No. 05-07-01526-CR
Opinion Filed August 29, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-82804-06.
Before Chief Justice THOMAS and Justices FITZGERALD and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
LAGARDE, JUSTICE.
Appellant Arturo Estrada Noguez was indicted for possession of cocaine in an amount less than one gram. In a trial before the court, appellant pleaded not guilty. He also moved to suppress the cocaine on the ground it was the fruit of an illegal detention. The trial court denied the motion to suppress and found appellant guilty. Pursuant to an agreement, the trial court assessed punishment at two years' confinement in a state jail facility, probated for four years, and a $500 fine. In his sole issue on appeal, appellant contends the trial court erred by denying the motion to suppress. We affirm the trial court's judgment.
Background
Plano police officer James Williams testified that on July 9, 2006, at approximately 12:30 a.m. or 1:00 a.m., while transporting a person to jail, he noticed a black Chevy Silverado pickup truck parked in the lot on the east side of Blockbuster Video. The store was located in the 1900 block of 14th Street, Plano, Texas. The store was not open for business. Williams continued to the jail, but returned to the area of the video store shortly after 2:00 a.m. Williams saw the truck still parked in the same place. All of the businesses in the area were closed and there were no other vehicles in the immediate vicinity. Williams had not received any reports of burglaries in the immediate area and did not observe any criminal violations at that time. However, he decided to approach the vehicle to check it out. Williams did not consider his actions a traffic stop. Rather, he considered it "more or less a welfare check." Williams did not activate the patrol car's overhead lights, so the in-car video camera did not record the encounter. The truck's lights were not on, but the parking lot was well-lighted. When Williams approached the truck, he noticed the engine was not running, but the key was in the ignition. Williams detected a strong odor of an alcoholic beverage coming from the vehicle and he saw several bottles of beer in the truck. Williams was also able to see the silhouettes of three heads. Williams identified himself as a police officer and told appellant why he had approached the vehicle. Williams asked appellant "what the problem was." In broken English, appellant responded that he and his friends were waiting in the parking lot for some other friends who were traveling from Houston. When the other friends arrived, appellant intended to lead them to his home. Williams saw that appellant's eyes were red and glassy. Williams asked appellant how much he had to drink, but appellant did not answer. After obtaining appellant's name and date of birth, Williams checked for outstanding warrants, but found none. Williams requested a backup officer who could speak Spanish, and then asked appellant to exit his vehicle. Appellant complied. Williams testified that, at that point, appellant was not free to leave. Williams believed he had reasonable suspicion to detain appellant because of the strong odor of alcoholic beverage coming from the truck, the open beer bottles inside, and appellant's stated intention of driving home once he met up with his friends. Williams wanted to determine whether appellant was fit to drive. As appellant go out of the truck, he nearly fell down. Williams saw that appellant's pants were unzipped and it appeared appellant had urinated on himself. Williams began conducting field sobriety tests, but stopped until the Spanish-speaking officer arrived. When the backup officer arrived, the field sobriety tests were conducted. Appellant exhibited all six clues of intoxication on the horizontal gaze nystagmus (HGN) test. Based on his observations, Williams believed appellant was intoxicated to the point he was a danger to himself and others. Williams arrested appellant for public intoxication and handcuffed him. Williams then searched appellant's person incident to the arrest. The search revealed a plastic bag containing a light powdery substance, which field-tested positive for cocaine. A search of appellant's vehicle revealed "another bag, small plastic baggie that had been wadded up, placed in the cigarette lighter. A cigarette lighter was placed back over that plastic baggie." Williams also found "a beer bottle that had another plastic baggie that had been chewed up and placed inside the beer bottle." Applicable Law
Courts reviewing a ruling on a motion to suppress afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the determination is based on an evaluation of credibility and demeanor. State v. Stevens, 235 S.W.3d 736, 739-40 (Tex.Crim.App. 2007). The same deference is afforded to mixed questions of law and fact or "application of law to fact questions," where the resolution likewise turns on an evaluation of credibility and demeanor. Id. at 740. Appellate courts review de novo the application of law to facts that does not involve determinations of credibility and demeanor. Id. at 740. When the trial court does not make explicit findings of fact, the appellate court infers the necessary factual findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, supports these implied fact findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008). A police officer may briefly detain a person for purposes of investigating possible criminal behavior, even though there is no probable cause to make an arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968). To be justified in doing so, however, the officer must have reasonable suspicion or, in other words, specific articulable facts, which taken together with rational inferences from those facts, led the officer to conclude the person detained actually is, has been, or soon will be engaged in criminal activity. See id. at 21; Curtis v. State, 238 S.W.3d 376, 380-81 (Tex.Crim.App. 2007). An officer's approach and questioning of persons in a parked car does not constitute a seizure. Garcia-Cantu, 253 S.W.3d at 243. Cf. Harper v. State, 217 S.W.3d 672, 675 (Tex.App.-Amarillo 2007, no pet.) (police officer's request for driver to step out of parked vehicle did not transform encounter into a detention). An individual commits the offense of public intoxication if he appears in a public place under the influence of alcohol, or any other substance, to the degree that the individual may endanger himself or another. Tex. Penal Code. Ann. § 49.02(a) (Vernon Supp. 2008). A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Id. § 49.04(a) (Vernon 2003). Analysis
Appellant contends the trial court erred by denying the motion to suppress because Williams illegally detained appellant when Williams asked appellant to get out of the car. The State responds that the trial court properly denied the motion because, even assuming a detention occurred, Williams had reasonable suspicion to believe appellant was or would be involved in criminal activity. The evidence shows Williams had seen appellant's vehicle parked in an empty parking lot for over an hour in the wee hours of the morning when no businesses were open. Wondering if something was wrong, Williams approached the vehicle to conduct a "welfare check." Williams saw appellant in the driver's seat and other people in the vehicle. Appellant did not respond to Williams's question about how much appellant had to drink. Williams observed classic signs of intoxication-appellant's red glassy eyes, the odor of alcoholic beverages, and open beer bottles. Appellant informed Williams appellant intended to lead his soon to be arriving friends back to appellant's house, which led Williams to believe appellant would be driving his vehicle on a public street or highway. Based on these observations, William had reasonable suspicion to believe appellant was intoxicated in a public placed and that appellant would soon be driving while intoxicated. Having reviewed the record under the proper standard of review, we conclude the trial court did not err by denying the motion to suppress. We resolve appellant's issue against him. We affirm the trial court's judgment.