       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-19-00097-CR


                                  James Ray Stroud, Appellant

                                                 v.

                                  The State of Texas, Appellee


           FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
       NO. 18-06185-1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               James Ray Stroud was charged with the offense of driving while intoxicated. See

Tex. Penal Code § 49.04. Prior to trial, Stroud filed a motion to suppress evidence obtained

during the police investigation. After a hearing, the trial court denied the motion. Following that

ruling, a jury convicted Stroud, and he was sentenced to 120 days’ confinement in county jail.

See id. § 12.22. In two issues on appeal, Stroud contends that the trial court erred by denying his

motion to suppress and that the evidence is insufficient to support his conviction. We will affirm

the trial court’s judgment of conviction.


                                        BACKGROUND

               Stroud was arrested and charged with driving while intoxicated. Stroud filed a

motion to suppress the evidence obtained during the investigation that ultimately led to his arrest.

The trial court denied the motion to suppress and issued findings of fact and conclusions of law
supporting its ruling, including that the officers had reasonable suspicion to detain Stroud and

probable cause to arrest him. At trial, Officers Douglas Look, Keely Adcock, and Joanna Sanders

testified regarding their observations on the morning in question, and recordings from the body

cameras belonging to Officers Look and Adcock as well as a recording from a camera located

inside Officer Look’s patrol car were all admitted into evidence and played for the jury. The

following summary comes from the testimony and other evidence presented at trial.

               At approximately 5:30 a.m., Officer Look was closing out his shift at the police

station and drove his patrol car to a gas station to fill up his gas tank. On the way, he saw a car

“with its reverse lights on directly next to the police station’s parking lot” on a “city easement

directly off of US 95.” The car was approximately two feet from the highway, was facing the

roadway, was sitting on an area between the road and a sidewalk, and was next to but not on a

driveway that leads to Stroud’s home. The car was outside of the fence to Stroud’s property that

also separates Stroud’s property from the police station parking lot, and there was a telephone

pole and a fence post behind the car. After Officer Look finished filling up his gas tank, he

returned to the police station a few minutes later and noticed that the car was still sitting in the

same area with its reverse lights on, and he decided to inform his supervisor, Officer Adcock,

about the situation.

               After Officer Look talked with Officer Adcock, they both walked to the car to

determine if anything was wrong. Both Officers Adcock and Look testified that the car was

sitting in a public space, and Officer Adcock further explained that the public has access to the

roadway in front of the car, that the public has access to the sidewalk behind the car, and that

there are no barriers preventing the public from stepping onto the grassy area on which the car

was located. When Officer Look approached the car, he noticed that the engine was on and that

                                                 2
a man later identified as Stroud was sitting in the driver’s seat and appeared to be “sleeping

with his chin on his chest.” Officer Look knocked on the window and yelled at Stroud multiple

times in order to wake him. Stroud briefly woke up, looked in Officer Look’s direction, and fell

back asleep. Officer Look was eventually able to wake up Stroud, asked him to roll down the

window, and asked him to place his car in park after he rolled down his window. Stroud did not

initially understand the instructions. When Stroud rolled down the window, Officer Look detected

a strong odor of alcohol coming from the car.

               After Stroud rolled down the window, Officer Adcock asked Stroud to get out

of his car, and she noticed “a really strong odor of metabolized alcoholic beverage coming out

of the car” when the door was opened. When Stroud got out of his car, he made several

unintelligible statements. Stroud leaned on his car “as support” while talking with the officers,

and Officer Adcock repeatedly instructed Stroud not to lean on the car. When describing Stroud’s

behavior at trial, Officer Adcock testified that Stroud’s speech “was thick” and “slurred.” In

addition, Officer Adcock testified that she had interacted with Stroud before when he was

outside of his house and that he did not slur his words, sway, or use objects to maintain his

balance during that previous encounter.

               While talking with Officer Adcock, Stroud admitted to drinking two to three beers

after finishing work in Austin and before heading home to Taylor. Based on her observations

that morning, Officer Adcock decided to perform an investigation regarding whether Stroud had

been driving while intoxicated. Officer Adcock asked Stroud whether he would consent to

perform some field-sobriety tests. Around that time, Officer Sanders walked over from the

police station to observe the events. All three officers testified that they received specialized

training regarding field-sobriety testing and intoxication offenses.

                                                 3
                After Stroud was asked to submit to testing, he informed Officer Adcock that he

had been involved in an accident with an eighteen-wheeler one to two years earlier that resulted

in a back injury and caused his head to shake back and forth. In addition, Stroud stated that he

felt like he did not need to stay and perform the tests because he was on his driveway. However,

Stroud ultimately agreed to perform the horizontal-gaze-nystagmus test. Prior to starting the test,

Officer Adcock examined Stroud’s eyes to verify that his pupils were of equal size and that his

eyes were tracking in the same direction. Stroud had difficulty following Officer Adcock’s

instructions, and Officer Adcock detected all six clues of intoxication when Stroud performed the

test. Officer Sanders testified that Officer Adcock properly performed the nystagmus test. Officer

Adcock asked Stroud if he would be willing to perform additional testing, but Stroud explained

that he was concerned that he would not be able to perform the test because of his back injury,

which Officer Adcock construed as a refusal to perform additional testing. Both Officers Adcock

and Look testified that they believed that Stroud was intoxicated based on their observations

that morning.

