                                                                                    ACCEPTED
                                                                               03-13-00764-CR
                                                                                      3638622
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           1/2/2015 3:01:21 PM
                         NO. 03-13-00764-CR                                  JEFFREY D. KYLE
                                                                                        CLERK


                    IN THE COURT OF APPEALS
                         THIRD DISTRICT                        FILED IN
                          AUSTIN, TEXAS                 3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                        1/2/2015 3:01:21 PM
                            JOSE SOSA,                    JEFFREY D. KYLE
                            APPELLANT                           Clerk


                                 VS.

                       THE STATE OF TEXAS,
                            APPELLEE



                 APPEAL FROM THE 403RD DISTRICT COURT
                         TRAVIS COUNTY, TEXAS
                     CAUSE NUMBER D1DC11205390


                           STATE’S BRIEF


ROSEMARY LEHMBERG
DISTRICT ATTORNEY
TRAVIS COUNTY, TEXAS

M. SCOTT TALIAFERRO
TEXAS BAR NO. 00785584
ASSISTANT DISTRICT ATTORNEY
DIRECTOR, APPELLATE DIVISION
DISTRICT ATTORNEY’S OFFICE
P.O. BOX 1748
AUSTIN, TEXAS 78767
PHONE: 512.854.3626 FAX: 512.854.4206
EMAIL: scott.taliaferro@traviscountytx.gov
       AND AppellateTCDA@traviscountytx.gov

        THE STATE DOES NOT REQUEST ORAL ARGUMENT
                                               TABLE OF CONTENTS


INDEX OF AUTHORITIES .............................................................................................. ii	  

STATEMENT OF THE CASE ........................................................................................... 2	  

STATEMENT REGARDING ORAL ARGUMENT ......................................................... 2	  

STATEMENT OF FACTS .................................................................................................. 3	  

SUMMARY OF THE ARGUMENTS ................................................................................ 4	  

THE STATE’S REPLY TO THE FIRST POINT OF ERROR .......................................... 5	  

THE STATE’S REPLY TO THE SECOND POINT OF ERROR ................................... 10	  

PRAYER ........................................................................................................................... 18	  

CERTIFICATE OF COMPLIANCE ................................................................................ 19	  

CERTIFICATE OF SERVICE .......................................................................................... 19	  




                                                                   i
                                          INDEX OF AUTHORITIES

CASES
Beck v. Ohio, 379 U.S. 89, 98 (1964). ...................................................................... 6
Brooks v. State, 707 S.W.2d 703, 705 (Tex.App.—Houston [1st Dist.] 1986, pet.
   ref'd.)...................................................................................................................... 8
Curry v. State, 30 S.W. 3d 394, 406 (Tex. Crim. App. 2000). ............................... 12
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). ........... 14, 15
Devoe v. State, 354 S.W. 3d 457, 470 (Tex. Crim. App. 2011).............................. 17
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) .............................. 11
Esco v. State, 668 S.W.2d 358, 360–61 (Tex. Crim. App. [Panel Op.] 1982).......... 9
Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). ............................. 17
Guzman v. State, 955 S.W.2d 85, 87–88 (Tex. Crim. App. 1997). .......................... 5
Harris v. State, 164 S.W. 3d 775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet.
   ref'd.).................................................................................................................... 17
Illinois v. Gates, 462 U.S. 213, 234–35 (1983) ........................................................ 9
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) ................................................. 10
King v. State, 29 S.W. 3d 556, 562 (Tex. Crim. App. 2000) .................................. 11
Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) ....................... 12, 13
Maryland v. Pringle, 540 U.S. 366, 371 (2003) ................................................. 6, 16
McGee v. State, 105 S.W. 3d 609, 614 (Tex. Crim. App. 2003). ............................. 6
Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) ............................... 17
Ornelas v. United States, 517 U.S. 690, 696 (1996) ................................................. 7
Riggan v. State, No. 07-09-00227-CR, 2011 Tex. App. LEXIS 5497, at *8 (Tex.
   App. Amarillo July 19, 2011) (not designated for publication) .......................... 10
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). ................... 5
Terry v. Ohio, 392 U.S. 1, 21–22 (1968) ................................................................ 14
Tribble v. State, 792 S.W.2d 280, 284 (Tex.App.—Houston [1st Dist.] 1990) ........ 8


