NO. 07-10-0407-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 26, 2012
_________________________
BRUNO HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________
FROM THE COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY;
NO. CR-2009-07326-D; HONORABLE JOE BRIDGES, PRESIDING
_________________________
Opinion
_________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Bruno Hernandez (appellant) appeals his conviction for driving while intoxicated.
Through a single issue, he contends that the trial court abused its discretion by denying
his motion to suppress. We affirm for several reasons.
First, the seizure involved was not pursuant to an arrest warrant. Nonetheless,
appellant’s trial counsel convinced the trial court to determine the legitimacy of the
seizure by simply reviewing the “four corners” of some document. The trial court did so
and overruled the motion. Though we may guess at what the document may have
been, it was neither offered nor admitted into evidence by either the State or appellant.
This is of import since an appellant has the burden to present a record sufficient to
support his contentions. Guzman v. State, 732 S.W.2d 683, 686 (Tex. App.–Corpus
Christi 1987, no pet.). Applying that rule to the matter before us would mean that
appellant had the burden to prove that the information considered by the trial court was
insufficient to support its decision. But, because the document which appellant induced
the court to consider was never made part of the record, appellant has not provided us
with a sufficient record against which to assess his claim or judge the trial court’s ruling.
See Amador v. State, 221 SW.3d 666, 675 (Tex. Crim. App. 2007) (holding that the
appellant has the burden to bring forward a record on appeal sufficient to show that the
trial court erred in its ruling on the motion to suppress).
Second, and while ignoring the contents of the aforementioned document
(whatever they may be), the evidence developed at trial precludes us from concluding
that the trial court erred. For instance, the officer testified during the trial on the merits,
that he came upon a female walking in the middle of a highway at about 1:30 a.m.
Behind her travelled a slow moving truck. Due to these circumstances, the officer drove
up next to the female without engaging the squad car’s emergency lights and inquired
about the situation. She indicated that she had been involved in an accident, grew mad
at her husband (who was driving the truck) and decided to walk home. While this
conversation between the officer and appellant’s wife transpired, appellant decided to
pull around the two and park in a nearby lot. Thereafter, the officer approached
appellant and asked him about what happened. As those two talked, the smell of
alcohol wafted off appellant or his breath. Noticing that smell led the officer to ask
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appellant additional questions about where he had been and about how much he had
drunk, once appellant admitted to having been at a bar. Appellant then admitted to
drinking five or six beers. This, then, led the officer to administer sobriety tests to
appellant.
We found no evidence of record suggesting that the officer ordered appellant to
stop or otherwise exhibited some show of force or authority (such as engaging
emergency lights) to induce appellant to stop. Nor is there evidence that once the
officer approached him, appellant attempted to leave or was prohibited from leaving
before those two began conversing. And, it was during the latter conversation that the
officer garnered evidence suggesting that appellant was intoxicated.
Simply put, a rational factfinder could reasonably deduce from the evidence
actually of record that the stop resulting in appellant’s eventual arrest arose from a
consensual encounter. And, law enforcement personnel need not have either
reasonable suspicion or probable cause to believe crime is afoot to engage in such an
encounter. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011).
We overrule the sole issue before us and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
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