                Once Stroud communicated his concerns about performing additional testing,

Officer Adcock placed him under arrest for driving while intoxicated, read the statutory warnings

regarding the refusal to provide a sample for alcohol testing, and asked Stroud if he would

consent to providing either a blood or a breath sample for alcohol testing. Stroud refused that

request. Officer Adcock explained at trial that she did not apply for a warrant to obtain a sample

of Stroud’s blood because the policy of the police department at that time was to obtain a warrant

only if an individual had previously been convicted of driving while intoxicated or if it was a

no-refusal day. Following Stroud’s arrest, Officer Adcock performed a search of Stroud’s car

and found “a half full bottle of . . . Smirnoff malt liquor” in the front passenger seat that was

                                                4
orange in color as well as “a tumbler with an orange drink in it” in the front cupholder. Officer

Sanders testified that she detected an odor of alcohol emanating from the tumbler. Once Stroud

was arrested, Officer Look transported him to the police station. Officer Look testified that

Stroud slept through most of the trip.

               After considering the evidence presented at trial, the jury found Stroud guilty of

the offense of driving while intoxicated. Stroud appeals his conviction.


                                         DISCUSSION

               In two issues on appeal, Stroud argues that the district court erred by denying his

motion to suppress and that the evidence is insufficient to support his conviction. Because the

sufficiency challenge could result “in greater relief than his other issue,” we will address that

issue first. See Medina v. State, 565 S.W.3d 868, 873 (Tex. App.—Houston [14th Dist.] 2018,

pet. ref’d).


Sufficiency of the Evidence

               For sufficiency reviews, appellate courts view the evidence in the light most

favorable to the verdict and determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). When performing this review, an appellate court must bear in mind that it is the

factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make

“reasonable inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc.

art. 36.13 (explaining that “jury is the exclusive judge of the facts”). The factfinder is “free to

apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing

reasonable inferences from the evidence.” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—

                                                5
Houston [14th Dist.] 2006, pet. ref’d). Appellate courts must “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17

(Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences

were resolved in favor of the conviction and “defer to that determination.” Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that

“direct and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its

own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d). The evidence is legally insufficient if “the record contains no evidence, or

merely a ‘modicum’ of evidence, probative of an element of the offense” or if “the evidence

conclusively establishes a reasonable doubt.” Id. at 107 (quoting Jackson, 443 U.S. at 320).

               As set out above, Stroud was convicted of the offense of driving while

intoxicated. Under the Penal Code, an individual commits that offense if he “is intoxicated while

operating a motor vehicle in a public place,” Tex. Penal Code § 49.04(a), and an individual is

intoxicated if he does not have “the normal use of mental or physical faculties by reason of the

introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two

or more of those substances, or any other substance into the body,” id. § 49.01(2). Under the

Penal Code, the term “‘[p]ublic place’ means any place to which the public or a substantial group

of the public has access and includes, but is not limited to, streets, highways, and the common

areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

Id. § 1.07(a)(40). In determinations regarding whether a location falls under that broad definition,

“the relevant inquiry is whether the public has access to it.” Shaub v. State, 99 S.W.3d 253, 256

                                                 6
(Tex. App.—Fort Worth 2003, no pet.); see also Loera v. State, 14 S.W.3d 464, 467 (Tex.

App.—Dallas 2000, no pet.) (explaining that “access” means “freedom of approach or

communication; or the means, power, or opportunity of approaching, communicating, or passing

to and from” (quoting Black’s Law Dictionary 13 (6th ed. 1990))). The Court of Criminal Appeals

has explained that although the Penal Code does not define the word “operate,” for sufficiency

reviews, a person “‘operates’ a vehicle when ‘the totality of the circumstances [] demonstrate

that the defendant took action to affect the functioning of his vehicle in a manner that would

enable the vehicle’s use.’” Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex. Crim. App. 2012)

(quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)); see Priego v. State,

457 S.W.3d 565, 569 (Tex. App.—Texarkana 2015, pet. ref’d) (stating that term “operating” is

interpreted broadly).

               On appeal, Stroud presents several sets of arguments challenging the sufficiency

of the evidence pertaining to the elements of driving while intoxicated. In his first set of

arguments, Stroud contends that there was insufficient evidence that he was intoxicated that

morning because he did not perform any field-sobriety tests other than the nystagmus test and

because no blood test or breath test was performed in this case. Along those same lines, Stroud

argues that the State had the option of obtaining a warrant for a blood sample to determine

beyond a reasonable doubt whether he was intoxicated but elected not to pursue that option. In

light of the above, Stroud contends that the only evidence presented at trial potentially indicating

that he was intoxicated was the testimony regarding his performance on the nystagmus test,

regarding the smell of alcohol, and regarding his “inability to stand unassisted after being

awakened by the police” and urges that this evidence is insufficient to establish that he was

intoxicated beyond a reasonable doubt.

