No. 05-05-00245-CR
Opinion Issued January 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80871-04. Affirmed.
Before Chief Justice THOMAS and Justices BRIDGES and MALONEY.
Opinion By Justice MALONEY.[fn1] [fn1] The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
The trial court found Shaun Michael Garrison guilty of possession of methamphetamine in an amount of four grams or more but less than 200 grams and assessed a three-year sentence in the Institutional Division of the Texas Department of Criminal Justice. In one issue, appellant argues the trial court incorrectly denied his written motion to suppress evidence. We affirm the trial court's judgment.
Background
In a two count indictment, the grand jury charged appellant with possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams of methamphetamine and with possession of methamphetamine in an amount of four grams or more but less than 200 grams. Appellant filed a pretrial motion to suppress the fruits of his arrest and detention. Before the suppression hearing, appellant's attorney informed the trial court that if the motion to suppress was denied, appellant would be entering a plea of guilty to "simple possession" and not guilty to possession with intent to deliver. The trial court denied appellant's motion to suppress. Appellant stipulated that the trial court could consider all testimony from the suppression hearing in the trial on the merits. The trial court found appellant guilty of possession of the methamphetamine. SHOULD THE TRIAL COURT HAVE DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE?
In appellant's sole issue, he challenges the search, arguing that no probable cause existed to arrest appellant. He contends the officer lacked probable cause to arrest because no evidence showed appellant posed a danger to himself or others. Consequently, appellant maintains the seized evidence should have been excluded under article 38.23 of the Texas Code of Criminal Procedure. The State replies that appellant did not preserve his complaint for appeal. The State also argues that the officers seized the evidence as the result of proper search incident to arrest. Alternatively, the State argues the officers conducted the search for their safety in an investigatory detention. 1. Standard of Review
We review de novo a trial court's ruling on a motion to suppress that does not turn on evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We defer to a trial court's determination of the historical facts that the record supports, particularly on credibility and demeanor. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); see also Leach v. State, 35 S.W.3d 232, 234-35 (Tex.App.-Austin 2000, no pet.). The trial court is the sole judge of the witnesses' credibility and their testimony's weight. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We uphold a trial court's evidentiary ruling if any valid theory exists to support that ruling whether the State argued that theory at trial or on appeal. See Graham v. State, 893 S.W.2d 4,7 (Tex.App.-Dallas 1994, no pet.). When we review the trial court's decision to deny a motion to suppress, we consider the evidence in the light most favorable to the trial court's ruling. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). 2. Applicable Law
A search conducted without a warrant issued on probable cause is per se unreasonable. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Any evidence seized in violation of the constitutions or laws of the United States or the State of Texas is inadmissible against the accused in a criminal trial. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Evidence seized incident to arrest is admissible if sufficient probable cause existed to justify the arrest. See McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004 (2003). An officer may make a warrantless arrest for any offense that is committed in the officer's view or presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). But, the total facts and circumstances within the officer's knowledge at the time of arrest must be sufficient to justify a prudent person in believing that the arrested person has committed or is committing an offense. See Chilman v. State, 22 S.W.3d 50, 56 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). A person commits public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. See Tex. Penal Code Ann. § 49.02(a) (Vernon 2003). The danger need not be immediate; potential danger to himself or others suffices to show endangerment. See Loera v. State, 14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.); see also Segura v. State, 826 S.W.2d 178, 184 (Tex.App.-Dallas 1992, pet. ref'd). Under Texas law, any area to which the public, or a substantial group of the public, has access, including the common areas of an apartment, is a public place. See Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2005); Loera, 14 S.W.3d at 467. 3. The Evidence
Because the State offered only testimony on possession with intent to deliver during the bench trial, we review only the evidence adduced during the pretrial motion to suppress hearing. At the suppression hearing, the arresting officer testified that he did not check for warrants until after he arrested appellant. We address this issue as a warrantless arrest. a. Stephen Swafford
Swafford, a Dallas Police Officer, testified that he and Rhodes, another Dallas Police Officer, answered "a suspicious person call" at an apartment complex. When Swafford arrived, he saw appellant sitting on the curb. Although it was 6:40 in the morning, appellant was stumbling and looking around. Swafford got out of his squad car to speak with appellant. Appellant came up to the front of the squad car carrying a wine bottle. Swafford saw that appellant had red and bloodshot eyes and smelled of alcohol. Swafford told appellant to put the wine bottle down. Appellant did not obey Swafford's command. Instead, appellant took a drink out of the bottle, refused to produce any identification or take his hands out of his pockets, and became belligerent. When the officers tried to "cuff" appellant, he would not put his hands behind him and he ran toward the back of the partrol car. The officer ultimately gained control of appellant, arrested him, and handcuffed him. Thereafter, the officers conducted a search of appellant's person incident to the arrest, and discovered a large bag of methamphetamine in appellant's pocket. b. Appellant
Appellant disputed Swafford's version of what occurred on the morning in question. Appellant maintained that he lived at the apartment complex, was locked out of his apartment because he had let his girlfriend take his truck to go to work, and gave the officers his identification. Appellant's truck and apartment keys were on the same key chain, which prevented him from getting back into his apartment. When the police arrived, appellant was sitting on the stairs, just ten feet from his apartment and at least five feet from the parking lot. Appellant explained that he worked "at night" and got off late; so, he drank when he got off work. Appellant agreed that if someone did not know his work hours, they might find "suspicious" his sitting outside with a wine bottle at 6:30 a.m. Appellant also admitted he had been drinking for three or four hours before the officers arrived. 4. Application of Law to Fact
Appellant does not dispute that he was intoxicated. Nor does he challenge that he was arrested in a public area. Rather, he argues that no one testified he was a danger to himself or others. We look to the totality of the circumstances in determining the legality of the circumstances of appellant's detention. The officers were dispatched to investigate suspicious activity at an apartment complex in the early hours of the morning. When they arrived at the reported location, they encountered appellant, who matched the discription of the suspicious person. Appellant was in a grassy area near the curb. As they got closer to appellant, they could smell alcohol on his breath and see that his eyes were bloodshot. He was carrying a wine bottle, looking around, and unsteady on his feet. Swafford asked appellant to put the bottle down. Instead, appellant took a drink out of the bottle. Swafford testified that a large wine bottle could be used as a blunt instrument or, if broken, a cutting instrument. When appellant did not respond to their request, Rhodes took the bottle away from appellant. After that, appellant became belligerent and refused to comply with their orders to keep his hands out of is pockets or to identify himself. Appellant testified he was sitting on the staircase right by his apartment, but he admitted it was only four or five feet from the staircase to the grassy area by the parking lot. He agreed that a person in an apartment parking lot with a bottle of wine at that early hour could appear suspicious. But, appellant explained to the officers that because he gets off work at 2:00 a.m. and does not have to be back at work until 5:00 p.m., he "relaxe[s]" early in the morning. Appellant admitted he had been drinking for three to four hours by the time he encountered the officers. Although appellant maintained he had told the officers he lived in the complex, Swafford insisted appellant did not give them an address, appellant refused to identify himself, and he never told them he was locked out of his apartment. We conclude the above facts, when taken together rational inferences from those facts, led the officers to believe that appellant was intoxicated. And, it can be reasonably inferred that an intoxicated person carrying a large wine bottle and stumbling around in the vicinity of a parking lot would be a potential danger to himself or to others. Therefore, we conclude the trial court did not err in denying the motion to suppress. We resolve appellant's issue against him. We affirm the trial court's judgment.