text:
    Steve REYES, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00210-CR.
    Court of Appeals of Texas, San Antonio.
    March 17, 2010.

      Roderick B. Glass, Assistant Public Defender, San Antonio, TX, for Appellant.
    Susan D. Reed, District Attorney, Bexar County, San Antonio, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by

STEVEN C. HILBIG, Justice.

Steve Reyes was indicted for assault (causing bodily injury) to a member of his family or household. Included in the indictment was an allegation that Reyes was previously convicted of a similar assault, which raised the underlying offense to a third-degree felony. The indictment also included two enhancement paragraphs, each alleging Reyes had a prior felony conviction, which made Reyes eligible for punishment as a habitual offender. The jury found Reyes guilty of the offense as charged in the indictment and found the enhancement allegations to be true. The trial court sentenced Reyes to life in prison. Reyes appeals the judgment, arguing the trial court erred in admitting a 911 recording over his hearsay and confrontation objections. Reyes also claims the evidence is legally insufficient to support the jury’s determination he had a prior conviction for assault against a family member. We affirm the judgment of the trial court.

BACKGROUND

On February 23, 2007, Reyes’s son called 911 at his mother’s request to seek medical help. According to the 911 recording, the child requested assistance because his father “beat my mom.” The caller expressed concern that his mother’s leg may be broken because she was limping and his mother was “all beat up and she can’t move.” The child answered the 911 operator’s questions as to whether Reyes had been drinking and possessed weapons.

The police were dispatched to the residence where they encountered the complainant Mary Mora. City of San Antonio police detective Juan Campacos testified he took pictures of Mora at the scene, and the pictures were placed into evidence. Detective Campacos testified the pictures reflected Mora had two black eyes and cuts over her eyebrows. Raul Rendon, a San Antonio patrol officer, testified that when he arrived at the residence he saw Reyes coming from a rear bedroom. He later saw Mora come from one of the back rooms and observed that her face and body were injured. Officer Rendon testified Mora told him Reyes had beaten her. Mary Dye, another San Antonio Police officer, testified that when she arrived at the scene she encountered a “fearful” child who said that a disturbance was “going on in the back.” Officer Dye also testified Mora told her that Reyes had beaten her. At trial, Mora was a recalcitrant witness for the State. She read excerpts from her handwritten statement made on February 23, 2007, in which she stated Reyes had beaten her.

Admission of 911 Recording

The audio recording of the 911 call was admitted into evidence over Reyes’s objection that the recording was hearsay and violated his right to confront witnesses. The State argued to the trial court that the recording fell within two exceptions to the hearsay rule — present sense impression and excited utterance. We review the trial court’s decision to admit evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007). We will uphold the trial judge’s decision unless it is outside the zone of reasonable disagreement. Id. We will also uphold a trial court’s ruling admitting evidence “if the ruling is reasonably supported by the record on any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003).

Hearsay

Our rules of evidence contain many exceptions to the general prohibition against the use of hearsay at trial. The present sense impression exception is defined as a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Tex.R. Evid. 803(1). The excited utterance exception is defined as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). The Court of Criminal Appeals recently described both exceptions as fitting the category of “unre-flective statements.”

The first set of hearsay exceptions, un-reflective statements, are “street corner” utterances made by ordinary people before any thoughts of litigation have crystallized. These unreflective statements used to be called “res ges-tae,” an imprecise Latin legalese term, because the speaker was not thinking about the legal consequences of his statements. In most instances, the speaker was not thinking at all; the statement was made without any reflection, thought process, or motive to fabricate or exaggerate.

Fischer v. State, 252 S.W.3d 375, 379 (Tex.Crim.App.2008) (footnotes and citations omitted). The court went on to explain:

The rationale for the [present sense impression] exception is that the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity.
⅜ ⅜ ‡
The rule is predicated on the notion that “the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes.” It is “instinctive, rather than deliberate.” If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.

Id. at 380-81 (footnotes and citations omitted).

Reyes argues the recording was not admissible under the present sense impression exception because the recorded statements recounted past events and fail to meet the contemporaneous or immediacy requirement of the hearsay exception. The 911 recording includes statements by the caller that his mother was “limping” and that she “needs” an ambulance. These statements indicate the caller was describing events as they were happening and falls within the hearsay exception of present sense impression. The caller’s statement that his father had beaten his mother also appears to be a description of a past event, although it is not clear from the recording when the event took place. When an exhibit contains both admissible and inadmissible evidence, the burden is on the objecting party to specifically point out which portion of the recording is inadmissible. Whitaker v. State, 286 S.W.3d 355, 369 (Tex.Crim.App.2009). A trial court does not abuse its discretion when it admits the exhibit in its entirety if the objecting party fails to segregate the admissible from the inadmissible. See id. Reyes objected to the entire recording and he did not request specific portions to be excluded. Because at least some statements in the recording appear to be a contemporaneous statement about an event the caller was witnessing, the trial court did not abuse its discretion by admitting the recording. See id.

