                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00319-CR


MARLENE COOK                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

      FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
               TRIAL COURT NO. CR-2014-07321-E

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                                  OPINION

                                    ----------

      Marlene Cook appeals from the trial court’s denial of her motion to

suppress. We affirm.

                                 Background

      A City of Lewisville police officer arrested appellant without a warrant at

her home after responding to 911 calls about a possible drunk driver and

performing field sobriety tests on appellant in the parking lot in front of her
building.   Appellant’s blood was drawn after the arrest.            The State filed a

complaint   and   information    alleging       that   appellant   had   committed   the

misdemeanor offense of driving while intoxicated and that she had a blood

alcohol concentration of 0.15 or more. See Tex. Penal Code Ann. § 49.04(a), (d)

(West Supp. 2016). Appellant filed a motion to suppress the blood evidence and

any statements she made while in custody, in which she contended that she had

been detained without reasonable suspicion and arrested without probable cause

or a lawful warrant in violation of the Texas and United States Constitutions.

After a hearing, at which she also objected that she was arrested in violation of

article 14.03 of the code of criminal procedure, the trial court denied her motion

to suppress. The trial court also filed findings of fact and conclusions of law in

accordance with appellant’s request. Appellant then pled nolo contendere to the

allegations in the information, the trial court found her guilty of the offense as

alleged in the information, and the trial court assessed her punishment at 250

days’ confinement and a $500 fine. The trial court suspended her sentence and

placed her on community supervision for fifteen months.

                                Motion to Suppress

      In her first issue, appellant contends that the trial court erred by denying

her motion to suppress because, under the totality of the circumstances, (1) there

was no probable cause to arrest her and (2) officers did not find her in a

suspicious place because there is no evidence of how much time had elapsed

between when she arrived home and when she was arrested; therefore, her


                                            2
arrest was not authorized by article 14.03 of the code of criminal procedure. Tex.

Code Crim. Proc. Ann. art. 14.03 (West 2015). In her second issue, appellant

contends that the officers did not have reasonable suspicion under the Fourth

Amendment and article I, section 9 of the Texas Constitution to detain her to

perform an investigation.

      Preservation

      The court of criminal appeals has cautioned that our review of motions to

suppress is subject to traditional error preservation principles. Hailey v. State, 87

S.W.3d 118, 121–22 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 1060 (2003).

Appellant’s written motion to suppress raised only constitutional grounds

regarding lack of reasonable suspicion and probable cause. At the hearing on

the motion, appellant additionally argued that article 14.03 did not authorize the

warrantless arrest because no officer witnessed her committing an offense, the

911 callers’ observations could not be considered to be within the collective

knowledge of the arresting officer, and there is no evidence of the amount of time

that had elapsed between when she arrived home and when she was arrested.

Because these were the only objections at trial related to the validity of the arrest

under article 14.03––as well as appellant’s only arguments on appeal regarding

article 14.03––these are the only potential grounds for reversal as to that statute.

See id.




                                         3
      Applicable Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). 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 fact findings.

State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We then review

the trial court’s legal ruling de novo unless its explicit fact findings that are

supported by the record are also dispositive of the legal ruling. Id. at 818.

      To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then


                                         4
required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

       Facts Adduced at Motion to Suppress Hearing

       At the motion to suppress hearing, Christy Fitzgerald, a public safety

dispatcher with the City of Lewisville, testified that around 9:45 p.m. on the

evening of July 19, 2014, she received a 911 call regarding a possibly intoxicated

driver. According to Fitzgerald, the caller identified herself, said the car at issue

was a silver Hyundai, gave Fitzgerald a license plate number, and said the car

had crossed over “about three lanes” and at some point struck a concrete wall.

The caller told Fitzgerald that she had followed the driver of the Hyundai until the

car “pulled into a garage at some homes . . . located off Rock[b]rook.” The caller

said the number on the garage was 87. Fitzgerald input this information into the

dispatch call notes, and a different dispatcher “relayed the information to the

officers.”

