Opinion issued October 22, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00980-CR
                           ———————————
                     REYNALDO ESPINOZA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


            On Appeal from County Criminal Court at Law No. 6
                           Harris County, Texas
                       Trial Court Case No. 1841842


                         MEMORANDUM OPINION

      Appellant, Reynaldo Espinoza, pleaded guilty to the offense of driving while

intoxicated. 1 Pursuant to the State’s punishment recommendation, the trial court

sentenced Appellant to one year in jail, suspended the sentence, placed him on


1
      See TEX. PENAL CODE ANN. §§ 49.04(a), .09(b)(2) (Vernon Supp. 2014)
community supervision for one year, and assessed a $250 fine. In one issue,

Appellant challenges the trial court’s denial of his motion to suppress.

      We affirm.

                                     Background

      On July 26, 2012, Appellant was driving his car when he was involved in a

one-car accident in the vicinity of 15701 Park Ten Place in Houston, Texas. Two

bystanders called 9-1-1 at 10:29 p.m. to report the accident. They indicated that a

man had rolled his vehicle over near the Red Roof Inn. Police officers arrived at

the scene at 10:43 p.m.       The officers requested the assistance of the police

department’s DWI unit. Officer       M.    Forsten,   with   the   Houston   Police

Department’s DWI Task Force, was dispatched to the scene at 10:44 p.m. Officer

Forsten arrived at the scene about 20 minutes after she received the call.

      When she arrived, Officer Forsten saw Appellant’s car, which was by that

time in an upright position, behind a tow truck. She noticed that the front end of

the car was damaged. Officer Forsten spoke to the other police officers at the

scene for about ten minutes before approaching Appellant. Officer Forsten noticed

that Appellant’s breath smelled of alcohol, he slurred his speech, and he had poor

balance. She also noticed that Appellant was emotional, upset, and crying. With

regard to the accident, Appellant told Officer Forsten he owned the car and had

been driving it at the time of the accident.



                                           2
      Officer Forsten asked Appellant where he had been coming from and where

he had been going at the time of the accident. Appellant told her that he had been

driving home from a bar. Appellant also told Officer Forsten that he had been

drinking. Officer Forsten later testified that Appellant told her that “[h]e had

approximately five double shots of whiskey straight and had pizza to eat earlier in

the day.” Appellant also told Officer Forsten that he had his first drink around 8

p.m. that night; he did not remember when he had his last drink. Officer Forsten

also saw an unopened alcoholic drink in Appellant’s car.

      At 11:22 p.m., Officer Forsten began administering field sobriety tests to

Appellant, which were videotaped. Appellant had six clues of intoxication out of

six on the horizontal gaze nystagmus test. He exhibited three out of four clues on

the one‐leg stand test, and showed six out of eight clues on the walk and turn test.

Officer Forsten determined that Appellant showed signs of intoxication. She then

read him the warnings contained in the DIC-24 form and placed him under arrest

for driving while intoxicated. The time of the arrest was 11:44 p.m.

      Appellant later gave a breath specimen at the police station. He was charged

by information with the offense of driving while intoxicated. Appellant later filed

a motion to suppress. At the suppression hearing, the trial court heard evidence to

determine whether Officer Forsten had probable cause to arrest Appellant.    The

State offered the testimony of Officer Forsten and the audio of the 9-1-1 calls made


                                         3
by two bystanders at the scene, who reported the accident.            At the hearing,

Appellant asserted that, although the evidence was offered to show that he was

intoxicated when he interacted with Officer Forsten, no evidence showed that he

had been operating the vehicle or that he had been intoxicated at the time he was

driving the car.

      At the conclusion of the hearing, the trial court denied Appellant’s motion to

suppress. In its findings of fact and conclusions of law, the trial court concluded as

follows: “Under the totality of the circumstances, the collective knowledge of

Officer Forsten, other officers at the scene, and eye witness reportees, provided

Officer with probable cause to believe [Appellant] had recently committed the

offense of driving while intoxicated.” 2

      Appellant pleaded guilty to the charged offense of driving while intoxicated.

Based on the State’s recommendation, the trial court sentenced Appellant to one

year in jail, suspended the sentence, placed him on community supervision for one

year, and assessed a $250 fine. Appellant reserved his right to appeal the denial of

his motion to suppress.


