NUMBER 13-17-00369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FRANCISCO GOMEZ A/K/A
FRANCISCO JAVIER GOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
A Cameron County jury found appellant Francisco Gomez a/k/a Francisco Javier
Gomez guilty of two counts of third-degree assault of a public servant by ordering his dog
to attack two police officers as they tried to arrest appellant. See TEX. PENAL CODE ANN.
22.01 (b)(1) (West, Westlaw through 2017 1st C.S.). After the jury's guilty verdict, the trial
court pronounced a concurrent sentence of three years in prison on both counts. See id.
By one issue, appellant contends the trial court erred in denying his pretrial motion to
suppress. We affirm.
I. BACKGROUND
A. Suppression Hearing
The trial court convened a hearing on appellant’s motion to suppress. The hearing
was held before trial. The State adduced the following evidence at the hearing through
the testimony of an arresting officer.
A fence separates the front yard of appellant’s residence from the curb of the
street. On May 1, 2016, appellant, a dog owner, called officers to his residence alleging
that his wife assaulted him. Officers arrived at the home and arrested appellant's wife.
As officers escorted her to the police unit, which was parked on the street, appellant
confronted the officers in the front yard and attempted to physically prevent them from
reaching the unit. Eventually, officers managed to get past appellant and they placed his
wife in the back of a police unit. Notably, there were technical difficulties opening and
playing a dash-cam video, which depicted appellant's wife in the back seat of the unit.
Consequently, this video was not admitted into evidence at the suppression hearing.
With appellant's wife secured in the back of the unit, officers returned to arrest
appellant for the offense of interfering with public duties based on his attempt to physically
prevent his wife's arrest. See TEX. PENAL CODE ANN. § 38.15 (West, Westlaw through
2017 1st C.S.) (providing that a person commits “[the offense of interference with public
duties] if the person with criminal negligence . . . interferes with . . . a peace officer while
the peace officer is performing a duty or exercising authority imposed or granted by law”).
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However, by that point, appellant locked the officers out of his property by closing the
gate to the fence that separated the front yard and the street. Officers pushed the gate
open and encountered appellant in the front yard. Appellant began swinging at the
officers. During the melee, appellant ordered his dogs to attack. One dog bit the testifying
officer on the leg and an assisting officer on the arm.
The trial court denied appellant’s motion to suppress, and the case proceeded to
trial before a jury.
B. Trial
On the day of trial, the prosecutor informed the court and the parties that the
arresting agency was able to fix the technical problems with the dash-cam video and that
the video was now playable. The trial court allowed appellant to view the video. Appellant
did not object to the introduction of the video in evidence. The video shows appellant's
wife sitting handcuffed in the back of the police unit, and the audio portion captures the
verbal exchange between appellant and the officers before officers pushed the front gate
open and arrested appellant. One officer told appellant to go back in the house, and when
appellant refuses, the officers told appellant that he would be taken in for “threats.”
The jury heard all the evidence and found appellant guilty of both counts of assault
of a public servant. This appeal followed.
II. MOTION TO SUPPRESS
By his sole issue, appellant contends the trial court erred in denying his pretrial
motion to suppress because the dash-cam video, not admitted at the suppression hearing
but later admitted at trial, conclusively established that the officers lacked probable cause
to arrest him. Appellant does not specify what evidence should be suppressed if we
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reverse the suppression ruling or why the jury's verdict must be reversed without that
evidence. Nevertheless, we address appellant’s argument below.
A. Applicable Law
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) (West, Westlaw through 2017 1st C.S.). The
test for probable cause for a warrantless arrest is if “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.” State v. Woodard, 314 S.W.3d 86, 97 (Tex. App.-Fort
Worth 2010), aff'd, 341 S.W.3d 404 (Tex. Crim. App. 2011). In determining whether a
police officer had probable cause to effect a warrantless arrest, a court scrutinizes “the
objective facts known to the officer at the time of the arrest, not the officer's subjective
conclusions.” Moreno v. State, 124 S.W.3d 339, 348 (Tex. App.—Corpus Christi 2003,
no pet.).
B. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a standard of
abuse of discretion and overturn the trial court's ruling only if it is outside the zone of
reasonable disagreement. See Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim.
App. 2011). We must apply a bifurcated standard of review, “giving almost total deference
to a trial court's determination of historic facts and mixed questions of law and fact that
rely upon the credibility of a witness, but applying a de novo standard of review to pure
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questions of law and mixed questions that do not depend on credibility determinations.”
Id.
Questions sometimes arise regarding the scope of evidence available to us in
reviewing the trial court's ruling on a motion to suppress. In Black v. State, the Texas
Court of Criminal Appeals set out the “general rule,” the “exception,” and the “corollary
rule” to resolve the question:
The general rule: In cases in which the trial court is never asked, or is asked
but declines, to exercise its discretionary authority to reopen the
suppression hearing, appellate review of its ruling on the motion to suppress
is ordinarily limited to that evidence presented at the pretrial hearing—the
evidence that was before the court at the time of its decision.
The exception: If the parties consensually broach the suppression issue
again before the fact-finder at trial, the reviewing court should also consider
the evidence adduced before the fact-finder at trial in gauging the propriety
of the trial court's ruling on the motion to suppress.
[T]he corollary rule: If at any point before the conclusion of final arguments
at trial, the trial court should exercise its discretionary authority to reopen
the suppression hearing, the reviewing court should also consider whatever
additional evidence may be spread on the record bearing on the propriety
of the trial court's ultimate ruling on the motion to suppress.
362 S.W.3d 626, 635–36 (Tex. Crim. App. 2012).
C. Discussion
Appellant asserts that: (1) we should consider the dash-cam video in gauging the
propriety of the trial court's ruling on the motion to suppress; and (2) the trial court's ruling
cannot withstand scrutiny because the video conclusively proves that the testifying officer
fabricated the basis for probable cause at the suppression hearing. We disagree on both
fronts.
First, the video was not admitted at the suppression hearing, only at trial. Appellant
directs us to nothing in the trial record to trigger Black’s exception or corollary rule, which
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would expand our review to include the dash-cam video. See id. Appellant's argument
on appeal depends entirely on this video, but he fails to address the rules that would make
a review of that video possible on appeal as it relates to the trial court’s ruling on the
motion to suppress.
Second, the trial court's ruling would withstand scrutiny even factoring in the dash-
cam video. The reason is that the officer's testimony at the suppression hearing and the
video depict different sequential events giving rise to this appeal. Specifically, the officer
testified that probable cause to arrest occurred in the front yard when appellant physically
interfered with the officers’ attempt to escort his wife to the police unit, whereas the video
starts after appellant's wife was placed in the back of the unit. Thus, it is temporally
impossible for the video to conclusively establish the suppression testimony was false, as
appellant claims. At best, the video casts doubt on the officer's subjective intent with
respect to the offense of appellant’s arrest because the audio portion of the video captures
the officer stating “threats” as the basis for arrest. But a court scrutinizes “the objective
facts known to the officer at the time of the arrest, not the officer's subjective conclusions.”
Moreno, 124 S.W.3d at 348. The objective facts known to the officer included appellant’s
interference with his wife’s arrest—facts which relate to an event that occurred before the
video began playing. Therefore, the video would not offer legally significant help to
appellant in gauging the propriety of the trial court's ruling. See id. We overrule
appellant's sole issue.
III. CONCLUSION
We affirm the trial court's judgment.
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/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed this
23rd day of August, 2018.
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