                                    NUMBER 13-10-00171-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


MARIO REGINALD CANTUE A/K/A
MARIO REGINALD CANTUE,                                                                         Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                            Appellee.


                      On appeal from the Criminal District Court
                            of Jefferson County, Texas.


                                MEMORANDUM OPINION

                 Before Justices Rodriguez, Benavides, and Vela
                   Memorandum Opinion by Justice Rodriguez

        Appellant Mario Reginald Cantue a/k/a Mario Reginald Cantue1 challenges the trial

court's denial of his motion to suppress in this drug possession case. By one issue,


        1
          W e note that this is the exact style used by the trial court in its judgm ent and that it includes the
m odifier "a/k/a" even though the two nam es cited in the judgm ent are identical. Neither Cantue nor the State
contend that the wrong party was charged in this case.
Cantue argues that the trial court erred in denying his motion because the evidence was

legally insufficient to support probable cause for his arrest. We affirm.

                                            I. BACKGROUND

        Cantue was indicted in Jefferson County, Texas for possession of at least four

grams but less than 200 grams of phencyclidine (PCP), a second-degree felony.2 See TEX .

PENAL CODE ANN . § 481.115(a), (d) (Vernon 2010). The indictment also alleged that

Cantue was previously convicted of third-degree felony possession of cocaine, second-

degree felony possession of cocaine, state jail felony possession of cocaine, and state jail

felony evading arrest.

        Cantue filed a motion to suppress, asserting that there was no warrant, probable

cause, or other lawful authority to detain and arrest him and requesting the suppression

of all tangible evidence, written and oral statements, and testimony of police officers

obtained in connection with his arrest and detention. The trial court held a hearing on the

motion, at which it heard testimony from Cantue and the police officers involved with his

arrest. The motion to suppress was denied.

        Cantue pleaded guilty, and following the plea agreement between Cantue and the

State, the trial court sentenced Cantue to five years' incarceration in the Institutional

Division of the Texas Department of Criminal Justice and ordered him to pay $420 in court

costs. The trial court certified Cantue's limited right to appeal the denial of his motion to

suppress.



        2
        This case is before us on transfer from the Ninth Court of Appeals in Beaum ont, Texas pursuant to
a docket equalization order issued by the Suprem e Court of Texas. See T EX G O V 'T C OD E A N N . § 73.001
(Vernon 2005).

                                                     2
                                      II. DISCUSSION

       By one issue, Cantue argues that the evidence was legally insufficient to establish

probable cause for his arrest. However, a legal sufficiency review of the denial of a motion

to suppress evidence is not appropriate. See Hanks v. State, 137 S.W.3d 668, 671 (Tex.

Crim. App. 2004) (en banc) (reasoning that "[s]ufficiency relates to whether the elements

of an offense have been logically established by all the evidence presented . . . . The issue

of whether or not evidence was illegally obtained is not an element of the offense" (quoting

Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.–Houston [14th Dist.] 2003, pet. ref'd));

see also Garza v. State, No. 13-05-00374-CR, 2006 WL 3375333, at *2 (Tex. App.–Corpus

Christi Nov. 22, 2006, pet. ref'd) (mem. op., not designated for publication) (holding that

we may only conduct a sufficiency review of the State's proof of elements of the offense).

Rather, the standard for reviewing a trial court's ruling on a motion to suppress evidence

is bifurcated; we give almost total deference to a trial court's determination of historical

facts and review de novo the court's application of the law. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002). At a suppression hearing, the trial judge "is the sole trier

of fact and judge of the credibility of the witnesses and the weight to be given their

testimony." Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Accordingly,

the trial court may choose to believe or to disbelieve all or any part of a witness's

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

       When reviewing the trial court's ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d

808, 818 (Tex. Crim. App. 2006). When, as is the case here, the record is silent on the



                                             3
reasons for the trial court's ruling and there are no explicit fact findings and neither party

timely requested findings and conclusions from the trial court, we imply the necessary fact

findings that would support the trial court's ruling if the evidence, viewed in the light most

favorable to the trial court's ruling, supports those findings. Id. We then review the trial

court's legal ruling de novo unless the implied fact findings supported by the record are

also dispositive of the legal ruling. Id.

        Although the exact parameters of Cantue's analysis are unclear, in the interest of

justice, we construe his argument as a challenge to the trial court's suppression ruling

under the proper standard of review we have just articulated. Specifically, Cantue appears

to argue that the evidence did not show that he was the particular person who committed

the offense and that his mere proximity to others suspected of the offense did not give rise

to probable cause for his arrest.3

        Under the Fourth Amendment, a warrantless arrest is unreasonable per se unless

it fits into one of a "few specifically established and well delineated exceptions." Minnesota

v. Dickerson, 508 U.S. 366, 372 (1993); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim.

App. 2005) (en banc). Under Texas law, a police officer may arrest an individual without

a warrant only if probable cause exists with respect to the individual in question and the

arrest falls within one of the exceptions set out in the code of criminal procedure. Torres,

182 S.W.3d at 901; see TEX . CODE CRIM . PROC . ANN . arts. 14.01-.04 (Vernon 2005 & Supp.



        3
           Cantue also asserts that he "never gave consent to search his vehicle," "was intim idated by the
officer," and "was of the belief that he was not free to leave." However, to the extent Cantue's assertions could
be construed as a challenge to the voluntariness of his consent to search his vehicle, he has neither cited
authority nor provided any legal analysis in support. See T EX . R. A PP . P. 38.1(i). Those contentions, if indeed
m ade, are inadequately briefed and therefore waived. See Garza v. State, 290 S.W .3d 489, 491 (Tex.
App.–Corpus Christi 2009, pet. ref'd).