2
      At the hearing on his motion to suppress, Appellant asked the trial court to make
      findings of fact and conclusions of law. The trial court did not do so. In his
      appellate brief, Appellant complained of the absence of findings of fact and
      conclusions of law. We abated the appeal and directed the trial court to make the
      required findings and conclusions. See State v. Cullen, 195 S.W.3d 696, 699 (Tex.
      Crim. App. 2006). After the trial court filed findings of facts and conclusions of
      law, we reinstated the appeal.

                                           4
                                Motion to Suppress

      In his sole issue, Appellant claims that the evidence offered at the

suppression hearing failed to support the trial court’s denial of his motion to

suppress.3

A.    Standard of Review

      We review a trial court’s denial of a motion to suppress evidence 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 the trial court’s application of the law to the facts de novo. Id. “The

ultimate determination of whether probable cause exists is subject to de novo

review on appeal.” Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App.

2009).

      The trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

3
      In his brief, Appellant frames his appellate issue as follows: “The evidence
      presented by the State of Texas at the motion to suppress hearing was factually
      and legally insufficient to prove that the appellant Reynaldo Espinoza actually
      drove and operated a motor vehicle on a public street or highway in the state of
      Texas while intoxicated on July 26, 2012.” Although couched in terms of
      sufficiency of the evidence to support elements of the offense, we construe
      Appellant’s issue to be a challenge to the trial court’s denial of his motion to
      suppress. Appellant pleaded guilty pursuant to a plea agreement, reserving only
      the right to appeal “those matters that were raised by written motions filed and
      ruled on before trial.” TEX. R. APP. P. 25.2(a)(2)(A).

                                          5
2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).        If, as in this

case, the trial court makes express findings of fact, we review the evidence in the

light most favorable to the trial court’s ruling and determine whether the evidence

supports the fact findings. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give almost total deference to the trial court’s determination of

historical facts, particularly when the trial court’s fact findings are based on an

evaluation of credibility and demeanor. Id. 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. Id. at 447–48.

B.    Analysis

      The Fourth Amendment to the United States Constitution, which is made

applicable to the states by the Due Process Clause of the Fourteenth Amendment,

guarantees that “[t]he right of the people to be secure in their persons . . . against

unreasonable . . . seizures, shall not be violated.”      U.S. CONST. amends. IV;

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Arrests are

reasonable only if supported by probable cause. Wade v. State, 422 S.W.3d 661,

667 (Tex. Crim. App. 2013). “‘Probable cause’ for a warrantless arrest exists if, at

the moment the arrest is made, the facts and circumstances within the arresting

officer’s knowledge and of which he has reasonably trustworthy information are

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



                                          6
committed or was committing an offense.” Amador, 275 S.W.3d at 878 (citing

Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223 (1964)).

      Probable cause is not itself a fact required to be proven by the evidence, it is

a conclusion that may or may not be reasonably drawn from the circumstances

surrounding the facts of a particular case. Segura v. State, 826 S.W.2d 178, 182

(Tex. App.—Dallas 1992, pet. ref’d). A probable cause finding requires more than

bare suspicion but less than would justify conviction. Amador, 275 S.W.3d at 878.

The test for probable cause is objective; it is “unrelated to the subjective beliefs of

the arresting officer,” and “it requires a consideration of the totality of the

circumstances facing the arresting officer.” Id. Once a defendant has carried his

initial burden of producing some evidence rebutting the presumption of proper

police conduct—that is, by establishing that the arrest was without a warrant—the

burden shifts to the State to prove that arrest was nonetheless reasonable; that is,

that it was made with probable cause. See id. Thus, to overcome Appellant’s

motion to suppress, the State did not need to prove that Appellant was driving

while intoxicated; rather, it only needed to show that probable cause existed to

believe that he had committed the offense.

      A person commits the offense of driving while intoxicated if the person was

intoxicated while operating a motor vehicle in a public place. See TEX. PENAL

CODE ANN. § 49.04(a) (Vernon Supp. 2014). Intoxicated is defined as “not having



                                          7
the normal use of mental or physical faculties by reason of the introduction of

alcohol” or “having an alcohol concentration of 0.08 or more.” TEX. PENAL CODE

ANN. § 49.01(2)(A)-(B) (Vernon 2011).

