State v. David Wayne Woodard ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-052-CR
THE STATE OF TEXAS STATE
V.
DAVID WAYNE WOODARD APPELLEE
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
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OPINION
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I. Introduction
Appellee David Wayne Woodard was charged with the misdemeanor
offense of driving while intoxicated. The State appeals the trial court’s order
granting Appellee’s motion to suppress evidence. In one issue, the State
argues the trial court erred by not recognizing the community caretaking
function of a police officer in responding to a reported automobile accident and
by failing to recognize a police officer may pose questions to a fellow citizen
without justification. We reverse and remand.
II. Background
Shortly after 10 p.m. on May 17, 2008, Burkburnett police officers John
Warner, Jr. and Donald Morgan responded to a dispatch call regarding a car in
a ditch at the Y-shaped convergence of Berry Street and the Oklahoma Cut-Off.
An anonymous phone call prompted the dispatch, but the caller provided no
additional details regarding the accident, the vehicle, the location, or the car’s
passengers.
Officer Warner received a second dispatch call as he drove to the
accident scene. The dispatch reported the anonymous caller’s observation of
the vehicle’s driver, wearing a dark T-shirt and jeans and walking approximately
six blocks north of the accident scene. The second dispatch provided no other
details regarding the driver’s attire, physical features, or direction.
More than a quarter mile from the wrecked car, and more than six blocks
west of the last reported location of the driver, Officer Warner saw Appellee
wearing a dark T-shirt and jeans walking on the public sidewalk. Officer Warner
did not initially observe Appellee breaching the peace, walking illegally, or
behaving in a manner that endangered himself or others. Officer Warner
testified he did not believe Appellee was publicly intoxicated when he first saw
2
him, nor did he have reason to make a “community caretaking stop” of
Appellee. Officer Warner stated that he just stopped to ask Appellee a few
questions and admitted he had a “hunch” that Appellee was the driver of the
wrecked vehicle because his attire matched the vague description provided by
the anonymous caller.
Immediately upon encountering Appellee, Officer Warner inquired whether
Appellee was involved in a collision at Oklahoma Cut-Off and North Berry.
Appelleet admitted that he had been driving the wrecked vehicle. Officer
Warner described Appellee’s response of “Yes” as “freely volunteered.” During
the encounter, Appellee stated he was drunk and should not have been driving.
Officer Warner said that based on his knowledge, training, and experience,
Appellee appeared to be intoxicated.
About the time Officer Warner encountered Appellee, Officer Morgan
found a vehicle nosedown in a drainage ditch near the location provided in the
dispatch. Officer Morgan looked in the car’s windows and saw no passengers.
Upon noticing damage to the front of the vehicle, and believing the accident
may have caused injuries, Officer Morgan followed the police department’s
standard procedure for identifying the driver of a wrecked, unoccupied vehicle
by opening the driver’s door to locate a driver’s license, insurance card, or other
form of identification. Officer Morgan’s intent was not to investigate for
3
criminal activity, but to determine the identity of the car’s owner so the driver
might be located and treated for any possible injuries. During the vehicle
search, Officer Morgan found an insurance card and two beer cans—one empty
and one that was cold and three-quarters empty. Officer Morgan informed
Officer Warner of his findings and remained with the vehicle until it was towed.
Officer Morgan admitted he did not know when the beer was consumed, who
drove the vehicle, the number of passengers in the vehicle, or when the
accident occurred.
After receiving Officer Morgan’s report and observing Appellee, Officer
Warner asked Appellee to perform standardized field sobriety testing and, based
on Appellee’s performance, determined Appellee was intoxicated. Appellee
consented to take a breath test, and Officer Warner placed Appellee in custody.
Officer Warner testified that, based on the totality of the circumstances, he
believed Appellee drove the vehicle Officer Morgan found in the ditch. Officer
Warner admitted he did not possess personal knowledge that Appellee drove
the car, drove while intoxicated, or consumed the beers before the wreck.
The State indicted Appellee for the misdemeanor offense of driving while
intoxicated. Appellee filed a motion to suppress evidence, claiming a lack of
probable cause, consent, and that “the scope of the seizure and search
exceeded that authorized by law.” Following an evidentiary hearing, at which
4
only Officers Warner and Morgan testified, the trial court granted Appellee’s
motion and entered findings of fact and conclusions of law. 1
III. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is 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); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
1
 The trial court adopted all findings of fact and conclusions of law
proposed by Appellee and added one additional conclusion of law for a total of
sixty-one findings of fact and forty-nine conclusions of law.
5
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court grants a motion to suppress and
files accompanying findings of fact and conclusions of law, and the sole
witness at the motion to suppress hearing is the arresting officer, the only
question before us is whether the trial court properly applied the law to the
facts it found. See State v. Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App.
2005); Guzman, 955 S.W.2d at 86–87, 89. We must uphold the trial court’s
ruling if it is supported by the record and correct under any theory of law
applicable to the case, even if the trial court gave the wrong reason for its
ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
6
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
IV. Suppression of Evidence Arguments
On appeal, the State argues the trial court erred by granting the motion
to suppress because it failed to recognize (1) a police officer’s community
caretaking function of responding to a reported automobile accident and (2) that
a police officer is just as free as any other citizen to stop and ask questions of
a fellow citizen without the need for any justification. Appellee contends the
trial court’s decision to suppress evidence is correct because the investigative
detention of Appellee was based on Officer Warner’s hunch after he received
a dispatch relaying information provided by an anonymous tipster.