Confrontation

Reyes also argues his right of confrontation under the Sixth Amendment was violated by the admission of the 911 recording because he did not have a prior opportunity to cross-examine the caller, the State did not demonstrate the caller was unavailable to testify, and the recording was testimonial. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Both parties agree the key to the resolution of this issue is whether the recording is testimonial.

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Vinson v. State, the court of criminal appeals suggested a non-exhaustive list of factors to consider in determining whether the statements were testimonial:

1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion.

252 S.W.3d 336, 339 (Tex.Crim.App.2008) (citing Davis, 547 U.S. at 829-30, 126 S.Ct. 2266). We review de novo the question of whether a statement is testimonial or non-testimonial. Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006).

We agree with the trial court that the statements contained in the 911 recording are not testimonial. The 911 operator’s questions were designed to evaluate the situation at the time the call was received in order to determine if an emergency existed that required a response. The questions by the 911 operator clearly indicate their primary purpose was to determine the extent of the emergency rather than memorializing information for later use in a criminal prosecution. The trial court did not abuse its discretion in admitting the 911 recording.

Legal Sufficiency — PRIOR Assault Conviction

In two separate issues, Reyes challenges the legal sufficiency of the evidence. Reyes argues the evidence is legally insufficient to prove his prior assault conviction, and there was a material variance between the allegation in the indictment and the proof at trial as to the date of the previous assault conviction. Reyes raises legal sufficiency challenges under both federal and state due process grounds.

We review a federal due process challenge to the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the “substantive elements of the offense as defined by state law” beyond a reasonable doubt. Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 n. 16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005) (stating sufficiency of evidence review requires viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).

However, when the legal sufficiency of the evidence is challenged under state law, we measure the evidentiary sufficiency against “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Fuller, 73 S.W.3d at 252 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)); see Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001). Only allegations giving rise to material variance must be included in the hypothetically correct jury charge. Gollihar, 46 S.W.3d at 257; see Fuller, 73 S.W.3d at 253. We decide if the variance is material by determining “whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.” Gollihar, 46 S.W.3d at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).

Prior Assault Conviction — Element of Offense or Mere Enhancement Allegation

Central to our review is whether the allegation of the prior assault conviction is an element of the offense or merely an allegation for the purpose of enhancement of punishment. A prior conviction alleged for enhancement is “is not really a component element of the primary offense.” Brooks v. State, 957 S.W.2d 30, 32 (Tex.Crim.App.1997). Although a defendant is entitled to notice that the State intends to enhance his punishment through the use of prior convictions, enhancement allegations are not required to be pled in an indictment. Id. at 34. Thus, if the prior assault conviction is an enhancement allegation, it is not an element of the offense, and need not be included in a hypothetically correct jury charge for a conviction of the primary offense.

Relying on Calton v. State, Reyes argues the allegation of the prior assault conviction is an element of the offense for which he was charged. 176 S.W.3d 231, 236 (Tex.Crim.App.2005). In Calton, the court addressed whether the allegation of a prior conviction under the evading arrest statute was an element of the offense. The court explained that when determining “whether any given fact constitutes an element of the offense,” the court must look to the plain language of the statute involved and apply that plain language if it is not ambiguous. Id. at 233. If the language is ambiguous or would lead to an absurd result, we resort to extra-textual sources to determine the element of the offense. Id. The court began its analysis with a review of the text of section 38.04 of the Penal Code which provides in relevant part:

§ 38.04 Evading Arrest or Detention
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(I) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; ...

Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2009). The court determined the statute was not ambiguous. The court held that a conviction for the offense evading arrest as an element of a third-degree felony could not occur without proving the actor has previously been convicted of evading arrest. Id. at 234. The court concluded from the plain language of the statute that a prior conviction for evading arrest is an element for the offense of third-degree felony evading arrest. Id. .

Applying the court’s analysis in Colton, we conclude the allegation of the prior assault conviction is also an element of the offense of assault causing bodily injury when pled as a third-degree felony. The structure of section 22.01, which defines the offense of assault causing bodily injury, is similar to that of evading arrest.

§ 22.01 Assault
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, ... against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; ...

Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). Section 22.01(b)(2) is not ambiguous, and the plain language of the statute requires proof of a prior conviction. Accordingly, proof of a prior assault conviction is an element of the offense and must be included in a hypothetically correct charge and proven beyond a reasonable doubt. We will review the sufficiency of the evidence to determine if the State adduced sufficient proof of this element.