      Here, Appellant asserts that the State presented no evidence that he was

operating the vehicle.     He acknowledges that Officer Forsten testified that

Appellant told her that he was driving the car home from a bar when the accident

occurred. On appeal, Appellant asserts, “Texas has long embraced the common

law rule that an out of Court confession is insufficient to support a conviction

absent of corroboration.” However, we are not determining whether the evidence

offered at the suppression hearing was sufficient to support Appellant’s conviction.

We are determining whether the State met its burden to show that Officer Forsten

had probable cause to arrest Appellant. A probable cause finding does not require

the level of evidence necessary to support a conviction. See Amador, 275 S.W.3d

at 878. In any event, there was other evidence corroborating Appellant’s statement

that he was driving the vehicle. Officer Forsten testified that Appellant was at the

scene of the accident and that there were no passengers at the scene. She also

testified that Appellant told her that the car belonged to him.

      Appellant also asserts that the State offered no evidence to show that he was

intoxicated while he was driving the car. He points out that there was no direct




                                          8
evidence indicating at what time he had been driving or when the accident

occurred.

      Viewing the evidence in the light most favorable to the trial court’s ruling

and deferring to the trial court’s evaluation of the credibility and demeanor of

witnesses, Officer Forsten’s observations at the scene and the information she

obtained from Appellant constituted reasonably trustworthy information that

Appellant was intoxicated at the time he was driving the car. The evidence shows

that Officer Forsten arrived at the scene around 11:04 p.m. She was aware that the

first responding police officers had arrived at the accident scene at 10:43 p.m.

Officer Forsten observed that a tow truck was at the scene and that Appellant’s car

had accident damage. She spoke with the officers at the scene for about ten

minutes then approached Appellant at about 11:15 p.m.         Appellant informed

Officer Forsten that he had been drinking that night. He told her that he had

consumed five double shots of whiskey at the Hotel Derek bar. He said that he had

starting drinking at around 8 p.m. Officer Forsten observed an alcoholic beverage

container in Appellant’s vehicle, but it was unopened.

      Officer Forsten observed signs indicating that Appellant was intoxicated at

the accident scene. She testified that when she approached Appellant “[t]he first

thing I noticed was a distinct odor of alcoholic beverage upon his breath. He had

slurred speech. He was emotional. He was upset and crying. Poor balance.”



                                         9
Officer Forsten administered field sobriety tests to Appellant during which he

exhibited numerous clues of intoxication. The Court of Criminal Appeals has held

that “[b]eing intoxicated at the scene of a traffic accident in which the actor was a

driver is some circumstantial evidence that the actor’s intoxication caused the

accident, and the inference of causation is even stronger when the accident is a

one-car collision with an inanimate object.” Kuciemba v. State, 310 S.W.3d 460,

462 (Tex. Crim. App. 2010).

      In addition to his intoxication at the accident scene, the evidence shows that

Officer Forsten learned from Appellant that he had consumed five double shots of

whiskey after 8 p.m. She knew that he had then driven his car to the accident

scene. She also learned that the first officers were on the scene by 10:43 p.m.

Thus, the accident had occurred before 10:43 p.m. but after Appellant had

consumed the equivalent of ten shots of whisky within the preceding three hours

during which time he had also driven his car.

      The evidence showed that Appellant was intoxicated when Officer Forsten

interacted with him at 11:15 p.m. The evidence further showed that there was an

alcoholic beverage in Appellant’s car, however, it was unopened. Thus, there was

no indication that Appellant had been drinking after the accident but before his

interaction with Officer Forsten.




                                         10
      Based on the totality of the evidence presented, we conclude that the facts

and circumstances within Officer Forsten’s knowledge, and of which she had

reasonably trustworthy information, were sufficient to warrant a prudent person to

believe that, at the time of his arrest, Appellant had committed the offense of

driving while intoxicated. See Amador, 275 S.W.3d at 878. Thus, we further

conclude that the State met its burden at the suppression hearing to show that

Officer Forsten had probable cause to arrest Appellant. We hold that the trial court

did not abuse its discretion when it denied Appellant’s motion to suppress.

      We overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           11