STATUTES
TEX. CODE CRIM. PROC. art. 14.01(b). ...................................................................... 6
TEX. CODE CRIM. PROC. art. 38.23. ........................................................................... 6
TEX. PENAL CODE § 22.01(a)(3) ............................................................................. 15
TEX. PENAL CODE § 38.04....................................................................................... 14
TEX. PENAL CODE, § 49.02........................................................................................ 7


                                                                ii
                                NO. 03-13-00764-CR

                         IN THE COURT OF APPEALS
                              THIRD DISTRICT
                               AUSTIN, TEXAS

                                    JOSE SOSA,
                                    APPELLANT

                                          VS.

                             THE STATE OF TEXAS,
                                  APPELLEE



                     APPEAL FROM THE 403RD DISTRICT COURT
                             TRAVIS COUNTY, TEXAS
                         CAUSE NUMBER D1DC11205390


                                  STATE’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      The State of Texas, by and through the District Attorney for Travis County,

respectfully submits this brief in response to that of the appellant.




                                           1
                          STATEMENT OF THE CASE

      On April 24, 2012, Appellant was charged with possession with intent to

deliver a controlled substance, cocaine, in an amount of four or more, but less than

200 grams. C.R. 11. A pretrial hearing on Appellant’s motion to suppress

evidence was held on May 21, 2013. 2 R.R. 1–56. The trial court denied the

motion. 2 R.R. 54–55. The trial on the merits commenced on October 21, 2013.

On October 24, the jury rendered a verdict of not guilty on the indicted charge, and

a verdict of guilty on the lesser included charge of possession of a controlled

substance in an amount between four and 200 grams. 7 R.R. 4; C.R. 74. Appellant

was sentenced to 5 years probation. C.R. 85. The sentence was assessed on

November 14. Id. The trial court certified Appellant’s right to appeal on

November 14, 2013, and Appellant filed his notice of appeal the same day. C.R.

79, 84.


                STATEMENT REGARDING ORAL ARGUMENT

      Because the issues, facts, legal authorities, and arguments pertinent to the

instant appeal are adequately addressed in the briefs submitted by the parties, the

State respectfully asserts that the Court’s decisional process would not be

significantly aided by oral arguments. Accordingly, the State does not request oral

argument.

                                          2
                            STATEMENT OF FACTS

      On the night of Friday, October 7, 2011, Officer Ronald Enriquez arrested

Appellant for Public Intoxication outside of Shakespeare’s Pub on East Sixth Street

in Austin. 5 R.R 78–79. An unidentified staff member from Shakespeare’s had

previously approached Officer Enriquez to inform him of a disturbance that had

occurred outside of the bar. 5 R.R. 72. The staff member then identified Appellant

as a person who was involved in the disturbance. Id. Officer Enriquez approached

Appellant, at which time Appellant turned and ran into Shakespeare’s. 5 R.R. 74.

Officer Enriquez entered the bar and pursued Appellant, catching up with him

outside of the back door. Id. Officer Enriquez noticed that Appellant was

displaying signs of intoxication including impaired balance and speech, bloodshot

and glassy eyes, and emission of a strong odor of an alcoholic beverage. 5 R.R.

74–75. Officer Enriquez also found that, based on information that Appellant had

been involved in the previous disturbance, Appellant was posing a danger to

himself and others. 5 R.R. 78–79 . Officer Enriquez arrested Appellant for the

offense of public intoxication. Id. After arresting Appellant, Officer Enriquez

performed a search of Appellant’s person and found five individually packaged

bags of cocaine. 5 R.R. 79, 83, 89. Appellant filed a motion to suppress the



                                         3
cocaine found in the search, but the motion was denied in a pretrial hearing. 2

R.R. 54–55.


