                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00728-CR

                                     Miguel Hugo BARRAZA,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR4160
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 1, 2017

AFFIRMED

           Miguel Hugo Barraza was charged with possession of a controlled substance after he was

detained by a security guard at a nightclub and police found cocaine during a search incident to

arrest for public intoxication. A jury convicted Barraza and he timely appealed. We affirm the

trial court’s judgment.

                                           BACKGROUND

           The trial evidence showed that on the evening of December 6, 2013, Barraza attempted to

enter the Lucky Monkey nightclub. The club employed a commissioned and uniformed security
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guard, Raymond Reyes, 1 who was tasked with conducting pat-downs to look for drugs and

weapons on patrons before they were permitted to enter the club. When Barraza approached,

Reyes asked him to turn around and submit to a pat-down. As Barraza was turning, Reyes noticed

a plastic bag sticking out of Barraza’s front “fifth coin pocket.” As Reyes’s pat-down moved to

Barraza’s front right coin pocket, Barraza grabbed Reyes’s wrist, which Reyes took as a sign of

aggression. Reyes began trying to push Barraza out the front door while Barraza tried to force his

way inside, telling Reyes it was “nothing” and he came to the club all the time. Reyes stated that

during their struggle Barraza was reaching “for whatever substance was in his pocket or for a

weapon,” but Reyes did not know which. Reyes succeeded in forcing Barraza out of the front door

and Reyes stated he intended to detain Barraza at that point and give him a criminal trespass

warning so that if Barraza returned, he could be arrested on sight. But, Barraza continued to

struggle with Reyes, grabbing on to Reyes’s shirt and trying to push him down. Reyes resisted

and in turn tried to push Barraza down, but Barraza slipped out of Reyes’ grip and ran into the

parking lot. Barraza slipped and fell and Reyes caught up to him. Reyes put his weight on top of

Barraza, told him he was being detained, and handcuffed him. Reyes then called the police, along

with EMS because Barraza complained that he had hurt his leg. Reyes testified he detained

Barraza and called the police because Barraza had committed offenses within Reyes’s view by

assaulting him (Reyes) and by committing criminal trespass by forcing himself inside the club.

Reyes testified he did not arrest Barraza but merely detained him until the police arrived.

        When the police officers arrived, Reyes stated he told them what had happened and also

mentioned the plastic bag he had seen protruding from Barraza’s coin pocket. After speaking with

Reyes, Officer Freddy Rodriguez questioned Barraza about the night’s events while he was in the


1
  Reyes testified he was not a law enforcement officer, but had completed the training to receive his commission from
the Texas Department of Public Safety as a security guard.

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ambulance and observed that Barraza was “highly intoxicated.” Both Officer Rodriguez and his

partner Officer Mario Montoya testified that they believed Barraza was a danger to himself or

others in his current state. Officer Montoya placed Barraza under arrest for public intoxication

and stated he intended to give Barraza a ticket and allow his brother to take him home. However,

when Officer Montoya conducted a search of Barraza’s person with Barraza’s consent and incident

to his arrest, he found a plastic baggie containing a white substance inside the fifth pocket of

Barraza’s pants. The substance tested positive as cocaine and Barraza was charged with possession

of a controlled substance.

       Barraza testified at trial that it was Reyes who was initially aggressive with him during the

pat-down. Barraza decided to leave the club and ran into the parking lot. Barraza stated that Reyes

pursued him and pushed him down, put his knee on his neck, and handcuffed him. According to

Barraza, Reyes reached inside Barraza’s pockets, took his wallet out and stole some of his money,

and planted the plastic baggie with cocaine in his front coin pocket. Barraza’s friend also testified

and corroborated Barraza’s version of the events.

       A jury found Barraza guilty of possession of a controlled substance, less than one gram of

cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010) (state jail felony).

The trial court sentenced Barraza to two years’ confinement in state jail and imposed a $1,500 fine.

The court suspended the term of confinement, however, and placed Barraza on community

supervision for a period of three years. Barraza now appeals.

