                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-14-00198-CR

                                    Jorge ALVAREZ-GOMEZ,
                                            Appellant

                                                v.
                                               The
                                       The STATE of Texas,
                                             Appellee

                      From the County Court at Law No. 6, Bexar County, Texas
                                      Trial Court No. 362070
                          Honorable Wayne A. Christian, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 11, 2015

AFFIRMED

           Jorge Alvarez-Gomez was found guilty by a jury of driving while intoxicated. On appeal,

Alvarez-Gomez raises four points of error asserting: (1) the evidence is insufficient to support the

jury’s verdict; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred

in denying an exclusion instruction under Article 38.23 of the Texas Code of Criminal Procedure;

and (4) the trial court erred in conducting plea negotiations with the State. We affirm the trial

court’s judgment.
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                                         BACKGROUND

       On May 17, 2011, San Antonio Police Officer David Luther was on patrol when he saw a

vehicle stopped at a turnaround point on U.S. Highway 281. Officer Luther approached the vehicle

to investigate and found Alvarez-Gomez slumped over the steering wheel with the vehicle in drive.

When Officer Luther asked Alvarez-Gomez to put the vehicle in park, he noticed that Alvarez-

Gomez was slow to react, and there was a strong odor of intoxicants. After ensuring the vehicle

was in park, Officer Luther asked Alvarez-Gomez to step out of the vehicle. Alvarez-Gomez had

difficulty standing up by himself, and his speech was slurred. Officer Luther asked whether he

had been drinking, and Alvarez-Gomez responded affirmatively. After Officer Luther conducted

a horizontal gaze nystagmus (“HGN”), a field sobriety test, he arrested Alvarez-Gomez. Alvarez-

Gomez consented to a breath alcohol test which measured his breath alcohol content at .175 grams

of alcohol per 210 liters of breath.

       Alvarez-Gomez was charged by information with the offense of driving while intoxicated,

to which he pled not guilty. A jury found him guilty, and the trial court sentenced him to six

months confinement, probated for six months, and a $500 fine. Alvarez-Gomez appeals.

                                  SUFFICIENCY OF THE EVIDENCE

       Alvarez-Gomez’s challenge to the sufficiency of the evidence focuses on whether he was

operating a motor vehicle while intoxicated. Alvarez-Gomez contends he was not driving the

vehicle. He asserts that the person driving the vehicle went for help when the vehicle stalled in

the turnaround.

A.     Standard of Review

       In reviewing the sufficiency of the evidence to support a conviction, we view the evidence

“in a light most favorable to the verdict” to determine whether “a rational jury could have found

the essential elements of the offense beyond a reasonable doubt.” Williams v. State, 937 S.W.2d
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479, 482 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The jury

has the exclusive responsibility to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from the facts. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 2013);

Dorsey v. State, 24 S.W.3d 921, 924 (Tex. App.—Beaumont 2000, pet. ref’d). It is within the

jury’s providence to “believe or disbelieve all or any part of the evidence presented.” Dorsey, 24

S.W.3d at 924.

B.     Discussion

       Officer Luther testified about the events that took place on the night of May 17, 2011, when

he came upon Alvarez-Gomez slumped over the steering wheel of the vehicle that was stopped in

a turnaround. Officer Luther identified Alvarez-Gomez as the only person who was in the vehicle.

Officer Luther testified that the vehicle was stopped but was not in park. He testified that upon

approaching the vehicle he noticed the brake lights were on and observed through the window that

the gear shift was not in park. In addition to Officer Luther’s testimony, the dash camera video

from Officer Luther’s patrol car was also admitted into evidence. As a result, not only could the

jury see the events as they happened, but they could hear what was said because Officer Luther

had his microphone on during the incident. The jury heard Alvarez-Gomez state that he had been

drinking. Finally, the evidence included the results from the intoxilyzer analysis which measured

the content of alcohol in Alvarez-Gomez’s breath. These results showed that Alvarez-Gomez’s

breath alcohol content was double the legal amount.

C.     Conclusion

       Viewing the evidence in the light most favorable to the verdict, the evidence supported the

jury’s finding that Alvarez-Gomez was driving the vehicle while intoxicated. Williams, 937

S.W.2d at 482. Accordingly, we overrule Alvarez-Gomez’s first point of error.



