No. 05-10-00365-CR
Opinion issued October 21, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 1 Dallas County, Texas, Trial Court Cause No. MB05-37836-A.
Before Justices MOSELEY, LANG, and MYERS.
Opinion By Justice LANG.
Aaron Olguin, appellant, was charged with driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 2011). He filed a motion to suppress evidence obtained as a result of the stop preceding his arrest. Appellant raises two issues on appeal: (1) the trial court erred in denying appellant's motion to suppress, and (2) the trial court erred in allowing testimony during the suppression hearing pertaining to a municipal ordinance not offered as evidence. The trial court's judgment is affirmed.
I. FACTUAL PROCEDURAL BACKGROUND
Irving police officer Stephen Burres testified at trial, while on patrol in his squad car on Highway 183, he observed Olguin standing next to the passenger side of his car that was parked on the side of the highway and there was "a steady stream of urine" coming from him. Burres said that he was "going fast enough where [he] could not stop behind [Olguin]," so "[he] applied the brakes, stopping about twenty-five yards ahead of Olguin." Once parked on the shoulder of the highway, Burres testified that he could not safely drive in reverse to get closer to Olguin. Instead, Burres continued to observe Olguin. When Olguin walked in front of his headlights from the passenger's side of his vehicle to the driver's side, Burres testified he could see Olguin zip up the fly of his pants. Once inside his car, Olguin drove away on the highway, passing Burres's parked car. At that point, Burres pursued Olguin in his squad car and activated the overhead emergency lights. Burres testified that he was attempting to stop Olguin for violations of an Irving ordinance prohibiting public urination and a Texas penal statute, section 42.01(a)(10), prohibiting disorderly conduct (exposing genitals in a public place). Instead of stopping immediately, Olguin exited the highway and, according to Burres, "slowed down, `took off again,' `moved to the right lane,' `slowed down like he was going to stop again,' and `then took off again.'" Olguin eventually stopped his car, Burres approached him, and they conversed. Burres noticed that Olguin had the odor of alcohol on his breath, and his eyes were "bloodshot and glassy." When Burres asked for Olguin's driver's license, he "fumbled" through his wallet before he produced it. Burres then arrested Olguin for DWI. Olguin filed a motion to suppress evidence obtained as a result of the stop alleging Burres did not have reasonable suspicion to make the stop. After hearing the testimony of Burres, the trial court denied Olguin's motion. Olguin subsequently pled nolo contendere, but secured the trial court's permission to appeal the suppression ruling. We affirm. II. TESTIMONY DURING SUPPRESSION HEARING
We first address Olguin's second issue. Appellant argues the trial court erred by permitting Burres to testify about violation of a local ordinance prohibiting public urination because a copy of the ordinance was not offered as evidence, and there was no request the trial court take judicial notice of it nor did the trial court sua sponte take judicial notice of the ordinance. The State responds that the rules of evidence do not apply to suppression hearings, the ordinance need not be offered as evidence, nor is it required the State request the trial court take judicial notice of the ordinance. A. Standard of Review
Questions concerning the admissibility of evidence are within the province of the trial court. Ross v. State, 763 s.W.2d 897, 904 (Tex. App.-Dallas 1988, pet. ref'd). When the admissibility of evidence depends on some preliminary question of fact, the existence or non-existence of that fact is determined by the trial court. Id. A trial court's determination that a sufficient predicate has been laid for the introduction of evidence will not be reversed absent an abuse of discretion. Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984). B. Applicable Law
The Court of Criminal Appeals has held that, except for privileges, the rules of evidence do not apply to suppression hearings. Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002). In Granados, the appellant complained that, at the suppression hearing, the trial court erred in admitting into evidence a police officer's testimony of what another officer told him about what the victim's family said about the victim's whereabouts. Id. at 226-27. That appellant claimed the testimony constituted inadmissible hearsay. Id. at 227. The Court of Criminal Appeals concluded that the officer's testimony, where "he testified as to the facts that he . . . believed constituted probable cause," was not hearsay and, thus, admissible. Id. at 230. Additionally, the court noted that the testimony would have been admissible, even if it had been hearsay, because courts are permitted to rely on hearsay and other inadmissible evidence in suppression hearings even though it would not otherwise be admissible at trial. Id. at 227 n. 29 (citing United States v. Raddatz, 447 U.S. 667 (1980)). C. Application of Law to Facts
Texas Rule of Evidence 104(a) provides "[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the court." Tex. R. Evid. 104(a). Rule 104(a) further specifies that "[i]n making its determination the court is not bound by the rules of evidence." Id. The Court of Criminal Appeals, in Granados, specifically stated that suppression hearings "involve the determination of preliminary questions concerning the admissibility of evidence." 85 S.W.3d at 227. The trial court in the instant case did not abuse its discretion in permitting Burres to testify as to his personal knowledge of the existence of an ordinance. Accordingly, appellant's second issue is decided against him. III. MOTION TO SUPPRESS
In his first issue, appellant argues the trial court erred when it denied his motion to suppress because Burres did not have reasonable suspicion to make the stop. The State responds Burres had reasonable suspicion to detain appellant based on Burres's testimony that he personally observed appellant urinating near the highway. Accordingly, the State argues the facts were objectively sufficient to provide "Burres with reasonable suspicion to detain appellant for having either urinated in public or for having potentially committed the offense of disorderly conduct by having displayed his genitals in a public place." A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor and conduct a de novo review of the trial court's application of the law to those facts. Herrera v. State, 241 S.W.3d 520, 526-27 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When the trial court makes findings of fact, we determine whether the evidence, when viewed in the light most favorable to the court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will uphold the trial judge's decision so long as it is correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). B. Applicable Law
"Under the Fourth Amendment, a warrantless detention of a suspect that amounts to less than a full-blown custodial arrest must be justified at least by a reasonable suspicion." State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ford, 158 S.W.3d at 492). "A police officer has reasonable suspicion to detain a person 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. "This standard is an objective one that disregards the actual subjective intent or motive of the detaining officer and looks, instead, to whether there was an objective justification for the detention." Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). The reasonableness of a temporary detention is examined in terms of the "totality of the circumstances" at its inception. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). C. Application of Law to Facts
Appellant contends "[t]he record here is totally devoid" of evidence that would constitute disorderly conduct, i.e., the public exposure of genitals. He claims that Burres saw only his "hand outside his pants in the dark, and what appeared to be urine emitting from or out through [appellant's] hand." The record reflects the detention of appellant by Burres was justified by a reasonable suspicion of violation of the public urination ordinance, as discussed above. That determination is dispositive, and we need not address whether the record contains evidence that would justify a warrantless detention for disorderly conduct. Burres testified to specific, articulable facts that led him to reasonably conclude that appellant had been engaged in criminal activity. Cf. Ford, 158 S.W.3d at 493 (conclusory statements of officers, without more, are ineffectual). Based on Burres's testimony, the trial court found he "had reasonable suspicion to stop [appellant] based on [Burres's] observations" as set out above. When viewed in the light most favorable to the court's ruling, we conclude that Burres's testimony supports the trial court's finding. Accordingly, we conclude the trial court did not err in denying appellant's motion to suppress, and resolve appellant's first issue against him. IV. CONCLUSION
Because the rules of evidence do not apply to suppression hearings, the trial court did not abuse its discretion in allowing testimony regarding a municipal ordinance neither offered into evidence nor judicially noticed. We conclude Burres had reasonable suspicion to temporarily detain appellant. Appellant's two issues are decided against him, and the trial court's judgment is affirmed.