                       SUMMARY OF THE ARGUMENTS


      With regard to Appellant’s first point of error, the trial court did not err in

denying Appellant’s motion to suppress evidence. The cocaine admitted as

evidence was obtained through a legal search incident to arrest. Officer Enriquez

reasonably relied on his own observations and information from witnesses on the

scene to determine that Appellant was committing the offense of public

intoxication. Appellant displayed signs of intoxication and also admitted to

Officer Enriquez that he was involved in an altercation outside of Shakespeare’s

Pub. After Officer Enriquez arrested Appellant for this offense, he performed a

legal search that produced the cocaine he was charged for possessing.

      Regarding Appellant’s second point of error, evidence at trial was sufficient

to support a reasonable jury’s finding that Officer Enriquez had probable cause to

arrest Appellant for the offenses of public intoxication, evading detention, and

assault. Officer Enriquez’s personal observations, coupled with the information he

received from witnesses to the assault of Gabrielle Canard, support a determination

that Appellant had committed, or was in the course of committing, all of the

aforementioned offenses. It was within the province of the jury to make this
                                           4
determination for each offense. The jury’s conclusion was reasonable and should

not reversed by the court of appeals.


           THE STATE’S REPLY TO THE FIRST POINT OF ERROR

      THE TRIAL COURT DID NOT ERR WHEN IT DENIED APPELLANT’S MOTION
      TO SUPPRESS EVIDENCE.

                                    Standard of Review

      When reviewing the trial court’s ruling on a motion to suppress, the court of

appeals must view all evidence in the light most favorable to the ruling. State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The court affords

“almost total deference” to a trial judge’s determination of the facts that the record

supports. Id. In this case, the State is “afforded the strongest legitimate view of

the evidence and all reasonable inferences that may be drawn from that evidence.”

Id. The determination of probable cause underlying the ruling on the motion to

suppress is reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87–88 (Tex. Crim.

App. 1997).

                             Argument and Authorities

      The trial court did not err when it denied Appellant’s Motion to Suppress

Evidence obtained incident to Appellant’s arrest for Public Intoxication. Contrary

to Appellant’s argument, the arrest precipitating the search was lawful, and the



                                          5
cocaine was seized in accordance with the laws of the State of Texas. See TEX.

CODE CRIM. PROC. art. 38.23.

      In Texas, a warrantless arrest is lawful if (1) probable cause to arrest exists

and (2) at least one of the statutory exceptions to the warrant requirement listed in

Article 14.01 of the Code of Criminal Procedure applies. McGee v. State, 105

S.W. 3d 609, 614 (Tex. Crim. App. 2003). Article 14.01(b) says that “a peace

officer may arrest an offender without a warrant for any offense committed in his

presence or within his view.” TEX. CODE CRIM. PROC. art. 14.01(b). Even if an

officer did not personally observe overtly criminal behavior, he may consider prior

knowledge or tips in determining whether an offense was committed. McGee, 105

S.W. 3d at 614. Probable cause 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 trustworthy information are sufficient to warrant a prudent man in

believing that the person arrested had committed or was committing an offense.”

Beck v. Ohio, 379 U.S. 89, 98, 85 S. Ct. 223, 225 (1964). An inquiry into probable

cause requires an analysis of the totality of the circumstances facing the arresting

officer. Maryland v. Pringle, 540 U.S. 366, 371,124 S. Ct. 795, 800 (2003)). In

determining the existence of probable cause, the court focuses on “‘whether the[ ]

historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to’ probable cause.” Id. at 371 (citing Ornelas v. United States,
                                          6
517 U.S. 690, 696, 116 S. Ct. 1657, 1661–62 (1996)). Determinations of probable

cause are reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87–88 (Tex. Crim.

App. 1997).