       The trial court listened to the 911 call. The time of the call is recorded as

9:46 p.m. On the recording, the caller identified herself by first and last name,

telephone number, and vehicle color and model. She said that she watched a

silver Hyundai travel over three lanes on westbound Highway 121 and that it

almost hit a concrete barrier. The caller described the direction the Hyundai’s

driver was traveling. As the caller was speaking to Fitzgerald, she exclaimed that


                                         5
the driver of the Hyundai had run into the center median of the road on which

they were traveling. At one point, Fitzgerald indicated that a different caller was

also following the Hyundai and had said that it was pulling into some apartments.

The initial caller kept describing the location where the Hyundai was headed until

the driver pulled onto Rockbrook, into an apartment complex, and from there into

garage number 87. The caller never saw the driver of the Hyundai, but she did

see the car pull into that particular garage. The caller agreed to wait at the scene

until the police could arrive.

      Detective Mitchell Colbath with the Lewisville Police Department testified

that he was on duty the evening of July 19, 2014, and he was dispatched to a call

regarding a possible intoxicated driver at around 9:45 p.m. The dispatcher gave

him the location of the call as 2500 Rockbrook Drive. The dispatcher told him

that the car involved was a silver Hyundai, gave the license plate number, and

said the car was “actually going across several lanes of traffic, back and forth,”

and that it “almost struck several vehicles and concrete barriers.”       Detective

Colbath met Officer Russell Brininstool at the location on Rockbrook Drive as

well as “several witnesses that had called into dispatch.”

      The witnesses had already told Officer Brininstool that the car was in

garage number 87. Because the garages were on the back side of the building

and the doors to the homes were in front, Detective Colbath and Officer

Brininstool walked around to the front of the apartments and found the front door

that had number 87 on it. Appellant answered when they rang the doorbell, but


                                         6
according to Detective Colbath it took her about five to ten minutes to do so.

Appellant identified herself when the officers asked her name, and she said she

had just arrived home after having been driving. Detective Colbath noticed while

he was speaking with appellant that her “eyes were red and watering[,] her

speech was slurred[ and] thick tongued, and there was an immediate odor of

alcohol when she opened the door” that he could smell when she spoke.

      Detective Colbath asked appellant if she drove a silver Hyundai, and she

said yes.   He then asked appellant to step outside her apartment, and she

agreed. After Detective Colbath asked appellant if she had been drinking, she

told him she had been at a birthday party and had drunk “several . . . glasses of

wine.” He also asked her whether she had drunk anything since coming home,

and she said no. Detective Colbath had appellant perform standardized field

sobriety tests.

      The State played a recording from Detective Colbath’s in-car camera for

the trial court but only of events up to the time he arrested appellant. The DVD is

from Detective Colbath’s dashcam, but the officers’ encounter with appellant at

the door can be heard. Detective Colbath can be heard asking appellant if she

was the only one at home; although it is difficult to hear her over the sound of a

dog barking, appellant can be heard answering, “Yes.” She admitted that she

just got home and that she drives a silver Hyundai Elantra. She also told the

officers that she had come home from a birthday party in Mansfield and that she




                                        7
had had “a little bit to drink,” which she later clarified was two or three glasses of

wine.

        Detective Colbath and appellant can be seen walking to the front of

Detective Colbath’s car and into the view of the camera.             When Detective

Colbath asked appellant about her vehicle, she pointed back toward the

apartment outside of the view of the camera and said, “It’s there.” He asked her

if she was feeling the effects of the alcohol “right now,” and she said yes. She

did not remember hitting a curb while driving, but when Detective Colbath asked

if she felt intoxicated, she answered, “Yes, I’ve had a few drinks.” Appellant had

trouble following Detective Colbath’s instructions during the field sobriety tests,

and she could not walk in a straight line during the heel-toe test. She also had

trouble counting backward, omitting at least one number.               Appellant told

Detective Colbath she had not had anything to drink since arriving home.

        On cross-examination, Detective Colbath confirmed that he was not sure

how long appellant had been home before he contacted her. He did not verify

whether a silver Hyundai was located in garage 87, so he likewise had not

verified whether a car that might have been in the garage had any damage to it

or whether it was still warm.     Additionally, the witnesses at the scene never

described the physical appearance of the driver of the car.          The information

available to him when he contacted appellant was that witnesses had watched a

silver Hyundai driving erratically and that they had also watched that same car

being driven into garage number 87.           Detective Colbath also testified that it


                                          8
appeared appellant would have had time to change clothes after coming home

from the party.

