Opinion
NUMBER 13-15-00102-CR
07-14-2016
ISAAC RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Isaac Ramirez was indicted for possession of a controlled substance in penalty group 1 (cocaine), in an amount of less than one gram—a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2015 R.S.). Ramirez moved to suppress the contraband on the ground that it was obtained as the fruit of an illegal search. The trial court denied the motion, and Ramirez thereafter pleaded guilty while reserving the right to appeal the denial of his motion to suppress. The trial court sentenced Ramirez to two years' confinement in a state jail facility and assessed a $1,000 fine, but suspended the sentence for five years of community supervision. By nineteen issues, Ramirez contends that the trial court reversibly erred by denying his motion to suppress and by entering several erroneous findings and conclusions. Finding no reversible error, we affirm.
I. BACKGROUND
At the suppression hearing, Officer Remigio Mancias of the McAllen Police Department testified as to the events leading to Ramirez's arrest, which in turn led to the discovery of the contraband in Ramirez's clothing. The trial court entered findings of fact which were based solely on Officer Mancias's testimony.
According to the testimony and findings, around 11:15 p.m. on January 4, 2014, Officer Mancias was dispatched to a disturbance at a local Mexican restaurant in McAllen. When Officer Mancias arrived at the restaurant, he spoke with the manager, who identified Ramirez as the one causing the disturbance. According to Officer Mancias, the manager related that Ramirez had been
picking fights with other customers [at] the tables near him, stating that he was part of some gang, and being rude to some of his employees. Then Mr. Ramirez got up and walked into the female bathroom. [The manager said,] "I don't know what he was doing there, but when he came out of the ladies' restroom, he just sat back down."Officer Mancias testified that another McAllen police officer named Carlos Hernandez was also dispatched to the restaurant. With the manager present, the two officers approached Ramirez, who was seated at a table. Officer Mancias told Ramirez that the manager of the restaurant wished Ramirez to leave, stating this point in three different ways: (1) "They're asking you to leave the location," (2) "We got to go. You're not welcome here by the business," and (3) "Let's go outside." With slurred speech and the smell of alcohol on his breath, Ramirez spoke only three words in response—"talk to her," referring to a female companion. He otherwise ignored Officer Mancias and remained seated.
At this point, the two officers grasped Ramirez beneath his arms, stood him up, and walked him to an area just outside the restaurant. According to Officer Mancias, he did not tell Ramirez that he was under arrest at this point and did not consider Ramirez to be under arrest.
Outside the restaurant, the officers released Ramirez and attempted to talk to him. Ramirez began to walk away. Officer Mancias testified that Ramirez was staggering, "swaying," and seemed to be oblivious to the cars that were passing through the busy parking lot. According to Officer Mancias, he feared that given Ramirez's state, he would be run over by a car or that he would then get in his vehicle and drive off, which Officer Mancias felt Ramirez could not safely do. At that point, according to Officer Mancias, he formally placed Ramirez under arrest for the offense of public intoxication. A search subsequent to the arrest revealed that Ramirez possessed a small quantity of cocaine.
II. DISCUSSION
The trial court concluded that the officers' actions in the restaurant constituted an arrest under the meaning of the Fourth Amendment. However, the trial court concluded that this arrest was justified by probable cause of three different offenses: public intoxication, disorderly conduct, and criminal trespass. The trial court further concluded that Ramirez committed these offenses in the officers' presence, justifying a warrantless arrest under Texas law. See TEX. CRIM. PROC. CODE ANN. art. 14.01 (West, Westlaw through 2015 R.S.).
By issues one through four and issue nine, Ramirez argues that the trial court reversibly erred in denying his motion to suppress. Ramirez contends that when the officers removed him from the restaurant, it qualified as an illegal arrest not supported by probable cause of any of the three offenses found by the trial court. He argues that the drugs discovered incident to this illegal arrest must therefore be suppressed.
By issues thirteen through seventeen, Ramirez contests certain conclusions of law. The conclusions in question are based on the same probable cause inquiry as issues one through four and issue nine.
By nine other related issues, Ramirez offers various arguments against the findings of fact which justify probable cause. Ramirez claims that certain findings of fact are not supported by the record or that they were based on perjured testimony, and that the State knowingly suborned this perjury. Finally, on an unrelated front, Ramirez argues that the evidence must be suppressed because he had a protected right to remain on the restaurant's private property indefinitely.
A. Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion. Ex Parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). At a hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. An appellate court must view the record of the hearing on the motion in the light most favorable to the trial court's ruling and must 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.; Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009). Whether a police-citizen encounter amounts to an arrest is a question of law that we review de novo. See State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008); State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
B. Detention or Arrest
Ramirez first asserts that the trial court correctly concluded that the officers' actions in the restaurant constituted an arrest. We disagree.
A defendant who alleges a seizure, such as an arrest, in violation of the Fourth Amendment has the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). A defendant may carry this initial burden by establishing that the seizure occurred without a warrant. Id. If this showing is made, then the burden shifts to the State to prove that the seizure was nonetheless reasonable under the applicable standard—either reasonable suspicion or probable cause. State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011).
There are three distinctive types of interactions between police officers and citizens: (1) consensual encounters; (2) investigative detentions, which must be supported by a reasonable suspicion of a crime and be of limited scope and duration; and (3) arrests, which are only constitutional if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Both investigative detentions and arrests are restraints on a person's freedom, but an arrest involves a greater degree of restraint. Sheppard, 271 S.W.3d at 290; State v. Adams, 454 S.W.3d 48, 50 (Tex. App.—San Antonio 2014, no pet.). We evaluate whether a person has been detained to the degree associated with arrest on a case-by-case basis. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). The "primary question is whether a reasonable person would perceive the detention to be a restraint on his movement comparable to a formal arrest, given all the objective circumstances." Id. Although there is no "bright-line" rule to distinguish the two, Texas courts categorize police actions as arrest or detention depending upon several factors, including the amount of force and authority displayed, the duration of detainment, the efficiency of the investigative process, whether the investigation is conducted at the original location or the person is transported to another location, the officer's expressed intent, and any other relevant factors. Sheppard, 271 S.W.3d at 291.
Here, according to Officer Mancias's testimony and the trial court's findings, Officer Mancias never "expressed intent" to Ramirez that he was under arrest while inside the restaurant. See id. at 291. There is no indication that Officer Mancias made any other statements indicating arrest, such as a statement that he had already concluded that Ramirez had committed an offense. See Ortiz, 382 S.W.3d at 373-74 (finding that the officer's statements showed he had already concluded that the defendant and his wife were in possession of drugs, which helped convey the message that the defendant was being arrested). Instead, Officer Mancias made clear that his purpose was not to arrest Ramirez, but simply to effect the manager's legally valid desire to remove a disorderly and intoxicated patron from the premises. See Bain v. State, 677 S.W.2d 51, 58 (Tex. Crim. App. 1984) (en banc), overruled on other grounds, Black v. State, 739 S.W.2d 240 (Tex. Crim. App. 1987) (en banc) (concluding that an officer had authority to detain and remove a man from a train based on a request by railroad management, who could have detained and removed the man "for whatever reason it wanted"); see also State v. Jackson, 849 S.W.2d 444, 446 (Tex. App.—San Antonio 1993, no pet.) (mem. op.) (holding that the owner of property may delegate to an off-duty officer the authority to keep people off of private property); Williams v. State, 138 S.W.3d 43, 45 (Tex. App.—Waco 2004, no pet.) (mem. op.) (concluding that police officer had apparent authority to give trespass warning where apartment manager had asked police to do so).
As to the force used, "officers may use such force as is reasonably necessary" to effect a valid goal of intervention: investigation, maintenance of the status quo, or officer safety. Zayas v. State, 972 S.W.2d 779, 789 (Tex. App.—Corpus Christi 1998, pet. ref'd). Here, the amount of force actually applied was no more than reasonably necessary to defuse the situation and preserve a peaceable status quo. See id. Nor did the officers create an "overwhelming show" of power or authority that might convey the message of arrest, see Ortiz, 382 S.W.3d at 374, such as by approaching with many officers or with weapons drawn. See Francis v. State, 922 S.W.2d 176, 180 (Tex. Crim. App. 1996) (en banc) (Baird, J., concurring and dissenting) (citing Joseph v. State, 865 S.W.2d 100 (Tex. App.—Corpus Christi 1993, pet. ref'd)).
