                                 MEMORANDUM OPINION
                                         No. 04-10-00322-CR

                                         Kimberly R. SADA,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR2005
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 2, 2011

AFFIRMED

           A grand jury indicted appellant, Kimberly Sada, for possession of a controlled substance,

less than one gram of cocaine. After the trial court denied her motion to suppress the drug

evidence, appellant waived her right to a jury trial and entered into a plea-bargained guilty plea.

On appeal, she asserts the trial court erred by denying her motion to suppress because the

arresting officer did not have probable cause to initially arrest her for driving under the influence.

We disagree and affirm.
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                                                    BACKGROUND

           The only evidence adduced at the suppression hearing was the testimony of San Antonio

Police Officer Rachel Mendez. On January 13, 2009, Mendez was dispatched to the scene of an

unconscious person sitting in a running vehicle in the area of Houston Street and Interstate 10. 1

When Mendez arrived at the scene, she observed appellant slumped over the driver’s seat, while

the vehicle was in one of the Houston Street lanes with the transmission still in the drive

position. Appellant was unconscious and unresponsive. Mendez spoke to appellant and shook

her in an attempt to rouse her. When appellant finally spoke, she was “very incoherent, [and

had] very slurred speech.” At this point in time, Mendez believed appellant was intoxicated and

posed a danger to both herself and anyone else on the roadway because, with the transmission

still in drive, the vehicle could have rolled forward with no one controlling it. Mendez reached

into the vehicle and put the transmission into park to prevent the vehicle from rolling. When

another officer arrived at the scene, they called EMS because appellant appeared to be going in

and out of consciousness. The officers got appellant out of the vehicle but she had “a hard time

holding herself up or standing on her own.” Mendez asked appellant if she had taken anything,

and Mendez thought appellant responded that she had taken Xanax. For all these reasons,

Mendez decided to arrest appellant for “DWI because she was under the influence.”

           Mendez then asked appellant if she had anything on her such as any drugs or weapons.

Because the officers had decided to arrest appellant for DWI, Mendez began to search appellant.

During the pat-down, appellant continuously tried to reach for her bra. Mendez said that for her

own safety she pulled appellant’s bra out through her clothing and a small baggie that appeared

to contain a controlled substance fell to the ground. The substance field-tested positive for



1
    The record does not indicate the time of day.

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cocaine. Once the cocaine was discovered, EMS decided to give appellant a shot of Narcan in

the event appellant overdosed. Appellant was transported to the hospital.

       On cross-examination, defense counsel focused on the point in time at which Mendez

decided to arrest appellant relative to when Mendez began to search appellant. Mendez said

EMS personnel were present while she searched appellant, but she could not remember at what

point in time EMS personnel examined appellant. Mendez admitted appellant was not under

arrest when she was taken out of the vehicle and Mendez admitted she did not conduct any of the

usual sobriety field tests. Mendez’s report did not indicate appellant was arrested for DWI, but

instead noted the offense as possession of a controlled substance. However, Mendez explained

that appellant was already under arrest for DWI when Mendez pulled on appellant’s bra because

at that point appellant said she had taken Xanax. Mendez explained that at the time she wrote

her report, the decision not to arrest appellant for driving under the influence had already been

made because appellant was taken to the hospital.

                                   STANDARD OF REVIEW

       On appeal, appellant asserts Mendez’s search violated the Fourth Amendment to the

United States Constitution as well as article I, section 9, of the Texas Constitution. Both the

Fourth Amendment to the United States Constitution and article I, section 9, of the Texas

Constitution protect the right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. 1,

§ 9. Article I, section 9 of the Texas Constitution does not offer greater protection to individuals

against unreasonable searches and seizures than the Fourth Amendment. Garza v. State, 137

S.W.3d 878, 885 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Therefore, we make no

distinction between appellant’s federal and state claims.



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       We review the trial court’s ruling on a motion to suppress under an abuse of discretion

standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in

the light most favorable to the trial court’s ruling and will reverse only if the ruling is outside the

zone of reasonable disagreement.       Id.   We give almost total deference to the trial court’s

determination of historical facts, especially those based on an evaluation of the witnesses’

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

review de novo the trial court’s application of the law of search and seizure to the facts. Wiede v.

