Opinion
No. 05-02-01297-CR
Opinion issued June 24, 2003 Do Not Publish
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-49531-WU. AFFIRMED
OPINION
J. Jesus Zavala appeals the trial judge's denial of his motion to suppress. Appellant pleaded guilty pursuant to a plea bargain agreement and was convicted of possession of a dangerous drug. The trial judge assessed punishment, in accordance with the plea bargain agreement, at 365 days in jail. Appellant filed a proper notice of appeal. See Tex.R.App.P. 25.2(a)(2). In a single issue, appellant contends the trial judge erred in denying his motion to suppress evidence. Appellant claims the police officers lacked articulable facts to justify detaining him temporarily and, as a result, any evidence discovered in a subsequent search is inadmissible. We disagree and affirm the trial court's judgment. In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. Tran v. State, No. 74,040, slip op. at 8, 2003 WL 1799013, at *4 (Tex.Crim.App. Apr. 2, 2003) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000)). We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). Officer Brian Catlett testified he and his partner, officer Sandra Escobar, saw appellant on the evening of February 17, 2001. Appellant was standing at the curb of the 400 block of North Ewing in Dallas, holding a bottle of Bud Light in his hand. He was "leaning over talking to a gentleman . . . parked at the curb." Catlett described the street as "heavily traveled by buses and other cars . . . lots of heavy traffic." As the officer slowed his car, appellant looked at him and put the beer in his pocket. He turned and started to walk away, shuffling his feet and stumbling. Believing appellant was intoxicated, Catlett told him to stop in English. When he did not do so, the officer stopped him. According to Catlett, appellant "had red eyes and his breath smelled of alcohol." Catlett placed him under arrest for public intoxication. During a search incident to the arrest, Escobar discovered a handgun, a baggie of a white substance, and a large sum of money. Escobar testified she spoke with appellant in Spanish and told him to stop. She assisted Catlett in the arrest and searched appellant. In his shirt pocket, she found a white substance that field tested positive for cocaine. She concurred in Catlett's assessment that appellant was intoxicated because he had an open container, stumbled and could not walk straight, smelled of beer, and had red eyes and a little glaze on his face. Escobar also testified that in her opinion, appellant understood English because he spoke a little English to Catlett. In contrast, appellant testified in Spanish that he does not speak English. He testified he was at his nephew's house around 8:30 p.m. on February 17, 2001. He had dinner at his nephew's and following dinner, he drank two beers. Around 11:00 p.m., he went outside to drive home. Appellant testified he was not intoxicated but that he had a fracture in his back that affects his ability to walk and bend over. According to appellant, there was a car behind his truck, so he called to them "so they would move their car. That's when the police called me but I did not understand them at that time." Appellant admitted he had a beer with him at the time. Conflicts in testimony are for the resolution of the trial judge, and the judge's findings of the facts will not be overturned if, as in this case, they are supported by sufficient evidence. Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Crim.App. 1979). Although appellant contends the police had no reasonable suspicion of criminal activity because he testified during the suppression hearing that he was not intoxicated, the officers' testimony indicated otherwise. Specifically, both officers testified that, after observing appellant, they believed he was intoxicated because appellant's eyes were bloodshot, his breath smelled of alcohol, and he was unsteady on his feet. In light of this evidence, we cannot conclude the trial judge erred in denying appellant's motion to suppress. We overrule appellant's sole issue on appeal. We affirm the trial court's judgment.