      A person commits the offense of public intoxication if (1) the person appears

in a public place while intoxicated and (2) is intoxicated to the degree that the

person may endanger himself or another. TEX. PENAL CODE, § 49.02. Appellant

argues that the trial court erred in finding that Officer Enriquez had probable cause

to arrest Appellant for the offense of public intoxication. Appellant does not

dispute that the arrest occurred in a public place. After encountering Appellant,

Officer Enriquez observed that Appellant’s speech and balance were impaired, that

his eyes were bloodshot and glassy, and that his breath was emitting a strong odor

of an alcoholic beverage, signs of intoxication that he had been trained to

recognize. 2 R.R. 17, 23. Officer Enriquez testified that he was not legally

obligated to administer any sobriety tests as part of his determination that

Appellant was intoxicated and instead relied on his police training in identifying

these signs of intoxication. 2 R.R. 26.

      With respect the second element of the offense—posing a danger to oneself

or others—Officer Enriquez testified that he determined that Appellant was a

danger after a short investigation of the night’s events. 2 R.R. 21. Although

Officer Enriquez did not personally observe the altercation in which Appellant was
                                          7
involved, his reliance on the eyewitness testimony of others in determining

Appellant’s level of danger was reasonable. In forming an opinion as to whether a

crime has been or is being committed, an officer “may consider information that is

furnished by a private citizen, worthy of belief, whose information is reliable.”

Tribble v. State, 792 S.W.2d 280, 284 (Tex.App.—Houston [1st Dist.] 1990)

(citing Brooks v. State, 707 S.W.2d 703, 705 (Tex.App.—Houston [1st Dist.] 1986,

pet. ref'd.)). An unidentified staff member at Shakespeare’s Pub “flagged down”

Officer Enriquez and informed him of a disturbance that happened outside of the

bar. 2 R.R. 24. When Officer Enriquez approached the bar, this staff member

identified Appellant as a person involved in the disturbance. 2 R.R. 25. Officer

Enriquez then began to approach Appellant, who, in turn, fled into Shakespeare’s

Pub. 2 R.R. 8. After Officer Enriquez caught up with Appellant in the alleyway

behind the bar, John Gomez, a bouncer at The 311 Club (a neighboring bar on East

Sixth Street), came forward to inform Officer Enriquez that he had also observed

Appellant’s involvement in the disturbance. 2 R.R. 7, 26, 12–13, 30. In addition,

Officer Enriquez spoke with Gabrielle Canard regarding the altercation in which

she had been assaulted. 2 R.R. 22.

      Officer Enriquez repeatedly testified in the hearing on the motion to

suppress that he found that there was probable cause to arrest Appellant after

considering the information furnished to him by the witnesses on the scene, two of
                                          8
whom sought him out for the specific purpose of offering this information. Private

citizens who contact the police “for the sole purpose of reporting a criminal act

[are] inherently credible and reliable.” Esco v. State, 668 S.W.2d 358, 360–61

(Tex. Crim. App. [Panel Op.] 1982). The “tips” that Officer Enriquez received

from these witnesses are entitled to a presumption of reliability. See Illinois v.

Gates, 462 U.S. 213, 234–35, 103 S. Ct. 2317, 2329 (1983). Officer Enriquez was

justified in considering these witnesses’ information to be trustworthy and in using

it as part of his probable cause determination.

      Given these facts, on which the trial judge made his probable cause

determination at trial, Appellant’s arrest for public intoxication was legal. When

reviewing the trial court’s ruling on a motion to suppress, the court of appeals must

view all evidence in the light most favorable to the ruling. State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The court affords “almost total

deference” to a trial judge’s determination of the facts that the record supports. Id.

In this case, the State is “afforded the strongest legitimate view of the evidence and

all reasonable inferences that may be drawn from that evidence.” Id.