A. Community Caretaker Exception Inapplicable
The community caretaking exception allows police officers, as part of
their duty to “serve and protect,” to stop or temporarily detain an individual
whom a reasonable person would believe is in need of help, given the totality
of circumstances. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App.
1999); see Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528
(1973). The community caretaking exception is to be narrowly applied.
Wright, 7 S.W.3d at 152. To invoke the exception, an officer’s primary motive
must be concern for the individual’s well-being. Corbin v. State, 85 S.W.3d
7
272, 277 (Tex. Crim. App. 2002). Determining whether an officer has properly
invoked his community caretaking function is a two-step process. Id. First, the
reviewing court must determine whether the officer was primarily motivated by
a community caretaking purpose. Id. Second, the court must determine
whether the officer’s belief that his assistance was required was reasonable.
Id.
Here, the record reflects that at the time he approached Appellee, Officer
Warner (1) was unsure if a wreck existed at the alleged location, (2) possessed
no personal knowledge that Appellee had operated the vehicle, (3) admitted the
driver’s description was extremely vague, and (4) was not concerned for
Appellee’s safety. Moreover, the record reflects Officer Warner did not initially
observe that Appellee was endangering himself or others.
We conclude that the trial court, as the finder of fact and exclusive judge
of credibility, could have found that Officer Warner was not primarily motivated
by community caretaking concerns when he made the decision to pose a
question to Appellee. See id. (citing Ross, 32 S.W.3d at 855). Thus, we
disagree with the State that the community caretaking function permitted
Officer Warner to temporarily detain Appellee.
8
B. Consensual Encounter or Investigative Detention?
The State also contends the trial court erred by granting Appellee’s
motion to suppress evidence because Officer Warner’s interaction with Appellee
was a consensual encounter that permitted Officer Warner to ask Appellee
questions without having reasonable suspicion Appellee committed a crime.
We defer to the trial court’s conclusion, based on its apparent disbelief of at
least part of Officer Warner’s testimony, that the officer did not have
reasonable suspicion to stop Appellee. We conclude, however, that Officer
Warner was justified in approaching Appellee because the police-citizen
interaction was initially a consensual encounter.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. U.S. Const. amend. IV. A temporary
detention for purposes of investigation constitutes a seizure for Fourth
Amendment purposes. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868,
1877 (1968). However, not every encounter between a civilian and a police
officer implicates the Fourth Amendment. See Florida v. Bostick, 501 U.S.
429, 434, 111 S. Ct. 2382, 2386 (1991); Hunter v. State, 955 S.W.2d 102,
104 (Tex. Crim. App. 1997); Horton v. State, 16 S.W.3d 848, 851 (Tex.
App.—Austin 2000, no pet.).
9
Three categories of interactions between police officers and citizens are
recognized by the Texas Court of Criminal Appeals: arrests, investigative
detentions, and encounters. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim.
App. 2002). Unlike investigative detentions and arrests, which are seizures for
Fourth Amendment purposes, an encounter is a consensual interaction, which
the citizen may terminate at any time. See Gurrola v. State, 877 S.W.2d 300,
302–03 (Tex. Crim. App. 1994); State v. Bryant, 161 S.W.3d 758, 761 (Tex.
App.—Fort Worth 2005, no pet.). So long as the person remains free to
disregard the officer’s questions and go about his business, the encounter is
consensual and merits no further constitutional analysis. See Johnson v. State,
912 S.W.2d 227, 235 (Tex. Crim. App. 1995) (citing California v. Hodari D.,
499 U.S. 621, 628, 111 S. Ct. 1547, 1552 (1991)).
Law enforcement officers are permitted to approach individuals without
probable cause or reasonable suspicion to ask questions or even to request a
search. See Florida v. Royer, 460 U.S. 491, 497–98, 103 S. Ct. 1319, 1324
(1983); State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999);
Hunter, 955 S.W.2d at 104; Johnson, 912 S.W.2d at 235; Horton, 16 S.W.3d
at 851. Such an encounter does not require any justification on the officer’s
part. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870,
1877 (1980); Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986),
10
cert. denied, 479 U.S. 885 (1986), overruled on other grounds, Juarez v. State,
758 S.W.2d 772, 780 (Tex. Crim. App. 1988). Police officers are as free as
any other citizen to approach citizens on the street and ask for information.
State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). Such
interactions may involve inconvenience or embarrassment, but they do not
involve official coercion. Id. Only when the implication arises that an officer’s
authority cannot be ignored, avoided, or ended, does a Fourth Amendment
seizure occur. Id.
Determining whether specific facts amount to a detention under the
Fourth Amendment or a consensual police-citizen encounter “is subject to de
novo review because that is an issue of law—the application of legal principles
to a specific set of facts.” 2 Id. at 241. The occurrence of a consensual
encounter is determined by the totality of the circumstances and “whether a
reasonable person would feel free to decline the officer’s requests or otherwise
terminate the encounter.” St. George v. State, 197 S.W.3d 806, 819 (Tex.
2
 Thus, any of the trial court’s findings of fact stating that an
investigatory detention occurred are actually conclusions of law reviewable by
this court considering the totality of circumstances and viewing the evidence
in the light most favorable to the trial court’s ruling. See Wiede, 214 S.W.3d
at 24; Kelly, 204 S.W.3d at 818; Gray, 158 S.W.3d at 469; see also Woods
v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); State v. Sailo, 910
S.W.2d 184, 188 (Tex. App.—Fort Worth 1995, writ ref’d).
11
App.—Fort Worth 2006), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007)
(quoting Bostick, 501 U.S. at 436, 111 S. Ct. at 2387); State v. Murphy, No.