                                                 7
               In his second set of arguments, Stroud argues that the evidence is insufficient to

establish that he operated a motor vehicle on the morning in question. On the contrary, Stroud

urges that the evidence established that he was sitting in a legally parked car on his own property.

Cf. Texas Dep’t of Pub. Safety v. Allocca, 301 S.W.3d 364, 368-69 (Tex. App.—Austin 2009, pet.

denied) (concluding that evidence did not establish that individual operated her vehicle even

though she was found asleep in driver’s seat of car with engine on because she was parked in her

usual parking space at work, because headlights were not on, because car was in park, and

because front seat was reclined for sleeping purposes that would have made it difficult to operate

vehicle for purpose of driving).

               In his final set of arguments, Stroud contends that the evidence was insufficient to

establish that he was in a public place when he operated his car. More specifically, Stroud

asserts that the only evidence regarding the nature of the location where his car was stopped

originated from him when he informed Officer Adcock that he was on his driveway and,

according to Stroud, established that he was on private property. Moreover, after acknowledging

that testimony was introduced establishing that Stroud was on a city easement, he argues that any

easement across his property would not have rendered the area a public place.1




       1
          When attacking the sufficiency of the evidence supporting his conviction, Stroud
contends that certain evidence obtained during the investigation should not be considered in the
analysis because the evidence should have been suppressed. However, in reviewing the legal
sufficiency of the evidence supporting a conviction, appellate courts consider “all evidence
that the trier of fact was permitted to consider, regardless of whether it was rightly or
wrongly admitted.” Demond v. State, 452 S.W.3d 435, 445 (Tex. App.—Austin 2014, pet. ref’d).
Accordingly, we consider all the evidence to determine whether there is legally sufficient
evidence to support the elements of the charged offense. Moreover, we will address the
propriety of the trial court’s ruling on the motion to suppress, including the reasonableness of the
investigation and the propriety of Stroud’s subsequent arrest, in the next issue.
                                                 8
               Although Stroud correctly points out that no alcohol testing was performed in this

case, that type of testing is not required to prove intoxication. See Tex. Penal Code § 49.04.

Regarding whether Stroud was intoxicated, evidence was presented that he was found asleep

inside his car with the engine running and with the car in reverse, that the car smelled strongly

of alcohol, that he had difficulty following the directions given by the officers, that his speech

was slurred, that he admitted to consuming multiple beers earlier, and that there was a

partially consumed open bottle of an alcoholic drink as well as a tumbler containing a liquid that

smelled like alcohol in the front passenger seat and front cupholder, respectively. See Kirsch v.

State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (listing “post-driving behavior such as

stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or

follow directions, bloodshot eyes, [and] any admissions by the defendant concerning what, when,

and how much he had been drinking” as “evidence that would logically raise an inference that

the defendant was intoxicated”); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985)

(stating that “odor of alcohol on the person” is evidence of intoxication); Priego, 457 S.W.3d

at 570, 571 (upholding conviction in part because evidence showed that there was partially

consumed bottle of alcohol inside car and that defendant smelled like alcohol).

               Additionally, the evidence presented at trial demonstrated that the car had been in

the same location with its reverse lights on for an extended period of time, that the car was not in

a driveway, and that the car was in a city easement area sandwiched between a roadway and a

sidewalk with a fence post behind it. Moreover, Officers Adcock and Look both testified that

Stroud appeared intoxicated based on their observations of him, and Officer Adcock explained

that Stroud’s speech and behavior differed from the time she interacted with him before. See Kiffe,

361 S.W.3d at 108 (providing that, in general, officer’s testimony that individual is intoxicated

                                                 9
provides sufficient evidence to establish element of intoxication). Further, evidence was presented

showing that no blood or breath samples were tested because Stroud refused to submit to

either type of testing. See Derrick v. State, No. 05-14-00802-CR, 2015 WL 2195185, at *3 (Tex.

App.—Dallas May 8, 2015, no pet.) (mem. op., not designated for publication) (explaining that

refusal to submit to breath test “can support the inference that he believed he would fail the test

because he thought he was intoxicated”); see also Bartlett v. State, 270 S.W.3d 147, 153 (Tex.

Crim. App. 2008) (stating that evidence of refusal to submit to breath test “is relevant” because

“it tends to show a consciousness of guilt”). Additionally, evidence was presented that Stroud

displayed all six clues of intoxication when he performed the horizontal-gaze-nystagmus test.

Cf. Plouff v. State, 192 S.W.3d 213, 219 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (noting

that nystagmus test is valid scientific test).

