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addressing issue "in the interest of ensuring completeness"
Summary of this case from Kramer v. StateOpinion
No. 08-18-00152-CR
07-31-2020
HECTOR MANUEL PABON, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the County Criminal Court No. 2 of El Paso County, Texas (TC# 20160C10508) OPINION
Appellant Hector Manuel Pabon appeals from his conviction for driving while intoxicated. Pabon's specific complaint is that the trial court abused its discretion by denying his motion to suppress because, he asserts, the police lacked reasonable suspicion to detain him. We affirm.
I. BACKGROUND
A. Evidence adduced at the suppression hearing
The only witness to testify at the hearing on Pabon's motion to suppress was El Paso police officer Miguel Estrada, who was assigned to the El Paso Police Department DWI Task Force. Officer Estrada testified that, on the night in question, he was dispatched in response to a 911 call "related to a drunk disturbance where they observed a vehicle had a flat tire." Officer Estrada considered the 911 call to be a "community outcry," and his response to be a "community caretaking" call. He also stated that the information he received from dispatch led him to believe that the incident was "[p]robably—probably DWI."
When Officer Estrada arrived at the location given to him by dispatch, he saw Pabon attempting to fix a flat tire on a Chevy Tahoe that matched the description of the call. After making contact with Pabon, Estrada described that he exhibited signs of intoxication, including "glossy" eyes, slurred speech, and an odor of alcohol. While at the scene, Officer Estrada conducted field sobriety tests, which Pabon failed. Afterwards, Officer Estrada placed Pabon under arrest for driving while intoxicated.
Officer Estrada did not see Pabon operating the car, but he did make contact with the witness who made the 911 call and that witness confirmed that Pabon was the driver. The witness also confirmed that he saw Pabon's car swerve, hit a curb, and collide with a tree.
The trial court entered findings of fact in accordance with the facts recited above. The court also entered conclusions of law, including that: (1) the 911 caller, who had given his identity to the 911 dispatcher, was credible and reliable; (2) the detailed eyewitness account was entitled to great weight; (3) that the information from the witness led Officer Estrada to suspect that the defendant was driving while intoxicated; and (4) that the officer's suspicion was reasonable.
B. Evidence adduced at trial
At trial, the State first called Abraham Perez, the eyewitness who made the 911 call that ultimately resulted in Pabon's arrest. Perez related that, as he was driving home from work late at night, he saw a silver Chevy Tahoe swerve, hit a curb "pretty hard," blow out a tire, and then speed off. Shortly afterward, he saw the same Tahoe pulled over to the side of the road. Perez pulled up next to it and asked the driver, who Perez later identified as Pabon, whether he was okay. Pabon responded that he had swerved to avoid hitting a dog, although Perez had not seen any dog in the road. Pabon said that he was fine, he had just had a blowout. Perez responded that he did not seem fine because he was holding onto his vehicle to stand up straight. Perez also observed that Pabon's speech was slurred.
Believing that Pabon was a danger on the road, Perez drove a couple of blocks up the street and called 911 to report what he had seen. Perez provided his name, telephone number, and location. He related that a car had almost hit him and then hit a curb. He described the subject car as a silver Tahoe with a flat right front tire, stated that the driver "sounded very drunk," and described the driver as Hispanic, 40 to 50 years old, and wearing a gray polo shirt.
From his vantage point up the street, Perez could see Pabon trying to fix the tire on his car. Perez was concerned that Pabon would leave the scene before the police arrived, so he made a second call to 911, again describing the driver as "very drunk." Perez later made a third 911 call to provide the police with the Tahoe's license plate number. Perez left the scene before making the third 911 call, but returned after Officer Estrada arrived. Perez confirmed that the person at the scene when he returned—Pabon—was the person he had spoken to when he pulled up beside the Tahoe.
After Perez's testimony ended, Pabon renewed his motion to suppress with the court. Based on Perez's testimony alone, counsel argued the State had not identified any traffic violation that would transfer from the witness to the investigating officer. He urged, "there was no reasonable suspicion to have affected any kind of stop or for the officer to even approach when he came over finally an hour later to approach Mr. Pabon." The trial court overruled the motion and the State proceeded to call its next witness, an employee of the police department who worked as a custodian of 911 records. Based on the custodian's testimony and without objection, the court admitted into evidence the audio recordings of the three 911 calls made by Perez, and the corresponding computer aided dispatch record of those calls. Following this testimony, the State next called Officer Estrada to testify, and he essentially reiterated the testimony he had given previously at the suppression hearing. Adding detail to his earlier testimony, Officer Estrada testified that Pabon told him, after he was placed under arrest and given statutory warnings, that he had been the driver and sole occupant of the vehicle. Officer Estrada also identified a DVD containing a recording of his interactions with Pabon at the scene (State's Exhibit 3). After the court overruled defense counsel's claim that the recording derived from an illegal detention, the State played the DVD recording for the jury.