2-06-00267-CV, 2007 WL 2405120, at *2 (Tex. App.—Fort Worth Aug. 23,
2007, no pet.) (mem. op., not designated for publication).
Circumstances that may indicate a police-citizen interaction is a seizure,
rather than a consensual encounter, include the threatening presence of several
officers, the officer’s display of a weapon, physical touching of the citizen by
the officer, the officer’s words or tone of voice indicating that compliance with
the officer’s requests might be compelled, or flashing lights or blocking a
suspect’s vehicle. Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877; Juarez
v. State, Nos. 14-05-00196-CR, 14-05-00197-CR, 14-05-00198-CR, 2006 WL
300409, at *2 (Tex. App.—Houston [14th Dist.] Feb. 9, 2006, no pet.) (not
designated for publication); see State v. Carter, No. 02-04-00063-CR, 2005 WL
2699219, at *2 (Tex. App.—Fort Worth Oct. 20, 2005, pet. ref’d) (mem. op.,
not designated for publication). Absent this type of evidence, however,
otherwise inoffensive conduct between a citizen and a police officer cannot, as
a matter of law, amount to a seizure of that person. Mendenhall, 446 U.S. at
555, 100 S. Ct. at 1877; Murphy, 2007 WL 2405120, at *2.
12
C. A Consensual Encounter Occurred
In Murphy, a similar case, we reversed a trial court’s granting of a motion
to suppress evidence and held the police officer’s initial approach in that case
was a consensual encounter that escalated into an investigative detention
supported by reasonable suspicion. 2007 WL 2405120, at *2. In that case,
the police officer approached Murphy as he tried to push his motorcycle up an
embankment in a city park, asked “what had happened,” and “informed him
that it was unlawful for him to operate the motorcycle within the park.” Id. at
*1. Murphy admitted that “the motorcycle belonged to him, . . . that he was
the one [who] was riding it,” and that he was dizzy. Id. As the officer helped
push the motorcycle up the embankment, the officer suspected that Murphy
was intoxicated after noticing that he had bloodshot, watery eyes, was
disoriented, had slurred speech, and had the smell of alcohol on his breath. Id.
The officer then administered field sobriety tests and arrested Murphy for
driving while intoxicated. Id. We concluded, based on the totality of
circumstances, that the officer was justified in approaching Murphy and that
the initial interaction was a consensual encounter because the officer had
merely engaged Murphy in a conversation, informed him of a law of which he
might be unaware, and helped him with his motorcycle. Id. at *3. There was
no evidence that the officer displayed his weapon, physically threatened
13
Murphy, used harsh language or touch, activated flashing lights, or prevented
Murphy from leaving, and no evidence existed that Murphy did not feel free to
leave. Id. We further concluded that the facts learned in the initial consensual
encounter provided ample specific, articulable facts that led the officer
reasonably to conclude that Murphy had been engaged in criminal activity. Id.
Like in Murphy, the evidence in this case shows that, initially, Officer
Warner merely engaged Appellee in conversation. Officer Warner was justified
in approaching Appellee on a public sidewalk and asking him a few questions;
he needed no articulable suspicion to engage Appellee in this manner. See,
e.g., Ashton v. State, 931 S.W.2d 5, 7 (Tex. App.—Houston [1st Dist.] 1996,
pet. ref’d) (holding no investigatory detention occurred, and therefore no
reasonable suspicion needed, when officer approached appellant sitting in a
parked car in a public place and asked her to roll down her window); Roe v.
State, 738 S.W.2d 378, 381 (Tex. App.—Corpus Christi 1987, pet. ref’d)
(holding officer’s actions in approaching suspect’s parked van, asking for and
examining his driver’s license, and speaking to him did not rise to the level of
detention); Thomas v. State, 633 S.W.2d 334, 335 (Tex. App.—Dallas 1982,
pet. ref’d) (holding investigatory detention began after police smelled marijuana,
not when police officers initially stopped their car in front of car in which
defendant was sitting).
14
Appellee argues that Officer Warner needed reasonable suspicion to
approach and question him and that a “hunch” that Appellee was the driver of
the wrecked vehicle was not sufficient to form a reasonable suspicion. The
fact that Officer Warner had a “hunch” Appellee was the driver of the wrecked
vehicle does not preclude the interaction from being a permissible consensual
encounter. See Hunter, 955 S.W.2d at 104 (holding a reasonable, innocent
person would feel free to leave when two plain clothes officers approached and
questioned suspect about travel plans and whether he was carrying drugs, told
suspect they were conducting a “narcotics interview,” and requested to search
suspect’s bag); Murphy, 2007 WL 2405120, at *2; State v. Salinas, No. 12-
02-00275-CR, 2004 WL 306128, at *3 (Tex. App.—Tyler Feb. 18, 2004, no
pet.) (mem. op., not designated for publication) (noting officer’s questions
about suspects’ involvement in destruction of property would not communicate
to the individuals that they were not free to leave).
Here, the trial court erroneously applied the law to the facts and
concluded that “[t]he interaction between Officer John Warner and David
Woodard was not a consensual encounter because a reasonable person in Mr.
Woodard’s situation would not have believed that he was free to leave when
Officer Warner decided to stop him.” There is no evidence in the record of
Appellee’s subjective perception that he did not feel free to leave. See Garcia-
15
Cantu, 253 S.W.3d at 249 n.48. The record is devoid of a threatening
presence of numerous officers around Appellee, Officer Warner’s display of any
weapon, any physical touching of Appellee by Officer Warner, Officer Warner’s
words or tone of voice indicating that compliance with his requests might be
compelled, or flashing lights or blocking Appellee’s path. No evidence indicates
that Officer Warner’s mere approach interfered with Appellee’s freedom of
movement or caused inconvenience and loss of time, nor that the officer’s
initial questioning constituted an unconstitutional seizure. See Stewart v. State,
603 S.W.2d 861, 862 (Tex. Crim. App. 1980) (holding a consensual encounter
initially occurred when officers approached a parked van and shined their
spotlights into the van, but it became a reasonable and valid investigatory
detention when the driver exited the vehicle and the officers smelled marijuana).