                Regarding whether Stroud operated his car while intoxicated, evidence was

presented at trial indicating that Stroud was not simply legally parked on his property as he

argues. Both Officers Adcock and Look testified that Stroud’s car was seen with its reverse

lights on and with the engine running, and Stroud admitted that he had been at work

before coming home. Moreover, Stroud was the only individual in the car. See Murray v. State,

457 S.W.3d 446, 449 (Tex. Crim. App. 2015) (concluding that “because Appellant was the only

person found in the area, a factfinder could have also reasonably inferred that Appellant drove

his vehicle to the location at which he was found”); Priego, 457 S.W.3d at 570 (upholding

conviction, in part, because evidence showed that defendant was only person in control of car

when she was found unconscious in parking lot and because vehicle was running when defendant

was found). Furthermore, as set out above, Stroud was found unconscious in the driver’s seat

of his car. See Murphy v. State, No. 03-13-00281-CR, 2014 WL 4179443, at *2 (Tex. App.—

                                                 10
Austin Aug. 22, 2014, pet. ref’d) (mem. op., not designated for publication) (determining that

evidence was legally sufficient to support determination that defendant operated his vehicle

while intoxicated where evidence showed that he was discovered unconscious behind wheel of

his car with engine running in roadway at 4:00 a.m.); Dornbusch v. State, 262 S.W.3d 432,

437-38 (Tex. App.—Fort Worth 2008, no pet.) (finding evidence sufficient where defendant was

found asleep in driver’s seat of idling vehicle parked in parking lot with headlights and radio on

and where there was some evidence that vehicle was not in park); Pope v. State, 802 S.W.2d 418,

419, 420 (Tex. App.—Austin 1991, no pet.) (determining that it was reasonable to infer that

individual drove while intoxicated to area he was found when he was found sleeping behind

steering wheel of vehicle parked in middle of rural road with engine running, with lights on, and

with empty beer can inside car).

               Regarding whether Stroud operated his car in a public place, evidence was

presented during the trial indicating that his car was found beyond his fence line, in front of

a fence post dividing his property from the police station, and between the city sidewalk

and a public roadway. Further, evidence was presented showing that there were no barriers

preventing entry to the area in question, and Officer Adcock described the area as a public

place to which members of the public have access. See Thacker v. State, No. 03-15-00079-CR,

2015 WL 6841415, at *5 (Tex. App.—Austin Nov. 6, 2015, pet. ref’d) (mem. op., not designated

for publication); see also Shaub, 99 S.W.3d at 256 (determining that marina was public place

because public had access to it). Moreover, Stroud admitted that he had been in Austin for work

and that he consumed alcohol before coming home. Accordingly, the jury could have reasonably

inferred from all the evidence that Stroud “used a public road or street to reach his destination”

while he was intoxicated. See Loera, 14 S.W.3d at 468.

                                               11
               Given our standard of review in a legal-sufficiency challenge and in light of

the evidence presented during trial as well as the reasonable inferences that the jury was free

to make from that evidence, we must conclude that the evidence is sufficient to establish that

Stroud operated his car in a public place while he was intoxicated. See Tex. Penal Code § 49.04.

Accordingly, we overrule Stroud’s second issue on appeal.


Motion to Suppress

               Prior to trial, Stroud filed a motion to suppress the evidence obtained by the

officers during their investigation on the morning in question. During a hearing on the motion to

suppress, Officers Look, Adcock, and Sanders all testified, and the recordings from Officer Look’s

and Officer Adcock’s body cameras were admitted into evidence and played for the trial court.

The officers testified consistently with their trial testimony regarding the following: their

training, their observations of Stroud’s car, the nature of the location where his car was stopped,

their interactions with him, his behavior, his performance during the horizontal-gaze-nystagmus

test, and his arrest. In addition, Officer Look also testified that he approached the car out of

concern that someone inside the car might be experiencing a medical emergency.               After

considering the evidence and the parties’ arguments, the trial court denied the motion to

suppress. The trial court later issued findings of fact and conclusions of law determining that

Officers Look and Adcock were credible and also determining the following:


       Findings of Fact

       •   Both officers had received training and had experience with investigating
           driving while intoxicated offenses.

       •   Around 5:30 a.m., Officer Look left the police department . . . to fuel his
           patrol vehicle when he noticed a vehicle with its reverse lights illuminated.

                                                12
•   The vehicle, a white car, was located on what Officer Look believed to be the
    city easement, since the area was directly adjacent to the roadway.

•   At the location, there was a grassy area between the road and a sidewalk that
    ran perpendicular to the roadway. Behind the sidewalk was a smaller area of
    grass with a telephone pole and a fence. The vehicle was on the area between
    the road and the sidewalk.

•   Officer Look saw that a driveway was near the vehicle but the vehicle was not
    on the driveway.

•   The vehicle was located at a place where the public has access.

•   When Officer Look arrived back at the police department about five minutes
    later, he saw the same vehicle sitting in the same spot with its reverse lights
    still on.

•   Since the vehicle was in reverse and had been stationary for at least five
    minutes, Officer Look thought that the occupant might be in distress or be a
    danger to himself.

•   Officer Look also thought it was possible that the occupant could be passed
    out as a result of intoxication because in his experience he has encountered
    many people who had fallen asleep while driving with their vehicle in gear
    because they were intoxicated.

•   Officer Look notified Corporal Adcock, one of his superiors, about the vehicle
    due to his concern that the occupant of the vehicle could possibly be having a
    medical emergency.

•   Corporal Adcock could see Defendant slumped over.