      It is certainly reasonable to infer from the evidence presented at the hearing

on the motion to suppress that Officer Enriquez had probable cause to arrest

Appellant for the offense of public intoxication. Officer Enriquez observed

Appellant in a public place, displaying signs of intoxication. It is of no moment
                                           9
that he did not administer a sobriety test in the field or witness Appellant drinking

alcohol; it is enough that Officer Enriquez relied on his law enforcement training to

determine that Appellant was intoxicated. See Riggan v. State, No. 07-09-00227-

CR, 2011 Tex. App. LEXIS 5497, at *8 (Tex. App.—Amarillo July 19, 2011) (not

designated for publication) (holding that failure to administer a field sobriety test

when arresting appellant for public intoxication did not require the court to “find

probable cause was lacking”). Additionally, it was reasonable for the trial court to

infer that Officer Enriquez’s reliance on eyewitness testimony at the scene was

legitimate. Officer Enriquez’s determination of probable cause is supported by the

evidence in the record, and the trial court did not err in denying Appellant’s motion

to suppress evidence obtained through the search incident to this lawful arrest.

Because the search and arrest were both legal, the evidence is not excludable under

Texas Code of Criminal Procedure Article 38.23.


         THE STATE’S REPLY TO THE SECOND POINT OF ERROR

THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT THE OFFICER
               HAD PROBABLE CAUSE TO ARREST APPELLANT.

                                 Standard of Review

      In a sufficiency review, the appellate court reviews all evidence in the light

most favorable to the verdict and determines whether any rational trier of fact

could have reached that verdict. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.
                                          10
Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App.

2014). The jury is the “sole judge of credibility and weight” of testimony, and the

appellate court may not re-weigh the evidence presented at trial nor may it

substitute its own judgment for that of the convicting jury. King v. State, 29 S.W.

3d 556, 562 (Tex. Crim. App. 2000). If there are conflicting inferences supported

by evidence in the record, then the appellate court defers to the resolution of the

conflict by the jury through their verdict. Dobbs, 434 S.W.3d at 170.


                             Argument and Authorities

      At trial, the jury was instructed to make a preliminary determination, beyond

a reasonable doubt, as to whether probable cause existed to arrest Appellant for

public intoxication, evading detention, or assault. C.R. 68. Because they voted in

favor of conviction, the jury determined that probable cause did exist for at least

one of these offenses. Appellant challenges this determination with a claim that

the evidence presented at trial was insufficient to support this finding of probable

cause by the jury. Appellant’s Br. at 14.

      The jury charge permitted the jury to consider the issue of guilt only if the

jury first determined, “beyond a reasonable doubt, that Officer Ronald Enriquez

reasonably believed, based on all reliable information within his knowledge and on

the totality of the facts and circumstances within his knowledge at the time of the

                                            11
arrest…that he had probable cause to believe that Jose Sosa had committed or was

in the process of committing either of the offense(s) of: Public Intoxication; and/or

Evading Detention; and/or Assault.” C.R. 68–69. In returning a verdict of guilty,

the jury determined that probable cause existed for at least one of these offenses.

Public Intoxication

      Officer Enriquez testified at trial, as he did in the pre-trial hearing on the

motion to suppress, that, based on his own observations and the firsthand accounts

of other witnesses, he determined there was probable cause to arrest Appellant for

public intoxication. First, Officer Enriquez observed that Appellant had impaired

speech and balance, bloodshot and glassy eyes, and a “strong odor of alcoholic

beverage emitting from his breath,” and so determined that he was intoxicated at

that time. 5 R.R. 74–75. Appellant claims that Officer Enriquez’s testimony

regarding his intoxication is in conflict with the testimony of the doorman at

Shakespeare’s Pub, an acquaintance of Appellant, who testified that he did not

believe Appellant was intoxicated that night. 5 R.R. 175–76. However, in the

event of a conflict in evidence, the inconsistency is resolved in favor of the verdict.

Curry v. State, 30 S.W. 3d 394, 406 (Tex. Crim. App. 2000). Further,

reconciliation of conflicts in evidence is fully “within the province of the jury.”

Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). A conflict in

evidence does not merit reversal “if there is enough credible testimony to support
                                          12
the conviction.” Id. The jury makes decisions regarding credibility of testimony

offered, and it did so in this case. The appellate court may not substitute its

judgment regarding the credibility of the arresting officer over an acquaintance of

the Appellant; it may only evaluate the reasonableness of the jury’s determination.

