Affirmed and Opinion Filed October 5, 2018




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-16-01415-CR

                          RUBEN ALEJANDRO GARCIA, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                On Appeal from the County Criminal Court of Appeals No. 2
                                  Dallas County, Texas
                          Trial Court Cause No. MB14-63674-M

                              MEMORANDUM OPINION
                         Before Justices Stoddart, Whitehill, and Boatright
                                   Opinion by Justice Whitehill
       This case concerns whether there was probable cause to arrest appellant without a warrant

for DWI after the police observed him driving recklessly, smelled alcohol on his breath,

interviewed him, and performed sobriety tests on which appellant performed poorly.

       In two issues, appellant argues that the trial court erred in denying his motion to suppress

the arrest because there was insufficient probable cause to support his warrantless arrest and the

video of his field sobriety tests was inadmissible because it was not properly authenticated.

       We conclude that there was sufficient probable cause to arrest appellant for DWI without

a warrant. We further conclude that even if the evidentiary issue had been preserved for our

review, the trial court did not abuse its discretion by admitting the video because, subject to certain
exceptions not present here, the rules of evidence do not apply to suppression hearings. We affirm

the trial court’s judgement.

                                                             I. BACKGROUND

             Stated generally, Dallas police officer Joshua Mull saw appellant driving recklessly as

appellant pulled into a Valero parking lot. And Officer Mull noticed “a very strong odor of an

alcoholic beverage on his breath” when appellant got out of his car.

              DWI officer Watkins arrived shortly thereafter, interviewed appellant, and administered

field sobriety tests that Mull observed. When the tests concluded, appellant was arrested. After

he was arrested, appellant admitted he had too much to drink and that there was alcohol in his car.

             Appellant moved to suppress evidence concerning the stop and the arrest. 1 Officer Mull

testified at the hearing, and the video showing his encounter with the officers and field sobriety

tests was admitted over appellant’s authentication and hearsay objections. When the hearing

concluded, the court denied appellant’s motion.

             Appellant subsequently pled guilty and was sentenced to six days confinement in the Dallas

County jail with credit for one day served.

                                                               II. ANALYSIS

A.           Standard of Review and Applicable Law
             A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion under a

bifurcated standard. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). When

supported by the record, the trial court’s determinations of historical fact receive almost total

deference, as do mixed questions of law and fact that turn on the credibility of a witness. Crain v.

State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Mixed questions of law and fact that do not

turn on witness credibility are reviewed de novo. Id.


     1
         Appellant’s motion was limited to the stop and the arrest.

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         When, as here, the trial court does not enter findings of fact and conclusions of law, we

presume the trial court made implicit findings that supported the ruling, as long as those findings

are supported by record evidence. State v. Ross, 32 S.W.3d 853, 855–56, 859 (Tex. Crim. App.

2000). The trial court’s ruling must be upheld if it is reasonably supported by the record and

correct under any applicable theory of law. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App.

2013).

         A defendant moving to suppress evidence “has the burden of producing evidence that

rebuts the presumption of proper police conduct.” State v. Robinson, 334 S.W.3d 776, 778–79

(Tex. Crim. App. 2011). If the defendant shows that he was detained without a warrant, the burden

shifts to the State to establish probable cause. See Amador v. State, 275 S.W.3d 872, 878 (Tex.

Crim. App. 2009).

         A police officer may arrest an individual without a warrant only if probable cause exists

that the individual has committed or is committing an offense and the arrest falls within one of the

statutory exceptions to the warrant requirement. Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim.

App. 2005). Committing an offense in an officer’s presence or view is among these exceptions.

See TEX. CODE CRIM. PROC. art. 14.01. “An offense is deemed to have occurred within the

presence . . . of an officer when any of his senses afford him an awareness of its occurrence,” as

long as his senses give him reason to believe that a particular suspect committed the offense. State

v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

         Probable cause for a warrantless arrest 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, 275 S.W.3d at 878. The test for

probable cause is an objective one, unrelated to the arresting officer’s subjective beliefs, and

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requires a consideration of the totality of the circumstances facing the arresting officer. Id. “When

there has been some cooperation between law enforcement agencies or between members of the

same agency, the sum of the information known to the cooperating agencies or officers at the time

of an arrest or search by any of the officers involved is to be considered in determining whether

there is sufficient probable cause therefor.” Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim.

App. 1984) (op. on reh’g).

       A person commits DWI if he operates a motor vehicle in a public place while intoxicated.

See TEX. PENAL CODE § 49.04(a). “Intoxicated” means “(A) not having 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; or (B) having an alcohol concentration of 0.08 or more.” Id. § 49.01(2).

B.     Issue One: Did the State carry its burden to show that the arrest was supported by
       probable cause?

       Officer Mull testified that he was standing outside his car at a Valero station when he heard

tires squealing as appellant’s car pulled into the parking lot at a high rate of speed. Appellant’s

car left the ground as he hit a bump and fishtailed through the parking lot and nearly hit a gas

pump. Appellant made a hard right turn into a parking space, jumped the curb in front of the space,

and almost hit the front door of Valero’s before coming to a stop.

