FAUSTO D. DIAZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 28, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00750-CR
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FAUSTO D. DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. MA06-61260G
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OPINION
Before Justices Bridges, FitzGerald, and Fillmore
Opinion By Justice Bridges
        Fausto D. Diaz appeals his driving while intoxicated (DWI) conviction. Following the trial court's denial of appellant's motion to suppress, appellant pled guilty pursuant to a plea bargain agreement. Appellant was sentenced to 280 days' confinement in the county jail and a fine of $1000. The trial court suspended the imposition of confinement and placed appellant on community supervision for twenty-one months. In three points of error, appellant argues the evidence against him should have been suppressed because there were no indications he was intoxicated before field sobriety testing and the totality of the circumstances did not establish probable cause for arrest for driving while intoxicated, and the trial court abused its discretion by giving weight to certain hearsay testimony. We affirm the trial court's judgment.         At the hearing on appellant's motion to suppress, Ralph Moss testified he was driving south on Interstate 35E at approximately 10:30 p.m. on January 8, 2006. Moss saw a small pickup truck coming up from behind him at high speed. The pickup came along the side of Moss' vehicle, drove in front of Moss, screeched its brakes, and drove into the front passenger side of Moss' vehicle, sending Moss' vehicle across three lanes of traffic and into the concrete median. Moss heard his Onstar system telling him that emergency vehicles had been called, and he saw the pickup truck facing him twenty or thirty feet in front of him. Moss stayed in his vehicle, and some other drivers stopped and helped Moss get out of his vehicle. Moss saw appellant, the driver of the pickup, sitting in the pickup. When police arrived, they asked if Moss was okay, and he said he was. Moss saw police officers approach appellant's pickup and speak with him. Over appellant's hearsay objection, Moss testified a police officer came back over to Moss and said he thought the person in the pickup appeared to be intoxicated and that he smelled alcohol.
        Dallas police officer India Charles testified he had been certified in standardized field sobriety tests since 2003. Charles arrived at the scene of the accident and spoke with appellant. Appellant had bloodshot eyes, “a sway in his stance,” slurred speech, and a smell of alcohol. Charles administered the one-leg stand and horizontal gaze nystagmus tests to appellant. Based on the clues of intoxication Moss observed during the tests, appellant's breath smelling of alcohol, and his unsteady balance, Moss arrested appellant for DWI. Appellant argued Moss did not have a warrant for appellant's arrest, and any evidence gathered after the arrest should have been suppressed. The trial court denied appellant's motion to suppress. The trial court issued findings of fact and conclusions of law stating appellant's motion to suppress was denied because the civilian witness saw appellant driving and causing a collision, one of the officers at the scene detected an odor of an alcoholic beverage on appellant and called a field sobriety officer, and appellant demonstrated two of four clues for intoxication on the one-leg stand test and six of six clues on the horizontal gaze nystagmus test. Therefore, the court concluded, probable cause existed to arrest appellant without a warrant on suspicion of driving while intoxicated. Following appellant's guilty plea and imposition of sentence, the trial court certified appellant's right to appeal. This appeal followed.
        In his first and second points of error, appellant argues his motion to suppress should have been granted because there were no indications of intoxication when he was arrested before field sobriety testing, and the totality of the circumstances failed to establish probable cause to arrest for driving while intoxicated. We review a trial court's denial of a motion to suppress for abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion when the ruling was so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court's rulings on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Carmouche, 10 S.W.3d at 332; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the trial court's application of law to those facts in the determination of reasonable suspicion and probable cause. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence that may have been introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
        Probable cause for a warrantless arrest requires that the officer have a reasonable belief that, based on facts and circumstances within the officer's personal knowledge, or of which the officer has reasonably trustworthy information, an offense has been committed. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The evidence in this case indicates appellant wrecked his pickup and Moss' Onstar system summoned police to the scene. Appellant remained in his pickup until police arrived, and an officer spoke with appellant, detected the odor of alcohol, and summoned Charles, a field sobriety officer. Charles administered field sobriety tests, and appellant showed two of four clues for intoxication on the one-leg stand test and six of six clues on the horizontal gaze nystagmus test. Charles then arrested appellant on suspicion of driving while intoxicated. Thus, the record shows Charles had personal knowledge of appellant's intoxication based on the field sobriety tests, appellant's breath smelling of alcohol, and his unsteady balance giving Charles a reasonable belief that appellant had committed the offense of driving while intoxicated. See id. Charles' observations therefore established probable cause for arrest. See id.
        Appellant complains he was arrested before field sobriety tests were administered; however, the record does not support this argument. Moss testified he stayed at the accident scene until the field sobriety officer came and, after that, “they took me home because my car was totaled.” On cross-examination, Moss agreed he believed appellant “was arrested by virtue of seeing some officer put handcuffs on [appellant],” but Moss did not say when appellant was handcuffed. Under these circumstances, we conclude the trial court did not err in overruling appellant's motion to suppress. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. We overrule appellant's first and second points of error.
        In his third point of error, appellant complains the trial court abused its discretion by giving weight to unreliable hearsay testimony. Specifically, appellant complains of the trial court's overruling of his hearsay objection under rules of evidence 801 and 803 and admission of Moss' testimony that an officer told him appellant smelled like alcohol. However, the rules of evidence do not apply to suppression hearings. Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002). Thus, the trial court did not abuse its discretion in overruling appellant's objection under the rules of evidence. See id. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090750F.U05