Reyes argues the State failed to prove he had been previously convicted of the requisite assault. We disagree. The State introduced into evidence a certified copy of a judgment dated June 9, 2000 in cause number 751591. The judgment stated Reyes had pled guilty to assault and included an affirmative finding of family violence. A fingerprint expert testified the judgment contained a fingerprint impression made by Reyes. The State’s expert testified he compared the fingerprint contained on the judgment with Reyes’s fingerprints and concluded Reyes’s fingerprint was on the judgment. The judgment also contains the name of Mary Mora, the same complainant in the instant case. Based on this evidence, a reasonable jury could have concluded Reyes had previously been convicted of assault as alleged.

Reyes also contends the date of the prior conviction is an element of the offense. We again disagree. A hypothetically correct jury charge includes the statutory elements of the offense. Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 254. Although proof of a prior assault conviction is an element of the offense, the date on which the conviction occurred is not an element of the offense. Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009); see Fuller, 73 S.W.3d at 254 (holding name of victim in injury to elderly case was not element of offense because statute required only proof that an elderly individual was harmed as opposed to the name of the person). Nothing in the language of the statute suggests the date of the prior assault conviction must be proven; it must only be shown to have occurred prior to the present assault. Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). The state proved the prior conviction’s date was before the current proceeding’s commencement, and although the date was incorrect the cause number, victim, and county were correct. The State’s failure to prove the date in the indictment does not make the evidence insufficient. See Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 254.

Reyes also states in a conclusory manner that the variance prevented him from preparing his defense and prejudiced his substantial rights. However, Reyes fails to demonstrate how he was prejudiced nor does he argue he is subject to double jeopardy if the conviction is affirmed. Based on the record, we cannot conclude the variance was material under the standard set forth in Gollihar, 46 S.W.3d at 254.

Conclusion

The trial did not err in admitting the 911 recording. The evidence was legally sufficient to support the jury’s verdict. The judgment of the trial court is affirmed.

      . See Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2009).

      . See id. at § 22.01(b)(2).

      . See id. at § 12.42(d).

      . Because we conclude the evidence was admissible under the present sense exception, we need not address the State's alternate theory that it was also admissible under the excited utterance exception.

      . In one point of error, Reyes contends the trial court erred in failing to grant an instructed verdict due to a variance. In his second point of error, Reyes challenges the legal sufficiency of the evidence for the same reason. However, a complaint the trial court failed to grant an instructed verdict is a challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 692-93 (Tex.Crim.App.), cert. denied, 540 U.S. 1051, 124 S.Ct. 806, 157 L.Ed.2d 701 (2003).

      . The indictment alleged the date of conviction to be July 17, 2000 in cause number 751591. The certified copy of the judgment placed into evidence was dated June 9, 2000 in the same cause number.

      . Article 42.013, Texas Code of Criminal Procedure, requires the trial court to make a finding of family violence if the offense is contained in Title 5 of the Penal Code and the court determines the offense involved family violence as defined in section 71.005 of the Texas Family Code. Tex Code Crim Proc. Ann. art. 42.013 (Vernon 2006).


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    Mark DODGE, Diane Welch, Donna Sakkinen, Debra Song, Wayne McDonough, Sheri McDonough, Phillis McDonough, and Randy McDonough, Appellants, v. Warren DODGE, Jr., Appellee.
    No. 08-08-00122-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2010.
    Reconsider Denied June 30, 2010.

      W. Michael Read, The Law Office of W.M. Read, Dallas, TX, for Appellants.
    Edward L. Rice, Dallas, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellants, Mark Dodge, Diane Welch, Donna Sakkinen, Debra Song, Wayne Mc-Donough, Sherri McDonough, Phillis Mc-Donough, and Randy McDonough, appeal the trial court’s judgment entered in favor of Appellee, Warren Dodge, Jr. We affirm.

BACKGROUND

Florence Wagner died leaving a house located on Barstow Boulevard in Dallas, Texas, to her nine grandchildren, presumably in equal shares. In 1992, Appellee and his five children, having been evicted from Diane Welch’s residence, moved into the house on Barstow Boulevard. The family’s expectation was that Appellee could live in the residence for free if he paid the taxes on the property. Twelve years later, he filed suit seeking sole ownership of the property on grounds of adverse possession. The trial court ordered the parties to mediation, and on June 30, 2005, the parties signed a settlement agreement.

