Affirmed and Memorandum Opinion filed April 2, 2020.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00155-CR

                      HOANG THANH DANG, Appellant

                                           V.

                      THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 12
                           Harris County, Texas
                       Trial Court Cause No. 2099579

                         MEMORANDUM OPINION

      Appellant Hoang Thanh Dang appeals his conviction for driving while
intoxicated (“DWI”). Appellant challenges the trial court’s denial of his motion to
suppress evidence, asserting that the arresting officers lacked probable cause to
support a warrantless arrest. We affirm.
                   I.    Factual and Procedural Background

                                    The Arrest

      At approximately 2:45 a.m., on July 1, 2016, Christopher McCray, an
emergency medical technician (“EMT”) riding in an ambulance, observed
appellant’s vehicle with the flashers on stopped in the middle of the highway.
McCray and the ambulance driver got closer to determine if appellant needed
assistance. As the ambulance approached, appellant’s vehicle took off and then
stopped again. McCray called 911. The EMT continued to follow appellant’s
vehicle onto Interstate 45 until the vehicle exited the highway. McCray testified he
watched the vehicle exit the highway by driving over the curb, causing sparks, and
then observed the vehicle continue to move erratically on the feeder road, stopping
and starting, and swerving between lanes. McCray stayed on the phone with the
911 operator until Houston Police Department (“HPD”) officers arrived and pulled
over the vehicle. At the scene, McCray gave his report directly to the responding
law enforcement officers, and during the motion to suppress hearing, confirmed
that the vehicle he observed traveling erratically was the same vehicle pulled over
by the HPD officers.

      Officer Thomas stopped appellant’s vehicle. Officer Jafari arrived behind
Officer Thomas in a separate vehicle. As he was walking toward appellant’s car,
Officer Jafari noticed dried up vomit on the driver’s side door, and upon contact
with appellant, smelled the odor of alcohol on appellant’s breath and observed that
appellant had slurred speech and red, glassy eyes. Appellant admitted to Officer
Jafari that he had had a couple of drinks. Officer Thomas performed a field
sobriety test and did not find any of the clues on the horizontal gaze nystagmus
(“HGN”) test. Officer Jafari, as the primary and senior officer, then performed the
HGN test and found six out of six clues of intoxication.             Officer Jafari

                                         2
acknowledged that appellant had a “lazy eye,” meaning that both eyes do not track
together; however, he is trained and certified to perform the HGN test successfully
on a person with vision in one eye.

      Based on his observations of the vomit on the driver’s side door of the car,
the reports of appellant’s erratic driving and the results of the HGN testing, Officer
Jafari formed an opinion that appellant was intoxicated. Officer Jafari placed
appellant under arrest and took appellant to the police station. Once at the police
station, appellant consented to and underwent further sobriety tests and provided a
breath sample. Appellant was charged with the misdemeanor offense of driving
while intoxicated.

                                   Motion to Suppress

      On February 7, 2018, the day of trial, a jury panel was seated. The trial court
gave instructions to the panel, but prior to voir dire, appellant agreed to waive a
jury trial and proceed with a hearing on a dispositive motion to suppress. No
written motion to suppress was filed.

      On the record, appellant agreed to plead guilty to the DWI charge without a
recommendation for punishment if the court denied his motion to suppress. The
State and defense agreed that the initial contact between the officers and appellant
was a warrantless contact, transferring the burden to the State to justify that
contact.

      Appellant did not testify at the hearing.      EMT McCray testified at the
hearing regarding his observations of erratic driving, his contact with the 911
dispatcher and with HPD, and his identification of the vehicle as the same vehicle
that was pulled over by the HPD officer.

      At the hearing, Officer Jafari and Officer Thomas testified regarding their

                                           3
training and experience, their observations of appellant, and identified appellant in
the courtroom as the driver of the vehicle they came into contact with prior to
making the arrest. Officer Jafari testified regarding his certification to perform
field sobriety tests. Both Officers stated they did not observe appellant’s driving
before making the stop.