State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We will sustain the trial court’s ruling “if it is

reasonably supported by the record and is correct on any theory of law applicable to the case.”

Dixon, 206 S.W.3d at 590.

                                             ANALYSIS

       Appellant phrases the issue on appeal as whether Mendez had probable cause to initially

arrest appellant for DWI without a warrant. Appellant asserts Mendez never developed probable

cause that appellant was intoxicated from Xanax because that information standing alone did not

amount to sufficient probable cause to believe appellant had committed the offense of driving

while intoxicated. According to appellant, because an inquiry into whether she had a medical

emergency or was under the influence was on-going when she was searched, she was not “under

arrest” at the time of the search, and therefore, the drug evidence should have been suppressed.

       Appellant concedes the definition of “intoxication” includes “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 . . . .” TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2003). However,

appellant contends the State failed to meet its burden of proof at the suppression hearing with



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any competent or reliable evidence that the loss of appellant’s use of her normal mental and

physical faculties was attributable to the ingestion of Xanax.

       Appellant relies on the Texas Court of Criminal Appeals’ opinion in Layton v. State, 280

S.W.3d 235 (Tex. Crim. App. 2009) for her argument that a lay person, such as Mendez, is not

competent to determine whether Xanax would have any effect on appellant’s condition. The

defendant in Layton was charged with driving while intoxicated by the introduction of alcohol

into the body. Id. at 238. On appeal, the defendant argued the trial court erred by admitting

evidence of his use of Xanax and Valium without requiring the State to show the relevance of the

testimony regarding his use of the drugs through reliable and competent scientific evidence.

Both the trial court and the court of appeals determined the testimony about the defendant’s use

of Xanax and Valium was admissible as predicate inquiries to the HGN test administered when

he was arrested.    Id. at 241.    However, the Court of Criminal Appeals agreed with the

defendant’s argument because there was no evidence as to the dosage taken by the defendant, the

exact times of ingestion, or the half-life of the drug in the human body, and there was no

testimony indicating the arresting officer had any medical knowledge regarding the uses of

Xanax and Valium, or about the effect of combining the medications with alcohol. Id. at 241-42.

       Appellant’s reliance on Layton is misplaced. In Layton the issue was whether evidence,

introduced at trial, of the defendant’s use of Xanax and Valium was inadmissible without the

State proving the accuracy and reliability of the evidence and its relevance to whether the

defendant was intoxicated by the introduction of alcohol. Here, the issue is whether Mendez had

probable cause to arrest appellant for driving under the influence based on the totality of the

circumstances facing the arresting officer. Therefore, we do not agree that the State was required

to produce expert testimony on the effect of Xanax on appellant’s condition.



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       A warrantless arrest involves the existence of probable cause to believe that some offense

has been or is being committed. See Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App.

2006). To establish probable cause to arrest, the evidence must show that at that moment of the

arrest the facts and circumstances within the officer’s knowledge and of which she had

reasonably trustworthy information were sufficient to warrant a prudent person in believing that

the arrested person had committed or was committing an offense. Id. 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. Amador

v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). A finding of probable cause requires

“more than bare suspicion” but “less than . . . would justify . . . conviction.” Id. (quoting

Brinegar v. United States, 338 U.S. 160, 175 (1949)).

       Mendez testified that the following circumstances led her to believe appellant was under

the influence: she was found unconscious in the driver’s seat with the vehicle still in drive and

not in park; she was slurring her speech; she could “barely hold herself up”; and she said she had

taken Xanax. Under the totality of the circumstances facing the arresting officer, the trial court

could have concluded it was not unreasonable for Mendez to believe appellant’s behavior and

condition were indicative of intoxication and Mendez had probable cause to arrest appellant for

driving while intoxicated. As the sole judge of Mendez’s credibility, the trial court apparently

believed Mendez’s explanation that the decision to arrest appellant for DWI was made before the

search began; however, because appellant was given a dose of Narcan and taken to the hospital,

she was not ultimately arrested for DWI but was, instead, arrested for possession of a controlled

substance. On this record, we conclude the trial court did not abuse its discretion by denying

appellant’s motion to suppress.



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                                           CONCLUSION

       We overrule appellant’s issues on appeal and affirm the trial court’s judgment.

                                                           Sandee Bryan Marion, Justice

Do not publish




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