Opinion issued July 2, 2019




                                    In The

                              Court of Appeals
                                   For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00859-CR
                           ———————————
                       RAY GENE ARRINGTON, Appellant
                                      V.
                        THE STATE OF TEXAS, Appellee


              On Appeal from the Criminal Court at Law No. 11
                           Harris County, Texas
                      Trial Court Case No. 2138927


                                 OPINION

      Ray Gene Arrington appeals from the trial court’s denial of his motion to

suppress. We affirm.
                                   Background

      A Harris County deputy sheriff responded to a 911 call about a possible

drunk driver. She arrested Arrington without a warrant outside his home. Arrington

was charged with driving while intoxicated (DWI). TEX. PENAL CODE § 49.04. He

filed a motion to suppress the evidence, arguing that it was obtained from an illegal

seizure. After a hearing, the trial court denied the motion and entered findings of

fact and conclusions of law. Arrington pleaded guilty and was sentenced to the

agreed punishment, one year in the Harris County jail. The court suspended his

sentence and placed him on community supervision for eighteen months.

                               Motion to Suppress

      In his only issue, Arrington contends that the trial court erred by denying his

motion to suppress because the deputy did not have probable cause or exigent

circumstances for a warrantless arrest. Arrington argues that when the deputy

approached him, he was standing behind a fence on his property, and therefore, he

was within the curtilage of his home. The State responds that the deputy had

probable cause to arrest Arrington for DWI and did not need a warrant because

DWI is a breach of the peace and Arrington was in a suspicious place.

Alternatively, the State argues that the deputy developed probable cause and

exigent circumstances to arrest Arrington for evading arrest once he attempted to




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flee from her order. We conclude that the trial court did not err by denying

Arrington’s motion to suppress.

A.    Standard of Review

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

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for an abuse of discretion, and

we review the trial court’s application of the law to the facts de novo. Id. We give

deference to the trial court’s factual determinations because the trial court is the

sole trier of fact, and the sole judge of witness credibility and the weight to be

given testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

Our deferential review also applies to the trial court’s conclusions regarding mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382

S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and

fact that do not turn on credibility and demeanor, as well as purely legal questions,

de novo. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

      When the trial court makes explicit findings of fact, we determine whether

the evidence, when viewed in the light most favorable to the trial court’s ruling,

supports the fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). If the trial court fails to make a particular finding, we imply a fact finding to

support the trial court’s ruling when the evidence supports the implied finding. See


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Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). We afford the

prevailing party the “strongest legitimate view of the evidence” and all reasonable

inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563,

571 (Tex. Crim. App. 2013) (quoting State v. Weaver, 349 S.W.3d 521, 525 (Tex.

Crim. App. 2011)). We will uphold 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.

State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).

B.    Facts Adduced at Supression Hearing

      Two witnesses testified at the hearing on the motion to suppress: concerned

citizen Brandon Conley and Deputy S. Latham of the Harris County Sheriff’s

Office.

      Conley testified that at 2:00 a.m. on February 26, 2017, he called 911 after

he saw a sports utility vehicle (SUV) drive by going extremely fast. At the time,

Conley was driving out of his neighborhood. He followed the SUV for 12 or 13

miles as it swerved back and forth, including into oncoming traffic. He estimated

that the SUV was driving faster than 100 miles per hour because Conley only

allowed himself to drive up to that speed. During the drive, he stayed in constant

contact with emergency dispatchers.

      A deputy constable caught up to the two cars about a mile before the SUV

turned into a residential driveway. Conley turned on his hazard lights and alerted


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dispatch so that the deputy constable would drive around him. The deputy

constable drove around Conley’s car and was between him and the SUV. The

deputy constable did not activate emergency lights. The trio of cars continued for a

mile before the SUV pulled into the residential driveway. Conley stopped about

two houses away. The deputy constable stopped next to Conley and spoke with

him from the car. While they were talking, Deputy Latham arrived and parked in

front of the house with her spotlight on. Conley testified that the deputy constable

had been relaying information to Deputy Latham. Deputy Latham asked Conley if

he ever lost sight of the SUV. Conley replied that he had not and pointed out the

driver (Arrington) standing outside his vehicle.