      Officer Jafari found six clues out of six on the horizontal gaze nystagmus
test and agreed that Officer Thomas found zero clues on the same test, which was
conducted before Officer Jafari’s testing of appellant. Officer Jafari stated as the
primary officer he had to make sure of the test results, because he had
responsibility as the primary officer.

      The trial court denied appellant’s motion to suppress and appellant pleaded
guilty to the misdemeanor offense of driving while intoxicated.

             The Court’s Findings of Fact and Conclusions of Law

      On August 20, 2018, at the request of appellant, the Court made the
following Findings of Fact and Conclusions of Law:

      EMT McCray, returning from an ambulance run saw Defendant’s
      vehicle stopped on a major freeway at 2:45 AM with emergency
      flashers on. As the ambulance approaches, the Defendant drives off.
      The Defendant is seen, again, stopping on roadway, swerving between
      lanes and exits freeway by jumping the curb, not at an exit. EMT is
      the 911 caller and is relaying this information, in realtime, while
      following the Defendant until Officer Thomas makes a stop pursuant
      to information relayed to him through 911. Officer Thomas, in fact,
      did not observe any errant driving by Defendat but stopped him solely
      on 911 information.
      It must be noted that, unlike the anonymous caller situation, here
      EMT McCray was at the scene, identified himself and the Defendant
      driver and relayed his information to HPD in their investigation.
      At the scene, Officer Thomas makes first contact with Defendant and
      observes dried vomit on driver door, odor of alcoholic beverage,
                                         4
      slurred speech and red eyes of Defendant. Thomas acknowledges the
      Defendant had “lazy eye” and was unable to get any clues of
      intoxication on HGN test.
      Officer Jafari, the senior and primary officer, does HGN and says he
      got 6/6 clues despite the Defendant’s lazy eye situation. The Court is
      dubious about the results quoted by Officer Jafari. However, Jafari,
      with 23 years’ experience chose to arrest the Defendant at the scene
      based on: relayed driving facts, odor or [sic] alcoholic beverage,
      glassy eyes, slurred speech, dried vomit, and overall appearance of the
      Defendant.
      It is this Court’s belief, as dictated in the transcript, that the arrest of
      this Defendant was not a mere hunch or suspicion of intoxication, and
      in fact was based on a good faith probable cause belief by Officer
      Jafari with his observations, knowledge and experience. The evidence
      deduced at this hearing gave this Court a clear and convincing belief
      that the arrest was in fact based on probable cause and that the
      original detention, while warrantless, was prudent to remove an
      unsafe driver from the roadway for further investigation.
      Appellant timely filed this appeal.

                               II.    Issue Presented

      In his sole issue, appellant challenges his conviction, arguing that the trial
court abused its discretion in denying appellant’s motion to suppress because his
arrest was not supported by probable cause.

                             III.    Standard of Review

      When reviewing a trial court’s ruling on a motion to suppress, we apply an
abuse of discretion standard: we overturn the trial court’s ruling only if it is
outside the zone of reasonable disagreement. State v. Cortez, 543 S.W.3d 198, 203
(Tex. Crim. App. 2018); Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App.
2011). We use a bifurcated standard of review. Ramirez-Tamayo v. State, 537
S.W.3d 29, 35 (Tex. Crim. App. 2017). When, as here, the trial court makes
findings of fact after denying a motion to suppress, we must determine whether the

                                            5
evidence — viewed in the light most favorable to the trial court’s decision —
supports the findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App.
2009). We review the totality of the circumstances surrounding the arrest de novo
to determine whether there is support for the finding that probable cause exists to
justify a warrantless arrest. LeCourias v. State, 341 S.W.3d 483, 489 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). The trial judge’s determinations of historical
facts and mixed questions of law and fact that rely on credibility are granted almost
total deference when supported by the record. State v. Kerwick, 393 S.W.3d 270,
273 (Tex. Crim. App. 2013). However, this court reviews de novo the trial court’s
application of the law to the facts. Ramirez-Tamayo, 537 S.W.3d at 35.

