State v. Woodard

OPINION

ANNE GARDNER, Justice.

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 Ap-pellee’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 *90responding 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 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 Appel-lee, Officer Warner inquired whether Ap-pellee was involved in a collision at Oklahoma Cut-Off and North Berry. Appellee 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 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 *91asked Appellee to perform standardized field sobriety testing and, based on Appel-lee’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 Ap-pellee 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 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 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); Ar*92mendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (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, 37 L.Ed.2d 706 (1973). The community care-taking 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 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 care-taking 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 drivei’’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 Ap-pellee.

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 *93against 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, 20 L.Ed.2d 889 (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, 115 L.Ed.2d 389 (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.).

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, 113 L.Ed.2d 690 (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, 75 L.Ed.2d 229 (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, 64 L.Ed.2d 497 (1980); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (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 réquests or otherwise terminate the encounter.” St. George v. State, 197 S.W.3d 806, 819 (Tex.*94App.-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.

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 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, articula-ble 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 Ap-pellee 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, *95when 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).

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 Ap-pellee’s subjective perception that he did not feel free to leave. See Garcia-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 Warner had reasonable suspicion that Appellee had been driving while intoxicated. Murphy, 2007 WL 2405120, at *2; see, e.g., Roe, 738 *96S.W.2d at 381; Thomas, 633 S.W.2d at 335. Officer Warner testified that, after approaching Appellee, he observed Appel-lee’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 Appel-lee 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 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, 103 S.Ct. 1319 (1983).3 “An officer needs no justification for a consensual encounter, which triggers no constitutional protections.” Penny well 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 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 *97the 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).

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 Appel-lee’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 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 *98lay citizens in determining that probable cause exists to believe an offense was committed). Thus,

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 war-rantless 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 “[bjecause 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 Ap-pellee 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 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 5.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, 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.

*99V. 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.

DAUPHINOT, J., filed a dissenting opinion.

. 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.

. 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).

. ‘‘[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.

. 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).

. 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 Appel-lee’s attorney — show that the trial court concluded that the facts, as testified to by the officers, did not constitute probable cause. See Ross, 32 S.W.3d at 856-57.

. 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).