      According to Detective Colbath, appellant was detained at the time she

answered the door for him and Officer Brininstool, and he had reasonable

suspicion to detain her for the offense of driving while intoxicated at that time. He

believed that after the initial contact he also had probable cause to arrest

appellant because “she had admitted that she was driving[ and] that she drove

the Hyundai, . . . she had red, watery eyes, slurred speech, and an odor of

alcohol,” and she had told the officers that she was the only one home.

      Officer Brininstool described the driving facts he had been told as,

according to witnesses, “the vehicle was all over the roadway.” He said the

address where the vehicle stopped was given by two separate witnesses.1 He

arrived at the location first and made contact with four witnesses who were

parked “out back of the garage that the vehicle pulled into.”        The witnesses

confirmed that the car had parked in that garage, which was numbered 87.

      Officer Brininstool testified similarly to Detective Colbath regarding the

encounter with appellant. According to Officer Brininstool, appellant told them

that she had just arrived home after driving home from a birthday party in

Mansfield. He believed Detective Colbath had asked her what type of vehicle

she drove and the color, and he confirmed that it corresponded with the 911

      1
       In addition to the two callers, at least one of the callers had a passenger in
her car.


                                         9
caller’s description. Officer Brininstool described appellant as “having a hard

time keeping her balance,” speaking with a “very thick tongue,” and “kind of”

mumbling.    After appellant went into the parking lot with Detective Colbath,

Officer Brininstool left them to take statements from the witnesses; when he was

done, he stayed around the scene, making sure it was safe.

      Officer Brininstool confirmed that he and Detective Colbath did not have

any description of the driver and that witnesses did not tell him they saw the

driver. He did say, though, that he had seen the townhomes in which unit 87 was

located when they were being built, and the garages are directly behind the

dwellings corresponding to the same number. Officer Brininstool did not believe

appellant was detained when she opened the front door; rather, he believed that

there was reasonable suspicion to detain appellant once he and Detective

Colbath had confirmed that she had been the driver of the car and saw signs that

she was intoxicated.     He did not think there was probable cause to arrest

appellant until after she had completed the field sobriety tests.

      In closing, appellant argued that (1) there is no evidence regarding what

dispatch told the officers, (2) at least one of the officers understood there was an

allegation of “weaving,” (3) there is an issue regarding the timing of the arrest

under article 14.03,2 specifically, that the officer did not see an offense in his


      2
       Appellant never challenged the constitutionality of article 14.03(a)(1);
therefore, we do not address it on appeal. See Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009); Curry v. State, 910 S.W.2d 490, 496 (Tex.
Crim. App. 1995).


                                         10
presence and there are not enough facts to show that appellant was in a

suspicious place, (4) the officers never inspected the Hyundai to see if the driving

facts given by the witnesses could be corroborated, (5) Detective Colbath could

not have had reasonable suspicion to detain appellant when she answered the

door because all he knew was that she was answering the door to a townhome,

and (6) Detective Colbath did not have probable cause to make a warrantless

arrest.

      Findings of Fact and Conclusions of Law

      The trial court made extensive findings of fact and conclusions of law. It

found that all of the witnesses were credible.       It also found that Fitzgerald

received the 911 call “around 9:48 p.m. on July 19, 2014,” that the 911 caller

identified herself and said she was following a silver Hyundai that she identified

by license plate number, that the caller “followed the subject vehicle without

losing sight of the vehicle throughout the duration of the call to 911,” and that the

caller described the subject’s driving as “weaving, almost hit[ting] a concrete

barrier, and . . . hit[ting] a median.” The trial court further found that the same

caller told Fitzgerald that she saw the vehicle enter garage number 87 at 2500

Rockbrook Drive, that she stayed at the townhome until the Lewisville officers

arrived within ten minutes, and that the vehicle never left the garage. The trial

court additionally found that “Fitzgerald relayed all the information she received

from [the caller] to a dispatcher, who then relayed the information to the

responding officers.”


