                           NUMBER 13-17-00369-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


FRANCISCO GOMEZ A/K/A
FRANCISCO JAVIER GOMEZ,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                              Appellee.


                    On appeal from the 103rd District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Chief Justice Valdez
       A Cameron County jury found appellant Francisco Gomez a/k/a Francisco Javier

Gomez guilty of two counts of third-degree assault of a public servant by ordering his dog

to attack two police officers as they tried to arrest appellant. See TEX. PENAL CODE ANN.

22.01 (b)(1) (West, Westlaw through 2017 1st C.S.). After the jury's guilty verdict, the trial
court pronounced a concurrent sentence of three years in prison on both counts. See id.

By one issue, appellant contends the trial court erred in denying his pretrial motion to

suppress. We affirm.

                                         I.     BACKGROUND

A.     Suppression Hearing

       The trial court convened a hearing on appellant’s motion to suppress. The hearing

was held before trial. The State adduced the following evidence at the hearing through

the testimony of an arresting officer.

       A fence separates the front yard of appellant’s residence from the curb of the

street. On May 1, 2016, appellant, a dog owner, called officers to his residence alleging

that his wife assaulted him. Officers arrived at the home and arrested appellant's wife.

As officers escorted her to the police unit, which was parked on the street, appellant

confronted the officers in the front yard and attempted to physically prevent them from

reaching the unit. Eventually, officers managed to get past appellant and they placed his

wife in the back of a police unit. Notably, there were technical difficulties opening and

playing a dash-cam video, which depicted appellant's wife in the back seat of the unit.

Consequently, this video was not admitted into evidence at the suppression hearing.

       With appellant's wife secured in the back of the unit, officers returned to arrest

appellant for the offense of interfering with public duties based on his attempt to physically

prevent his wife's arrest. See TEX. PENAL CODE ANN. § 38.15 (West, Westlaw through

2017 1st C.S.) (providing that a person commits “[the offense of interference with public

duties] if the person with criminal negligence . . . interferes with . . . a peace officer while

the peace officer is performing a duty or exercising authority imposed or granted by law”).



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However, by that point, appellant locked the officers out of his property by closing the

gate to the fence that separated the front yard and the street. Officers pushed the gate

open and encountered appellant in the front yard. Appellant began swinging at the

officers. During the melee, appellant ordered his dogs to attack. One dog bit the testifying

officer on the leg and an assisting officer on the arm.

       The trial court denied appellant’s motion to suppress, and the case proceeded to

trial before a jury.

B.     Trial

       On the day of trial, the prosecutor informed the court and the parties that the

arresting agency was able to fix the technical problems with the dash-cam video and that

the video was now playable. The trial court allowed appellant to view the video. Appellant

did not object to the introduction of the video in evidence. The video shows appellant's

wife sitting handcuffed in the back of the police unit, and the audio portion captures the

verbal exchange between appellant and the officers before officers pushed the front gate

open and arrested appellant. One officer told appellant to go back in the house, and when

appellant refuses, the officers told appellant that he would be taken in for “threats.”

       The jury heard all the evidence and found appellant guilty of both counts of assault

of a public servant. This appeal followed.

                               II.     MOTION TO SUPPRESS

       By his sole issue, appellant contends the trial court erred in denying his pretrial

motion to suppress because the dash-cam video, not admitted at the suppression hearing

but later admitted at trial, conclusively established that the officers lacked probable cause

to arrest him. Appellant does not specify what evidence should be suppressed if we



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reverse the suppression ruling or why the jury's verdict must be reversed without that

evidence. Nevertheless, we address appellant’s argument below.

A.     Applicable Law

       The code of criminal procedure provides that "[a] peace officer may arrest an

offender without a warrant for any offense committed in his presence or within his view.”