Pursuant to the terms of the agreement, the parties were to execute an agreed order, prepared by Appellee, dismissing all claims with prejudice. The agreement did not specify when the agreed order was to be prepared; however, the agreement did state that Appellee was to deliver drafts of any further documents to be executed in connection with the settlement agreement to Appellants within ten days from June 30, 2005, the date the agreement was signed. The agreement also provided that Appellee would purchase the Barstow property by paying Appellants the sum of $24,277.77 on or before October 31, 2005, and if he did not, he would move from the residence by January 31, 2006, and the property would be listed for sale on February 1, 2006. If Appellee purchased the Barstow property, Appellants agreed to sign all documents necessary to close on the property.

On April 11, 2007, Appellants filed a motion to dismiss Appellee’s claims with prejudice, alleging that he failed to perform under the terms of the settlement agreement. Specifically, they claimed he failed to prepare an agreed order, dismissing all claims with prejudice. Appellee responded that the dismissal was predicated upon Appellants performing their obligations under the settlement agreement, that is, that they sign all necessary documents for him to close on the property. Appellee’s position was that every contract for the sale of real property contains an implied obligation for the seller to convey marketable title, and that the settlement agreement thus impliedly obligated Appellants to convey marketable title. When Appellants failed to do so, Appellee alleged his performance under the agreement, i.e., to purchase the property and to prepare an agreed order for dismissal with prejudice, was impossible. Thus, Appellee moved for specific performance of the settlement agreement by asking the court to require Appellants to convey good and marketable title to the Barstow property. Appellants responded that Appellee’s preparation of the agreed order dismissing all claims with prejudice was a condition precedent to them signing all necessary documents to close on the property, and that the documents Appellee prepared, an agreed judgment for adverse possession and plaintiffs motion for non-suit, were not those contemplated by the parties.

The case proceeded to a bench trial. There, Appellee testified that his understanding of the settlement agreement was that Appellants would convey a marketable title to him so that he may obtain a mortgage. Appellee related that he wanted to buy the property and that he was qualified for a loan; however, without a good title, Appellee was unable to obtain funding, i.e., the mortgage. After the settlement agreement was executed, Appellee learned from the title companies that to obtain a good title, he needed an agreed judgment against Appellants, giving him sole ownership of the property. Heirship affidavits were not sufficient. Appellee claimed he would dismiss the suit with prejudice when good title to the property was bestowed.

Diane Welch testified that in exchange for what Appellee wanted, that is, marketable title to the property, she and Appellants wanted to be released from the lawsuit and to not have it come back in any way. However, Welch never saw an agreed order prepared by Appellee that spoke to dismissing all claims with prejudice, nor has Appellee ever mentioned that he prepared one. She only saw a motion and order for non-suit that proposed to dismiss the claims against all Appellants but her, and without prejudice.

Appellants were willing to provide a marketable title and to sign all necessary documents to close on the property, including going through an heirship proceeding in a probate court on the will. They understood that in order for Appellee to obtain a mortgage, they had to convey a good title to the property. Appellants, however, were not willing to sign off on a judgment against them for adverse possession. Nor were they willing to sign a mutual release referencing a judgment against them but in favor of Appellee.

At the close of evidence, both parties moved for specific performance. Appellee wanted good title to the property before dismissing the suit, and Appellants wanted the suit dismissed before they bestowed good title. The trial court found Appellants in breach and ordered that they complete the necessary documents to convey a marketable title and then, that Appellee dismiss the case with prejudice. The trial court also awarded Appellee attorney’s fees.

DISCUSSION

On appeal, Appellants bring eight issues. Their first two issues contend that the trial court erred in finding that they, rather than Appellee, breached the settlement agreement, their third issue alleges that the trial court erred in finding that the settlement agreement was an enforceable contract to sell real property, their fourth and fifth issues assert that the trial court erred in finding that they were to provide marketable title to Appellee, their sixth issue argues that the trial court erred in finding that they will net less than the agreed upon $24,277.77, and their seventh and eighth issues challenge the trial court’s award of attorney’s fees to Appel-lee rather than to them. Finding all issues inadequately briefed, we determine nothing is presented for review and thus affirm the trial court’s judgment.

We note that the language in Appellants’ brief for each issue appears to raise no-evidence and factual-sufficiency challenges to support the trial court’s implicit findings, following the bench trial. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996) (where no findings of fact or conclusions of law are filed after a bench trial, the trial court’s judgment implies all findings of fact necessary to support it); see also BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002) (if a reporter’s record is filed, the implied findings are not conclusive, and the appealing party may challenge them on legal and factual sufficiency grounds). Moreover, Appellants’ issues also appear to invoke the abuse-of-diseretion standard for each finding of fact and award of attorney’s fees. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990) (generally, an attorney’s fees award rests within the sound discretion of the trial court, and will not be disturbed absent an abuse of that discretion). However, Appellants have not provided us with any citations to the standards of review, and their arguments for each issue contain no more than a mere recitation of the evidence presented in the pleadings and at trial followed by a few conclusory statements. There is, in essence, no legal argument presented, and Appellants do not cite to any case law addressing the points of error identical to those uttered at bar.