                                         11
      The trial court further found that Detective Colbath was dispatched around

9:48 p.m. on July 19, 2014, that the dispatcher notified him while he was en route

to the call location that several witnesses had called 911, and that the vehicle

was a silver Hyundai with the same license plate number reported by the 911

caller. The trial court found that “Detective Colbath testified that he was informed

via dispatch that the 911 callers followed defendant to the townhomes at 2500

Rockbrook Drive, Lewisville, Texas.”      It also found that “Detective Colbath

testified that approximately 5 to 10 minutes elapsed between the time he was

dispatched to the call location and the time he arrived at the scene. Detective

Colbath further testified that he spoke with Officer Brininstool for less than a

minute.”   The trial court made the following additional findings relevant to

appellant’s interaction with Detective Colbath:

            20. Detective Colbath testified that he was able to locate
      garage number 87 and was able to locate the corresponding
      residence, demarcated as townhome number 87.

            21. Detective Colbath testified that once he located townhome
      87 he knocked on the door and made contact with a female.

             22. Detective Colbath testified that the female identified
      herself as [appellant]. [Appellant] then confirmed that she owns a
      silver Hyundai Elantra. She also confirmed that she had driven the
      Elantra this evening and had recently arrived at her home.

            23. Detective Colbath testified that [appellant] said she was
      the only person in the residence at that time.

            24. Detective Colbath testified that [appellant] advised she had
      driven home from a birthday party in Mansfield and that she had 2 to
      3 glasses of wine at the birthday party. Detective Colbath further



                                        12
testified that [appellant] advised she had not had anything to drink
since arriving at her home.

      25. Detective Colbath testified that after [appellant] confirmed
that she was the driver and owner of the silver Hyundai Elantra and
had recently arrived home, he asked her to come outside so he
could further investigate.

     26. Detective Colbath testified that he observed [appellant]
and noticed watery red eyes, slurred thick [tongued] speech and an
immediate odor of alcohol when [appellant] spoke.

      27. Detective Colbath testified that once [appellant] joined him
outside, he requested her to perform the Standardized Field
Sobri[e]ty Test battery, to which she complied.

      28. Detective Colbath testified that [appellant] had difficulty
walking and almost fell while walking.

       29. Detective Colbath testified that once he concluded his
investigation, he had probable cause to believe that [appellant] had
committed the offense of Driving While Intoxicated and he then
placed [appellant] under arrest.

The trial court made other findings pertinent to Officer Brininstool:

       32. Officer Brininstool testified that he was dispatched to a call
for an intoxicated driver around 9:48 p.m. on July 19, 2014.

       33. Officer Brininstool testified that while en route to the call
location, he was notified that there were several witnesses who
called 911, that the subject vehicle was a silver Hyundai Elantra, and
he was given the Elantra’s license plate number . . . .

       34. Officer Brininstool testified that he was the first officer to
arrive at the call location of 2500 Rockbrook Dr, #87, Lewisville,
Denton County, Texas.

       35. Officer Brininstool testified that once on scene, he spoke
with the witnesses, including [the 911 caller], that had called 911 to
report the possible intoxicated driver.




                                   13
    36. The witnesses saw the subject vehicle enter garage
number 87.

       37. Officer Brininstool testified that he was able to locate
garage number 87 and he further testified that he had seen these
particular townhomes being built thus he knew townhome residence
number 87 was attached to garage 87 and as an added measure of
accuracy, he counted the townhome doors to match the
corresponding garage numbers before knocking on [appellant’s]
door.

      38. Officer Brininstool testified that he was present when
Detective Colbath knocked on the door of residence number 87 and
made contact with the female that answered the door.

      39. Officer Brininstool testified that he did not believe
[appellant] to be detained at the time she opened the door.

      40. Officer Brininstool testified that the female identified
herself as [appellant] and she advised she owned a silver Hyundai
Elantra, had driven that car on this specific evening, and had
recently arrived home.

     41. Officer Brininstool testified that [appellant]          then
accompanied Detective Colbath outside upon his request.

      42. Officer Brininstool testified that once [appellant] was
outside with Detective Colbath, he was not the investigating officer
and his primary duty was that of a back-up officer and scene
security. Officer Brininstool further testified he did not perform the
Standardized Field Sobriety Tests and did not participate in the
decision to arrest [appellant].