Given the evidence offered at trial, it was reasonable for the jury to conclude that

Appellant was intoxicated.

      Officer Enriquez pursued Appellant after being told by a member of the bar

staff that Appellant was involved in a disturbance outside of Shakespeare’s Pub. 5

R.R. 72. After detaining Appellant, John Gomez, a bouncer at a neighboring bar,

came forward and told Officer Enriquez that he had observed Appellant’s

involvement in the disturbance in which Ms. Canard was assaulted. 7 R.R. 106.

Based on his own observations, the firsthand accounts of other witnesses, and

Appellant’s own admission that he was involved in the altercation with Ms. Canard

and her friends, Officer Enriquez determined that Appellant posed a danger to

himself and others and that he had probable cause to arrest Appellant for the

offense of public intoxication. 5 R.R. 75.

Evading Detention

      Although Officer Enriquez did not charge Appellant with the crime of

evading detention, the jury could have reasonably determined that the officer had

probable cause to do so based on what he observed when he approached Appellant
                                          13
initially. The jury was instructed that a person commits the offense of evading

detention if “he intentionally flees from a person he knows is a peace

officer…attempting lawfully to…detain him.” TEX. PENAL CODE § 38.04; CR 68.

Officer Enriquez testified that as soon as Appellant saw him heading in his

direction, Appellant turned and ran into Shakespeare’s Pub in an attempt to avoid

him. 5 R.R. 135–36. The record supports an inference that Appellant knew that

Officer Enriquez was a peace officer, as he was wearing his Austin Police

Department uniform with a badge and official insignia on the sleeves. 5 R.R. 142.

      Officer Enriquez was pursuing Appellant so that he could detain him.

Officer Enriquez testified that, based on information he received from bar staff at

Shakespeare’s, he had reasonable suspicion to believe that Appellant was involved

in the assault of Ms. Canard. 5 R.R. 142–43.      A police officer has reasonable

suspicion to lawfully detain a suspect if “he has specific, articulable facts that,

combined with rational inference from those facts, would lead him reasonably to

conclude that the person detained is, has been, or soon will be engaged in criminal

activity.” See Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1879–80 (1968);

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A detaining

officer “need not be personally aware of every fact that objectively supports a

reasonable suspicion to detain” and may rely on information from a citizen-

informant in forming his conclusion. Derichsweiler, 348 S.W.3d at 914–15. As
                                           14
discussed supra, Officer Enriquez received specific, reliable information from

witnesses at the scene that Appellant was involved in the disturbance outside the

bar.

       Officer Enriquez was intending to lawfully detain Appellant in order to

determine whether Appellant was involved in the assault when Appellant

intentionally fled from him after seeing that he was a police officer. 5 R.R. 142–

43. Although Appellant was not charged with evading detention, the evidence

presented to the jury could reasonably have led them to conclude that Officer

Enriquez had probable cause to arrest Appellant for that offense.

Assault

       Evidence presented at trial was also sufficient to support a finding that

probable cause existed to arrest Appellant for assault. At trial, the jury was

instructed as to the definition of assault under Sec. 22.01(a)(3) of the Texas Penal

Code. C.R. 68. Sec. 22.01(a)(3) says that a person commits the offense of assault

if he “intentionally or knowingly causes contact with another when the person

knows or should reasonably believe that the other will regard the contact as

offensive or provocative.” TEX. PENAL CODE § 22.01(a)(3). The bar staff

identified Appellant as a person involved in the altercation outside of the bar. 5

R.R. 72. After Appellant was detained, Mr. Gomez also identified Appellant as the


                                          15
person who was involved in the disturbance and then ran away after Ms. Canard

was punched in the face. 5 R.R. 38.

      Appellant contends that Officer Enriquez did not have probable cause to

arrest Appellant because Mr. Gomez testified at trial that he did not actually see

Appellant punch Ms. Canard in the face or directly witness anyone grabbing Ms.