Under the Rules of Appellate Procedure, Appellants are required to provide us with a legal argument and authorities that support that argument to maintain the point at issue. See Tex.R.App. P. 38.1; Ratsavong v. Menevilay, 176 S.W.3d 661, 666 (Tex.App.-El Paso 2005, pet. denied), cert. denied, 549 U.S. 886, 127 S.Ct. 253, 166 L.Ed.2d 149 (2006). This is not done by merely uttering the facts and brief conclusory statements, unsupported by a standard of review and analogous legal authority. Ratsavong, 176 S.W.3d at 666. By presenting such attenuated, unsupported arguments, we find Appellants waived their complaints. See Tex.R.App. P. 38.1; Johnson v. Oliver, 250 S.W.3d 182, 187 (Tex.App.-Dallas 2008, no pet.) (issue inadequately briefed when party presented no authority to support their contention or argument); Ratsavong, 176 S.W.3d at 666 (issues inadequately briefed when party recited the evidence at trial followed by eonclusory statements without any supporting case law and only stating that the standard of review was abuse of discretion); Wheeler v. Methodist Hosp., 96 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (issue inadequately briefed when party did little more than summarily state his point of error, without citations to legal authority or substantive analysis). Accordingly, we overrule each of Appellants’ issues.

CONCLUSION

The trial court’s judgment is affirmed.

      . A contested handwritten document executed by Wagner in 1978, was found, and the document appeared to devise her property to her daughter, who is now deceased, and then to seven of her grandchildren. Wayne and Sherri McDonough's names were omitted. However, this appeal does not concern whether the document was a holographic will or to whom the property passed. Thus, we assume, as the parties did below, that all nine grandchildren own the property in equal shares.

      . We recognize that Appellants, in their 47-page brief, cite generally to two cases and a few provisions of the Texas Civil Practice and Remedies Code, and the Property Code. The case cites merely reference the general proposition that the interpretation of a contract should not render any provisions therein meaningless, and that there is no ambiguity when a settlement agreement is clear, concise, and complete on its face. Similarly, the code cites merely concern the general propositions on marketable title, and that a settlement agreement is contractual in nature and breach of the same provides a cause of action. Appellants do not provide us with any case law or applicable code sections that are ana-lagous to the claims they are raising, nor do they attempt to argue that this is a case of first impression. See Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gave general cite to case stating elements of cause of action).

      . We further note that we may overrule Appellants’ third, fourth, fifth, seventh, and eighth issues on other grounds. Indeed, we may not address issues that Appellants failed to present to the trial court. See Tex.R.App. P. 33.1 (to preserve a complaint for appellate review, the complaint must be made to and ruled upon by the trial court first). Here, Appellants contend on appeal that they did not intend to grant a marketable title to Ap-pellee (Issues Three, Four, and Five), nor should they pay Appellee’s attorney's fees for various reasons gleaned from the firm’s billing statement admitted at trial (Issues Seven and Eight). However, at trial, Appellants contended that their intention under the settlement agreement was to grant Appellee marketable title, and their complaints concerning Appellee’s billing statements were never raised. See Bollner v. Plastics Solutions of Texas, Inc., 270 S.W.3d 157, 168 (Tex.App.-El Paso 2008, no pet.) (appellants cannot raise on appeal that which was not raised in the trial court); El Paso Refining, Inc. v. Scurlock Permian Corp., 77 S.W.3d 374, 383 (Tex.App.-El Paso 2002, pet. denied) (complaint on appeal must comport with the complaint made at trial or error, if any, is waived).


author: ANNE GARDNER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    The STATE of Texas, State, v. David Wayne WOODARD, Appellee.
    No. 2-09-052-CR.
    Court of Appeals of Texas, Fort Worth.
    April 1, 2010.
    Discretionary Review Granted Sept. 29, 2010.

      Barry L. Macha, Criminal District Attorney, John W. Brasher and Dusti Hebert, Assistant District Attorneys for Wichita County, Wichita Fall, TX, for State.
    Greg J. King, Wichita Falls, TX, for Appellee.
    Panel: DAUPHINOT, GARDNER, and WALKER, JJ.
   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 responding 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 asked 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.

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 mendariz 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 against 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.” 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.App.-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, when 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 S.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). “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 the 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. 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 lay 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. 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. 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.

V. 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.

LEE ANN DAUPHINOT, Justice,

dissenting.