                                    IV.    Analysis

      1.     Appellant’s Complaint was Preserved for Review

      To preserve a complaint for appellate review, the record must show that the
complaint was made by timely request, objection, or motion, stating the specific
grounds therefor, and that the complaint complied with the requirements of
applicable Rules. See Tex. R. App. P. 33.1 (a)(1). Appellant must obtain a ruling
from the trial court on his motion, or, if the trial court refuses to rule, object to the
court’s refusal to rule on the motion. See Tex. R. App. P. 33.1(a)(2). To be timely,
a motion to suppress must be presented before evidence is admitted. Nelson v.
State, 626 S.W.2d 535, 536 (Tex. Crim. App. 1981); Sims v. State, 833 S.W.2d
281, 284 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd).             Here, appellant
timely argued his motion to suppress before trial, prior to the introduction of any
evidence. The trial court denied appellant’s motion to suppress. Thus, appellant’s
complaint was preserved for our review.




                                           6
      2.     The State’s Burden of Proof Under the Fourth Amendment for a
             Warrantless Arrest
      Appellant argues that the trial court erred in denying his motion to suppress
because the observations made by the arresting officers did not satisfy the standard
for probable cause as defined by the Fourth Amendment. The State argues that the
totality of the circumstances gave rise to probable cause justifying the warrantless
arrest of appellant.

      It is undisputed that appellant was arrested without a warrant. The Fourth
Amendment to the Constitution of the United States guarantees that “[t]he right of
the people to be secure in their persons ... against unreasonable ... seizures, shall
not be violated.”      U.S. CONST. amend. IV.     The Due Process Clause of the
Fourteenth Amendment makes this guarantee applicable to the states. Mapp v.
Ohio, 367 U.S. 643, 650 (1961). A defendant who alleges that police violated his
Fourth Amendment rights bears the burden of producing some evidence to rebut
the presumption of proper police conduct. Abney v. State, 394 S.W.3d 542, 547
(Tex. Crim. App. 2013). The defendant can satisfy this burden by establishing that
the seizure occurred without a warrant. State v. Robinson, 334 S.W.3d 776, 779
(Tex. Crim. App. 2011). If the defendant does so, the burden then shifts to the
State to prove the reasonableness of the seizure. State v. Woodard, 341 S.W.3d
404, 412 (Tex. Crim. App. 2011). At the motion to suppress hearing, the State
stipulated that the arrest was without a warrant, shifting the burden to the State to
prove that there was probable cause for the arrest.

      3.     Probable Cause Requirement For Warrantless Arrest

      “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 the officer has reasonably trustworthy information, are sufficient to justify a


                                          7
prudent person in believing 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 requires ‘more than bare suspicion’ but ‘less
than . . . would justify . . . conviction.’” Id. (citing Brinegar v. United States, 338
U.S. 160, 175 (1949)). The test for probable cause is an objective one, 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. Other than the facts
known by an arresting officer, the arresting officer’s state of mind (including the
officer’s subjective beliefs and subjective reasons for an arrest) holds no relevance
in a court’s probable cause determination. See Devenpeck v. Alford, 543 U.S. 146,
153 (2004).

       Probable cause for a warrantless arrest under article 14.01(b) of the Criminal
Code of Procedure may be based on an officer’s prior knowledge and personal
observations1, and an officer may rely on reasonably trustworthy information
provided by another person in making the overall probable cause determination.
State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011) (quoting Beverly
v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990)). “Thus, all of the
information to support probable cause does not have to be within an officer’s
personal knowledge.” Woodward, 341 S.W.3d at 412.