Although Pabon repeatedly reasserted his motion to suppress throughout his trial, the court declined to reconsider its ruling and reaffirmed its previous findings of fact and conclusions of law. After the case was submitted to a jury, Pabon was convicted of driving while intoxicated. The court sentenced Pabon to two days' confinement and a fine of $500, which was probated. This appeal followed.
II. DISCUSSION
Pabon asserts on appeal that the trial court abused its discretion by denying his motion to suppress because the evidence does not show that Officer Estrada had a reasonable suspicion that Pabon had committed the offense of driving while intoxicated.
Pabon states two issues in his brief but the substance of the two is the same. Both challenge the existence of facts showing reasonable suspicion for his detention.
A. Standard of Review
A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). Where the police detain a person without a warrant, the State bears the burden of showing that the police had reasonable suspicion to justify that detention. See Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). Determining whether reasonable suspicion exists requires considering the totality of the circumstances, "giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to facts not turning on credibility and demeanor." Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
B. Scope of the evidence subject to review
Pabon first argues that the State failed to establish reasonable suspicion at the suppression hearing because it did not corroborate Officer Estrada's testimony concerning the information he had been given when he first approached Pabon. He specifically complains that the State did not call the eyewitness, Perez, to testify, and did not introduce evidence of Perez's 911 calls. Pabon concludes that "there is no evidence or testimony as to what information Officer Estrada possessed or witnessed," other than the fact that he saw Pabon trying to fix a tire. The trial court, however, was "the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony[.]" Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). The court was thus entitled to accept Officer Estrada's own account of the totality of information he had received or observed before and during the incident.
In addition, Pabon's analysis of the reasonable suspicion issue considers only the evidence presented at the suppression hearing. We acknowledge that a court reviewing the denial of a motion to suppress will generally confine its review to the evidence presented at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Flores v. State, 299 S.W.3d 843, 850 (Tex. App.—El Paso 2009, pet. ref'd). But where, as in this case, the suppression issue is consensually relitigated at trial, "consideration of the relevant trial testimony is appropriate in our review." Rachal, 917 S.W.2d at 809; see Flores, 299 S.W.3d at 850 (court may review entire record when suppression issue is consensually relitigated).
Pabon reasserted his motion to suppress on at least three separate occasions during trial. Because he consensually relitigated the suppression issue, we may consider the entirety of the record before us. See Rachal, 917 S.W.2d at 809; Flores, 299 S.W.3d at 850. And that record contains testimony from Perez concerning what he observed and relayed in his 911 calls, as well as recordings of those calls. This effectively disposes of Pabon's complaint concerning the lack of that specific evidence.
C. The totality of the information known to the police
Having determined that the scope of our review includes the evidence adduced at trial as well as that adduced at the suppression hearing, we turn next to the question of whether the assessment of reasonable suspicion is confined only to information actually known to Officer Estrada. As explained by the Texas Court of Criminal Appeals in Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), it is not.
Derichsweiler, like the case before us, involved a detention resulting from a citizen's 911 call to report suspicious activity. Id. at 909-910. The reported activity, however, was quite a bit more amorphous than in our case. A couple reported that, after dark on New Year's Eve, a car had pulled up beside them when they were in a McDonald's drive-through. The driver sat staring and grinning at them, and then drove off. He returned twice more, each time positioning his car close to theirs and staring and grinning at them. The couple felt threatened and intimidated and, fearing that perhaps a robbery was in the making, called 911. The man then drove into a nearby Wal-Mart parking lot, where the couple observed him engage in similar conduct, pulling up beside cars and waiting there. They described this behavior to the 911 dispatcher as they observed it. The police arrived on the scene, recognized the car from the couple's description, and approached the driver, who was ultimately arrested for driving while intoxicated. Id.
The issue on appeal in Derichsweiler was whether the police had reasonable suspicion to detain the defendant. The Court of Criminal Appeals began by clarifying what information should be considered in making that assessment in the context of a detention originating with a 911 call:
[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, "the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists." A 911 police dispatcher is ordinarily regarded as a "cooperating officer" for purposes of making this determination. Finally, information provided to police from a citizen-informant who identifies himself and may be held to account for the accuracy and veracity of his report may be regarded as reliable. In such a scenario, the only question is whether the information that the known citizen-informant provides, viewed through the prism of the detaining officer's particular level of knowledge and experience, objectively supports a reasonable suspicion to believe that criminal activity is afoot.Id. at 914-15 (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)).