      43. Officer Brininstool testified that he took statements from
the 911 callers.

The trial court made the following conclusions of law:

      1. The Defendant’s Motion to Suppress challenges Detective
Colbath’s reasonable suspicion to detain [appellant] and Detective’s
Co[l]bath’s ability to arrest [appellant] pursuant to Texas Code of
Criminal Procedure Art. 14.03, without a warrant.



                                 14
       2. Any officer may arrest, without [a] warrant, persons found in
suspicious places and under circumstances which reasonably show
that such persons have been guilty of some felony, in violation of
Title 9, Chapter 42, Penal Code, breach of the peace, or offense
under Section 49.02, Penal Code, or threaten, or about to commit
some offense against the laws. Texas Code of Criminal Proc. Art.
14.03 (a)(1).

       3. Detective Colbath was investigating the offense of driving
while intoxicated when he knocked on the front door of townhouse
#87. Driving while intoxicated is a breach of the peace. Romo v.
State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979).

      4. The Court agrees with Officer Brininstool, not Detective
Colbath. At the moment [appellant] answered the door, there was
not reasonable suspicion to detain [appellant].

       5. When [appellant] voluntarily opened the door, Detective
Colbath observed [appellant] and noticed red watery eyes, slurred,
thick [tongued] speech and an immediate odor of alcohol when the
defendant spoke.         These factors coupled with [appellant’s]
inculpatory voluntary statements of being the only person inside the
townhouse, that she had recently arrived home and that she had
been driving the suspected car gave Detective Colbath reasonable
suspicion to detain [appellant] and continue his investigation of
[appellant] for the offense of driving while intoxicated.

       6. An officer may stop and briefly detain a citizen for
investigative purposes if the officer, in light of his experience, has a
reasonable suspicion supported by articulable facts that criminal
activity may be afoot. Woods v. State, 970 S.W.2d[] 770, 773 (Tex.
App.––Austin 1998, pet. ref’d).

       7. “Reasonable suspicion” exists if an officer has specific
articulable facts that, when combined with rational inferences from
those facts, would lead him to reasonabl[y] suspect that a particular
person has engaged, is engaged, or soon will be engaging in
criminal activity. The reasonable suspicion determination is made by
considering the totality of the circumstances. Garcia v. State, 43
S.W[.]3d 527, 530 (Tex. Crim. App. 2001).

     8. The detaining officer does not have to be personally aware
of every fact that is taken into account during the reasonable


                                  15
      suspicion calculation, but it is the cumulative information known to
      detaining officer and other cooperating officers at the time of the
      detention. 911 dispatchers and call takers are considered
      cooperating officers for purposes of the reasonable suspicion
      calculation. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
      App. 2011).

            9. [Appellant] voluntarily submitted to the standardized field
      sobriety tests (SFST) battery for Detective Colbath.

             10. The additional evidence Detective Colbath discovered
      during the administration of the SFST, coupled with the information
      from Officer Brininstool and the civilian witnesses rose to the level of
      probable cause to arrest [appellant] for the offense of driving while
      intoxicated.

             11. Any determination of whether a place is a suspicious place
      for purposes of Art. 14.03(a)(1) is fact specific, but one factor
      consistently considered by the Texas Court of Criminal Appeals is
      the time between the crime and the apprehension of the suspect in a
      suspicious place. Buchanan v. State, 175 S.W.3d 868, 875-76 (Tex.
      App.––Texarkana 2005), rev’d on other grounds, 207 S.W.3d 772
      (Tex. Crim. App. 2006).

            12. [Appellant’s] townhouse became a suspicious place once
      the suspect car parked in the attached garage. There was a short
      duration of time between the time the car parked in the attached
      garage and the time the officers knocked on the door. This short
      duration of time (approximately 15 minutes) was not enough time to
      remove the suspicion from the townhouse. Dyar v. State, 125
      S.W.3d 460, 468 (Tex. Crim. App. 2003).

