                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 THE STATE OF TEXAS,                               §
                                                                   No. 08-09-00137-CR
                   Appellant,                      §
                                                                      Appeal from the
 v.                                                §
                                                           County Criminal Court at Law No. 1
 EDUARDO MORALES,                                  §
                                                                 of El Paso County, Texas
                   Appellee.                       §
                                                                    (TC# 20080C01361)
                                                   §


                                   MEMORANDUM OPINION

       The State appeals the trial court’s order granting Eduardo Morales’ motion to suppress. We

sustain the State’s sole issue, reverse the trial court’s order, and remand for further proceedings.

                                          BACKGROUND

       Morales was charged by information for driving while intoxicated. Morales subsequently

filed a motion to suppress his arrest and any evidence seized as a result of that arrest, claiming the

arrest was not based on probable cause since the officers did not observe him operating his

motorcycle. Morales did not contest that he was intoxicated or any other elements of the charged

offense.

       At the suppression hearing, El Paso Police Officer Eloy Serna testified that on January 27,

2008, at approximately 12:30 a.m., he and his partner, Pablo Estrada, were on routine patrol when

he observed a dark silhouette in the middle of the roadway on the double-yellow lines. As they drew

closer, the officers saw that the silhouette was Morales, straddling his motorcycle in the inside lane.

It appeared that Morales was attempting to kick-start the bike as he was moving his left foot up and
down on the bike. Morales’ headlights were not on, and he was unable to start his bike. Serna

thought Morales appeared to be intoxicated.

        The officers asked Morales to dismount, and they pushed the motorcycle to the sidewalk.

Meanwhile, Officer Anaya arrived and advised Serna and Estrada that he was dispatched to the

Cabaret Bar, just one block away, for a disturbance and that the suspect had left on a motorcycle.

Thus, Serna asked Morales where he was coming from, and Morales replied that he was heading

home from the Cabaret Bar.

        Based on the officers’ testimonies, Morales argued to the trial court that he was not

“operating a motor vehicle because the motor vehicle was not operating.” According to Morales,

simply “straddling that motorcycle without the engine running, without the brake lights illuminated,

without engaging the clutch, without changing gears is nothing more than sitting on a tricycle.”

Initially, the State responded that pretrial proceedings do not contemplate mini-trials on the

sufficiency of the evidence to support an element of the offense. The State then argued that the

totality of the circumstances, that is, Morales’ presence at the bar and then in the middle of the street,

with the officers’ observance of Morales trying to start his bike, demonstrated that Morales operated

a motor vehicle. The trial court disagreed, and granted the motion to suppress. In its findings of fact

and conclusions of law, the trial court found the officers’ testimony credible but concluded that the

officers lacked probable cause to arrest Morales since “the operation of the motorcycle was not

shown.”

                                            DISCUSSION

        On appeal, the State asserts that it was not required to sufficiently prove operation of the

motorcycle, an element of the charged offense, at the suppression hearing. According to the State,

a motion to suppress is concerned with the legality of the seizure of evidence, not whether the
prosecutor can sufficiently prove the elements of the charged offense. Arguing that the information

possessed by the police provided sufficient probable cause to believe Morales had committed the

offense of driving while intoxicated, the State concludes that the arrest was lawful, and that the trial

court’s ruling was erroneous and effectively denied the State its right to proceed to trial on the

lawfully obtained evidence. Morales did not file a brief responding to the State’s contentions.

                                         Standard of Review

        The applicable standard of review is as follows:

        When reviewing the trial court’s ruling on a motion to suppress, we view the
        evidence in the light most favorable to the trial court’s ruling. When the trial court
        makes explicit fact findings, we determine whether the evidence, when viewed in the
        light most favorable to the trial court’s ruling, supports those findings. We review
        the trial court’s legal ruling de novo. We uphold the trial court’s ruling if it is
        supported by the record and correct under any theory of law applicable to the case.

State v. Iduarte, 268 S.W.3d 544, 548-549 (Tex. Crim. App. 2008) (citations omitted).

                                   Limits of Suppression Hearings

        A suppression hearing has very limited purposes. See Iduarte, 268 S.W.3d at 551; Woods

v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). Those purposes include addressing

preliminary matters, that is, those matters that can be resolved before there is a trial on the merits of

the case. Iduarte, 268 S.W.3d at 551-52; Woods, 153 S.W.3d at 415. Suppression hearings,

however, do not authorize mini-trials on the sufficiency of the evidence to support an element of the

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

56, 60 (Tex. App.–El Paso 2008, pet. stricken); Harris v. State, 173 S.W.3d 575, 580 (Tex.

App.–Fort Worth 2005, no pet.); State v. Bartee, 894 S.W.2d 34, 40 n.4 (Tex. App.–San Antonio

1994, no pet.); State v. Jimenez, 763 S.W.2d 436, 437 (Tex. App.–El Paso 1988, pet. ref’d). Thus,

as applicable to this case, the only issue the trial court could determine was whether the officers had
probable cause to arrest Morales, not whether the State could present sufficient evidence to support

one of the elements of the charged driving-while-intoxicated offense.

                                        Authority to Arrest

       Here, the State asserts that the officers lawfully arrested Morales without a warrant because

the officers had probable cause to believe a breach of peace was committed and the events occurred

at a suspicious place. We agree.

