suppress that there was “no lawful warrant, probable 

cause or other lawful authority to obtain” her, and therefore the detention violated her rights 

under the Fourth and Fourteenth Amendments to the United States Constitution; Article I, 

Section 9 of the Texas Constitution; and Chapters 14 and 38 of the Texas Code of Criminal 

Procedure. She also claimed that the items should be suppressed because there was no lawful 

warrant, probable cause, or other lawful authority for her arrest in violation of the same 

constitutional and statutory provisions listed above.
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Initially at the hearing, the State offered to stipulate that if the case “goes to trial, we will 

not seek to introduce any physical evidence that was obtained as a result of the arrest of Ms. 

Garcia or even talk about the fact that Ms. Garcia was arrested.” For reasons unclear from the 

record, the State’s stipulation was not accepted and defense counsel called the arresting officer to 

the stand.

Officer Valles testified that he was dispatched to the Wal-Mart located at 10727 Gateway 

West in El Paso, Texas. When he arrived, Garcia was in the loss prevention office. The officer 

spoke with the Wal-Mart loss prevention officers and, after taking their statements, he took 

Garcia into custody. Valles admittedly did not have a warrant for her arrest and did not 

personally witness the shoplifting. Garcia was not taken to a magistrate when she was taken 

into custody. According to Officer Valles’ testimony, he was advised to stay in the field as long 

as possible because there were not enough on-duty officers. Instead of going through the Digital 

Information Managing System (DIMS), the officer used an alternative paper referral system. 

This allowed Garcia to be summoned to court but avoid jail. The process also saved Officer 

Valles from completing the booking process. Garcia was handcuffed and taken to the Pebble 

Hills Regional Command Center where she waited in a cell until all of her information was 

verified for the court summons.

On cross examination, Valles testified that he may have spoken with Garcia at some point 

during the process, but that he did not remember what was said, other than the fact that he 

advised her that she would be summoned to court and that she was released. A female officer 

performed a pat down at the Regional Command Center, but no evidence was obtained as a 

result. Officer Valles was the only witness to testify at the hearing, and neither party sought to 

introduce any exhibits into evidence.
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The trial court granted the motion to suppress and filed written findings of fact and 

conclusions of law:

Findings Of Fact

1. A Motion to Suppress Evidence in this case was filed on September 23, 2010. 

2. A hearing on that motion was heard on December 2, 2010. 

3. The witness who testified at the hearing was Officer Juan Valles of the City of 

El Paso Police Department. The two loss prevention officers involved did not 

appear for said hearing. 

4. Officer Juan Valles was called to Walmart on December 18, 2009 reference 

alleged shoplifting and received his information from the loss prevention 

personnel. 

5. Officer Valles’ testimony was very scant on specifics. He testified that he 

could not recall what ‘Mike’ had told him (i.e. presumably one of the loss 

prevention officers). He clearly testified contrary to what his own written report 

reflected regarding key details about the theft episode as they related to defendant 

herein. He was emphatic about said testimony until shown his own written report. 

6. Again, Officer Valles was at a loss as to specifics of how Marisela Garcia was 

involved individually. 

7. On cross-examination, the record reflects many responses of ‘...I can’t recall’; 

‘I don’t know’; ‘I wasn’t there.’ The questions were related specifically to 

defendant’s conduct and/or actions.

8. Based on this officer’s testimony, the Court finds that there are no specific 

articulable facts tying this defendant to the said offense. 

Conclusions Of Law

1. Officer Valles’ uncertainty in his testimony and inability to recall specific facts 

as related to the defendant’s conduct herein do not establish probable cause for 

the arrest of Marisela Garcia. 

2. While sincere, the officer’s testimony is nevertheless seriously lacking in 

establishing the criminal activity afoot insofar as the defendant herein. 

The State asked the court to provide more specific findings of fact and conclusions of law

concerning what evidence was suppressed. The State also timely filed a notice of appeal with 
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this court asking that we abate the appeal and direct the trial court to enter more specific findings 

and conclusions. We denied the motion to abate, holding the record established that the evidence 

suppressed was the evidence identified in Garcia’s motion to suppress. 