            13. Since Detective Colbath had probable cause to arrest
      [appellant] for a breach of the peace and Detective Colbath found
      [appellant] in a suspicious place, Detective Colbath was acting within
      his constitutional and statutory power to arrest [appellant]. Texas
      Code of Criminal Proc. Art. 14.03 (a)(1).

      Analysis

      Appellant challenges whether the officers had reasonable suspicion to

detain her to investigate a possible drunk driving offense and also whether her


                                        16
arrest was authorized under article 14.03. Because the chronology of events is

important, we will review her issues together, but we address reasonable

suspicion first.

Reasonable Suspicion

      Officers had been dispatched to the townhomes based on information

given to the police by 911 callers. Appellant voluntarily answered her door in

response to their knock. See Cornealius v. State, 900 S.W.2d 731, 733–34 (Tex.

Crim. App. 1995) (noting that nothing in United States or Texas constitutions

prohibits officer from knocking politely on closed door). In determining whether

the totality of the circumstances, viewed objectively, provide a justifiable basis for

detention, we consider the cumulative information known to the cooperating

officers at the time of the stop rather than whether those officers are “personally

aware of every fact that objectively supports a reasonable suspicion to detain.”

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), cert.

denied, 132 S. Ct. 150 (2011). Information provided to police from a citizen-

informant who identifies herself and may be held to account for the accuracy and

veracity of her report may be regarded as reliable. Id. at 914–15. The court of

criminal appeals has held that in such a scenario, the only question is whether

the information that the known citizen-informant provides, viewed through the

prism of the detaining officer’s particular level of knowledge and experience,

objectively supports a reasonable suspicion to believe that criminal activity is

afoot. Id. at 915.


                                         17
      As in Derichsweiler, there is no issue in this case with respect to the

reliability of the citizen-informant because she identified herself and, along with at

least one passenger, stayed at the scene to give witness statements to the

police. See id. at 915. Here, the collective information known to the police as

provided by the citizen-informant to the 911 dispatcher, appellant’s condition as

further witnessed by the officers, and her statements to them when she

answered the door and voluntarily spoke to them––the facts specifically listed in

the trial court’s conclusion number 5––were sufficient to give the officers

reasonable suspicion to detain appellant to further investigate whether probable

cause existed to arrest her for the offense of driving while intoxicated.        See

Dunkelberg v. State, 276 S.W.3d 503, 504–06 (Tex. App.––Fort Worth 2008, pet.

ref’d); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.––Tyler 1996, no pet.).

Accordingly, we overrule appellant’s second issue.

Validity of Warrantless Arrest

      Appellant further argues that the totality of the circumstances do not show

that Detective Colbath had probable cause to arrest her or that she was located

in a suspicious place. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1).

      Under the Fourth Amendment, a warrantless arrest is generally

unreasonable per se unless the arrest fits into one of a “few specifically defined

and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372,

113 S. Ct. 2130, 2135 (1993); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim.

App. 2005). “A police officer may arrest an individual without a warrant only if


                                         18
probable cause exists with respect to the individual in question and the arrest

falls within one of the exceptions set out in Tex. Code Crim. Proc. art. 14.01–

14.04.” Torres, 182 S.W.3d at 901 (emphasis added); see Tex. Code Crim.

Proc. Ann. arts. 14.01–.04 (West 2015 & Supp. 2016). The requirement that an

arrest must be in accordance with article 14 as well as be supported by probable

cause affords a heightened level of protection under Texas law than under the

Fourth Amendment. E.g., Milton v. State, 549 S.W.2d 190, 192 (Tex. Crim. App.

1977).

      Probable Cause

      Probable cause for a warrantless arrest requires that the officer have a

reasonable belief that––based on facts and circumstances within the officer’s

personal knowledge, or of which the officer has reasonably trustworthy

information––an offense has been committed. Torres, 182 S.W.3d at 901–02.

Probable cause must be based on specific, articulable facts rather than the

officer’s mere opinion. Id. at 902. We use the “totality of the circumstances” test

to determine whether probable cause existed for a warrantless arrest. Id.

