Federico Soria v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00716-CR
Federico SORIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1999CR6014
Honorable Mark R. Luitjen, Judge Presiding (1)

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 31, 2001

AFFIRMED

Appellant Federico Soria pled nolo contendere to the felony offense of driving while intoxicated pursuant to a plea-bargain agreement. See Tex. Pen. Code Ann. 49.09(b) (Vernon Supp. 2001). In accordance with the terms of the agreement, the trial court sentenced Soria to four years imprisonment, suspended his sentence, and placed him on ten years community supervision. On appeal, Soria argues that (1) the trial court did not have jurisdiction, (2) the trial court erred in denying his motion to suppress, and (3) he was deprived of an adequate reporter's record. We overrule all three issues and affirm the judgment of the trial court.

Texas Rule of Appellate Procedure 25.2(b)(3)

Soria filed a timely general notice of appeal and subsequently, filed an untimely specific notice of appeal in conformity with Texas Rule of Appellate Procedure 25.2(b)(3). The State argues that because Soria's only timely notice of appeal was a general one, we lack jurisdiction over this appeal. We disagree.

The jurisdiction of this court to hear and determine the appeal of a criminal case is invoked by giving notice of appeal. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). The notice of appeal must be timely, in writing, and substantively correct. See id. at 410-13. Rule 25.2 describes the substantive written requirements for notices of appeal in all criminal cases. Specifically, rule 25.2(b)(3) provides,

But if an appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2(b)(3) (emphasis added). A notice of appeal that substantially complies with these written requirements is sufficient to invoke our jurisdiction over an appeal. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992).

In Lowry v. State, we held that an untimely amended notice of appeal cannot retroactively confer jurisdiction on this court. 48 S.W.3d 309, 311-12 (Tex. App.--San Antonio 2001, pet. filed) ("Once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.... [A]ny amendments [to the notice of appeal] made pursuant to [r]ule 25.2(d) cannot be jurisdictional amendments." (quoting Riewe, 13 S.W.3d at 413)). Thus, Soria's amended notice of appeal cannot be the basis for this court's exercise of jurisdiction.

The issue then becomes whether Soria's original notice of appeal substantially complied with rule 25.2(b)(3)'s extra-notice requirements. In Riley v. State, the appellant filed a general notice of appeal; however, the appellate record included an order signed by the trial court which recited the trial court's granting of permission to appeal. (2) 825 S.W.2d 699, 701 (Tex. Crim. App. 1992). "Even though the notice of appeal did not incorporate the order, either by reference or physically, the existence of the order, timely filed in the appellate record, is sufficient to permit the Court of Appeals to ascertain that it could address non-jurisdictional defects." Id. The record in the instant case clearly indicates that the trial court denied Soria's motion to suppress prior to the entry of the plea. Further, during the hearing on the motion to suppress, Soria's counsel asked the trial court if he could appeal the denial of the motion to suppress. The trial court responded, "Fine, okay. I don't mind if you get me reversed. I never take it personally." Because the record indicates the motion to suppress was denied prior to the plea and because the trial court granted Soria permission to appeal the motion to suppress on the record, we find that Soria substantially complied with rule 25.2(b)(3)'s extra-notice requirements.

As for jurisdictional defects, we held in Martinez v. State that we may reach a jurisdictional issue despite a defendant's failure to comply with the extra-notice requirements of rule 25.2(b)(3). 5 S.W.3d 722, 724-25 (Tex. App.--San Antonio 1999, no pet.); see also Ramirez v. State, No. 2-00-378-CR, 2001 WL 173199, at *3 (Tex. App.--Fort Worth Feb. 21, 2001, no pet.). But see Hernandez v. State, 986 S.W.2d 817, 819 (Tex. App.--Austin 1999, pet. ref'd). Thus, pursuant to Martinez, we have jurisdiction over the jurisdictional defect despite Soria's general notice of appeal. 5 S.W.3d at 724-25.

Jurisdiction of Trial Court

Soria argues that when the State amended the indictment, it abandoned the enhancement portions of the indictment, the effect of which was to charge him with misdemeanor DWI instead of felony DWI. As such, Soria argues that the trial court, a judicial district court, lacked jurisdiction over the misdemeanor offense, a matter over which the county court has jurisdiction. The State responds that the enhancement paragraphs were not abandoned.

The indictment charges Federico Soriz with committing the offense of felony DWI. The State filed a motion to amend the indictment, requesting that the indictment be amended to charge Federico Soria, not Soriz. Soria argues that because the motion and order granting the motion do not recite the enhancement paragraphs, those paragraphs were deleted from the indictment. This argument is without merit.

An amendment of the charging instrument requires an actual alteration, or interlineation, (3) of the charging instrument itself. Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992). There is no amendment of the charging instrument until and unless it has been physically altered. Id. Even an order of the trial court granting the State's request to amend the charging instrument and declaring that the instrument is amended will not amend the charging instrument. Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000). (4) The indictment in the instant case was altered to change the defendant's name from Soriz to Soria. The trial court did not delete the enhancement paragraphs. Therefore, the trial court continued to have jurisdiction over Soria's offense.

