Howard Burroughs and South Texas District Council Assemblies of God v. Ryan Gordon & Sarah Gordon

HOward Burroughs et al v. Ryan & Sarah Gordon

IN THE

TENTH COURT OF APPEALS

No. 10-02-177-CV

     HOWARD BURROUGHS

     AND SOUTH TEXAS DISTRICT

     COUNCIL ASSEMBLIES OF GOD,

                                                                              Appellants

     v.

     RYAN GORDON AND SARAH GORDON

                                                                              Appellees

From the 172nd District Court

Jefferson County, Texas

Trial Court # E-162269

                                                                                                                

MEMORANDUM OPINION

                                                                                                                  

      Howard Burroughs and South Texas District Council Assemblies of God appealed an adverse judgment. According to their unopposed dismissal motion, the trial court set aside the judgment, and the parties agreed to mediate their dispute. Appellants state that they have settled the dispute and the trial court has rendered a take-nothing judgment in accordance with the parties’ agreement. They ask that we dismiss their appeal.

      Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

      Appellants’ dismissal motion complies with the requirements of the appellate rules and is unopposed. Accordingly, this appeal is dismissed with costs to be taxed against the party incurring same.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed September 25, 2002

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[CV06]

, 221 S.W.3d at 672–73.

            Because the trial court did not make findings or conclusions, we assume it made implicit findings that support its ruling if the record supports them.  The suppression hearing record consists of the testimony of DPS Trooper Dan Baker, who said he had been a trooper for over seven years.  On the evening in question, he was investigating an 11:30 p.m. traffic accident in which several involved individuals were at a hospital.  They told Baker that Perez, who was involved in the accident, was at a residence.  Baker went there around 2:30 a.m., asked the homeowner if Perez was there, and the homeowner said that he was and allowed Baker into the residence.

            Perez was asleep—“passed out” in Baker’s words—on the floor, and Baker had trouble waking him.  Baker asked Perez to come outside, and he was free to decline to.  Perez came outside, and Baker told Perez that he was investigating a traffic accident.  Perez admitted he had been driving and drinking alcohol, and Baker smelled alcohol on Perez’s breath and person.  Baker asked Perez to perform field-sobriety tests, after which Baker concluded, based on his entire investigation and the field-sobriety tests, that Perez was intoxicated.  He arrested Perez for DWI.

Perez asserts that his motion to suppress should have been granted because his arrest was warrantless, no probable cause to arrest existed, and no warrantless-arrest exception applies.  Probable cause for a warrantless arrest exists when the arresting officer possesses reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed.  Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); Paulea v. State, 278 S.W.3d 861, 864 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).  The State bears the burden of proving probable cause to support a warrantless arrest.  Paulea, 278 S.W.3d at 865.  We review de novo whether probable cause exists to justify a warrantless arrest after considering the totality of the circumstances surrounding the arrest.  Id.

Baker possessed sufficient facts to form a reasonable inference that Perez drove while intoxicated based on Perez’s performance of the field-sobriety tests and his admission that he had been drinking, driving, and in the traffic accident.  See Banda v. State, --- S.W.3d ---, ---, 2010 WL 2899000, at *5 (Tex. App.—Houston [14th Dist.] July 27, 2010, no pet. h.) (citing Diaz v. State, No. 05-09-00750-CR, 2010 WL 1714001, at *2 (Tex. App.—Dallas Apr. 28, 2010, no pet.) (not designated for publication) (concluding officer had probable cause to arrest appellant for driving while intoxicated based on results of field-sobriety tests, appellant’s breath smelling of alcohol, and appellant’s unsteady balance), and Johnson v. State, No. 14-07-00818-CR, 2008 WL 5085561, at *2 (Tex. App.—Houston [14th Dist.] Nov. 25, 2008, pet. dism’d) (mem. op.) (not designated for publication) (appellant’s failure of the field-sobriety test also provided a basis for probable cause to arrest him)).  He thus had probable cause to arrest Perez.

Warrantless arrests are authorized only in limited circumstances outlined primarily in Chapter 14 of the Code of Criminal Procedure.  Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005).  The State contends that Perez’s arrest is justified under article 14.03(a)(1) of the Code of Criminal Procedure, which authorizes the warrantless arrest of an individual found in a suspicious place under circumstances reasonably showing the individual committed a breach of the peace.  See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2009).  DWI is a breach of the peace.  Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004); Trent v. State, 925 S.W.2d 130, 133 (Tex. App.—Waco 1996, no pet.).

For a warrantless arrest to be justified under article 14.03(a)(1), the totality of the circumstances must show (1) the existence of probable cause that the defendant committed a crime and (2) the defendant must be found in a suspicious place.  Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003).  Having already concluded that probable cause existed to arrest Perez, we must now determine whether appellant was found in a suspicious place.  Few places, if any, are inherently suspicious.  Id. at 464–65.  The determination of whether a place is suspicious requires a highly fact-specific analysis.  Id. at 468.  Any place may become suspicious when an individual at the location and the accompanying circumstances raise a reasonable belief that the individual committed a crime.  Id. at 464-68; Hollis v. State, 219 S.W.3d 446, 459 (Tex. App.—Austin 2007, no pet.).  A key factor used to justify the determination of a place as suspicious is whether the time frame between the crime and the apprehension of the suspect is short, but there is no specific time limit.  See Dyar, 125 S.W.3d at 468.

            Under the particular facts of this case, we conclude, based on the totality of the circumstances set forth above (as have many courts addressing similar facts), that Perez was found in a suspicious place and that his warrantless arrest was therefore lawful.  See, e.g., Gallups, 151 S.W.3d at 201–02; Dyar, 125 S.W.3d at 461-62; Banda, --- S.W.3d at ---, 2010 WL 2899000, at *6-7; Morgan v. State, No. 07-07-00429-CR, 2009 WL 1361578, at *6 (Tex. App.—Amarillo May 14, 2009, no pet.); Layland v. State, 144 S.W.3d 647, 650-51 (Tex. App.—Beaumont 2004, no pet.); Sandoval v. State, 35 S.W.3d 763, 768–69 (Tex. App.—El Paso 2000, pet. ref’d).

The trial court did not err in denying Perez’s motion to suppress.  We overrule Perez’s sole issue in each appeal and affirm the judgment in each appeal.

 

 

REX D. DAVIS

Justice

 

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed August 25, 2010

Do not publish

[CR25]