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                                       MOTION TO SUPPRESS

       In Alvarez-Gomez’s second point of error, he complains that the trial court erred in denying

his motion to suppress because there was no probable cause to arrest him without a warrant;

therefore, the evidence seized during his arrest was inadmissible under the Fourth and Fourteenth

Amendments of the U.S. Constitution and Article I, Section 9 of the Texas Constitution.

A.     Standard of Review

       We review a trial court’s decision to deny a motion to suppress for an abuse of discretion.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We must view the record of the

hearing in the light most favorable to the trial court’s ruling. Id. (citing State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006)); Ex Parte Moore, 395 S.W.3d 153, 158 (Tex. Crim. App. 2013).

As a basis for ruling on a motion to suppress, the trial court is entitled to believe or disbelieve any

or all of the witnesses’ testimony, and we are not at liberty to disturb any finding supported by the

record. Amador v. State, 275 S.W.3d 872, 878–79 (Tex. Crim. App. 2009). Unless there is a clear

showing of abuse of discretion, a trial court’s ruling on the admissibility of evidence should not be

disturbed. Moore, 395 S.W.3d. at 158.

B.     Discussion

       For Officer Luther to have probable cause to arrest Alvarez-Gomez without a warrant, he

must have had reason to believe that Alvarez-Gomez was intoxicated while operating a motor

vehicle. Banda v. State, 317 S.W.3d 903, 911 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

A warrantless arrest was justified if Alvarez-Gomez was found in a suspicious place under

suspicious circumstances which reasonably show he was driving while intoxicated. TEX. CODE

CRIM. PROC. ANN. art. 14.03(a)(1) (West 2013).            The question is whether the facts and

circumstances within Officer Luther’s knowledge at the time of the arrest were sufficient to

warrant a prudent man in believing that Alvarez-Gomez was driving while intoxicated. Carey v.
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State, 695 S.W.2d 306, 312 (Tex. App.—Amarillo 1985, no writ.). The trial court implicitly

concluded that the State met its burden of proving that, under the totality of the circumstances,

Alvarez-Gomez’s warrantless arrest was supported by probable cause. Because the motion to

suppress was not denied until the end of the trial, we may consider relevant trial testimony and

evidence to determine whether the trial court abused its discretion. Best v. State, 118 S.W.3d 857,

862 (Tex. App.—Fort Worth 2003, no pet.).

       The State argued that Officer Luther had probable cause to believe Alvarez-Gomez was

driving while intoxicated. Officer Luther testified that he came upon the vehicle stopped in a

turnaround with Alvarez-Gomez slumped over the steering wheel while the transmission was not

in park. Officer Luther also testified that he smelled intoxicants, and that Alvarez-Gomez was

slow to react, had slurred speech, and could not stand up on his own. The video from Officer

Luther’s dashboard camera shows that the brake lights were on when Officer Luther approached

the vehicle. It also shows Alvarez-Gomez having trouble standing on his own, and the audio

indicates his speech is slurred. From this evidence, Officer Luther had knowledge of sufficient

facts and circumstances to warrant a prudent man in believing that Alvarez-Gomez had committed

the offense of driving while intoxicated.

C.     Conclusion

       Viewing the record in light of the trial court’s ruling, the trial court did not abuse its

discretion in denying the motion to suppress. Shepherd, 273 S.W.3d at 684; Moore, 395 S.W.3d

at 158. Alvarez-Gomez’s second point of error is overruled.

                                            JURY CHARGE

       In his third point of error, Alvarez-Gomez contends the trial court erred in denying his

requested instruction regarding the exclusionary rule in the court’s charge. Article 38.23 of the

Texas Code of Criminal Procedure provides:
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                                                                                      04-14-00198-CR


       No evidence obtained by an officer or other person in violation of any provisions
       of the Constitution or laws of the State of Texas, or the Constitution or laws of the
       United States of America, shall be admitted in evidence against the accused on the
       trial of any criminal case. In any case where the legal evidence raises an issue
       hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt,
       that the evidence was obtained in violation of the provisions of this Article, then
       and in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2013).