      While they were talking, Conley saw Arrington get out of the SUV, stumble

to his gate, and attempt to unlock it. Conley testified that Arrington appeared

intoxicated, could not hold his balance, struggled to walk, and dropped his keys at

least three times while trying to unlock a gate in a small fence. The wrought iron

fence and gate between a detached garage and the main house was about four feet

tall. It did not obstruct Conley’s view.

      Deputy Latham testified that she has hundreds of hours of training in DWI

investigations. She arrived at the scene around 2:00 a.m., after learning from

dispatch that a concerned motorist was following a suspected drunk driver in an

SUV. Using the license plate number provided by Conley, she looked up the


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address registered to the car and drove to that nearby address. She figured that

given the time of night, the driver was likely headed home. When she arrived on

the block, she saw the deputy constable talking to Conley. Conley told her that he

had followed the SUV, that it was in the driveway, and that he had seen the driver

get out of the car and stumble.

      Deputy Latham saw Arrington standing behind the iron fence. She

approached Arrington and asked him if the car in the driveway belonged to him

and if he had been driving it. Arrington responded that Deputy Latham did not see

him driving, and he made it home. At that time, the gate was closed but unlocked.

Deputy Latham asked Arrington to come out from behind the fence to talk to her.

She saw several dogs behind the fence, and she did not want anything to happen to

them. Arrington fumbled with a keyed padlock on the outside of the fence and

locked it. Deputy Latham told Arrington several times to come outside of the

fence. His balance was unsteady, and he was stumbling. She noticed his heavily

slurred speech and the strong odor of alcohol as he stumbled past her. Arrington

repeated that he lived in the home and that Deputy Latham did not see him driving.

He moved toward the back door of the main house and stumbled. She called for

backup, believing that he was trying to evade detention. She unholstered her taser

and ordered him not to enter the house. He fumbled with the doorknob to the house




                                        6
and opened it. When he opened the door, Deputy Latham tased him, jumped over

the fence, and arrested him.

      Conley also testified that when Deputy Latham talked to Arrington,

Arrington was behind the gate. When Arrington turned to unlock his door and go

inside, Deputy Latham used her Taser. Conley heard Deputy Latham screaming, as

if desperate for help. He jumped the fence to assist her in arresting Arrington.

C.    Findings of Fact and Conclusions of Law

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

court found that both witnesses were credible. A concerned motorist noticed

Arrington driving erratically and dangerously and was so alarmed that he followed

Arrington for many miles after 2:00 a.m., passing through at least two counties and

speaking continuously with several 911 centers. The motorist never lost sight of

Arrington, and a deputy constable joined near the end of the pursuit.

      The trial court noted that DWI is a breach of the peace, and once the

motorist and the deputy constable saw Arrington stumble out of his car, both the

motorist and the deputy constable had probable cause to arrest for DWI. The court

found that Arrington had been operating a vehicle and was intoxicated by

something.

      By retreating behind the fence and locking it, Arrington demonstrated an

intent to keep out the public and was standing within his curtilage. A second


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deputy, Deputy Latham, arrived and was informed of all that had transpired. There

was an immediate and continuous pursuit of Arrington. Deputy Latham was in a

public place and approached Arrington, noting a strong odor of alcoholic beverage,

slurred speech, staggering, and fumbling. Arrington admitted to Deputy Latham

that he had been driving. Before Deputy Latham jumped over the fence, she had a

reasonable suspicion to detain Arrington for DWI. She had developed the requisite

facts while being in an area she was entitled to be in, and she ordered him to come

out so she could perform a DWI investigation. Arrington refused and locked the

gate. When he attempted to enter the house, Deputy Latham gave him a direct

order not to do so. The trial court found that even though Arrington was standing

in the curtilage of his home, the order was valid based on the reasonable suspicion

of a DWI. Arrington violated the order, giving Deputy Latham probable cause to

arrest him for evading detention. Under the circumstances, he could not avoid an

arrest by fleeing into his house. Deputy Latham took Arrington to the station

because he resisted, and if he had been compliant, she would have performed field

sobriety testing at the scene.