•   Officer Look saw that Defendant’s chin was on his chest and the officers
    knocked on the vehicle’s window a couple of time[s] and called out in attempt
    to get Defendant’s attention.

•   Officer Look saw Defendant lift his head towards the direction of the noise
    and put his head back on his chest as if he were sleeping.

•   Officer Look noticed the strong odor of alcohol coming from the vehicle.

•   Officer Look instructed Defendant multiple times to put the vehicle into park.

•   When the vehicle’s door opened, Corporal Adcock could smell a very strong
    odor of metabolized alcohol coming from the car.


                                        13
•   Corporal Adcock noticed that Defendant used the vehicle to balance when he
    exited.

•   Once Defendant was out of the vehicle, Corporal Adcock could smell the odor
    of alcohol coming from Defendant.

•   Corporal Adcock heard that Defendant’s speech was thick and slurred.

•   Corporal Adcock had encountered Defendant before and noticed that his
    mannerisms and speech were different than that previous encounter.

•   When talking with Defendant, Corporal Adcock had to ask that he stop using
    the vehicle for support several times.

•   Defendant gave several unresponsive and incoherent statements when talking
    with the officers.

•   Defendant . . . admitted to drinking beers after he had gotten off work the
    night before.

•   Defendant had medical issues that made him not want to perform some of the
    test[s], but he consented to perform the horizontal gaze nystagmus test . . . .

•   Corporal Adcock observed the maximum number of clues for intoxication on
    the horizontal gaze nystagmus test . . . .

•   Corporal Adcock arrested Defendant without a warrant for driving while
    intoxicated.


Conclusions of Law

•   Officer Look’s contact with Defendant was reasonable under the community-
    caretaking exception to the warrant requirement.

•   When Officer Look and Corporal Adcock made contact with Defendant, they
    developed reasonable suspicion to detain him.

•   Office[r] Look and Corporal Adcock ha[d] specific, articulable facts that,
    combined with rational inference from those facts, [led to the conclusion] that
    Defendant had been, was, or was about to commit the offense of driving while
    intoxicated.

•   Officer Adcock had probable cause to arrest Defendant for driving while
    intoxicated.


                                        14
               In his first issue on appeal, Stroud contends that the trial court erred by denying

his motion to suppress. Specifically, Stroud argues that the State violated his right to be “let

alone” when he was unreasonably detained by the police on the morning in question. See

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (discussing right

to be “let alone” from governmental intrusion). Further, although Stroud acknowledges that

the police may without a warrant detain “and assist an individual whom a reasonable person—

given the totality of the circumstances—would believe is in need of help,” Laney v. State,

117 S.W.3d 854, 859 (Tex. Crim. App. 2003) (quoting Wright v. State, 7 S.W.3d 148, 151

(Tex. Crim. App. 1999), he contends that the community-caretaking exception to the warrant

requirement did not apply in the circumstances present here because he was not in distress when

the police detained him, because he was on his property when the officers detained him, and

because he and his stationary car did not present a danger to himself or others, see id. at 859 n.3

(listing factors to be considered when determining if detention is justified by community-

caretaking exception). Additionally, Stroud argues that even if the officers were genuinely

motivated by a concern for his safety, their testimony at the suppression hearing demonstrates

that the officers were also motivated by a desire to investigate whether he had been driving while

intoxicated. For that reason, Stroud contends that the community-caretaking exception cannot

apply to the circumstances here. Cf. Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (stating

that community-caretaking functions are “totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute”).

               After arguing that the community-caretaking exception did not apply, Stroud

contends that the officers’ detention of him could only have been justified if the officers had

a reasonable suspicion that he had committed or was about to commit a crime. Further, Stroud

                                                 15
urges that the only information available to the officers at the time of the detention was their

observations that his car had remained stationary in the same place for several minutes with its

reverse lights on. Stroud urges that this provided an insufficient basis upon which to form a

reasonable belief that he had been or would be engaged in criminal activity and that any

information obtained during the subsequent seizure could not have justified the initially illegal

detention. Cf. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.—Austin 2007, pet. ref’d)

(explaining that “a stop or search unlawful at its inception may not be validated by what it turns

up”). For all of these reasons, Stroud contends that the district court should have granted his

motion to suppress.

               Appellate courts review a trial court’s ruling on a motion to suppress for an abuse

of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that

standard, the record is “viewed in the light most favorable to the trial court’s determination,

and the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of

reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In general, appellate courts apply

“a bifurcated standard, giving almost total deference to the historical facts found by the trial

court and analyzing de novo the trial court’s application of the law.” See State v. Cuong Phu Le,

463 S.W.3d 872, 876 (Tex. Crim. App. 2015); see also Arguellez, 409 S.W.3d at 662 (explaining

that appellate courts afford “almost complete deference . . . to [a trial court’s] determination of

historical facts, especially if those are based on an assessment of credibility and demeanor”).

“The same deference is afforded the trial court with respect to its 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 evaluation of credibility and demeanor.” Crain v. State, 315 S.W.3d 43, 48 (Tex.