       The trial court made Findings of Fact confirming that although the court was
“dubious” about the results of the field sobriety test, Officer Jafari’s observations,
knowledge and experience, combined with the evidence presented at the hearing,
constituted sufficient probable cause to support appellant’s warrantless arrest.


       1
         Article 14.01(b) of the Texas Code Criminal Procedure provides: “A peace officer may
arrest an offender without a warrant for any offense committed in his presence or within his
view.”

                                             8
      4.       Facts Supporting Probable Cause

      In determining probable cause, we review the facts and circumstances within
Officer Jafari’s knowledge that a prudent person could have reasonably relied upon
in making appellant’s arrest. In this case, an EMT observing the operation of a
vehicle in a dangerous and reckless manner, while contemporaneously reporting
his observations to a 911 operator, then observing Officer Thomas stop the same
vehicle, immediately reporting his observations to the officers who stopped that
vehicle and were at the scene, and identifying the stopped vehicle as the car that
was operated recklessly, was sufficient to provide a factual basis for the stop
leading to the arrest. There is no requirement that an officer must personally
witness facts giving rise to criminal activity. Brother v. State, 166 S.W.3d 255,
259 (Tex. Crim. App. 2005) Facts supplied by citizen-eyewitnesses, which are
adequately corroborated by the arresting officer, do not run afoul of the Fourth
Amendment. Adams v. Williams, 407 U.S. 143, 147 (1972) (the factual basis for a
stop need not arise from the officer’s personal observation, but may be supplied by
information acquired by another person); Brother, 166 S.W.3d at 255–60 (stop
based upon facts supplied by private citizen and supplied to dispatcher and police
officers did not violate Fourth Amendment); see also Smith v. State, 491 S.W.3d
864, 870 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (“Probable cause for a
warrantless arrest requires the officer to have a reasonable belief that, based on the
facts and circumstances within the officer's personal knowledge or of which the
officer has reasonably trustworthy information, an offense has been committed.”).

      After Officer Thomas stopped the vehicle operated by appellant based on the
information from EMT McCray, Officer Jafari observed that appellant had red,
glassy eyes.     Appellant’s speech was slurred, and he admitted to consuming
alcohol that evening. Appellant’s vehicle had dried vomit on the driver’s side door

                                          9
and appellant’s breath smelled of alcohol.        These are observations made or
received by Jafari indicating possible intoxication. See Banda v. State, 317 S.W.3d
903, 911 (Tex. App.—Houston [14th Dist.] 2010) (Officer possessed sufficient
facts to form a reasonable inference that appellant drove while intoxicated based
on the background facts provided by a civilian who called 911, information from
appellant and appellant’s performance on field sobriety tests).

      After stopping appellant, Officer Jafari conducted a field sobriety test.
Officer Jafari testified that he was experienced, certified, and trained in conducting
field sobriety tests, and that he was trained to conduct an HGN test on a person
with one eye. Jafari testified if both eyes do not track equally, the person is still a
candidate for the HGN test, and despite appellant’s “lazy eye,” Jafari determined
nystagmus was present in both of appellant’s eyes. Officer Jafari testified that he
found six out of six clues indicating alcohol was present in appellant’s system. At
the hearing on the motion to suppress, appellant did not present any evidence to
contradict or impeach the expert testimony of Officer Jafari. The trial court sitting
as factfinder is free to believe or disbelieve any portion of a witness’s testimony
and make reasonable inferences from the evidence presented.             Amador, 275
S.W.3d at 878.




                                          10
                                 V.     Conclusion

      The trial court did not err in denying appellant’s motion to suppress because
appellant’s warrantless arrest is supported by the evidence.          We overrule
appellant’s sole issue and affirm the judgment of the trial court.



                                               /s/   Margaret ‘Meg’ Poissant
                                                     Justice

Panel consists of Justices Christopher, Spain, and Poissant.
Do Not Publish —Tex. R. App. P. 47.2(b).




                                          11