      Appellant points out that no witnesses identified her as the driver of the

silver Hyundai, that officers did not conduct any investigation regarding any other

cars that might have been in the garage, that Detective Colbath did not ask her

what kind of car she had driven that night,3 that officers did not obtain any


      3
       Appellant argues that the video of the field sobriety tests “clearly
contradicts the statements provided by [Detective] Colbath that [she] admitted

                                        19
evidence that would affirmatively link her to the vehicle that had been driven into

garage number 87, and that there is no evidence linking her to the license plate

number of the vehicle that the witnesses saw. But although whether some facts

are absent may be considered in making a probable-cause determination, the

absence of those facts must nevertheless be considered along with the totality of

the facts available. See Parker v. State, 206 S.W.3d 593, 601 (Tex. Crim. App.

2006); State v. Garrett, 22 S.W.3d 650, 655 (Tex. App.––Austin 2000, no pet.);

State v. Long, No. 03-11-00725-CR, 2012 WL 1959316, at *6 & n.7 (Tex. App.––

Austin May 31, 2012, no pet.) (mem. op., not designated for publication) (noting

that cases describing standard of review hold that “probable-cause determination

is based on the totality of the facts and circumstances in each case, and the

absence or presence of any particular fact or circumstance is not dispositive”).

      Like reasonable suspicion, probable cause is also subject to the collective

knowledge doctrine. See U.S. v. Powell, 732 F.3d 361, 369, 372 (5th Cir. 2013),

cert. denied, 134 S. Ct. 1326 (2014); State v. Duran, 396 S.W.3d 563, 569 n.12


that she was driving any vehicle on the day of her arrest” and that “[t]he officer’s
question can be interpreted as what vehicle she normally drives rather tha[n]
what vehicle she drove home that evening (if any).” However, considering the
totality of the circumstances, it is reasonable to infer that appellant had been
driving the silver Hyundai when she admitted that she drove a silver Hyundai,
she had been driving home from a party, witnesses had followed a silver Hyundai
to her apartment complex, and one of the officers knew that the garages for the
apartments were behind the units. See State v. Woodard, 341 S.W.3d 404, 410
(Tex. Crim. App. 2011) (“[C]ourts afford the prevailing party ‘the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence.’”).


                                        20
(Tex. Crim. App. 2013).     The trial court found that probable cause to arrest

appellant for driving while intoxicated arose after Detective Colbath administered

the field sobriety tests and Officer Brininstool interviewed the 911 callers and

other civilian witnesses. We agree. See LeCourias v. State, 341 S.W.3d 483,

489–90 (Tex. App.––Houston [14th Dist.] 2011, no pet.); see also Smith v. State,

491 S.W.3d 864, 868–72 (Tex. App.––Houston [14th Dist.] 2016, pet. ref’d)

(concluding that police had probable cause to arrest Smith without a warrant in

hospital waiting room in accordance with “‘family violence’ exception” to article

14.03 after interviewing complainant who told them that Smith was her boyfriend

and had “stabbed and then also stomped on” her at home). Accordingly, we

conclude and hold that appellant’s failure of the field sobriety tests, coupled with

the information giving rise to reasonable suspicion to detain her, gave Detective

Colbath probable cause to arrest her.

      Suspicious Place

      Code of criminal procedure article 14.03(a)(1) provides that “[a]ny peace

officer may arrest, without warrant: (1) persons found in suspicious places and

under circumstances which reasonably show that such persons have been guilty

of some . . . breach of the peace.” Tex. Code Crim. Proc. Ann. art. 14.03(a)(1)

(emphasis added). For purposes of this section, driving while intoxicated is an

offense that constitutes a breach of the peace. Gallups v. State, 151 S.W.3d

196, 201 (Tex. Crim. App. 2004) (citing Romo v. State, 577 S.W.2d 251, 253

(Tex. Crim. App. [Panel Op.] 1979)). “[F]ew, if any places are suspicious in and


                                        21
of themselves. Rather, additional facts available to an officer plus reasonable

inferences from those facts in relation to a particular place may arouse justifiable

suspicion.”    Dyar v. State, 125 S.W.3d 460, 464–65 (Tex. Crim. App. 2003)

(quoting Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986) (op. on

reh’g), overruled on other grounds by McKenna v. State, 780 S.W.2d 797, 800

(Tex. Crim. App. 1989)). “Any ‘place’ may become suspicious when a person at

that location and the accompanying circumstances raise a reasonable belief that

the person has committed a crime and exigent circumstances call for immediate

action or detention by police.”4 Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim.