STANDARD OF REVIEW

We review a ruling on a motion to suppress using a bifurcated standard of review. See 

Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010); Guzman v. State, 955 S.W.2d 85, 87-

91 (Tex.Crim.App. 1997); Newbrough v. State, 225 S.W.3d 863, 866 (Tex.App.--El Paso 2007, 

no pet.). We afford almost total deference to the trial court’s findings of historical fact that are

supported by the record, and to mixed questions of law and fact that turn on an assessment of a 

witnesses’ credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 

2010); Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman, 955 S.W.2d at 

89. We review the trial court’s determination of legal questions and its application of the law to 

facts that do not turn upon a determination of witness credibility and demeanor de novo. See 

Valtierra, 310 S.W.3d at 447; Amador, 221 S.W.3d at 673; Kothe v. State, 152 S.W.3d 54, 62-63 

(Tex.Crim.App. 2004); Guzman, 955 S.W.2d at 89. 

Where, as here, the trial judge makes express findings of fact, we must first determine 

whether the evidence, when viewed in the light most favorable to the trial court’s ruling, 

supports those findings. Valtierra, 310 S.W.3d at 447; State v. Kelly, 204 S.W.3d 808, 818 

(Tex.Crim.App. 2006). However, we review a trial court’s legal ruling de novo. State v. Iduarte, 

268 S.W.3d 544, 548-49 (Tex.Crim.App. 2008). “We uphold the trial court’s ruling is it is 

supported by the record and correct under any theory of law applicable to the case.” Id. 

IMPROPER RULING ON MERITS
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In Issue One, the State argues that the trial court’s suppression ruling was an improper 

ruling on the merits of the State’s case, i.e., whether the State could prove Garcia committed 

theft. In support of its contention, the State points to the trial court’s eighth finding of fact noting 

that “there are no specific articulable facts tying this defendant to the said offense,” as well as the 

second conclusion of law in which the trial court concluded that “[w]hile sincere, the officer’s 

testimony is nevertheless seriously lacking in establishing the criminal activity afoot insofar as 

the defendant herein.” We agree. 

Initially we note that a suppression hearing has limited purposes. See Iduarte, 268 

S.W.3d at 551-52; Woods v. State, 153 S.W.3d 413, 415 (Tex.Crim.App. 2005). Such purposes 

do not include holding a mini-trial on the sufficiency of the evidence to support an element of the 

offense. Iduarte, 268 S.W.3d at 551-52; Woods, 153 S.W.3d at 415; State v. Marquez, 281 

S.W.3d 56, 60 (Tex.App.--El Paso 2008, pet. stricken). As stated in Iduarte, “[t]he purpose of a 

pre-trial motion is to address preliminary matters, not the merits of the case.” Iduarte, 268 

S.W.3d at 552. In other words, the purpose of a pre-trial motion is to address those matters that 

can be resolved before there is a trial on the merits of the case. See id; Marquez, 281 S.W.3d at 

60; Harris v. State, 173 S.W.3d 575, 580 (Tex.App.--Fort Worth 2005, no pet.); State v. Bartee, 

894 S.W.2d 34, 40 n.4 (Tex.App.--San Antonio 1994, no pet.); State v. Jimenez, 763 S.W.2d 

436, 437 (Tex.App.--El Paso 1988, pet. ref’d). 

Officer Valles was the only witness to testify at the hearing and no evidence, other than 

his testimony, was offered by either party. In the trial court’s findings of fact, Officer Valles’

testimony is referred to as “sincere.” And, based on the trial court’s fourth finding of fact, at a 

minimum the trial court believed Officer Valles’ testimony that on December 18, 2009, he was 

dispatched to Wal-Mart regarding an alleged shoplifting, and that the information regarding the 
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alleged shoplifting was provided to Officer Valles by loss prevention officers at Wal-Mart. 

However, in findings of fact five through seven, the trial court criticizes Officer Valles’

testimony. In doing so, the trial court refers to Officer Valles’ testimony as “scant on specifics,”

“at a loss as to specifics,” and notes that on “many” occasions the officer responded to questions 

with “...I can’t recall”; “I don’t know”; “I wasn’t there.” Additionally, in finding of fact number 

eight, the court found that “[b]ased on this officer’s testimony, the Court finds that there are no 

specific articulable facts tying this defendant to the said offense.” 