TEX. CODE CRIM. PROC. ANN. art. 14.01 (b) (West, Westlaw through 2017 1st C.S.). The

test for probable cause for a warrantless arrest is if “the facts and circumstances within

the officer's knowledge and of which he had reasonably trustworthy information were

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

or was committing an offense.” State v. Woodard, 314 S.W.3d 86, 97 (Tex. App.-Fort

Worth 2010), aff'd, 341 S.W.3d 404 (Tex. Crim. App. 2011). In determining whether a

police officer had probable cause to effect a warrantless arrest, a court scrutinizes “the

objective facts known to the officer at the time of the arrest, not the officer's subjective

conclusions.” Moreno v. State, 124 S.W.3d 339, 348 (Tex. App.—Corpus Christi 2003,

no pet.).

B.     Standard of Review

       In reviewing a trial court's ruling on a motion to suppress, we apply a standard of

abuse of discretion and overturn the trial court's ruling only if it is outside the zone of

reasonable disagreement. See Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim.

App. 2011). We must apply a bifurcated standard of review, “giving almost total deference

to a trial court's determination of historic facts and mixed questions of law and fact that

rely upon the credibility of a witness, but applying a de novo standard of review to pure




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questions of law and mixed questions that do not depend on credibility determinations.”

Id.

          Questions sometimes arise regarding the scope of evidence available to us in

reviewing the trial court's ruling on a motion to suppress. In Black v. State, the Texas

Court of Criminal Appeals set out the “general rule,” the “exception,” and the “corollary

rule” to resolve the question:

          The general rule: In cases in which the trial court is never asked, or is asked
          but declines, to exercise its discretionary authority to reopen the
          suppression hearing, appellate review of its ruling on the motion to suppress
          is ordinarily limited to that evidence presented at the pretrial hearing—the
          evidence that was before the court at the time of its decision.

          The exception: If the parties consensually broach the suppression issue
          again before the fact-finder at trial, the reviewing court should also consider
          the evidence adduced before the fact-finder at trial in gauging the propriety
          of the trial court's ruling on the motion to suppress.

          [T]he corollary rule: If at any point before the conclusion of final arguments
          at trial, the trial court should exercise its discretionary authority to reopen
          the suppression hearing, the reviewing court should also consider whatever
          additional evidence may be spread on the record bearing on the propriety
          of the trial court's ultimate ruling on the motion to suppress.

362 S.W.3d 626, 635–36 (Tex. Crim. App. 2012).

C.        Discussion

          Appellant asserts that: (1) we should consider the dash-cam video in gauging the

propriety of the trial court's ruling on the motion to suppress; and (2) the trial court's ruling

cannot withstand scrutiny because the video conclusively proves that the testifying officer

fabricated the basis for probable cause at the suppression hearing. We disagree on both

fronts.

          First, the video was not admitted at the suppression hearing, only at trial. Appellant

directs us to nothing in the trial record to trigger Black’s exception or corollary rule, which

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would expand our review to include the dash-cam video. See id. Appellant's argument

on appeal depends entirely on this video, but he fails to address the rules that would make

a review of that video possible on appeal as it relates to the trial court’s ruling on the

motion to suppress.

       Second, the trial court's ruling would withstand scrutiny even factoring in the dash-

cam video. The reason is that the officer's testimony at the suppression hearing and the

video depict different sequential events giving rise to this appeal. Specifically, the officer

testified that probable cause to arrest occurred in the front yard when appellant physically

interfered with the officers’ attempt to escort his wife to the police unit, whereas the video

starts after appellant's wife was placed in the back of the unit. Thus, it is temporally

impossible for the video to conclusively establish the suppression testimony was false, as

appellant claims. At best, the video casts doubt on the officer's subjective intent with

respect to the offense of appellant’s arrest because the audio portion of the video captures

the officer stating “threats” as the basis for arrest. But a court scrutinizes “the objective

facts known to the officer at the time of the arrest, not the officer's subjective conclusions.”

Moreno, 124 S.W.3d at 348. The objective facts known to the officer included appellant’s

interference with his wife’s arrest—facts which relate to an event that occurred before the

video began playing. Therefore, the video would not offer legally significant help to

appellant in gauging the propriety of the trial court's ruling.        See id.    We overrule

appellant's sole issue.

                                     III.   CONCLUSION

       We affirm the trial court's judgment.




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                                /s/ Rogelio Valdez
                                ROGELIO VALDEZ
                                Chief Justice

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

Delivered and filed this
23rd day of August, 2018.




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