                                             ANALYSIS

       On appeal, Barraza argues the trial court erred in denying his pre-trial motion to suppress

the drug evidence because the security guard, Reyes, conducted a warrantless arrest which was not

authorized by article 14.01 of the Code of Criminal Procedure because no felony was committed

within Reyes’s view and there was no breach of the peace by Barraza. TEX. CODE CRIM. PROC.
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ANN. art. 14.01(a) (West 2015) (“A peace officer or any other person, may, without a warrant,

arrest an offender when the offense is committed in his presence or within his view, if the offense

is one classed as a felony or as an offense against the public peace.”). Alternatively, Barraza argues

that Reyes conducted a temporary detention which was not supported by reasonable suspicion of

criminal activity.

        To be preserved, Barraza’s arguments on appeal must comport with the grounds for

suppression he raised in the trial court. TEX. R. APP. P. 33.1(a); Swain v. State, 181 S.W.3d 359,

367 (Tex. Crim. App. 2005); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). A trial

objection based on one legal theory may not be used to support a different legal theory on appeal.

Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

        In his motion to suppress, Barraza asserted that the security guard had no right to detain or

arrest him outside the premises of the nightclub. He cited no legal authority in support of his

contention. With respect to the security guard’s actions, Barraza’s motion asserted, “[t]he Security

Guard is not a member of law enforcement and has no right to arrest or detain a person outside the

premises of the club if the person was not attempting to enter the club,” and “[i]f the Defendant

had entered the club without permission or caused a disturbance in the club, the guard would have

had the right as an agent of the business to detain the Defendant” but “[o]utside the club he had no

such right.” Barraza’s motion made no reference to article 14.01 or to the authority of a non-peace

officer to make a warrantless arrest for a felony offense committed in his presence or for an offense

against the public peace. TEX. CODE CRIM. PROC. ANN. art. 14.01(a). 2




2
  Barraza’s motion to suppress also alleged that the SAPD officer had no right to detain or arrest him for public
intoxication because his brother and friend were present and could have taken him home, so he did not pose a danger
to himself or others. Barraza waived this ground at trial and therefore presents no appellate argument based on the
police officer’s conduct.

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       The trial court did not conduct a separate suppression hearing, but instead carried the

motion with the trial. After the State rested, the trial court heard argument on the motion to

suppress. Consistent with the ground stated in the motion, Barraza argued that the security guard

was not law enforcement and had no authority to detain Barraza after he left the club’s premises,

i.e., he had no right to pursue Barraza into the parking lot and hold him until the police arrived.

Barraza’s counsel never referred to article 14.01 or to the authority of a citizen to make an arrest

for a felony or breach of the peace committed in their presence — the argument he now seeks to

raise on appeal. The State did argue that Reyes’s detention of Barraza was legal under article

14.01 because Reyes’s testimony showed he had a good faith belief that Barraza’s assault on him

while he was in uniform was considered a felony, i.e., assault on a public servant, and that

Barraza’s criminal trespass into the club constituted a breach of the peace. In addition, the State

asserted that Reyes’s testimony showed he also had a reasonable suspicion that Barraza was in

possession of a weapon and drugs. In denying the motion to suppress, the trial court relied on

article 14.01 and found that “the security guard had the right to detain [Barraza] because the assault

[against Reyes] . . . is an offense against public peace.” The trial court also stated that the assault

could arguably be considered a felony because as a commissioned, uniformed security guard,

Reyes could be considered a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1), (e)(3)

(West Supp. 2015) (defining felony offense of assault against a public servant).

       The arguments raised by Barraza on appeal, that Reyes was not authorized under article

14.01 to arrest him and lacked reasonable suspicion to detain him, were not set forth in his motion

to suppress nor were they argued by defense counsel to the trial court. By not raising these legal

theories until his appeal, Barraza has procedurally defaulted these issues. TEX. R. APP. P. 33.1(a);

Swain, 181 S.W.3d at 367; Wilson, 71 S.W.3d at 349; Rezac, 782 S.W.2d at 870.



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                                       CONCLUSION

     Based on the foregoing reason, we affirm the trial court’s judgment.


                                              Rebeca C. Martinez, Justice


DO NOT PUBLISH




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