The officers did not use this force to transport Ramirez to "another location" in the sense of Sheppard, but to a slightly different area at the same business location. See 271 S.W.3d at 291; compare Castro v. State, 373 S.W.3d 159, 166 (Tex. App.—San Antonio 2012, no pet.) (transporting a suspect just around the corner from the scene was consistent with detention) with Delk v. State, 855 S.W.2d 700, 711 (Tex. Crim. App. 1993) (en banc) (transporting suspects to the police station was more consistent with formal arrest). Moreover, Officer Mancias testified that the officers released their grip on Ramirez after they emerged from the restaurant. See Bartlett v. State, 249 S.W.3d 658, 670 (Tex. App.—Austin 2008, pet. ref'd) (finding no arrest where, after transporting a suspect a short distance away in order to defuse the situation, the officer immediately released the detained individual from handcuffs). Officer Mancias testified that Ramirez began to freely walk away, whereupon the officers concluded, based upon Ramirez's staggering and apparent lack of situational awareness, that Ramirez was intoxicated to a degree that he posed a danger to himself or others while in a public place. See TEX. PENAL CODE ANN. § 49.02(a) (West, Westlaw through 2015 R.S.) (defining public intoxication).
As to the length of the intervention, the record does not make clear how long it took for the officers to walk Ramirez from his table out of the restaurant and release him. However, "the trial court could reasonably have inferred based on the nature of the [officers'] activities . . . that the defendant was detained only for a short time . . . ." See Jones v. State, ___ S.W.3d ___, ___, No. 01-15-00488-CR, 2016 WL 757665, at *3 (Tex. App.—Houston [1st Dist.] Feb. 25, 2016, no pet.) (internal quotations omitted).
Based on our de novo review of the totality of the circumstances, as viewed under the Sheppard factors, we conclude that the officers' actions qualified as, at most, a detention under the meaning of the Fourth Amendment. See 271 S.W.3d at 291; Garcia-Cantu, 253 S.W.3d at 241.
Ramirez also contends that such an arrest was not supported by probable cause and was not permitted by any warrantless-arrest exception. We have concluded that the officers' conduct in the restaurant did not qualify as an arrest, and we therefore need not address this argument.
Similarly, by issues thirteen through seventeen, Ramirez contends that the trial court erred in reaching multiple conclusions of law. To summarize, these conclusions determine that Officer Mancias had articulated sufficient facts to support probable cause to arrest Ramirez based on his commission of multiple offenses—disorderly conduct, criminal trespass, and public intoxication—in the officer's presence. However, we need not address whether these facts support probable cause or justify a warrantless arrest under Texas statutory law, since we have already determined that the officers did not arrest Ramirez inside the restaurant. We overrule issues thirteen through seventeen.
C. Detention Supported by Reasonable Suspicion
Ramirez next argues that if the officers' actions inside the restaurant qualified only as a detention, this detention was not supported by reasonable suspicion. Under the Fourth Amendment, a warrantless detention that amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id.; Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists under the totality of the circumstances. Derichsweiler, 348 S.W.3d at 914.
The Texas Penal Code prescribes several offenses with potential applicability to the facts of this case. A person may commit the offense of disorderly conduct if the person takes certain statutorily prescribed actions that tend to incite an immediate breach of the peace or "abuses or threatens a person in a public place in an obviously offensive manner." TEX. PENAL CODE ANN. § 42.01(a)(1)-(2), (4) (West, Westlaw through 2015 R.S.); see also Ste-Marie v. State, 32 S.W.3d 446, 449 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ("Texas courts have defined and interpreted the term 'breach of the peace' to mean an act that disturbs or threatens to disturb the tranquility enjoyed by the citizens."). A person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. TEX. PENAL CODE ANN. § 49.02(a). "Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Id. § 49.01 (West, Westlaw through 2015 R.S.); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). Finally, as relevant to the facts of this case, a person commits the offense of criminal trespass if the person remains on the property of another without effective consent and the person received notice to depart but failed to do so. TEX. PENAL CODE ANN. § 30.05(a) (West, Westlaw through 2015 R.S.). "Notice" includes an oral communication by someone with apparent authority to act for the owner. Id. § 30.05(b)(2) (West, Westlaw through 2015 R.S.).
"Ownership" does not require a showing as to who had title to the property, but may instead be proved upon a showing of a greater right to possession of the property than the defendant. Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993).
