Dana Aaron Calderone v. State

Opinion issued May 20, 2010 In The Court of Appeals For The First District of Texas NO. 01-09-00703-CR DANA AARON CALDERONE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1194180 MEMORANDUM OPINION Two bags of cocaine were found in appellant Dana Aaron Calderone’s pants pocket following his arrest for public intoxication. After the trial court denied his motion to suppress, Calderone pled guilty to possession of a controlled substance[1] pursuant to a plea bargain and was placed on four years deferred adjudication. In his sole point of error, Calderone challenges the trial court’s denial of his motion to suppress, arguing that there was no probable cause for his arrest. We affirm. Background A. The arrest On a rainy night, just before 10:00 p.m., security guards at Houston’s Galleria Mall found Calderone seated on the ground on the uncovered rooftop level of a six-story parking garage, “balled up,” “on his tiptoes and knees curled up,” getting wet. The area, up a winding garage ramp, was difficult to access on foot. Calderone did not respond when the guards called to him and they notified the assistant director of security, Felicia White. On her arrival, White saw that Calderone’s location placed him in the path of vehicles leaving the garage. At that time, the mall was closed and employees were leaving for the night. Concerned for the safety of her security team and others, White called the Houston Police Department for assistance. White asked Calderone if he needed any help and he accepted her offer to come with her in a security vehicle. White took Calderone to a Houston Police Department holding area in a secure part of the Galleria. Calderone could not explain how he got to the garage rooftop. Although he knew he had a car, could describe the car, and provided his driver’s license number and a portion of his car’s license plate number, when asked where his car was parked, the location he gave was not in the Galleria parking area. White directed all her officers to look for Calderone’s car, but it was never found. While waiting for the police to arrive, White continued to talk to Calderone about various topics (his job, religion, and residence in Chappell Hill, Texas) in an effort to “jog his memory” and help him provide her the name of someone to contact. In the approximately fifty minutes it took for the police arrive, Calderone divulged no pertinent information. White could not determine whether Calderone was intoxicated by some substance or suffering from a medical problem, but considered his behavior abnormal. Because of the location and circumstances in which he was found, White believed that the Appellant posed a danger to himself. When Officer Rene Campos of the Houston Police Department arrived, White related “the whole story about the parking garage and where [Calderone was found].” Campos asked Calderone some basic questions and while Calderone answered some of them, he was unable to tell Campos how to get him home. Campos testified that Calderone “seemed kind of out of it,” “disoriented like he didn’t know what was going on…” and “wasn’t aware of his surroundings.” As Calderone emitted no scent of alcohol, Campos, a patrol officer familiar with the characteristics of intoxication, believed him to be intoxicated on some unknown substance and to be a danger to himself because of how “out of it” he seemed and where he was found. Campos arrested Calderone for public intoxication and during his search of Calderone pursuant to the arrest, found two bags of cocaine in appellant’s front left pants pocket. B. The ruling on the motion to suppress At the hearing on his motion to suppress, at which both White and Campos testified, Calderone argued that the arrest for public intoxication violated Texas Code of Criminal Procedure 14.01(b)[2] and that there was no probable cause to believe that he was intoxicated. The trial court denied the motion, ruling that although the security office was not a public location that would give rise to a public intoxication arrest, Calderone’s arrest was nevertheless authorized because he was found in a suspicious place and under circumstances which reasonably showed that he was guilty of public intoxication.[3] Among the court’s findings of fact[4] were: (1) appellant was intoxicated by not having the normal use of his mental faculties; (2) appellant was intoxicated by an unknown substance; and (3) appellant was a danger to himself and others. The trial court concluded that Campos had probable cause to believe that appellant not only had been publicly intoxicated while on the public place of the garage roof, but, had Campos allowed him to leave the security office, Calderone would have further violated the statute. The Motion to Suppress Appellant’s sole issue challenges the trial court’s determination of probable cause. Specifically, appellant argues that Officer Campos did not have a reasonable belief that appellant was intoxicated. A. Standard of Review We review a trial court’s decision in denying a motion to suppress for an abuse of discretion under a bifurcated standard of review giving almost total deference to the trial court’s determination of historical facts that depend on credibility and reviewing de novo the trial court’s application of the law to those facts. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When, as here, a trial court makes explicit findings of fact, we determine whether the evidence, viewed in the light most favorable to trial court’s ruling, supports the findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). The trial judge presding at a suppression hearing is the sole trier of fact and judge of the credibility of the witnesses. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). B. Analysis Appellant makes no challenge to the trial court’s conclusion that he was found in a suspicious place. Appellant’s sole contention is that the officer lacked probable cause of public intoxication because his belief that appellant was intoxicated was not reasonable since he had no knowledge of facts and circumstances that would lead a reasonable person to believe that appellant was intoxicated. See Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (holding that probable cause for warrantless arrest requires officer to have reasonable belief that offense has been committed based on facts and circumstances either (1) within officer’s personal knowledge or (2) of which officer has reasonably trustworthy information). Appellant asserts that Campos lacked personal knowledge of appellant’s alleged intoxication because when asked by the trial court about specific behavior that gave him a reason to believe that appellant was acting abnormal, Campos responded “it just seemed kind of like he was out of it,” and, when pressed about appellant’s behavior, Campos answered, “it’s been so long ago I can’t remember a whole lot.” Appellant further argues that Campos did not have reasonably trustworthy information from other sources as to appellant’s alleged intoxication because apart from the “sequence of events” and the “whole story about the parking garage,” White did not specifically detail what information she gave to Campos at the time of the arrest. White herself, appellant notes, was uncertain if appellant was intoxicated or suffered from a health malady. So long as we determine the trial court’s findings of facts are supported by the record, viewing the record in the light most favorable to the findings, we must accord almost total deference to the court’s findings. See Kelly, 204 S.W.3d at 818; Carmouche, 10 S.W.3d at 327. Here, both White’s and Campos’s testimony about their observations of appellant and the circumstances in which appellant was found support the trial court’s finding that appellant was intoxicated by an unknown substance such that he did not have the normal use of his mental faculties.[5] Viewed in the light most favorable to the trial court’s ruling, the record supports this finding and, with deference thereto, we hold that the trial court did not abuse its discretion in concluding that Campos had a reasonable belief that appellant was intoxicated. We overrule appellant’s sole point of error. CONCLUSION We affirm the judgment of the trial court. Jim Sharp Justice Panel consists of Chief Justice Radack and Justices Bland and Sharp. Do not publish. Tex. R. App. P. 47.2(b). [1] Between one and four grams. See Tex. Health & Safety Code Ann. §§ 481.102 (3)(D), 481.115(a), (c) (Vernon Supp. 2009). [2] Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) (permitting warrantless arrest if offense is committed in officer’s presence or view). [3] Id. art. 14.03(a)(1) (Vernon Supp. 2009) (permitting warrantless arrest when person is found in suspicious place and under circumstances which reasonably show guilt of certain offenses [including public intoxication] or show that person is about to commit some offense). [4] See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (explaining that, when complying with request for essential findings following motion to suppress, trial court may issue written findings or may state them on the record). [5] “Intoxicated” for the purposes of public intoxication includes not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of these substances, or any other substance into the body. See Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003).