Nor do the facts indicate Officer Warner manifested an intent to formally detain
Appellee until questions gave rise to further, articulable facts that, in light of
Officer Warner’s experience and training as a police officer, would create a
reasonable suspicion that Appellee had been driving while intoxicated. See
Garcia-Cantu, 253 S.W.3d at 244 n.41; see, e.g., Roe, 738 S.W.2d at 381;
Thomas, 633 S.W.2d at 335.
Similar to the facts in Murphy, the encounter between Appellee and
Officer Warner escalated into an investigative detention only after Officer
16
Warner had reasonable suspicion that Appellee had been driving while
intoxicated. Murphy, 2007 WL 2405120, at *2; see, e.g., Roe, 738 S.W.2d
at 381; Thomas, 633 S.W.2d at 335. Officer Warner testified that, after
approaching Appellee, he observed Appellee’s bloodshot and glazed eyes,
unsteadiness, staggering walk, and odor of alcohol on his breath and body.
These observations, Appellee’s admission that he drove the wrecked vehicle
while intoxicated, and Officer Morgan’s report of finding a cold, partially
consumed open container in the wrecked vehicle created ample, specific,
articulable facts that led Officer Warner reasonably to conclude Appellee had
been driving while intoxicated. Officer Warner did not perform field sobriety
tests until after he had a reasonable suspicion Appellee had been driving while
intoxicated. Finally, Appellee was arrested only after he failed the field sobriety
tests.
D. Consensual Encounter Does Not Require Reasonableness Burden
Appellee further contends the State failed to carry its burden of proof to
establish a consensual encounter between Officer Warner and Appellee. To
suppress evidence because of a Fourth Amendment violation, the State bears
the burden of establishing the reasonableness of a warrantless detention after
the accused individual meets the initial burden of producing evidence rebutting
the presumption of proper police conduct by producing evidence of a
17
warrantless seizure or arrest. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.
App. 2005).
However, a consensual encounter is not a warrantless detention, seizure,
or arrest. Velasquez, 994 S.W.2d at 678. Thus, it does not violate the Fourth
Amendment and requires no articulable suspicion or probable cause by which
reasonableness must be determined. Id.; St. George, 197 S.W.3d at 819; see
Royer, 460 U.S. at 497–98 (1983). 3 “An officer needs no justification for a
consensual encounter, which triggers no constitutional protections.” Pennywell
v. State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Proper police conduct is presumed. See Amador, 221 S.W.3d at
672–73. To suppress evidence because of an alleged Fourth Amendment
violation, the defendant bears the initial burden of producing evidence that
rebuts the presumption of proper police conduct. Id. (citing Russell v. State,
717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Derichsweiler v. State, 301 S.W.3d
803, 808 (Tex. App.—Fort Worth, pet. filed); Morris v. State, 50 S.W.3d 89,
94 (Tex. App.—Fort Worth 2001, no pet.). The dissent appears to overlook the
3
 “[L]aw enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street . . . , by putting some questions
to him if the person is willing to listen, or by offering in evidence . . . his
voluntary answers to such questions.” Gearing v. State, 685 S.W.2d 326, 328
(Tex. Crim. App. 1985) (quoting Royer, 460 U.S. at 497, 103 S. Ct. at 1324),
overruled on other grounds by Woods, 956 S.W.2d at 38.
18
first prong of this presumption: a defendant must establish that (1) a search or
seizure occurred (2) without a warrant. See Amador, 221 S.W.3d at 672;
Davidson v. State, 249 S.W.3d 709, 717–18 (Tex. App.—Austin 2008, no
pet.) (citing Russell, 717 S.W.2d at 9). Once the defendant has made this
showing, the burden of proof shifts to the State, which is then required to
establish that the search or seizure was conducted pursuant to a warrant or
was reasonable. Id. at 673; Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at
492.
Here, the trial court erroneously applied the law to the facts in concluding
that “Officer John Warner failed to articulate specific facts that supported a
reasonable suspicion that [Woodard] had committed any criminal offense before
[he] performed the investigative detention of Mr. Woodard on May 17, 2008.”
[Emphasis added.] There is no evidence that Appellee was “seized” prior to
Officer Warner asking Appellee to perform standardized field sobriety testing.
Thus, we presume that up to the point that Officer Warner requested Appellee
to perform field sobriety testing, “no intrusion upon constitutionally protected
rights had occurred.” See Terry, 392 U.S. at 20 n.16, 88 S. Ct. at 1879 n.16
(holding that because the record was unclear “whether any . . . ‘seizure’ took
place” before an officer initiated physical contact to conduct a search, the court
assumed no violation of any constitutionally protected rights).
19
Because Appellee’s detention began when Officer Warner asked him to
perform standardized field sobriety testing, not when Officer Warner initially
approached and posed questions to Appellee, Officer Warner did articulate
specific facts that supported a reasonable suspicion that [Appellee] had
committed a criminal offense before detaining Appellee. Specifically, Officer
Warner testified that, after approaching Appellee, he observed Appellee’s
bloodshot and glazed eyes, unsteadiness, staggering walk, and odor of alcohol
on his breath and body. These observations, Appellee’s admission that he
drove the wrecked vehicle while intoxicated, and Officer Morgan’s report of
finding a cold, partially consumed open container in the wrecked vehicle created
ample, specific, articulable facts that led Officer Warner reasonably to conclude
Appellee had been driving while intoxicated.