Based on the above offenses, Officer Mancias was able to point to several articulable facts which justified a limited detention based upon reasonable suspicion. Officer Mancias testified that while working the "graveyard shift" on January 4, he was dispatched to the restaurant to respond to a "disturbance." Upon arrival, the manager of the establishment informed him that Ramirez had entered the women's restroom and had been picking fights with other customers while claiming gang-affiliation—all facts suggesting that Ramirez had potentially been involved in disorderly conduct, at least for purposes of reasonable suspicion. See id. § 42.01(a)(1)-(2), (4). The manager asked Officer Mancias to remove Ramirez from the restaurant. Officer Mancias approached Ramirez, and when Ramirez spoke, he exhibited signs of intoxication including bloodshot eyes, slurred speech, and the strong odor of alcohol. When paired with the earlier-acquired information regarding Ramirez's aggression toward other patrons of the restaurant, these facts suggested public intoxication. See id. §§ 49.01-.02. When Mancias told Ramirez in three different ways that he needed to leave because he was "no longer welcome there by the business," Ramirez ignored him and remained seated—suggesting notice to depart but refusal to do so under the criminal trespass statute. See id. § 30.05(a).
Based on the totality of these circumstances, we conclude that Officer Mancias articulated specific facts which warranted a reasonable suspicion that Ramirez had been or was engaged in criminal activity. See Derichsweiler, 348 S.W.3d at 914; Ford, 158 S.W.3d at 492-93. We conclude that this reasonable suspicion was sufficient to justify the officers in detaining and moving Ramirez to the outside of the restaurant, see Sheppard, 271 S.W.3d at 290-91, especially when done at the behest of the restaurant management. See Bain, 677 S.W.2d at 58; Jackson, 849 S.W.2d at 446; Williams, 138 S.W.3d at 45-46. We overrule issues one through four and issue nine.
Appellant does not challenge the validity of his arrest for public intoxication outside of the restaurant.
D. Other Arguments
By his fifth and tenth issues, Ramirez contends that there is no evidence to support a particular clause within one of the trial court's findings of fact. We reproduce the contested finding of fact, along with the finding of fact immediately before it for the sake of context:
Officer Mancias first went over and said, "You need to leave." Mr. Ramirez looked up but turned away, pointing at the female and said, while slurring his words: "Talk to her."(Emphasis added). Ramirez challenges the italicized clause, contending that it had a detrimental effect on the determination of Ramirez's motion to suppress because it helped support reasonable suspicion of each of the three contested offenses.
Mr. Ramirez responded by saying in slurred speech, he wasn't going to leave and ignored the Officer by staring straight ahead and refusing to respond to the officer's statements and questions.
Ramirez is correct that the record contains no evidence that he specifically said, in slurred speech, that "he wasn't going to leave" the restaurant. Nonetheless, we find this issue unavailing. The content of this contested finding is duplicative of other findings, each of which are supported by the record evidence. Other findings noted that Ramirez slurred his speech, and these findings are supported by Officer Mancias's testimony. Other findings also set out that Ramirez refused the officer's requests to leave the restaurant, and these findings are supported by Officer Mancias's testimony that Ramirez responded "talk to her" rather than complying, and otherwise nonverbally refused the officer's requests to leave. See Friend v. State, 473 S.W.3d 470, 480 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (cataloging cases of noncompliant refusal in response to officers' questions and requests, in the Fourth Amendment context). Ramirez does not contest any of these findings or evidence, and he does not explain how the contested finding could have resulted in any harm given the cumulative findings and evidence. See Celis v. State, 354 S.W.3d 7, 38 (Tex. App.—Corpus Christi 2011), aff'd, 416 S.W.3d 419 (Tex. Crim. App. 2013) ("If the [erroneously admitted] evidence is generally cumulative of other evidence introduced in the case, no harm attaches."). We conclude that this baseless finding is harmless in view of the cumulative findings and evidence. See id. We overrule Ramirez's fifth and tenth issues.
By his sixth and eleventh issues, Ramirez contests the trial court's finding that "Mr. Ramirez was told by Officer Mancias that the manager wanted him out of the restaurant." Ramirez contends that this finding is incompatible with a portion of another finding, which states that the restaurant "manager never spoke of himself or any employee going and telling Mr. Ramirez to leave." We disagree. The former refers to whether the manager told Officer Mancias that he wished Ramirez to leave, whereas the latter refers to whether the manager directly told Ramirez to leave. The two findings are wholly compatible.