The court went on to determine that the case did not present any issue concerning the reliability of the citizen-informants. Id. at 915. "As the trial court found, they identified themselves to the 911 dispatcher and remained answerable for their report after the fact. That report was based upon their own first-hand perceptions, many of which they continuously and contemporaneously narrated to the police via the 911 dispatcher." Id.
The Derichsweiler court again noted that it did not matter whether the dispatcher passed all of the reported details along to the responding officers. Id. "In assessing reasonable suspicion, vel non, a reviewing court looks to the totality of objective information known collectively to the cooperating police officers, including the 911 dispatcher." Id. Thus, the question is simply "whether the totality of that reliable information provided specific, articulable facts that, combined with reasonable inferences to be derived from those facts, would lead to the reasonable conclusion that the appellant was committing, or soon would be engaged in, some type of criminal activity." Id. at 915-16. The court in Derichsweiler concluded that the facts in that case objectively supported a finding of reasonable suspicion. Id. at 917. We conclude the same on the facts of our case.
As in Derichsweiler, there is no issue with respect to the reliability of the citizen-informant, Perez. He identified himself to the 911 dispatcher, remained answerable for his report, and reported his own first-hand perceptions, many of which were contemporaneously narrated to the 911 dispatcher. See id. at 915. In addition, the details of Perez's 911 calls are properly considered in the assessment of reasonable suspicion, regardless of whether all of those details were relayed to Officer Estrada. See id. at 914-16.
The totality of the reliable information known collectively to Officer Estrada and the 911 dispatcher includes the following: A Chevy Tahoe with an identified license plate number almost hit Perez's car, then hit a curb and blew out its right front tire; Perez spoke with the driver, who seemed to be "very drunk"; the driver was Hispanic, 40 to 50 years old, and wearing a gray polo shirt; the driver was still at a specific location, trying to fix the tire; at that location, Officer Estrada found a car matching the description given by Perez, including a flat tire on the right-hand side; Officer Estrada also found a person matching the description given by Perez, trying to fix the flat tire.
The fact that the scene encountered by Officer Estrada comported in every respect with the physical details of Perez's 911 report lends veracity to Perez's additional report that the driver seemed to be "very drunk." Thus, while the circumstance of Pabon trying to fix a flat tire seems innocent enough in isolation, the totality of the circumstances—including the details of Perez's encounter with Pabon—demonstrate that Officer Estrada's investigative detention was justified. See id. at 914 (circumstances may seem innocent in isolation but, in combination, may justify investigative detention). This is particularly so considering Officer Estrada's training and experience with the police department's DWI Task Force. See id. at 915 (information is viewed through "the prism of the detaining officer's particular level of knowledge and experience").
We conclude that the record objectively supports the trial court's conclusion that Officer Estrada had reasonable suspicion to detain Pabon. Because of this holding, we need not address the State's alternative arguments that Officer Estrada's initial interaction with Pabon was either a consensual encounter rather than a detention or an exercise of his community-caretaking function.
Pabon's issues on appeal are overruled.
D. Probable cause to arrest
We note that Pabon asserts in his briefing that he was arrested the moment Officer Estrada approached him. Pabon also intermingles references to probable cause for arrest with his discussion of reasonable suspicion for detention. Nonetheless, despite these references, probable cause for arrest is not the subject of either of Pabon's issues on appeal. In any event, we will address this issue in the interest of ensuring completeness.
The first matter to determine is at what point Pabon was under arrest. "Whether a person is under arrest or subject merely to a temporary investigative detention is a matter of degree and depends upon (1) the length of the detention, (2) the amount of force employed, and (3) whether the officer actually conducts an investigation." In re J.T.M., 441 S.W.3d 455, 463 (Tex. App.—El Paso 2014, no pet.). In this case, (1) Pabon was detained briefly while Officer Estrada conversed with him, (2) there is no evidence that the officer employed any force whatsoever, and (3) the officer conducted an investigation by administering field sobriety tests. Only after Officer Estrada personally observed signs of intoxication and after Pabon failed the field sobriety tests was Pabon placed under arrest.
The second matter to determine is whether Officer Estrada had probable cause for that arrest. "'Probable cause' for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense." Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective one and requires considering the totality of the circumstances facing the arresting officer. Id.
At the moment Officer Estrada placed Pabon under arrest, he knew that Pabon had hit a curb while driving, was exhibiting physical signs of intoxication, and had failed multiple field sobriety tests. This information objectively supports the officer's belief that Pabon had committed the offense of driving while intoxicated, which thereby provided probable cause for his arrest for that offense. See id.
Insofar as Pabon asserts on appeal that the trial court abused its discretion by denying his motion to suppress based on a lack of probable cause to arrest, that issue is overruled.
III. CONCLUSION
The trial court did not abuse its discretion by denying Pabon's motion to suppress. The judgment of conviction is affirmed.
GINA M. PALAFOX, Justice July 31, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)