We conclude that Officer Warner’s initial approach and questioning of
Appellee were permitted because that conduct did not constitute an
investigative detention, but was instead a consensual encounter. 4 As we
previously explained, this consensual encounter between Officer Warner and
Appellee transitioned to a warrantless detention and arrest only after reasonable
4
 At the hearing on the motion to suppress, the State argued Officer
Warner did not need any reasonable suspicion or probable cause to talk to
Appellee. Because the consensual encounter theory was presented to the trial
court and preserved for our review, we may reverse the judgment on this
theory. See State v. Bailey, 201 S.W.3d 739, 743 (Tex. Crim. App. 2006).
20
suspicion became apparent to Officer Warner through the totality of the
circumstances—enabling the State to fulfill its burden of establishing the
reasonableness of Appellee’s warrantless detention and arrest. See Ford, 158
S.W.3d at 492.
E. Evidence Admissible After a Valid Arrest
Appellee argues that because Officer Warner did not see Appellee driving
while intoxicated, the officer’s arrest of Appellee was unlawful and “the
evidence which the State seeks to introduce was the fruit of the unlawful . . .
arrest.”
The code of criminal procedure provides that “[a] peace officer may arrest
an offender without a warrant for any offense committed in his presence or
within his view.” Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005).
The test for probable cause for a warrantless arrest under this provision is
“[w]hether at that moment the facts and circumstances within the officer’s
knowledge and of which he had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the arrested person had
committed or was committing an offense.” Beverly v. State, 792 S.W.2d 103,
105 (Tex. Crim. App. 1990); see Astran v. State, 799 S.W.2d 761, 764 (Tex.
Crim. App. 1990) (noting that in making an article 14.01 arrest, officer may
rely on other officers and on lay citizens in determining that probable cause
exists to believe an offense was committed). Thus,
21
although the statute states that the offense must be one that is
committed within the officer’s presence or view, an officer can
make a warrantless arrest based on an offense that was committed
at an earlier time and further, the officer does not even have to
personally see the offense committed before the warrantless arrest
is justified under article 14.01(b).
Akins v. State, 202 S.W.3d 879, 889 (Tex. App.—Fort Worth 2006, pet.
ref’d).
Here, the trial court erroneously applied the law to the facts and
concluded that “[b]ecause no officer saw [Appellee] driving or otherwise
operating a motor vehicle, Warner’s warrantless arrest of [Appellee] on May 17,
2008, was not proper.” Instead, the record evidence demonstrates probable
cause based on Officer Warner’s personal observations that Appellee appeared
intoxicated and failed the field sobriety tests, coupled with the officer’s
personal knowledge from Appellee’s admission that he had driven the wrecked
vehicle while “drunk” and from Officer Morgan’s informing him that he found
a cold can of beer in the wrecked vehicle. 5 See Beverly, 792 S.W.2d at
5
 Although the trial court’s findings of fact do not reference this
testimony, this is not a case in which we must imply that the trial court did not
believe the officers’ testimony. See State v. Sheppard, 271 S.W.3d 281, 286
(Tex. Crim. App. 2008); cf. Ross, 32 S.W.3d at 856–57 (noting that when trial
court grants motion to suppress without providing explanation where only
evidence is officer’s testimony, trial court may have disbelieved officer on at
least one material fact or may have found that the testimony, while credible, did
not establish probable cause). The record does not suggest that the trial court
did not believe the officers’ testimony. See Sheppard, 271 S.W.3d at 286.
Instead, the trial court’s findings and conclusions—which were drafted by
Appellee’s attorney—show that the trial court concluded that the facts, as
22
104–05 (Tex. Crim. App. 1990); see also Tex. Penal Code Ann. § 49.04(a)
(Vernon 2003) (“A person commits the offense of driving while intoxicated if
the person is intoxicated while operating a motor vehicle in a public place.”).
Thus, the evidence demonstrates probable cause to arrest Appellee for driving
while intoxicated based upon the officer’s personal knowledge and personal
observations of Appellee’s behavior. See Beverly, 792 S.W.2d at 104–05;
Akins, 202 S.W.3d at 889. 6 Accordingly, we hold that Officer Warner’s arrest
of Appellee was lawful.
We agree with the State’s argument that a police officer may pose
questions to a fellow citizen without justification. Officer Warner’s initial
approach and questioning of Appellee was consensual, and this consensual
encounter escalated into an investigative detention supported by reasonable
suspicion that Appellee had been driving while intoxicated. The transaction,
testified to by the officers, did not constitute probable cause. See Ross, 32
S.W.3d at 856–57.
6
 See also Kelley v. State, No. 02-06-339-CR, 2008 WL 110517, *2
(Tex. App.—Fort Worth 2008, pet. ref’d) (officer’s labeling of arrest as being
for DWI when he had not observed defendant driving did not invalidate arrest
because probable cause existed for public intoxication arrest) (citing Warrick v.
State, 634 S.W.2d 707, 709 (Tex. Crim. App. [Panel Op.] 1982)); Reynolds v.
State, 902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet.ref’d)
(officer’s testimony that he arrested defendant for DWI, rather than public
intoxication, did not invalidate arrest where record supported warrantless arrest
for public intoxication).
23
from initial questioning by Officer Warner through Appellee’s arrest, was lawful.