Motion to Suppress

In his second issue, Soria argues that the trial court abused its discretion in denying Soria's motion to suppress all evidence seized as a result of the arrest, as well as any written or oral statements made by Soria after the arrest. At the hearing on the motion to suppress, the State presented three witnesses: Arturo Charo, Park Ranger Fred Soliz, and Police Officer Alfred Losoya. Charo testified that he was sitting in his car, stopped at a red light, when a van driven by Soria struck him from behind. Once Charo and Soria emerged from their respective vehicles, Charo noticed that Soria was mumbling. Charo could smell alcohol on Soria's breath. The State's second witness, Park Ranger Soliz, testified that he saw two vehicles stopped in the left-hand turn lane and two men standing between the vehicles arguing. He stopped to investigate and separated Charo and Soria. When Park Ranger Soliz questioned Soria, Soria stated that the van belonged to his passenger. The passenger then told Soliz that he had asked Soria to drive, because he was too intoxicated to drive. Soliz testified that Soria appeared to be "a little unstable on his feet." A police officer, Alfred Losoya, then arrived at the scene. Officer Losoya testified that he has had training and experience in detecting alcohol intoxication. When he arrived at the scene, Park Ranger Soliz relayed to him that there had been an accident and that one of the parties, Soria, was intoxicated. Soria told Losoya that he had been operating the vehicle, but that he was not able to stop in time because of the slick road. Losoya testified that Soria's drunkenness was apparent. Soria was unstable on his feet, swaying back and forth, was slurring his speech, and had bloodshot eyes. Losoya testified that Soria's breath smelled of alcohol. Losoya arrested Soria without obtaining a warrant. Losoya did not ask Soria to perform any type of field sobriety test because of the bad weather. Neither Park Ranger Soliz nor Officer Losoya actually saw Soria driving the van.

A. Standard of Review

We review a trial court's denial of a motion to suppress under an abuse of discretion standard. Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991); Moore v. State, No. 04-00-00414-CR, 2001 WL 1018374, at *2 (Tex. App.--San Antonio July 18, 2001, no pet.). Under this standard, we "view the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact that are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Moore, 2001 WL 1018374, at *2. However, when the resolution of the factual issue does not turn upon an evaluation of credibility or demeanor, we review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Guzman, 955 S.W.2d at 89; Moore, 2001 WL 1018374, at *2.

B. Probable Cause

Soria argues that the trial court should have granted his motion to suppress, because his arrest was illegal for two reasons: (1) the police officer did not have probable cause to arrest him and (2) he was arrested illegally without a warrant. To effectuate a full custodial arrest, an officer must have probable cause to believe the person arrested has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). Probable cause to arrest exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe an offense has been or is being committed. Guzman, 955 S.W.2d at 87; Amores, 816 S.W.2d at 413. The determination of probable cause at the time of the questioned event is viewed from the "totality of the circumstances." Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). We must look at the totality of the circumstances to determine if there is a substantial basis for concluding that probable cause existed at the time of the questioned event. Guzman, 955 S.W.2d at 87; Angulo, 727 S.W.2d at 278.

Officer Losoya testified that he stopped at the scene soon after the accident occurred. He observed that Soria had bloodshot eyes and was unsteady on his feet. Soria was slurring his speech, and his breath smelled of alcohol. Further, Soria admitted to being the driver of the van involved in the accident. Under the totality of the circumstances, Officer Losoya had probable cause to arrest Soria for driving while intoxicated or public intoxication. (5)

C. Warrantless Arrest

It is undisputed that Officer Losoya arrested Soria without a warrant. Soria relies on Reddie v. State in support of his argument that he was illegally arrested. 736 S.W.2d 923 (Tex. App.--San Antonio 1987, pet. ref'd). The facts in Reddie, however, are distinguishable from this case. The defendant in Reddie was found slumped over the steering wheel of a parked car in the middle of the road with alcohol on his breath. Id. at 924. No one knew how long the car had been parked in the street. Id. No one saw the defendant drive the car, nor did anyone know how long the defendant had been intoxicated. Id. We held that there was legally insufficient evidence to support the defendant's conviction for driving while intoxicated because there was no evidence that the defendant had been operating a car while intoxicated. Id. at 925-27. Unlike Reddie, Soria was seen by Charo operating the van at the time of the accident. Moreover, Soria admitted to Officer Losoya that he was the driver of the van.

The State contends that the arrest was valid under article 14.03(a)(1) of the Code of Criminal Procedure. Under article 14.03(a)(1), a peace officer may arrest without a warrant persons found in "suspicious places" and under circumstances which reasonably show that such persons have been guilty of some felony, offenses against public order and decency, breach of the peace, or public intoxication, or threaten, or are about to commit some offense against the law. Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2001) (emphasis added).