The trial court granted Woodard’s motion to suppress. The State is the appellant. Our mandate is clear:

If the trial court’s ruling regarding a motion to suppress is reasonably supported by the record and is correct under any theory of law applicable to the case, the reviewing court must affirm.

Consequently, in this case we may reverse the trial court only if we replace the trial judge’s determinations of credibility with our own or if, deferring to his determinations of credibility and viewing all the evidence only in the light most favorable to the trial court’s ruling, we conclude that there is no theory of law supported by the record as viewed by the trial court that could support the trial court’s ruling.

Certain well established rules govern our appellate review:

In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.

The trial court filed written findings of fact and conclusions of law, clearly setting out the trial court’s determinations of credibility. Again, the law is well established: “In reviewing a trial court’s ruling on a motion to suppress, appellate courts must view all of the evidence in the light most favorable to the trial court’s ruling.” When, as here,

[i]n a motion to suppress hearing where the only evidence presented is the testimony of the arresting officer (which, if believed, adds up to probable cause) ... [t]he trial court may have disbelieved the officer on at least one material fact, or the trial court may be in a situation in which it does not know what exactly the facts are, but it does know (on the basis of demeanor, appearance, and credibility) that they are not as the witness describes. In this situation, the appellate court does not necessarily have a set of historical facts to which it may apply the law. The determination of probable cause rests entirely on the credibility of the lone witness. This scenario is a mixed question of law and fact, the resolution of which turns on an evaluation of credibility and demeanor. The proper standard of review is therefore the second category of Guzman, “almost total deference” to the trial ruling.

Even if the trial court does not make explicit findings of fact,

the appellate court infers the necessary factual findings that support the trial court’s ruling if the record evidence (viewed in the light most favorable to the ruling) supports these implied fact findings. Thus, we afford almost total deference to a trial judge’s determination of the historical facts that the record supports, especially when his implicit factfinding is based on an evaluation of credibility and demeanor. This same highly deferential standard applies regardless of whether the trial court has granted or denied a motion to suppress evidence. Thus, the party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.

Although “whether a given set of historical facts amounts to a consensual police-citizen encounter or a detention under the Fourth Amendment is subject to de novo review because that is an issue of law-the application of legal principles to a specific set of facts,” we do not re-write the facts in order to legitimate the police-citizen contact under the guise of employing a presumption of correct police activity. A presumption of correct police activity is not a presumption that any witness is telling the truth. A presumption of correct police activity is not a mandate that the trial judge must automatically believe witnesses who testify to justify police activity. We cannot and must not substitute our determination of the facts and the credibility of the witnesses in order to achieve the result that we believe the trial court should have reached.

We do know that the trial court believed Officer Warner when he testified that Woodard was not so intoxicated that he constituted a threat to himself or to others. We also know that the trial court believed Officer Warner when he testified that Woodard was walking without staggering or otherwise indicating that he was intoxicated.

This case is controlled in part by article 14.01 of the Texas Code of Criminal Procedure and the reasoning of State v. Steelman. Article 14.01 provides,

(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

In upholding the trial court’s suppression of evidence, the Steelman court held that the arresting officers did not have probable cause to believe that Steelman had committed an offense in their presence, even though they had received a tip that someone at his residence was dealing drugs and officers personally smelled the odor of marijuana in the air when Steel-man opened the front door. The officers had no personal knowledge regarding who was smoking or possessing marijuana. Consequently, the officers had no authority to make a warrantless arrest. Nor could the State justify the officers’ actions based on a theory not relied on in the trial court.

In the case now before this court, no officer observed Woodard commit any offense. Information about the car in the ditch came from a person who “did not provide any contact information (name, address, telephone number, date of birth, etc.) to the dispatcher so that the tipster could be located at a later date.” The anonymous tip did not satisfy the requirement that the officers personally view the commission of the misdemeanor in order to justify the warrantless misdemeanor arrest.

The majority, in setting aside the trial court’s finding of facts and determinations of credibility, relies on two cases in which the arresting officer did not see the defendant commit the misdemeanor DWI offense for which he arrested the defendant. Because the officer in each case testified that he observed the offense of public intoxication, the cases hold that an officer who sees a person commit the offense of public intoxication may properly arrest that person for public intoxication even though the officer believes he is arresting for DWI; assigning the wrong name to the offense does not invalidate the arrest.

.But there are two problems with the majority’s relying on this line of cases in reversing the trial court’s determinations of credibility of facts and of law. First, the State did not argue to the trial court that Officer Warner observed Woodard commit the offense of public intoxication, and the State did not argue that Officer Warner could have arrested Woodard for public intoxication. The State is the appellant. This court cannot reverse the trial court’s ruling on a ground not raised by the appealing party below.