Thus, the trial court erred by granting Appellee’s motion to suppress evidence.
V. Conclusion
Having sustained the State’s issue, we reverse the trial court’s order and
remand the case for further proceedings consistent with this opinion.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: April 1, 2010
24
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-052-CR
THE STATE OF TEXAS STATE
V.
DAVID WAYNE WOODARD APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
------------
DISSENTING OPINION
------------
The trial court granted Woodard’s motion to suppress. The State is the
appellant. Our mandate is clear:
If the trial court’s ruling regarding a motion to suppress is
reasonably supported by the record and is correct under any theory
of law applicable to the case, the reviewing court must affirm. 1
1
 Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App.), cert. denied,
130 S. Ct. 1015 (2009) (citing Romero v. State, 800 S.W.2d 539, 543–44
(Tex. Crim. App. 1990)).
Consequently, in this case we may reverse the trial court only if we replace the
trial judge’s determinations of credibility with our own or if, deferring to his
determinations of credibility and viewing all the evidence only in the light most
favorable to the trial court’s ruling, we conclude that there is no theory of law
supported by the record as viewed by the trial court that could support the trial
court’s ruling.
Certain well established rules govern our appellate review:
In a motion to suppress hearing, the trial court is the sole trier
of fact and judge of the credibility of the witnesses and the weight
to be given their testimony. Accordingly, the judge may believe or
disbelieve all or any part of a witness’s testimony, even if that
testimony is not controverted. This is so because it is the trial
court that observes first hand the demeanor and appearance of a
witness, as opposed to an appellate court which can only read an
impersonal record. 2
The trial court filed written findings of fact and conclusions of law, clearly
setting out the trial court’s determinations of credibility. Again, the law is well
established: “In reviewing a trial court’s ruling on a motion to suppress,
2
 State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (citing
Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); State v. Ballard,
987 S.W.2d 889, 891 (Tex. Crim. App. 1999); Allridge v. State, 850 S.W.2d
471, 492 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993); Meek v.
State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990); Mattias v. State, 731
S.W.2d 936, 940 (Tex. Crim. App. 1987); State v. Fecci, 9 S.W.3d 212, 221
(Tex. App.—San Antonio 1999, no pet.)).
2
appellate courts must view all of the evidence in the light most favorable to the
trial court’s ruling.” 3 When, as here,
[i]n a motion to suppress hearing where the only evidence
presented is the testimony of the arresting officer (which, if
believed, adds up to probable cause) . . . [t]he trial court may have
disbelieved the officer on at least one material fact, or the trial
court may be in a situation in which it does not know what exactly
the facts are, but it does know (on the basis of demeanor,
appearance, and credibility) that they are not as the witness
describes. In this situation, the appellate court does not necessarily
have a set of historical facts to which it may apply the law. The
determination of probable cause rests entirely on the credibility of
the lone witness. This scenario is a mixed question of law and
fact, the resolution of which turns on an evaluation of credibility
and demeanor. The proper standard of review is therefore the
second category of Guzman, “almost total deference” to the trial
ruling. 4
Even if 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 record evidence (viewed in the
light most favorable to the ruling) supports these implied fact
findings. Thus, we afford almost total deference to a trial judge’s
determination of the historical facts that the record supports,
especially when his implicit factfinding is based on an evaluation of
credibility and demeanor. This same highly deferential standard
applies regardless of whether the trial court has granted or denied
a motion to suppress evidence. Thus, the party that prevailed in
the trial court is afforded the strongest legitimate view of the
3
 State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
4
 Ross, 32 S.W.3d at 856.
3
evidence and all reasonable inferences that may be drawn from that
evidence.5
Although “whether a given set of historical facts amounts to a consensual
police-citizen encounter or a detention under the Fourth Amendment is subject
to de novo review because that is an issue of law—the application of legal
principles to a specific set of facts,” 6 we do not re-write the facts in order to
legitimate the police-citizen contact under the guise of employing a presumption
of correct police activity. A presumption of correct police activity is not a
presumption that any witness is telling the truth. A presumption of correct
police activity is not a mandate that the trial judge must automatically believe
witnesses who testify to justify police activity. We cannot and must not
substitute our determination of the facts and the credibility of the witnesses in
order to achieve the result that we believe the trial court should have reached.
We do know that the trial court believed Officer Warner when he testified
that Woodard was not so intoxicated that he constituted a threat to himself or
to others. We also know that the trial court believed Officer Warner when he
testified that Woodard was walking without staggering or otherwise indicating
that he was intoxicated.
5
 Garcia-Cantu, 253 S.W.3d at 241.
6
 Id.
4
This case is controlled in part by article 14.01 of the Texas Code of
Criminal Procedure and the reasoning of State v. Steelman. 7 Article 14.01
provides,
(a) A peace officer or any other person, may, without a
warrant, arrest an offender when the offense is committed in his
presence or within his view, if the offense is one classed as a
felony or as an offense against the public peace.
(b) A peace officer may arrest an offender without a warrant
for any offense committed in his presence or within his view. 8
In upholding the trial court’s suppression of evidence, the Steelman court
held that the arresting officers did not have probable cause to believe that
Steelman had committed an offense in their presence, even though they had
received a tip that someone at his residence was dealing drugs and officers
personally smelled the odor of marijuana in the air when Steelman opened the
front door.9 The officers had no personal knowledge regarding who was
smoking or possessing marijuana. 10 Consequently, the officers had no authority
7
 Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 2005); State v.
Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002).
8
 Tex. Code Crim. Proc. Ann. art. 14.01.
9
 Steelman, 93 S.W.3d at 108.