D.    Applicable Law

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. CONST. Amend. IV; Weide v. State, 214 S.W.3d 17,

24 (Tex. Crim. App. 2007). To suppress evidence because of an alleged Fourth


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Amendment violation, the defendant bears the initial burden of producing evidence

that rebuts the presumption of proper police conduct. Young v. State, 283 S.W.3d

854, 872 (Tex. Crim. App. 2009). A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant. Id.* The burden then shifts to

the State to establish that the search or seizure was reasonable. Id.; 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). The State may satisfy this burden by showing that one of

the statutory exceptions to the warrant requirement is met. Torres, 182 S.W.3d at

902.

       Probable cause for a warrantless arrest requires that, at the moment the arrest

is made, the facts and circumstances within the arresting officer’s knowledge or of

which he has reasonably trustworthy information are sufficient to warrant a

reasonable belief that the person arrested had committed or was committing an

offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). A finding

of probable cause necessitates more than bare suspicion but less than would justify

a conviction. Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

The test for probable cause is an objective one; it is unrelated to the subjective

belief of the arresting officer and it requires a consideration of the totality of the

circumstances facing the officer. Amador, 275 S.W.3d at 878. If probable cause

*
       The parties do not dispute that law enforcement did not obtain a warrant to arrest
       Arrington.
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exists, exigent circumstances may require immediate, warrantless entry to arrest a

suspect. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

E.    Analysis

      Arrington contends that the totality of the circumstances do not show that

Deputy Latham had probable cause or exigent circumstances to arrest him without

a warrant. We disagree. Deputy Latham had probable cause based on the collective

knowledge of Conley and the deputy constable, and Arrington could not avoid

arrest by retreating within the curtilage of his home.

      1.     Probable Cause

      The trial court did not err by concluding that Deputy Latham had probable

cause. Before Deputy Latham arrived, both Conley and the deputy constable had

probable cause to arrest Arrington for DWI. See TEX. CODE CRIM. PROC. art.

14.01(a) (a peace officer or any other person may arrest an offender when the

offense is committed in his presence or within his view, if the offense is a felony or

against the public peace). Driving while intoxicated is a breach of the peace. Miles

v. State, 241 S.W.3d 28, 42 (Tex. Crim. App. 2007); Gallups v. State, 151 S.W.3d

196, 201 (Tex. Crim. App. 2004). Probable cause is subject to the collective

knowledge doctrine. See State v. Duran, 396 S.W.3d 563, 569 n.12 (Tex. Crim.

App. 2013) (explaining that under the collective knowledge doctrine, when several

officers are cooperating, their cumulative information may be considered in


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assessing reasonable suspicion or probable cause); see also Derichsweiler v. State,

348 S.W.3d 906, 914–15 (Tex. Crim. App. 2011) (“[T]he detaining officer need

not be personally aware of every fact that objectively supports a reasonable

suspicion to detain; rather ‘the cumulative information known to the cooperating

officers at the time of the stop is to be considered in determining whether

reasonable suspicion exists.’”) (citations omitted); Woodward v. State, 668 S.W.2d

337, 344 (Tex. Crim. App. 1982) (holding that the sum of information known to

cooperating agencies or officers at the time of the arrest should be considered in

determining probable cause).

      The cumulative knowledge of the deputy constable, Conley, and Deputy

Latham gave Deputy Latham probable cause to arrest Arrington. First, Conley

observed Arrington driving erratically at a high rate of speed through multiple

counties. He watched as Arrington drove on the wrong side of the road and as

other cars swerved to avoid him. He relayed all information to dispatch, who

informed the deputy constable. Next, the deputy constable and Conley followed

Arrington for the last stretch of the drive. This ongoing, potentially lethal conduct

gave either man probable cause to arrest Arrington without a warrant. Miles, 241

S.W.3d at 43–44.