Ramirez next argues the trial court's finding that "Mr. Ramirez was told by Officer Mancias that the manager wanted him out of the restaurant" was based on "retracted material false testimony." He contends that this finding was based on testimony that was formally retracted: whereas Officer Mancias first testified that the manager of the establishment had reported telling Ramirez to leave and that Ramirez had refused, Officer Mancias appeared to testify on cross-examination that the manager of the restaurant had not told him this. According to Ramirez, the trial court's reliance on Officer Mancias's direct-examination testimony violated the Sixth and Fourteenth Amendments.
We disagree. First, based on the context, it is not clear whether Officer Mancias actually revised his earlier testimony or instead simply stated, in an imprecise fashion, that he had not previously disclosed this detail. Second, the trial court clearly placed no reliance on the allegedly retracted statement; whereas Officer Mancias at first testified that the manager had reported speaking directly with Ramirez, the trial court instead entered a finding that the manager never reported speaking with Ramirez. Thus, contrary to Ramirez's assertion, the testimony in question had no bearing on the contested finding of fact. Ramirez's sixth and eleventh issues are overruled.
Ramirez's seventh and eighth issues also relate to the same testimony and its alleged retraction. Ramirez notes that as part of the State's written response to Ramirez's motion to suppress, the State advocated a version of events that coincides with Officer Mancias's earlier testimony: the State argued that the manager of the restaurant directly asked Ramirez to leave and then reported this fact to Officer Mancias. Ramirez claims that by arguing for this version of events, the State acted in bad faith by suborning perjury and also violated his constitutional rights to due process and a fair trial. Ramirez cites many Supreme Court cases dealing with Brady petitions for post-conviction relief, wherein evidence disclosed after trial "demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury." United States v. Agurs, 427 U.S. 97, 103 (1976) (citing Brady v. Maryland, 373 U.S. 83, 86 (1963)).
A person commits perjury if, with intent to deceive and with knowledge of the statement's meaning, he makes a false statement under oath and the statement is required or authorized by law to be made under oath. TEX. PENAL CODE ANN. § 37.02 (West, Westlaw through 2015 R.S.). No perjury occurs where the witness honestly, though mistakenly, thought that his statement was true when he made it. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Where the prosecution knowingly uses perjured testimony, the resulting conviction must be set aside if there is a "reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Rice, 607 F.3d 133, 143 (5th Cir. 2010) (citing Agurs, 427 U.S. at 103-04).
However, this case does not fall within the rule of Agur and Brady for multiple reasons. For one, given the ambiguous context of the testimony in question, it is debatable whether Officer Mancias's earlier testimony—that the manager reported telling Ramirez to leave—was a "false statement." See TEX. PENAL CODE ANN. § 37.02. For another, Ramirez does not direct our attention to any evidence that Officer Mancias made his earlier statement "with intent to deceive" or that the prosecutors had reason to know that this statement was false, if it was indeed false. See id. As quoted by the State's appellate brief:
Though the case is not directly on point, we are guided by Brownlee v. Brownlee, which suggests that an unambiguous statement better lends itself to perjury than a statement which is equivocal and not readily falsifiable. See 665 S.W.2d 111, 112 (Tex. 1984).
A lawyer's certainty that a change in his client's recollection is a harbinger of intended perjury—as well as judicial review of such apparent certainty—should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls) details that he previously overlooked.Nix v. Whiteside, 475 U.S. 157, 190-91 (1986) (Stevens, J., concurring). Moreover, unlike the Brady cases cited, the alleged falsehood was not disclosed after conviction, but was instead discussed and thoroughly rebutted during cross-examination. See Brady, 373 U.S. at 87; cf. Onate v. State, 62 S.W.3d 208, 211 (Tex. App.—El Paso 2001, pet. ref'd) (holding that "reversal will naturally follow" from a prosecutor's knowing presentation of uncorrected false testimony). Finally, the allegedly false testimony played no part in the trial court's denial of the motion to suppress; the trial court found the opposite of the disputed testimony to be true. Thus, Ramirez has not shown: a false statement or intent to deceive, see TEX. PENAL CODE ANN. § 37.02, the prosecutor's knowing use of perjury, see Agurs, 427 U.S. at 103-04, or a "reasonable likelihood that the false testimony could have affected the [outcome]." See Rice, 607 F.3d at 143. Ramirez's seventh and eighth issues are overruled.