As the sole trier of fact and judge of credibility, the trial court was free to disbelieve any 

or all of the officer’s testimony, even if uncontroverted, based on its determination of Officer 

Valles’ credibility and demeanor. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); 

Guzman, 955 S.W.2d at 89; State v. Hopper, 842 S.W.2d 817, 819 (Tex.App.--El Paso 1992, no 

pet.); see also Farias v. State, No. 01-93-00422-CR, 1995 WL 389671, at *2 (Tex.App.--

Houston (1st Dist.) 1995, no pet.)(“In a motion to suppress hearing, the trial court may believe 

all, some or none of any witness’ testimony.”), citing Johnson v. State, 871 S.W.2d 744, 748

(Tex.Crim.App. 1994). However, even if the trial court found Officer Valles’ testimony wholly 

uncredible, the only issue the trial court had the authority to decide was whether Officer Valles 

had probable cause to arrest Garcia. The trial court could not use the hearing to determine 

whether the State could present sufficient evidence to support the elements of the offense 

charged. Iduarte, 268 S.W.3d at 551-52; Woods, 153 S.W.3d at 415; Marquez, 281 S.W.3d at 60; 

Jiminez, 763 S.W.2d at 437; State v. Morales, No. 08-09-00137-CR, 2010 WL 819126, *2 

(Tex.App.--El Paso Mar. 10, 2010, )(mem.op.)(not designated for publication)(cases noting that 

suppression hearings do not authorize a trial court to hold a “mini-trial” on the sufficiency of 

evidence to support an element of the offense). The existence of “specific articulable facts”
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tying Garcia to the offense relates to the sufficiency of evidence. See Jimenez, 763 S.W.2d at 

437 (“Affirmative links to evidence bear upon the sufficiency of evidence.”). There is no pretrial procedure available to test the sufficiency of evidence in a criminal case.

Based on these facts, it is clear that at least with respect to the trial court’s findings of fact 

five through eight and its second conclusion of law, the trial court improperly ruled on the 

merits. These findings indicate that the trial court improperly used the motion to suppress 

evidence hearing as a vehicle to determine the sufficiency of the State’s evidence to prove Garcia 

committed theft, rather than as a vehicle to suppress evidence obtained as a result of an unlawful 

arrest. Therefore, the trial court erred in granting the motion to suppress to the extent its ruling 

was based upon those findings. See Farias, 1995 WL 389671, at *2, citing Wilson v. State, 857 

S.W.2d 90 (Tex.App.--Corpus Christi 1993, pet. ref’d)(“A motion to suppress hearing tests only 

the admissibility of evidence, not its sufficiency.”); see also Marquez, 281 S.W.3d at 60, citing 

Woods, 153 S.W.3d at 415-16 (“A suppression order based on the ground that the evidence 

substantiating the offense was not credible would, in effect, deny the State its right to a jury 

trial.”).

Ordinarily we must uphold the trial court’s ruling, if it is supported by the record and 

correct under any theory of law applicable to the case, even if the trial court gave the wrong 

reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App. 2007); Armendariz 

v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 

158 L.Ed.2d 469 (2004). Here, the trial court found Officer Valles did not have probable cause 

to arrest Garcia and granted the motion to suppress. Therefore, if the record supports the finding 

under any theory of applicable law, we will affirm. 

The problem is that no evidence was obtained as a result of Officer Valles’ arrest of 
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Garcia. At a motion to suppress hearing, the trial court is to determine whether evidence was 

obtained as the result of an unlawful arrest and should therefore be suppressed. In other words, 

when an arrest is not based on probable cause, the remedy is to exclude any evidence obtained as 

a result of that unlawful arrest. In the instant case there is nothing to suppress, regardless of 

whether Officer Valles had probable cause to arrest Garcia. Consequently, there is no need to 

determine whether the trial court erred in its probable cause determination. The trial court’s 

judgment is reversed and the case is remanded for a trial on the merits. 

July 25, 2012 ________________________________________________

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)