      When Deputy Latham arrived, she also had probable cause to arrest

Arrington. See Duran, 396 S.W.3d at 569 n.12; see also Derichsweiler, 348


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S.W.3d at 914–15. Deputy Latham was informed by dispatch of all that Conley

relayed, and she confirmed it with additional facts. See Amores v. State, 816

S.W.2d 407, 416 (Tex. Crim. App. 1991) (stating a police broadcast or anonymous

phone call alone cannot establish probable cause; there must be additional

corroborative facts to give rise to probable cause). She used the license plate

number Conley provided to ascertain Arrington’s home address, where she located

the SUV Conley described. Conley pointed out Arrington to Deputy Latham and

mentioned he had not lost sight of Arrington. When she approached Arrington,

Deputy Latham noticed that Arrington had slurred speech and was stumbling. She

smelled alcohol on Arrington, and he admitted to Deputy Latham that he had been

driving.

      Arrington argues that a deputy must perform field sobriety tests to have

probable cause, but probable cause is based on a totality of the facts and

circumstances in each case. The absence of some facts may be considered in that

determination, but only in the context of 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.). Here, the evidence viewed in

the light most favorable to the trial court’s ruling is sufficient to establish probable

cause for a warrantless arrest for driving while intoxicated.




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      2.     Exigent Circumstances and Curtilage

      The trial court did not err by finding exigent circumstances for the

warrantless arrest. Arrington argues that the seizure was illegal because he was

standing in the curtilage of his home. A law enforcement officer may not enter a

residence to make a warrantless arrest unless the resident consents to his entry or

exigent circumstances require the officer making the arrest to enter the residence.

TEX. CODE CRIM. PROC. art. 14.05. The curtilage of a person’s home, which is the

area immediately surrounding and associated with the home, is protected by the

Fourth Amendment. State v. Betts, 397 S.W.3d 198, 207 (Tex. Crim. App. 2013)

(curtilage is protected by the Fourth Amendment); Gonzalez v. State, 588 S.W.2d

355, 360 (Tex. Crim. App. 1979) (describing curtilage as the land immediately

surrounding and associated with the house). Although Arrington was standing in

the curtilage of his home when Deputy Latham approached him, he was not

entitled to evade arrest by retreating to his home. The hot pursuit of an offender

seeking to avoid arrest is an exigent circumstance justifying nonconsensual entry

into the offender’s residence. See Curry v. State, 831 S.W.2d 485, 488 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref’d) (quoting United States v. Santana,

427 U.S. 38, 96 (1976) (providing that a suspect may not “defeat an arrest which

has been set in motion in a public place. . . by the expedient of escaping to a

private place”)).


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      When Conley and the deputy constable were following Arrington, they did

not know where or when Arrington would stop so they could apprehend him.

Arrington happened to drive all the way to his home. Even at that point, they could

not be sure the danger to the public had ended because Arrington still had the keys

to his car and could have returned to the road. See Miles, 241 S.W.3d at 41

(explaining that a citizen may make a warrantless arrest of a person who commits a

misdemeanor in his presence or view if the evidence shows that the person’s

conduct poses a threat of continuing violence or harm to himself or the public);

Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (“Given appellant’s

nervous behavior and his admission that he had been involved in a crime, it was

reasonable to believe that appellant would not remain at the residential treatment

home if the officers left to obtain a warrant.”)

      Once Arrington ignored Deputy Latham’s order to come outside the gate, his

attempt to evade the lawful detention was an exigent circumstance justifying his

arrest. See Rue v. State, 958 S.W.2d 915, 919 (Tex. App.—Houston [14th Dist.]

1997, no pet.) (holding that officer who sought to lawfully detain appellant for

questioning about possible criminal activity had probable cause to arrest without a

warrant once appellant evaded the lawful detention); see also Covarrubia v. State,

902 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding

that officers had probable cause to arrest appellant, who intentionally fled from


                                          14
officers who were lawfully attempting to detain him to investigate possible

criminal activity).

      After giving due deference to the trial court’s determination of the historical

facts and reviewing de novo the trial court’s application of the law to facts not

based on an evaluation of credibility and demeanor, we conclude that, given the

totality of the circumstances, the State carried its burden to justify Arrington’s

warrantless arrest. Accordingly, the trial court did not abuse its discretion by

denying Arrington’s motion to suppress.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Peter Kelly
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Publish. TEX. R. APP. P. 47.2(b).




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