10
 Id.
5
to make a warrantless arrest. 11 Nor could the State justify the officers’ actions
based on a theory not relied on in the trial court. 12
In the case now before this court, no officer observed Woodard commit
any offense. Information about the car in the ditch came from a person who
“did not provide any contact information (name, address, telephone number,
date of birth, etc.) to the dispatcher so that the tipster could be located at a
later date.” The anonymous tip did not satisfy the requirement that the officers
personally view the commission of the misdemeanor in order to justify the
warrantless misdemeanor arrest. 13
The majority, in setting aside the trial court’s finding of facts and
determinations of credibility, relies on two cases in which the arresting officer
did not see the defendant commit the misdemeanor DWI offense for which he
arrested the defendant.14 Because the officer in each case testified that he
observed the offense of public intoxication, the cases hold that an officer who
sees a person commit the offense of public intoxication may properly arrest that
11
 Id.
12
 Id. at 107.
13
 See Tex. Code Crim. Proc. Ann. art. 14.01.
14
 Reynolds v. State, 902 S.W.2d 558 (Tex. App.—Houston [1st Dist.]
1995, pet. ref’d); Kelley v. State, No. 02-06-339-CR, 2008 WL 110517 (Tex.
App.—Fort Worth 2008, pet. ref’d) (mem. op., not designated for publication).
6
person for public intoxication even though the officer believes he is arresting for
DWI; assigning the wrong name to the offense does not invalidate the arrest. 15
But there are two problems with the majority’s relying on this line of
cases in reversing the trial court’s determinations of credibility of facts and of
law. First, the State did not argue to the trial court that Officer Warner
observed Woodard commit the offense of public intoxication, and the State did
not argue that Officer Warner could have arrested Woodard for public
intoxication. The State is the appellant. This court cannot reverse the trial
court’s ruling on a ground not raised by the appealing party below. 16
The second problem with the majority’s attempt to set aside the trial
court’s determinations of credibility of facts and of the law is that there is no
evidence that Officer Warner observed Woodard commit the offense of public
intoxication, but there is affirmative evidence that Officer Warner did not
observe Woodard commit the offense of public intoxication. A person commits
the offense of public intoxication only when “the person appears in a public
place while intoxicated to the degree that the person may endanger the person
or another.” 17
15
 Reynolds, 902 at 560 & n.3; Kelley, 2008 WL 110517, at *2.
16
 State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998).
17
 Tex. Penal Code Ann. § 49.02(a) (Vernon Supp. 2009).
7
Officer Warner testified,
Q. And there was nothing about the way that Mr. Woodard was
walking that was illegal, correct?
A. No, sir, nothing illegal.
Q. All right. In other words, he wasn’t walking in the street in
a manner which was dangerous to other people?
A. No, sir. As a matter of fact, I believe he was walking on a
sidewalk, a public sidewalk.
...
Q. So he certainly wasn’t endangering anyone?
A. No, sir, he was not.
Q. He wasn’t endangering himself?
A. No, sir, he was not.
Q. So you didn’t think he was committing the offense of public
intoxication at that time, correct?
A. No, sir, I did not. 18
Officer Warner specifically denied that he personally observed Woodard
commit the offense of public intoxication. The State, therefore, did not rely in
the trial court on the theory that Officer Warner personally observed Woodard
18
 I R.R. at 37–38.
8
commit the offense of public intoxication. The trial court believed that Officer
Warner was telling the truth.
Again, our mandate is
to uphold the trial court’s ruling on appellant’s motion to suppress
if that ruling was supported by the record and was correct under
any theory of law applicable to the case. That rule holds true even
if the trial court gave the wrong reason for its ruling. Our task,
then, is to determine whether the trial court could have reasonably
denied appellant’s motion to suppress given the record evidence
and given the applicable federal and state law. 19
The same mandate applies when the trial court grants a motion to
suppress.20 “We must affirm the granting of the motion to suppress if it is
correct under any theory of law applicable to the case, even if not raised by
appellee in the trial court.” 21 We must do so, in part, because
[i]n a motion to suppress hearing, the trial court is the sole trier of
fact and judge of the credibility of the witnesses and the weight to
be given their testimony. Accordingly, the judge may believe or
disbelieve all or any part of a witness’s testimony, even if that
testimony is not controverted. This is so because it is the trial
court that observes firsthand the demeanor and appearance of a
19
 Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003)
(citations omitted), cert. denied, 541 U.S. 974 (2004).
20
 Ross, 32 S.W.3d at 855.
21
 State v. Stevens, 187 S.W.3d 565, 567 (Tex. App.—Houston [14th
Dist.] 2006), rev’d on other grounds, 235 S.W.3d 736 (Tex. Crim. App.
2007).
9
witness, as opposed to an appellate court which can only read an
impersonal record. 22
The trial court entered findings of fact and conclusions of law that clearly
indicated that no officers observed Woodard commit a misdemeanor offense in
their presence. At no time has the State claimed, and there is no evidence that
there was any suspicion, reasonable or otherwise, that Woodard committed a
felony.
Additionally, there is neither a videotape nor an audio recording of
Woodard’s detention or his purported admissions, and the record contains no
indication that Officer Warner complied with article 2.133 or article 2.135 of
the Texas Code of Criminal Procedure. 23
The majority states that Woodard did not disprove Officer Warner’s
representation that the encounter was consensual. The majority, however,
improperly places the burden of proof on the citizen detained rather than on the
State. The law is well established that while the person seized originally bears
the burden of proof at the suppression hearing, once the defendant establishes
the fact that his arrest was warrantless, the “burden then shift[s] to the State
22
 Ross, 32 S.W.3d at 855.