                                                16
Crim. App. 2010). “When [a] trial court issues explicit fact findings, we determine whether”

those findings are supported by the evidence when the evidence is “viewed in the light

most favorable to the” ruling. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008).

Moreover, courts “consider only the evidence adduced at the suppression hearing because the

ruling was based on that evidence rather than evidence introduced later” unless “the suppression

issue has been consensually relitigated by the parties during trial.” Herrera v. State, 80 S.W.3d 283,

290-91 (Tex. App.—Texarkana 2002, pet. ref’d) (op. on reh’g). In addition, a trial court’s ruling

on the motion will be upheld if it is correct under any theory of law applicable to the case

regardless of whether the trial court based its ruling on that theory, but “a trial court’s ruling will

not be reversed based on a legal theory that the complaining party did not present to it.” Story,

445 S.W.3d at 732.

               As set out above, Stroud argues that his detention by Officers Look and Adcock

was not authorized by the community-caretaking exception or by reasonable suspicion.

However, in addition to detentions, there are other types of interactions that may occur between

police officers and citizens, including encounters. See Pennywell v. State, 127 S.W.3d 149, 152

(Tex. App.—Houston [1st Dist.] 2003, no pet.). “An encounter occurs when a law enforcement

officer approaches an individual in public to ask questions.” Id. The officer does not have to

have a justification for initiating an encounter, and the encounter “triggers no constitutional

protections.” Id.; see also Florida v. Bostik, 501 U.S. 429, 434 (1991) (explaining that as long as

encounter remains consensual in nature, heightened scrutiny required by Fourth Amendment

need not be applied). In other words, the officer does not need probable cause or reasonable

suspicion to initiate a consensual encounter. See Hayes v. State, 132 S.W.3d 147, 151-52 (Tex.

App.—Austin 2004, no pet.); see also State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App.

                                                  17
1999) (explaining that issues of probable cause and reasonable suspicion do not arise when

officer approaches citizen to engage in conversation). “Police officers are as free as any other

citizen to knock on someone’s door and ask to talk with them, to approach citizens on the

street or in their cars and to ask for information or their cooperation.” State v. Garcia-Cantu,

253 S.W.3d 236, 243 (Tex. Crim. App. 2008).

               In an encounter, a police officer may approach an individual and ask the

individual if he is willing to answer some questions. Florida v. Royer, 460 U.S. 491, 497 (1983)

(plurality op.); see also Peterson v. State, 857 S.W.2d 927, 930 (Tex. App.—Houston [1st Dist.]

1993, no pet.) (stating that police may ask questions of fellow citizens). However, the individual

does not have to answer any questions asked, may refuse to listen to the questions, and may

leave the situation. See Royer, 460 U.S. at 497-98; see also Johnson v. State, 912 S.W.2d 227,

235 (Tex. Crim. App. 1995) (noting that in consensual encounter, citizen is free to ignore officer

and walk away). As long as the individual has not been detained, then no constitutional rights

have been violated. Royer, 460 U.S. at 498; see also Bostik, 501 U.S. at 434 (observing that

detainment does not occur simply because police approach and question individual); Peterson,

857 S.W.2d at 930 (noting that only when questioning becomes detention must officer have

reasonable suspicion).

               Investigative detentions, on the other hand, must be supported by reasonable

suspicion, which “exists if the officer has specific articulable facts that, when combined with

rational inferences from those facts, would lead him to reasonably suspect that a particular

person has, or soon will be, engaged in criminal activity.” Neal v. State, 256 S.W.3d 264, 280

(Tex. Crim. App. 2008). “The reasonableness of a temporary detention must be considered in

view of the totality of the circumstances at the inception” of the detention. Tanner v. State,

                                               18
228 S.W.3d 852, 855 (Tex. App.—Austin 2007, no pet.). Moreover, if during a valid detention,

“the officer develops reasonable suspicion that the detainee is engaged in criminal activity,

prolonged or continued detention is justified.” Haas v. State, 172 S.W.3d 42, 52 (Tex. App.—

Waco 2005, pet. ref’d); see also State v. Woodard, 341 S.W.3d 404, 414 (Tex. Crim. App. 2011)

(explaining that information known to officer gave him reasonable suspicion to detain and

administer field-sobriety tests).

               In determining whether a detention has occurred, the critical analysis is “whether,

taking into account all of the circumstances surrounding the encounter, the police conduct would

‘have communicated to a reasonable person that he was not at liberty to ignore the police

presence and go about his business.’” Bostik, 501 U.S. at 437 (quoting Michigan v. Chesternut,

486 U.S. 567, 569 (1988)); see Pennywell, 127 S.W.3d at 152; see also Hunter v. State,

955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (noting that when determining whether detention

has occurred, courts must look at totality of circumstances). It is only when an officer has

conveyed that compliance with his requests is required that an encounter becomes a detention.

Hunter, 955 S.W.2d at 106; see also Johnson, 912 S.W.2d at 236 (explaining that seizure of

citizen does not occur until reasonable person would believe he was not free to leave and either

yields to officer’s show of authority or has been physically forced to yield).