The second problem with the majority’s attempt to set aside the trial court’s determinations of credibility of facts and of the law is that there is no evidence that Officer Warner observed Woodard commit the offense of public intoxication, but there is affirmative evidence that Officer Warner did not observe Woodard commit the offense of public intoxication. A person commits the offense of public intoxication only when “the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Officer Warner testified,

Q. And there was nothing about the way that Mr. Woodard was walking that was illegal, correct?
A. No, sir, nothing illegal.
Q. All right. In other words, he wasn’t walking in the street in a manner which was dangerous to other people?
A. No, sir. As a matter of fact, I believe he was walking on a sidewalk, a public sidewalk.
Q. So he certainly wasn’t endangering anyone?
A. No, sir, he was not.
Q. He wasn’t endangering himself?
A. No, sir, he was not.
Q. So you didn’t think he was committing the offense of public intoxication at that time, correct?
A. No, sir, I did not.

Officer Warner specifically denied that he personally observed Woodard commit the offense of public intoxication. The State, therefore, did not rely in the trial court on the theory that Officer Warner personally observed Woodard commit the offense of public intoxication. The trial court believed that Officer Warner was telling the truth.

Again, our mandate is

to uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. That rule holds true even if the trial court gave the wrong reason for its ruling. Our task, then, is to determine whether the trial court could have reasonably denied appellant’s motion to suppress given the record evidence and given the applicable federal and state law.

The same mandate applies when the trial court grants a motion to suppress. ‘We must affirm the granting of the motion to suppress if it is correct under any theory of law applicable to the case, even if not raised by appellee in the trial court.” We must do so, in part, because

[i]n a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. This is so because it is the trial court that observes firsthand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.

The trial court entered findings of fact and conclusions of law that clearly indicated that no officers observed Woodard commit a misdemeanor offense in their presence. At no time has the State claimed, and there is no evidence that there was any suspicion, reasonable or otherwise, that Woodard committed a felony.

Additionally, there is neither a videotape nor an audio recording of Woodard’s detention or his purported admissions, and the record contains no indication that Officer Warner complied with article 2.133 or article 2.135 of the Texas Code of Criminal Procedure.

The majority states that Woodard did not disprove Officer Warner’s representation that the encounter was consensual. The majority, however, improperly places the burden of proof on the citizen detained rather than on the State. The law is well established that while the person seized originally bears the burden of proof at the suppression hearing, once the defendant establishes the fact that his arrest was warrantless, the “burden then shift[s] to the State to establish that the seizure was conducted pursuant to a warrant or was reasonable.” This burden is a burden of persuasion.

It is uncontested that Woodard was detained and then arrested without a warrant. Contrary to the majority’s statement, there is no presumption of proper police conduct to justify the warrantless detention. There was no such presumption for Woodard to overcome. The burden was on the State to justify the war-rantless detention and arrest. The State attempted to do this by persuading the trial court that the probable cause to arrest was lawfully obtained as the result of a consensual encounter that included voluntary responses to the officer’s questions after the officer stopped Woodard, who was walking down the sidewalk. The officer admitted that he stopped Woodard and questioned him, but the officer claimed that the answers were volunteered. He also admitted that he required Woodard to perform field sobriety tests after Woodard responded to his questions.

Because the State is appealing, reversal is required only if the trial court abused its discretion by failing to uphold the detention and arrest on a ground proved and argued by the State in the trial court. The Texas Court of Criminal Appeals has explained this well established rule:

Ordinary notions of procedural default should apply equally to the defendant and the State. Therefore we hold that in cases in which the State is the party appealing, the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the defense. In the instant case, once Appel-lee established standing in the premises to be searched and that the search was conducted without a warrant, he satisfied his burden of establishing his Fourth Amendment claim and the burden shifted to the State to establish an exception to the warrant requirement. The only theory argued by the State and presented by the facts was that the search was a proper inventory. The trial court’s ruling was specifically limited to the facts and legal arguments presented to it. Thus the trial court cannot be held to have abused its discretion in ruling on the only theory of law presented to it.

The burden was not on Woodard to prove that his detention and arrest were not reasonable. It is uncontested that he was arrested and prosecuted for misdemeanor DWI. The trial court so found. No officer observed Woodard commit any misdemeanor offense. The trial court so found.