App. 2005), cert. denied, 549 U.S. 861 (2006).

      Whether a place is suspicious so as to justify a warrantless arrest under

article 14.03(a)(1) is a highly fact-specific analysis. Dyar, 125 S.W.3d at 468.

Although cases discuss different factors in determining whether a place may be

“suspicious” under the statute, “only one factor seems to be constant throughout

the case law. The time frame between the crime and the apprehension of a

suspect in a suspicious place is short.”      Id.   Courts have held homes to be

suspicious places when an eyewitness to a suspected crime or breach of the

peace followed a suspect to the home afterwards. See Crowley v. State, 842

S.W.2d 701, 703 (Tex. App.––Houston [1st Dist.]), pet. ref’d as improvidently

granted, 830 S.W.2d 613 (1992) (holding that garage was suspicious place when


      4
          Appellant has not challenged whether exigent circumstances existed.


                                         22
driver of other vehicle involved in traffic accident with Crowley—from which she

fled—followed her to a detached garage at a private residence and left his

passenger to watch the home while he left to call the police); Freeman v. State,

No. 05-96-00418-CR, 1997 WL 433781, at *2 (Tex. App.––Dallas Aug. 4, 1997,

pet. ref’d) (not designated for publication) (holding that Freeman’s apartment was

suspicious place when witnesses told officers they saw her driving carelessly,

leaving the scene of an accident, and stumbling to her apartment and witness

watched apartment until officers arrived to ensure Freeman did not leave).

      As to whether her apartment could be considered a suspicious place,

appellant contends that there is no concrete evidence of how much time had

elapsed between the 911 call, the dispatch of the officers to the scene, and her

subsequent arrest. She claims that no evidence supports the trial court’s finding

that only fifteen minutes had elapsed between the time the officers were

dispatched and the time they spoke to her at her front door.        According to

appellant, too much time had elapsed for officers to conclude that she had

recently been driving the car.

      In Banda v. State, another case involving a possible drunk driver found at

his or her home based on police investigation of information from identified,

eyewitness 911 callers, the court of appeals held that the short amount of time

between Banda’s arrival at his home and the police officer’s arrival––about ten

minutes––supported the conclusion that Banda was in a suspicious place. 317

S.W.3d 903, 912 (Tex. App.––Houston [14th Dist.] 2010, no pet.); see also


                                       23
Garcia v. Cockrell, No. CIV.A.301CV2261M, 2002 WL 1398550, at *1, 3–4 (N.D.

Tex. June 25, 2002, order) (adopting findings of magistrate, among them that

police had authority to arrest appellant under article 14.03(a)(1) when he was

found at home of murder suspect for whom police had warrant and appellant

admitted owning Lexus parked in front of home, which police had linked to the

murders); Dyar, 125 S.W.3d at 468 (concluding that hospital where Dyar had

been taken after one-person rollover accident was suspicious place when, while

talking to Dyar at hospital, DPS trooper saw intoxication clues and Dyar admitted

he had been drinking and driving). Here, the evidence shows that one of the 911

calls began at 9:46 p.m., that the caller told the 911 dispatcher that the person

had pulled into a garage around 9:49 p.m., that the 911 dispatcher told the caller

to stay at the scene, that Detective Colbath’s dashcam showed that he knocked

on appellant’s door around 9:57 p.m., and that appellant answered about a

minute to a minute and a half later. We conclude and hold that on these specific

facts, the trial court did not err by determining that appellant’s home was a

suspicious place for purposes of article 14.03(a)(1).      Because we have also

concluded that the totality of the circumstances support probable cause, we hold

that the trial court did not abuse its discretion by determining that the warrantless

arrest was legal.

      We overrule appellant’s first issue.




                                         24
                                 Conclusion

      Having overruled appellant’s two issues, we affirm the trial court’s

judgment.

                                              /s/ Terrie Livingston

                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

GARDNER, J., concurs without opinion.

PUBLISH

DELIVERED: November 10, 2016




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