               As set out above, the trial court found that Stroud’s car was sitting in an area that

was open to the public, and this finding is supported by the testimony presented at the hearing.

Moreover, nothing in the testimony or in the two recordings admitted into evidence suggests that

when the officers walked over to Stroud’s car, they informed Stroud that he was required to

answer their questions. See Pennywell, 127 S.W.3d at 152 (noting that there was no evidence

suggesting that appellant was not free to refuse to answer officer’s questions), or that they

                                                 19
attempted to impede his freedom of movement by, for example, blocking his car in, cf. Griffey,

241 S.W.3d at 702, 707 (concluding that officer’s detention of defendant by placing his patrol

car in front of defendant’s vehicle in drive-through lane was not supported by reasonable

suspicion). Further, nothing in the testimony or recordings indicates that during the initial

interaction Stroud felt compelled to answer the questions posed by the police, attempted to

terminate the conversation, or was prohibited from leaving. Similarly, nothing in the record

from the suppression hearing suggests that Stroud yielded to a show of authority by the police

(e.g., brandishing a weapon or turning on emergency lights). Additionally, the recordings from

the body cameras chronicle the officers talking with Stroud in a friendly and respectful manner.

               For these reasons, we conclude that the evidence regarding the initial interaction

between Stroud and the police officers is consistent with permissible actions that may

occur during a consensual encounter between police officers and citizens. See Hurley v. State,

No. 03-07-00433-CR, 2008 WL 2544780, at *1-2, *6 (Tex. App.—Austin June 26, 2008, no

pet.) (mem. op., not designated for publication) (determining that interaction between officer and

defendant in which officer approached parked vehicle on side of highway and in which officer

attempted to communicate with individual asleep inside vehicle was encounter, not detention);

State v. Bryant, 161 S.W.3d 758, 760, 762 (Tex. App.—Fort Worth 2005, no pet.) (concluding

that interaction that occurred after police officer got out of his patrol car and approached

defendant’s parked vehicle was encounter and not detention and that officer, accordingly, did

not need reasonable suspicion to initiate encounter). Therefore, we need not address appellant’s

arguments regarding whether the initial interaction was permissible under the community-

caretaking exception.



                                               20
               After the initial encounter, the interaction turned into a detention when the

officers elected to investigate whether Stroud had committed the offense of driving while

intoxicated. See Hurley, 2008 WL 2544780, at *6 (noting that encounter between officer and

defendant “became a temporary investigative detention” “as the facts developed”); Bryant,

161 S.W.3d at 762 (stating that interaction “did not become an investigative detention until after

appellee opened his car door”). The trial court determined that the investigative detention was

proper because the officers developed reasonable suspicion to detain Stroud based on articulable

facts leading the officers to conclude that Stroud had committed the offense of driving while

intoxicated. The trial court found that Stroud’s car was between the road and a sidewalk, that the

car was not on the driveway that was near the car, that the officers discovered Stroud asleep in

the driver’s seat of his car, that the officers tried multiple times to rouse Stroud, that the engine

was on at the time, and that the reverse lights were on. The trial court also found that the officers

detected a strong odor of alcohol after Stroud rolled his window down. Those findings are all

supported by the evidence presented during the suppression hearing.

               In light of our standard of review and the findings made by the trial court, we

must conclude that the district court did not abuse its discretion by determining that the officers

had reasonable suspicion to conclude that Stroud had committed the offense of driving while

intoxicated and had reasonable suspicion to detain him for further investigation. See Thacker,

2015 WL 6841415, at *8 (concluding that officer had reasonable suspicion to believe that

defendant may have committed offense of driving while intoxicated and to investigate further, in

part, because officer found defendant asleep in his car and because defendant smelled like

alcohol and was slurring his speech); Yocom v. State, No. 02-03-00181-CR, 2004 WL 742888,

at *1, *7 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref’d) (op., not designated for publication)

                                                 21
(concluding that officer had reasonable suspicion to detain defendant where officer observed

defendant’s vehicle in parking lot of closed bank for extended period of time in early morning

hours; where defendant was seen in front seat asleep with engine running, appeared dazed, had

difficult time following officer’s instructions, and had bloodshot eyes; where vehicle “was in

drive”; and where officer had difficult time waking defendant up).

               In this issue, Stroud also contends that the trial court should have suppressed the

evidence regarding his arrest and subsequent events. More specifically, Stroud acknowledges

that a police officer may arrest someone without a warrant if the individual commits an offense

within view of the officer, see Tex. Code Crim. Proc. art. 14.01, but Stroud urges that the

evidence presented during the suppression hearing did not establish that the officers viewed him

commit the offense of driving while intoxicated or the offense of public intoxication, see Tex.

Penal Code §§ 49.02, .04. Further, Stroud asserts that his warrantless arrest was not supported

by probable cause. See Alonzo v. State, 251 S.W.3d 203, 209 (Tex. App.—Austin 2008, pet.

ref’d) (explaining that “[a]s a general rule, an officer may not make a warrantless arrest for DWI

unless probable cause exists and the DWI is committed in the presence or view of an officer”).2

               “Probable cause requires an evaluation of probabilities, and probabilities ‘are the

factual and practical considerations of everyday life on which reasonable and prudent men,

not legal technicians, act.’” Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting

Brinegar v. United States, 338 U.S. 160, 175 (1949)); see also Ornelas v. United States, 517 U.S.