Whether a place is considered "suspicious" for purposes of article 14.03 is fact specific. State v. Parson, 988 S.W.2d 264, 268 (Tex. App.--San Antonio 1998, no pet.). While few places are inherently suspicious, a place may become suspicious because of facts and circumstances, together with any reasonable inferences which can be drawn from those facts. Id. In Sandoval v. State, the Eighth Court of Appeals found the defendant's backyard to be a suspicious place. 35 S.W.3d 763, 768 (Tex. App.--El Paso 2000, pet. ref'd). The defendant fled the scene of an accident without stopping to give information. Id. Witnesses followed him home. Id. When the police arrived at the defendant's home, the witnesses informed the officers that the defendant was the driver who caused the accident and that he appeared to be intoxicated. Id. The defendant's wife told the officers that her husband had been driving and allowed them to go into the backyard where the defendant was located. Id. The officers found the defendant in the backyard and asked him about the accident. Id. The defendant admitted that he had been driving the car and appeared intoxicated to the officers, with his bloodshot eyes and unsteady balance. Id. Based on these facts, the court of appeals held that the defendant's backyard could reasonably be characterized as a suspicious place and that the officers had probable cause to arrest, without a warrant, the defendant for driving while intoxicated. See id.; see also Crowley v. State, 842 S.W.2d 701 ,703 (Tex. App.--Houston [1st Dist.] 1992) (holding appellant's garage to be suspicious place where eyewitness followed appellant to garage after appellant fled from accident and watched appellant until police arrived), pet. ref'd per curiam, 830 S.W.2d 613 (Tex. Crim. App. 1992).

In Cooper v. State, the defendant was involved in a two-car accident in front of a bar. 961 S.W.2d 229, 231 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). The police officer arrived on the scene and administered a field sobriety test. Id. The officer noticed that the defendant was swaying back and forth and was unsteady on his feet. Id. The officer spoke with the driver of the other car, who stated that he had smelled alcohol on the defendant's breath. Id. After speaking with the defendant, the officer decided that the defendant posed a danger to himself and to others. See id. While the court noted that the scene of an accident is not a suspicious place per se, the "trial court could have reasonably concluded that a parking lot in front of a bar in the wee hours of the morning with intoxicated, bleeding people walking around wrecked cars constituted a 'suspicious place.'" Id. at 232.

Likewise, Soria was found at the scene of an accident, with bloodshot eyes, slurred speech, an unsteady stance, and alcohol on his breath. Soria admitted that he was the driver of the van, which had rear-ended Charo's vehicle. Under these circumstances, the trial court could have reasonably concluded that the accident scene was a suspicious place sufficient to support Soria's warrantless arrest. Alternatively, a police officer may arrest a person without a warrant for public intoxication. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2001). Thus, even if the accident scene was not a "suspicious place," Officer Losoya had the authority to arrest Soria for public intoxication. The trial court did not abuse its discretion by denying Soria's motion to suppress.

Inadequate Appellate Record

Lastly, Soria argues that he was deprived of an adequate reporter's record on appeal, because the court reporter did not record certain bench conferences during the hearing on the motion to suppress. Soria, however, has waived his complaint. The Texas Court of Criminal Appeals has held that to preserve error in the failure to record bench conferences, "one must object at some time to the failure to record bench conferences, and, as with all objections, in order to be timely the objection must be at a time at which the trial court may remedy the omission." Moore v. State, 999 S.W.2d 385, 397 (Tex. Crim. App. 1999) (emphasis in original). In addition,

the record must reflect that trial counsel either (1) attempted to stipulate with opposing counsel and the trial court the substance of unrecorded bench conferences, (2) requested that the trial court reflect the substance of the unrecorded bench conferences in the statement of facts, or (3) made a formal bill of exception regarding the substance of the unrecorded bench conference.

Id. at 398.

Soria neither objected to the failure to record bench conferences nor made any attempt to supplement the trial record with the substance of the unrecorded conferences. Therefore, Soria has failed to document in the record that anything pertinent to this appeal took place at the unrecorded bench conferences and has waived this issue. Id.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. The Honorable Henry Schuble presided over the hearing on Soria's motion to suppress.

2. Riley discusses Texas Rule of Appellate Procedure 40(b)(1), the predecessor to rule 25.2(b)(3).

3. "The word interlineation means the act of writing between the lines of an instrument, as well as what is written between the lines." Bates v. State, 15 S.W.3d 155, 162 (Tex. App.--Texarkana 2000, pet. ref'd) (citing Black's Law Dictionary 819 (7th ed. 1999)).

4. The court of criminal appeals held in Riney that the physical interlineation requirement is not rigid in that interlineation of the original indictment is not the only method by which an amendment can be effected. Riney, 28 S.W.3d at 565-66. For example, in Riney, the court of criminal appeals approved of the trial court altering a photocopy of the original indictment. Id. However, the court reaffirmed Ward's admonitions that neither the motion to amend nor the trial court's order granting such a motion constitutes an effective amendment of the charging instrument. Id. at 566.

5. During the hearing on the motion to suppress, Officer Losoya was never asked directly for what offense Soria was arrested.