By his twelfth issue, Ramirez contends that one of the trial court's conclusions of law was subject to a scrivener's error:
Under the totality of the circumstances, this court must determine under an objective test whether or not Mr. Ramirez was arrested by police action inside the restaurant. He was.(Emphasis added). Ramirez notes that the trial court signaled its intention to delete the words "he was" by crossing these words off of an earlier proposed draft of the document. The scrivener was to incorporate the trial court's hand-written revisions into a final document but, according to Ramirez, failed to do so. However, Ramirez concedes that this issue cannot result in any remedy, since correction of the alleged error only works in favor of the State. We are prohibited from issuing advisory opinions, the distinctive feature of which is that it decides an abstract question of law without binding the parties. Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004, no pet.); see also Perez v. State, 938 S.W.2d 761, 764 (Tex. App.—Austin 1997, pet. ref'd). We therefore may not consider this issue, though we note with favor Ramirez's effort to bring it to the Court's attention. Ramirez's twelfth issue is overruled.
As we understand Ramirez's eighteenth and nineteenth issues, Ramirez contends that the record does not support a finding that Officer Mancias had apparent authority to deliver the notice to depart on behalf of the restaurant, pursuant to the criminal trespass statute.See TEX. PENAL CODE ANN. § 30.05(a); see also Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (stating that, in a different Fourth Amendment context, the proper "apparent authority" inquiry was whether the facts available at the time "warrant a man of reasonable caution in the belief that the consenting party had authority . . . ."). Ramirez contends that the trial court therefore erred in entering such a finding. However, none of the trial court's findings declare that Officer Mancias had apparent authority, and Ramirez does not specify which particular finding he contests.
Within these issues, Ramirez includes several unclear contentions which are not accompanied by any explanation, law, or record citations. Thus, to the extent that Ramirez's eighteenth and nineteenth issues advance any argument aside from whether the record supports the challenged finding, we conclude that these issues are inadequately briefed and refuse to address them. See TEX. R. APP. P. 38.1(h); Sanders v. State, 963 S.W.2d 184, 191 (Tex. App.—Corpus Christi 1998, pet. ref'd). --------
Nonetheless, the trial court did enter findings which justify an inference that Officer Mancias had apparent authority to deliver the notice, and these findings are reasonably supported by the record evidence. See Moore, 395 S.W.3d at 158; Young, 283 S.W.3d at 873. The trial court found—and Officer Mancias testified—that when he responded to the reported "disturbance," the manager of the restaurant asked him for assistance in removing Ramirez from the restaurant. See Bain, 677 S.W.2d at 58; Jackson, 849 S.W.2d at 446; see also Williams, 138 S.W.3d at 45-46. The trial court found—and Officer Mancias testified—that he made the following statements in the manager's presence: "We got to go. You're not welcome here by the business," and that the restaurant was "asking [him] to leave the location." These findings and evidence justify the inference that Officer Mancias had authority and, with the manager's tacit approval, made this authority apparent to Ramirez. See TEX. PENAL CODE ANN. § 30.05(a). We overrule Ramirez's eighteenth and nineteenth issues.
Finally, as an unnumbered sub-issue, Ramirez argues that he had a liberty interest in remaining at the property based upon his constitutionally guaranteed freedom of movement, and his due process rights to notice and hearing before being deprived of freedom of movement. Ramirez points to Anthony v. State as authority for this proposition. 209 S.W.3d 296 (Tex. App.—Texarkana 2006, no pet.). However, the State correctly points out that Anthony involved public property; there the court held an officer did not have unfettered discretion to permanently exclude a man from a public park under threat of arrest based solely on the man's criticism of the officer. See id. at 302 & 309. The Anthony court expressly distinguished this situation from cases involving private property, wherein courts had rejected the trespassers' assertion of constitutional rights and upheld the expulsions. See id. at 307 n.8 (citing cases); see also Zarsky v. State, 827 S.W.2d 408, 410-11 (Tex. App.—Corpus Christi 1992, pet. ref'd) ("Before a private property owner can be subjected to another's [constitutional] free-speech rights, the privately-owned property must assume to some significant degree the functional attributes of public property devoted to public use."). Ramirez offers no evidence suggesting that this restaurant was public property, and he directs us to no authority holding that the United States Constitution guarantees an individual's unlimited right to remain on private property indefinitely. Ramirez's sub-issue is overruled.
III. CONCLUSION
Having overruled each of Ramirez's nineteen issues and his unnumbered sub-issue, we conclude that the trial court did not abuse its discretion in denying Ramirez's motion to suppress the contraband evidence. We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 14th day of July, 2016.