690, 696 (1996) (explaining that probable cause is “fluid concept”). In circumstances like those

       2
          In its appellee’s brief, the State contends that Stroud waived this complaint because he
did not assert in his motion to suppress or in the suppression hearing that his arrest was not
justified by an exception to the warrant requirement. However, given Stroud’s focus on the
absence of probable cause in his motion and at the hearing, we will assume without deciding that
his argument has been preserved for appellate consideration.
                                               22
present here, 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.” Amador v. State, 275 S.W.3d 872, 878

(Tex. Crim. App. 2009). “The test for probable cause is an objective one, unrelated to the

subjective beliefs of the arresting officer, and it requires a consideration of the totality of the

circumstances facing the arresting officer.” Id. (internal citations omitted); see also Wiede,

214 S.W.3d at 25 (providing that piecemeal consideration of evidence is prohibited). This includes

“the training, knowledge, and experience of law enforcement officials.” Wiede, 214 S.W.3d at

25. Moreover, probable cause does not require proof that the individual was actually intoxicated

to justify the arrest. See Illinois v. Gates, 462 U.S. 213, 235 (1983) (providing that “it is clear

that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of

probable cause’” (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))); see also

Brinegar, 338 U.S. at 175 (explaining that probable cause requires evidence that amounts to

“more than bare suspicion” but less than necessary for conviction). For driving-while-intoxicated

cases, there is no requirement that certain “intoxication indicators” be present to establish probable

cause because the factors may be different in each case. See State v. Long, No. 03-11-00725-CR,

2012 WL 1959316, at *5 (Tex. App.—Austin May 31, 2012, no pet.) (mem. op., not designated

for publication); see also Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1984) (on

reh’g) (explaining that “[i]t must be kept in mind in reviewing a question of sufficiency of

probable cause that such a question is a quintessential example of the necessity for case-by-case

determination based upon the facts and circumstances shown”).



                                                 23
               As set out earlier, the trial court found that Officers Look and Adcock approached

Stroud’s car after noticing that the car was between a public roadway and a sidewalk in an

area that was open to the public, that the car had stayed in the same spot for several minutes,

that the officers observed that the car had its reverse lights on, that the car was not in park,

that the engine was on, and that Stroud was inside the car slumped over. Cf. Edwards v. State,

No. 03-02-00373-CR, 2003 WL 22248850, at *1 (Tex. App.—Austin Oct. 2, 2003, no pet.)

(mem. op., not designated for publication) (explaining that Penal Code “does not require proof

of driving but of operating”). Those findings are supported by the evidence presented during the

hearing, and the body-camera recordings documented Stroud sitting in the driver’s seat.

               Moreover, the trial court found that Stroud appeared to be asleep, had difficulty

understanding the officers’ instructions, slurred his speech, smelled like alcohol, and had

difficulty maintaining his balance without leaning against his car. Cf. Amador, 275 S.W.3d at 879

(noting that police officer’s observation that defendant “fumbled through his wallet” and “was

unusually slow in providing” his driver’s license supported existence of probable cause). In

addition, the trial court found that Stroud admitted to drinking alcohol after getting off work. See

Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003) (providing that suspect’s admission

that he drank alcohol before driving is relevant factor in probable-cause determination); Learning

v. State, 227 S.W.3d 245, 249 (Tex. App.—San Antonio 2007, no pet.) (concluding that probable

cause existed, in part, where officer noticed smell of alcohol and where defendant admitted

that he had been drinking). The trial court also found that Officer Adcock received specialized

training in performing field-sobriety tests and that Stroud displayed all six clues of intoxication

during the horizontal-gaze-nystagmus test and did not want to perform additional field-sobriety

testing. Cf. Peace v. State, No. 07-02-00347-CR, 2003 WL 22092707, at *1, *3 (Tex. App.—

                                                24
Amarillo Sept. 9, 2003, no pet.) (op., not designated for publication) (concluding that trial court

did not err by determining that probable cause existed to arrest defendant, in part, where

defendant smelled like alcohol, admitted to drinking, had slurred speech, had glassy eyes, and

displayed all six indicators of intoxication during horizontal-gaze-nystagmus test). The findings

summarized above are all supported by the evidence presented during the suppression hearing.

               In light of the findings summarized above, we conclude that the district court did

not abuse its discretion when it determined that there was probable cause to arrest Stroud for

driving while intoxicated on the morning in question after the officers observed Stroud operate

his car in a public place. See Tex. Penal Code § 49.04; Tex. Code Crim. Proc. art. 14.01.

               For all these reasons, we overrule Stroud’s first issue on appeal.


                                         CONCLUSION

               Having overruled Stroud’s two issues on appeal, we affirm the trial court’s

judgment of conviction.



                                              __________________________________________
                                              Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: February 21, 2020

Do Not Publish




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