                                                        4
2009) (providing that the limited circumstances in which a police officer may effect a

warrantless arrest include commission of an offense within view of a police officer or

magistrate, public intoxication, and commission of a felony offense upon representation of

a credible person). Probable cause for a warrantless arrest under article 14.01(b), in

particular, 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 902; see TEX . CODE CRIM . PROC . ANN . art. 14.01(b) (Vernon 2005). Probable cause

must be based on specific, articulable facts and not on the mere opinion of the officer.

Torres, 182 S.W.3d at 902; Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

We examine the totality of the circumstances to determine whether probable cause existed

for a warrantless arrest. Torres, 182 S.W.3d at 902.

       At the suppression hearing, Officer Emilio Romero testified that he and Detective

Dwight Dean were patrolling the north end of Beaumont, Texas on August 21, 2009, when

they passed near a car wash that was known to be a place where "narcotic trafficking" took

place. Officer Romero testified that he has "personally observed drug trafficking" at that

location. As they were patrolling near the car wash, Officer Romero noticed "several males

loitering" at the car wash; they were "not using any of the services of the car wash." As a

result, Officer Romero became suspicious and pulled his patrol car up to the group of

males. When he exited his vehicle, Officer Romero "smelled what [he] recognized to be

PCP." Officer Romero testified that Cantue was standing next to a car. Officer Romero

approached the group and asked Cantue "if he had a vehicle there" and "if he had anything

illegal in the car." Cantue responded that he did have a car, pointed to the car he was

                                            5
standing next to, and stated, "Yes. I have some PCP in it." Cantue was then asked for his

consent to search the car, which Officer Romero testified that Cantue voluntarily gave.

When Officer Romero opened the car, he discovered PCP in the "center console" in a

"plastic Scope bottle." Officer Romero testified that he "knew it to be PCP . . . [by its]

odor."4 Cantue was immediately arrested.

        Detective Dean testified that he and Officer Romero entered the car wash premises

that evening because they observed a group of seven to eight people "not patronizing the

business"; that they smelled the "pungent odor" of PCP when they exited their patrol car;

and that he smelled PCP "in the area where [Cantue's] car was." Detective Dean also

described his search of the vehicle of another person arrested that evening.5

        Cantue testified that he was at the car wash that evening to have his car detailed

by someone and that it had been completed five to ten minutes before the police pulled up.

Cantue denied that he admitted to having PCP in his car and denied that he consented to

the search of his car. He also denied that he was standing near his car when the police

approached.

        It is true that an arresting officer must have probable cause to believe the particular

person arrested has committed an offense. Parker v. State, 206 S.W.3d 593, 596-97 (Tex.



        4
          On cross-exam ination, Officer Rom ero also testified that: (1) he could not see the Scope bottle until
he opened the door of Cantue's car; (2) he was patrolling in an unm arked car with em ergency lights on the
interior of the vehicle; (3) he entered the car wash prem ises to investigate loitering; (4) the police have an
agreem ent with the owner of the car wash to com e onto the prem ises to arrest trespassers and loiterers; (5)
another person was arrested at the scene; and (6) if Cantue had not consented to the search of his car,
Officer Rom ero would not have had any other reason to go into the car.

        5
          Detective Dean's testim ony differed slightly from Officer Rom ero's in that he did not believe the police
had an agreem ent with the owner of the car wash to arrest trespassers and loiterers; instead, he stated that
"[t]here were several no trespassing signs appointed, along with the owner actively asking, by sign, for police
enforcem ent."

                                                         6
Crim. App. 2006). Contrary to Cantue's apparent contention that such a particularized

belief was lacking for his arrest, we conclude that the evidence at the suppression hearing

clearly established probable cause that Cantue, himself, was in possession of the PCP

such that his arrest was proper. See Torres, 182 S.W.3d at 902; TEX . CODE CRIM . PROC .

ANN . art. 14.01(b). Both Officer Romero and Detective Dean testified that the car wash

was a known location for drug trafficking; that they noticed a group of people not using the

services of the car wash; and that when they exited their patrol car, they smelled the

strong, recognizable odor of PCP. Officer Romero testified that Cantue was standing by

a car that he admitted was his, that he consented to the search of the car, and that, during

the search, Officer Romero found PCP in the center console of the car. Detective Dean

testified that he smelled PCP in the area where Cantue's car was located.

       Cantue's contradicting testimony at the hearing does not alter our conclusion. It was

within the domain of the trial court at the suppression hearing to judge the credibility and

demeanor of the witness, and we accord great deference to the court's determinations of

historical facts that turn on such issues. See Wiede, 214 S.W.3d at 24-25; Maxwell, 73

S.W.3d at 281. In the absence of express fact findings by the trial court, we imply findings

that are supported by the evidence and support the court's ruling, see Kelly, 204 S.W.3d

at 818, and we assume that the court chose to believe the testimony of Officer Romero and

Detective Dean over the testimony of Cantue, as it was, indeed, free to do. See Ross, 32

S.W.3d at 855. Examining the totality of the circumstances, we conclude that there were

specific, articulable facts within the personal knowledge of Officer Romero and Detective

Dean that supported their belief that Cantue committed an offense. See Torres, 182

S.W.3d at 902. We therefore conclude that probable cause existed for Cantue's arrest,

                                             7
and that the trial court did not err in denying Cantue's motion to suppress. Cantue's sole

issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

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

Delivered and filed the
5th day of August, 2010.




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