Canard’s breasts. Appellant’s Br. 18–19. However, probable cause is evaluated

from “the standpoint of an objectively reasonable police officer” confronted with

the same information at the time of the arrest. Pringle, 540 U.S. at 371. Officer

Enriquez testified that, even though he had concluded that Appellant did not punch

Ms. Canard in the face, he thought it was “clear” at the time of the arrest that

Appellant had touched Ms. Canard’s breasts, assaultive conduct which was

offensive, unwanted, and a Class C misdemeanor under Texas Penal Code

22.01(a)(3). 5 R.R. 18, 78.

      Contrary to Appellant’s suggestion, there is no conclusive statement in the

record that Appellant did not make contact with Ms. Canard. Appellant’s Br. at

17–18. Rather, Mr. Gomez testified that he could not remember whether

Appellant or Mr. Hernandez had touched Ms. Canard’s breasts, and that the period

of time in which Ms. Canard was hit in the face was a “blur,” but that he was

“positive” that Appellant was involved in the disturbance in which Ms. Canard said

her breasts had been grabbed. 5 R.R. 26–27, 38. Further, Appellant’s flight from
                                          16
the scene of the assault permits an inference of guilt. See Devoe v. State, 354 S.W.

3d 457, 470 (Tex. Crim. App. 2011); Foster v. State, 779 S.W.2d 845, 859 (Tex.

Crim. App. 1989). An objectively reasonable police officer with the same

information as Officer Enriquez could have reasonably believed that Appellant had

assaulted Ms. Canard as part of the disturbance in which he admitted he was

involved. 5 R.R. 75.

      The evidence presented to the jury at trial demonstrates that Officer

Enriquez had probable cause to arrest Appellant for multiple offenses. However,

the jury needed only to find probable cause for one of these offenses in order to

return a conviction for possession of cocaine. C.R. 68–69. In reviewing this

finding by the jury and the sufficiency of the evidence precipitating it, the appellate

court should not engage in a re-evaluation of the weight and credibility of the

evidence; they must only ensure that the jury reached a rational decision. Muniz v.

State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W. 3d

775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd.). The jury’s decision

to convict in light of the evidence presented at trial was rational and the court

should defer to the jury’s judgment of evidentiary sufficiency accordingly. The

conviction should stand.




                                          17
                                      PRAYER

      WHEREFORE, the State requests that the Court overrule both of the

appellant’s points of error and affirm the judgment of the trial court.

                                        Respectfully submitted,

                                        Rosemary Lehmberg
                                        District Attorney
                                        Travis County, Texas


                                        /s/ M. Scott Taliaferro
Lisa M.C. Elizondo                      M. Scott Taliaferro
Law Clerk                               Texas Bar No. 00785584
                                        Assistant District Attorney
                                        Director, Appellate Division
                                        District Attorney’s Office
                                        P.O. Box 1748
                                        Austin, Texas 78767
                                        Phone: 512.854.3626 Fax: 512.854.4810
                                        Email: scott.taliaferro@traviscountytx.gov
                                          and AppellateTCDA@traviscountytx.gov




                                          18
                        CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based

on the computer program used to generate this brief, that this brief contains 3,543

words, excluding words contained in those parts of the brief that Rule 9.4(i)

exempts from inclusion in the word count. I certify, further, that this brief is

printed in a conventional, 14-point typeface except for footnotes, any and all of

which are printed in a conventional, 12-point typeface.


                                                     /s/ M. Scott Taliaferro
                                                     M. Scott Taliaferro
                                                     Assistant District Attorney



                           CERTIFICATE OF SERVICE

      I hereby certify that, on this 2nd day of January, 2015, a copy of the

foregoing State's brief was sent, via U.S. mail, email, facsimile, or electronically

through the electronic filing manager, to the following attorney for the appellant:

David W. Crawford, Esq.
Crawford & Cruz, PLLC
P.O. Box 686
Austin, Texas 78767

                                                     /s/ M. Scott Taliaferro
                                                     M. Scott Taliaferro
                                                     Assistant District Attorney


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