       Officer Mull approached appellant’s car to see if appellant was o.k., but appellant stumbled

into the parking lot before he got there. Mull “immediately” noticed the smell of alcohol.

Appellant had difficulty maintaining his balance and was “very unsteady on his feet.” Mull led

him to the squad car and told him to hold on to the bumper for balance. Officer Mull described

appellant as “very amped up,” speaking “really fast,” and “somewhat repetitive.” Based on his

observations, he requested backup from the DWI unit.


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       DWI Officer Watkins arrived shortly thereafter and conducted a DWI investigation, which

included an interview and field sobriety tests. The video of these tests was admitted into evidence.

Appellant can be heard on the audio portion of the recording admitting that he had been drinking

and apologizing to Officer Watkins for his poor performance on the field sobriety tests. Officer

Mull was present during these tests. When the tests concluded, both officers arrested appellant.

       Officer Mull testified that he observed appellant violate a traffic law for reckless driving,

his squealing tires violated the Dallas City Code noise provision, and appellant posed a danger to

the public. Mull also said that based on his training and experience at the DPD, it would be

reasonable for him to rely on Officer Watkins as a member of the DWI team to administer field

sobriety tests, especially since he observed them.

       Appellant maintains that the State failed to establish probable cause for the warrantless

arrest because: (i) Officer Watkins was the arresting officer and did not testify, (ii) the field

sobriety test results were not admitted into evidence, and (iii) there was no evidence that Officer

Watkins was certified to administer the tests. We disagree.

        Although Officer Watkins put the handcuffs on appellant, Officer Mull conducted the

initial interview of appellant and was present throughout Officer Watkins’s subsequent interview

and administration of the sobriety tests. The sum of both officers’ knowledge is considered in the

probable cause analysis. See Woodward, 668 S.W.2d at 344. Moreover, although the test results

were not admitted, the video shows appellant’s performance on the tests.

       Specifically, the video shows that appellant swayed from side-to-side when he was

instructed to follow a horizontally moving flashlight pen with only his eyes. When appellant was

also instructed to stand on a straight line, hold his arms at his side, and take nine heel-to-toe steps

on the line, turn, and take the same number of steps to return, appellant could not place his feet on

the line, swayed, used his arms to balance, and stumbled. When taking the test, appellant stepped

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off the line, walked diagonally rather than straight, and stumbled as he walked. When asked to

raise one foot six inches off the ground, look at his foot and count until instructed to stop, appellant

could not stand straight, swayed as he counted, hopped and used his arms to maintain balance, and

nearly fell over.2

            Officer Watkins also asked appellant to recite the alphabet. Appellant could not do so, and

blamed his alcohol consumption.

            Furthermore, appellant was also unable to balance with his feet together and hands at his

sides, eyes closed, with his head tilted back, and count to thirty.

            Based on the evidence adduced and the reasonable inferences that can be made from it, the

trial court could reasonably conclude that the facts and circumstances within Officer Mull’s

knowledge were sufficient to warrant a belief that appellant committed DWI. Accordingly, the

record reasonably supports the trial court’s implicit conclusion that the State carried its burden to

prove that appellant’s warrantless arrest was properly supported by probable cause. We resolve

appellant’s first issue against him.

C.          Issue Two: Did the trial court abuse its discretion by admitting the video of appellant
            performing field sobriety tests?

            Appellant’s second issue argues that the trial court abused its discretion by admitting the

video of the field sobriety tests because: (i) the video was not properly authenticated, (ii) there was

no evidence that the video had not been altered, and (iii) the proper foundation for admission was

not laid. The State responds that any error was not preserved because appellant failed to specify

what was lacking in the predicate when he objected and (ii) no authentication objection was made

at trial.




      2
        Although not specifically named in the record, these appear to be standardized field sobriety tests; specifically, the HGN test, the walk-and-
turn test, and the one-leg stand test. See generally, Kamen v. State, 305 S.W.3d 192, 194 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(explaining standardized field sobriety tests).

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       We review the trial court’s admission of evidence of abuse of discretion. Tillman v. State,

354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Here, even if appellant had preserved the error, we

cannot conclude the trial court abused its discretion by admitting the video. Because suppression

hearings involve only preliminary questions, the rules of evidence, except with respect to

privileges, do not apply. Granados v. State, 85 S.W.3d 217, 226–27 (Tex. Crim. App. 2002). We

thus resolve appellant’s second issue against him.

                                       III.   CONCLUSION

       Having resolved both of appellant’s issues against him, we affirm the trial court’s

judgment.




                                                     /Bill Whitehill/
                                                     BILL WHITEHILL
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47
161415F.U05




                                               –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 RUBEN ALEJANDRO GARCIA,                           On Appeal from the County Criminal Court
 Appellant                                         of Appeals No. 2, Dallas County, Texas
                                                   Trial Court Cause No. MB14-63674-M.
 No. 05-16-01415-CR        V.                      Opinion delivered by Justice Whitehill.
                                                   Justices Stoddart and Boatright
 THE STATE OF TEXAS, Appellee                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 5, 2018.




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