       A jury instruction under Article 38.23 is only required if there is a genuine dispute about a

material fact and this fact is affirmatively contested. Oursbourn v. State, 259 S.W.3d 159, 177

(Tex. Crim. App. 2008). When there is no genuine dispute about a material fact, the trial court

acts properly in refusing a request for an exclusionary rule instruction. Best, 118 S.W.3d at 866.

       Alvarez-Gomez contends that the instruction was necessary because the HGN was not

properly conducted. At the hearing on whether the instruction should be included, Alvarez-Gomez

argued that there was a conflict between the police officer’s testimony about how the HGN test

was conducted and the defense’s testimony about how the HGN test should be conducted

according to the National Highway Traffic Safety Administration manual; therefore, the Article

38.23 instruction should be given in the jury charge. The trial court denied his motion stating that

Alvarez-Gomez did not provide any evidence that the officer did not follow the proper procedures

in conducting the HGN test. After reviewing the testimony, we agree the testimony did not create

a genuine dispute about a material fact concerning the validity of the HGN test; therefore, the trial

court did not err by denying the requested exclusionary-rule instruction. Id. We overrule Alvarez-

Gomez’s third point of error.

                                  EX PARTE COMMUNICATIONS

       In his final point of error, Alvarez-Gomez contends the trial court erred in conducting ex

parte communications with the prosecution. After the jury returned a guilty verdict, the trial court

contacted the prosecution without all parties present “to see if the State would be willing to allow
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me to grant a motion for mistrial.” The trial court did not agree with the jury’s verdict and wanted

to grant a mistrial with the understanding that Alvarez-Gomez would be charged with a lesser

offense of obstruction of a highway, “which [the trial court] thought was more appropriate for this

case since it involved a vehicle stuck in the middle of an intersection.” The State declined the

offer to allow the trial court to grant a mistrial stating it would not “disparage the verdict of a Texas

jury.” We must determine whether these communications were ex parte and, if so, whether the

communications require a reversal.

A.      Ex parte Communications

        An ex parte communication is one that involves fewer than all parties who are legally

entitled to be present during the discussion of any matter. Erskine v. Baker, 22 S.W.3d 537, 539

(Tex. App.—El Paso 2000, pet. denied). The purpose of prohibiting ex parte communications is

to ensure equal treatment of all parties. Abdygapparova v. State, 243 S.W.3d 191, 207 (Tex.

App.—San Antonio 2007, pet. ref’d). The trial court acknowledged on the record that it contacted

the prosecution, without informing Alvarez-Gomez, to see if the State was willing to allow the

trial court to declare a mistrial. The trial court believed that a new trial should be granted with

Alvarez-Gomez being offered a lesser offense. Because Alvarez-Gomez was not a party to these

communications, the communications were ex parte.

B.      Harmless Error

        A reviewing court is to disregard nonconstitutional error that does not affect the substantial

rights of the defendant. TEX. R. APP. P. 44.2(b); Ford v. State, 73 S.W.3d 923, 924–25 (Tex. Crim.

App. 2002). In this case the error occurred during the sentencing phase of the trial, and Alvarez-

Gomez had elected for the trial court to assess his sentence. When determining whether the

defendant’s substantial rights are affected by the trial court’s error in a nonjury proceeding, we

consider whether the defendant had “a right to that which the error denied.” Johnson v. State, 72
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S.W.3d 346, 348 (Tex. Crim. App. 2002). If it appears that the error did not influence the result,

however, or had only a slight effect, we should not overturn a criminal conviction. Smith v. State,

290 S.W.3d 368, 375 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). While it is true that the

trial court erred in engaging in ex parte communications that deprived Alvarez-Gomez of his right

to be present, the record does not show that the ex parte communications influenced the trial court’s

sentence. Accordingly, because the ex parte communications did not affect Alvarez-Gomez’s

substantial rights, we overrule Alvarez-Gomez’s final point of error.

                                           CONCLUSION

       Having overruled Alvarez-Gomez’s four points of error, we affirm the trial court’s

judgment.

                                                  Marialyn Barnard, Justice

DO NOT PUBLISH




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