Although courts speak of a person’s being free to leave when a police officer approaches him, courts also hold fairly regularly that walking or running away when an officer approaches provides reasonable suspicion for the officer to detain the person. It is, indeed, a lose, lose situation for any person a police officer wants to speak to. He is free to leave, unless he leaves. When the officer approached Neal in Neal v. State, Neal ran when the officer asked him for identification. Running was a suspicious circumstance. In Clarke v. State, this court held that the officer lawfully detained the defendant because he matched the description of a white male with large thighs and buttocks wearing dark shorts and a white t-shirt, and “Clarke’s activity was not as consistent with innocent activity as with criminal activity when he ran away from the officer.” In Guzman v. State, a drug dealer pointed out a person who, he reported to the police officer, had some heroin. As the officer approached him, Guzman walked away and appeared to swallow. These actions created both reasonable suspicion and an exigent circumstance justifying the officer’s seizing Guzman.

In Johnson v. State, the defendant ran when the police appeared. Although they saw no offense and had no report of any offense, the officers chased him and yelled for him to stop. Because he did not yield to their show of authority, there was no seizure, although they chased him down until they actually caught him. By the time they tackled him, they had reasonable suspicion to detain him for questioning because they saw him carrying something purple and thought he might have a gun, and he had acted suspiciously by running. The Johnson courts followed the mandate of California v. Hodari, D. Perhaps, a person is free to walk slowly away from a consensual encounter, but not to run or to walk quickly away. Running or walking too fast creates reasonable suspicion.

But in the case now before this court, Woodard did not walk away. The State therefore did not and could not rely on a “walking away” justification.

The trial court’s factual determinations are supported by the record, and we may not disturb them. Nor may this court substitute its determinations of credibility for those of the trial court. And this court is bound to consider only the grounds for affirming the detention that the State relied on in the trial court. We cannot go out and find a ground for reversing the trial court that the State did not present to the trial court. The law and the facts require that we affirm the trial court’s granting of the motion to suppress. Because the majority does not, I must respectfully dissent from the majority’s thorough and carefully written 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).

      . Young v. State, 283 S.W.3d 854, 873 (Tex.Crim.App.), cert. denied, — U.S. -, 130 S.Ct. 1015, - L.Ed.2d - (2009) (citing Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990)).

      . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) (citing Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990); Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App.1987); State v. Fecci, 9 S.W.3d 212, 221 (Tex.App.-San Antonio 1999, no pet.)).

        .State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008).

      . Ross, 32 S.W.3d at 856.

      . Garcia-Cantu, 253 S.W.3d at 241.

      . Id.

      . Tex.Code Crim. Proc. Ann. art. 14.01 (Vernon 2005); State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App.2002).

      . Tex.Code Crim. Proc. Ann. art. 14.01.

      . Steelman, 93 S.W.3d at 108.

      . Id.

      . Id.

      . Id. at 107.

      . See Tex.Code Crim. Proc. Ann. art. 14.01.

      . Reynolds v. State, 902 S.W.2d 558 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd); Kelley v. State, No. 02-06-339-CR, 2008 WL 110517 (Tex.App.-Fort Worth 2008, pet. ref'd) (mem. op., not designated for publication).

      . Reynolds, 902 S.W.2d at 560 & n. 3; Kelley, 2008 WL 110517, at *2.

      . State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998).

      . Tex. Penal Code Ann. § 49.02(a) (Vernon Supp.2009).

      . I R.R. at 37-38.

      . Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003) (citations omitted), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

      . Ross, 32 S.W.3d at 855.

      . State v. Stevens, 187 S.W.3d 565, 567 (Tex.App.-Houston [14th Disl.] 2006), rev'd on other grounds, 235 S.W.3d 736 (Tex.Crim.App.2007).

      . Ross, 32 S.W.3d at 855.

      . Tex.Code Crim. Proc. Ann. arts. 2.133, 2.135 (Vernon Supp.2009).

        .Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.App.2002); see Sieffert v. State, 290 S.W.3d 478, 484 & n. 8 (Tex.App.-Amarillo 2009, no pet.) (quoting Bishop).

      . I.R.R. at 24.

      . Mercado, 972 S.W.2d at 78.

      . 256 S.W.3d 264, 281 (Tex.Crim.App.2008), cert. denied, - U.S. -, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009).

      . Id.

      . 785 S.W.2d 860, 868-69 (Tex.App.-Fort Worth 1990), aff’d, 811 S.W.2d 99 (Tex.Crim. App.), cert. denied, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991).

      . 955 S.W.2d 85 (Tex.Crim.App.1997).

      . Id. at 91-92.

      . 864 S.W.2d 708, 715-16 (Tex.App.-Dallas 1993) (Johnson I), aff’d, 912 S.W.2d 227 (Tex.Crim.App. 1995) (Johnson II).

      . Johnson II, 912 S.W.2d at 235; Johnson I, 864 S.W.2d at 715-16.

      . 499 U.S. 621, 626-28, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991).