23
 Tex. Code Crim. Proc. Ann. arts. 2.133, 2.135 (Vernon Supp. 2009).
10
to establish that the seizure was conducted pursuant to a warrant or was
reasonable.” 24 This burden is a burden of persuasion.
It is uncontested that Woodard was detained and then arrested without
a warrant. Contrary to the majority’s statement, there is no presumption of
proper police conduct to justify the warrantless detention. There was no such
presumption for Woodard to overcome. The burden was on the State to justify
the warrantless detention and arrest. The State attempted to do this by
persuading the trial court that the probable cause to arrest was lawfully
obtained as the result of a consensual encounter that included voluntary
responses to the officer’s questions after the officer stopped Woodard, who
was walking down the sidewalk. The officer admitted that he stopped
Woodard and questioned him, but the officer claimed that the answers were
volunteered. 25 He also admitted that he required Woodard to perform field
sobriety tests after Woodard responded to his questions.
Because the State is appealing, reversal is required only if the trial court
abused its discretion by failing to uphold the detention and arrest on a ground
24
 Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002); see
Sieffert v. State, 290 S.W.3d 478, 484 & n.8 (Tex. App.—Amarillo 2009, no
pet.) (quoting Bishop).
25
 I R.R. at 24.
11
proved and argued by the State in the trial court. The Texas Court of Criminal
Appeals has explained this well established rule:
Ordinary notions of procedural default should apply equally
to the defendant and the State. Therefore we hold that in cases in
which the State is the party appealing, the basic principle of
appellate jurisprudence that points not argued at trial are deemed
to be waived applies equally to the State and the defense. In the
instant case, once Appellee established standing in the premises to
be searched and that the search was conducted without a warrant,
he satisfied his burden of establishing his Fourth Amendment claim
and the burden shifted to the State to establish an exception to the
warrant requirement. The only theory argued by the State and
presented by the facts was that the search was a proper inventory.
The trial court’s ruling was specifically limited to the facts and legal
arguments presented to it. Thus the trial court cannot be held to
have abused its discretion in ruling on the only theory of law
presented to it. 26
The burden was not on Woodard to prove that his detention and arrest
were not reasonable. It is uncontested that he was arrested and prosecuted for
misdemeanor DWI. The trial court so found. No officer observed Woodard
commit any misdemeanor offense. The trial court so found.
Although courts speak of a person’s being free to leave when a police
officer approaches him, courts also hold fairly regularly that walking or running
away when an officer approaches provides reasonable suspicion for the officer
to detain the person. It is, indeed, a lose, lose situation for any person a police
26
 Mercado, 972 S.W.2d at 78.
12
officer wants to speak to. He is free to leave, unless he leaves. When the
officer approached Neal in Neal v. State, Neal ran when the officer asked him
for identification. 27 Running was a suspicious circumstance. 28 In Clarke v.
State, this court held that the officer lawfully detained the defendant because
he matched the description of a white male with large thighs and buttocks
wearing dark shorts and a white t-shirt, and “Clarke’s activity was not as
consistent with innocent activity as with criminal activity when he ran away
from the officer.” 29 In Guzman v. State, a drug dealer pointed out a person
who, he reported to the police officer, had some heroin. 30 As the officer
approached him, Guzman walked away and appeared to swallow. These
actions created both reasonable suspicion and an exigent circumstance
justifying the officer’s seizing Guzman. 31
27
 256 S.W.3d 264, 281 (Tex. Crim. App. 2008), cert. denied, 129 S.
Ct. 1037 (2009).
28
 Id.
29
 785 S.W.2d 860, 868–69 (Tex. App.—Fort Worth 1990), aff’d, 811
S.W.2d 99 (Tex. Crim. App.), cert. denied, 502 U.S. 946 (1991).
30
 955 S.W.2d 85 (Tex. Crim. App. 1997).
31
 Id. at 91–92.
13
In Johnson v. State, 32 the defendant ran when the police appeared.
Although they saw no offense and had no report of any offense, the officers
chased him and yelled for him to stop. Because he did not yield to their show
of authority, there was no seizure, although they chased him down until they
actually caught him.33 By the time they tackled him, they had reasonable
suspicion to detain him for questioning because they saw him carrying
something purple and thought he might have a gun, and he had acted
suspiciously by running. The Johnson courts followed the mandate of
California v. Hodari, D. 34 Perhaps, a person is free to walk slowly away from
a consensual encounter, but not to run or to walk quickly away. Running or
walking too fast creates reasonable suspicion.
But in the case now before this court, Woodard did not walk away. The
State therefore did not and could not rely on a “walking away” justification.
The trial court’s factual determinations are supported by the record, and
we may not disturb them. Nor may this court substitute its determinations of
credibility for those of the trial court. And this court is bound to consider only
32
 J864 S.W.2d 708, 715–16 (Tex. App.—Dallas 1993) (Johnson I),
aff’d, 912 S.W.2d 227 (Tex. Crim. App. 1995) (Johnson II).
33
 Johnson II, 912 S.W.2d at 235; Johnson I, 864 S.W.2d at 715–16.
34
 499 U.S. 621, 626–28, 111 S. Ct. 1547, 1551 (1991).
14
the grounds for affirming the detention that the State relied on in the trial court.
We cannot go out and find a ground for reversing the trial court that the State
did not present to the trial court. The law and the facts require that we affirm
the trial court’s granting of the motion to suppress. Because the majority does
not, I must respectfully dissent from the majority’s thorough and carefully
written opinion.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: April 1, 2010
15