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Adkins v. State3/24/2003
of Review
We review the denial of a motion to suppress by giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court's ruling. Id. at 327-28. 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 introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996). However, this general rule is inapplicable where, as in this case, the suppression issue has been relitigated by the parties during a trial on the merits. See id.
Applicable Law
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. For an arrest to be justified under the Fourth Amendment, it must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 171 (1959). In most cases, an officer should let a magistrate make the determination of whether probable cause exists and obtain a warrant before an arrest is made. See Randall v. State, 656 S.W.2d 487, 490 (Tex. Crim. App.1983); Throneberry v. State, 72 S.W.3d 389, 393 (Tex. App.--Fort Worth 2002, pet. dism'd). Warrantless arrests, however, may be reasonable under the Fourth Amendment if the circumstances surrounding the arrest make it impracticable for a peace officer to take the time to procure a warrant. See Smith v. State, 739 S.W.2d 848, 852 (Tex. Crim. App. 1987). In Texas, warrantless arrests are authorized in specific situations that are set out in the code of criminal procedure. See Tex. Code Crim. Proc. Ann. arts. 14.01-.06 (Vernon 1977 & Supp. 2002); Subia v. State, 836 S.W.2d 711, 713 (Tex. App.--El Paso 1992, no pet.). For example, a peace officer in Texas may arrest a person without a warrant if that person commits an offense in the officer's presence or within the officer's view. See Tex. Code Crim. Proc. Ann. art. 14.01(b).
In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Atkins v. State, 919 S.W.2d 770, 773-74 (Tex. App.--Houston [14th Dist.] 1996, no pet.). Whether probable cause exists is determined by considering the totality of the circumstances. See State v. Parson, 988 S.W.2d 264, 267 (Tex. App.--San Antonio 1998, no pet.); Atkins, 919 S.W.2d at 773-74. In determining whether the officers had probable cause to arrest appellant, this court must determine whether the officers reasonably believed appellant committed an offense in their presence, not whether the evidence is sufficient to convict appellant of that offense. See Givens v. State, 949 S.W.2d 449, 451 (Tex. App.--Fort Worth 1997, pet. ref'd); see also 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 9.51 n. 5 (2d ed. 2001) (noting that " he [court of criminal appeals] has long adopted the position that the validity of arrest does not turn upon whether the arresting officer was ultimately correct but rather upon whether he had probable cause to believe that an offense was being committed").
Unlawful Carrying of a Weapon
Appellant complains that his warrantless arrest was illegal, that is, not supported by probable cause, because the stick is not an illegal weapon under chapter 46 of the pe
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