       Article 14.03(a) of the Code of Criminal Procedure authorizes a peace officer to make an

arrest for breach of peace without a warrant (1) if there is probable cause and (2) the arrest occurs

at a suspicious place. TEX . CODE CRIM . PROC. ANN . art. 14.03(a) (Vernon 2005); Dyar v. State, 125

S.W.3d 460, 462-64 (Tex. Crim. App. 2003). Public intoxication and driving while intoxicated are

breaches of peace. Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004); Trent v. State,

925 S.W.2d 130, 133 (Tex. App.–Waco 1996, no pet.).

       Probable cause to arrest exists when “‘at that moment [of the arrest] the facts and

circumstances within the officer’s knowledge and of which he had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the arrested person had

committed or was committing an offense.’” Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App.

2006) (quoting Beverly v. State, 792 S.W.2d 103, 104-05 (Tex. Crim. App. 1990). While probable

cause requires more than mere suspicion, it requires far less evidence than the evidence needed to

support a conviction. Middleton v. State, 125 S.W.3d 450, 460 (Tex. Crim. App. 2003). Further,

any place may become suspicious when (1) a person at that location and the accompanying

circumstances raise a reasonable belief that the person has committed a crime, and (2) exigent

circumstances call for immediate action or detention by the police. Swain v. State, 181 S.W.3d 359,

366 (Tex. Crim. App. 2005). In determining the officer’s authority to arrest under article 14.03(a),
we consider the totality of the circumstances. Dyar, 125 S.W.3d at 468.

         Looking at the totality of the circumstances, we believe the officers lawfully arrested

Morales. The information known to the officers was that just after midnight, a suspect involved in

a disturbance left the Cabaret Bar on a motorcycle minutes before the officers observed Morales in

the middle of the roadway, straddling a motorcycle. Although at the time Serna and Estrada first

observed Morales, he was unsuccessfully kick-starting his motorcycle, Morales told the officers that

he was coming from the Cabaret Bar and heading home. Morales does not contest that he was

intoxicated. From this evidence, the officers could have reasonably believed that Morales drove at

least one block, while intoxicated, thus giving them probable cause to arrest for driving while

intoxicated.1 See Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988) (stating that an

officer has probable cause to arrest when “at that moment the facts and circumstances within the

officer’s knowledge and of which (he) had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the arrested person had committed or was committing an

offense”); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (explaining that probable

cause deals with probabilities and may be established by far less evidence than that necessary to

support a conviction or even a finding by a preponderance of evidence); Texas Dep’t. of Pub. Safety

v. Pruitt, 75 S.W.3d 634, 640-41 (Tex. App.–San Antonio 2002, no pet.) (finding probable cause to

believe defendant operated a motor vehicle when he admitted to officer that he was driving the

vehicle involved in the accident). Moreover, because the officers had a reasonable belief that

Morales drove while intoxicated, immediate detention and action by the police was necessary to


        1
           Even if we were to conclude that the officers lacked probable cause to arrest Morales for driving while
intoxicated because the officers did not actually see Morales driving, the officers had probable cause to arrest for
public intoxication inasmuch as Morales does not contest that he was intoxicated. See Pringle v. State, 732 S.W .2d
363, 368 (Tex. App.–Dallas 1987, pet. ref’d); Reynolds v. State, 902 S.W .2d 558, 560 (Tex. App.–Houston [1st
Dist.] 1995, pet. ref’d).
move Morales off the road and prevent him from hurting himself or others by driving in an

inebriated state. Thus, we find that the arrest occurred in a suspicious place. See Dyar, 125 S.W.3d

at 468 (combination of slurred speech, red glassy eyes, strong smell of alcohol and unintelligible

responses soon after single car accident made hospital “suspicious place” to satisfy probable cause

for driving while intoxicated); Sandoval v. State, 35 S.W.3d 763, 768 (Tex. App.–El Paso 2000, pet.

ref’d) (backyard where intoxicated suspect was located following accident deemed “suspicious

place”); Pringle, 732 S.W.2d at 368 (parking lot where suspect was found in her car deemed

suspicious place); Peters v. Texas Dep’t of Public Safety, No. 05-05-00103-CV, 2005 WL 3007783,

at *2 (Tex. App.–Dallas Nov. 10, 2005, no pet.) (mem. op., not designated for publication) (“signs

of a suspect’s intoxication and his location may combine to create a ‘suspicious place’ for the

purposes of establishing probable cause in DWI cases”).

        In short, because the record shows (1) the officers had probable cause to believe a breach of

peace, driving while intoxicated, was committed, and (2) the arrest occurred at a suspicious place,

we conclude the officers were authorized to arrest Morales without a warrant pursuant to article

14.03(a). Whether the State sufficiently proved beyond a reasonable doubt that Morales operated

a motor vehicle was simply not an issue for the trial court to determine at the suppression hearing;

rather, the only issue was whether the officers, based on all the facts and circumstances known to

them at the time, had probable cause to lawfully arrest Morales without a warrant. See Iduarte, 268

S.W.3d at 551-52; Woods, 153 S.W.3d at 415; Marquez, 281 S.W.3d at 60; Harris, 173 S.W.3d at

580; Bartee, 894 S.W.2d at 40 n.4; Jimenez, 763 S.W.2d at 437. Accordingly, we sustain the State’s

sole issue.

                                          CONCLUSION

        Having sustained the State’s sole issue, we reverse the trial court’s ruling on Morales’ motion
to suppress and remand the case to the trial court for further proceedings consistent with this opinion.



                                                GUADALUPE RIVERA, Justice

March 10, 2010

Before McClure, J., Rivera, J., and Guaderrama, Judge
Guaderrama, Judge, sitting by assignment

(Do Not Publish)
