Opinion issued December 4, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-01072-CR
MARIA GABRIELA RINCON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Cause No. 1472945
MEMORANDUM OPINION
After the trial court denied her motion to suppress, appellant Maria Gabriel Rincon pleaded guilty to the offense of driving while intoxicated, enhanced with a
prior conviction for driving while intoxicated. Tex. Penal Code Ann. § 49.04 (Vernon 2003). In accord with her plea bargain, the trial court sentenced Rincon to one year in jail, suspended the sentence, placed her on community supervision for two years, and assessed a fine of $500. Rincon contends first that the trial court erred in denying her motion to suppress because her detention was unreasonable and violated the Fourth Amendment of the United States Constitution and article 38.23(a) of the Texas Code of Criminal Procedure, and that her conviction should be reversed because the State’s evidence against her was seized following that illegal stop and detention. Second, Rincon complains that the officers who conducted the warrantless stop and detention did not have jurisdiction to do so. We conclude that the record supports the trial court’s denial of Rincon’s motion to suppress and that Rincon waived her complaint concerning the officers’ jurisdiction, and therefore affirm.
Background
In August 2007, Deputy K. Stanley of the Jasper County Sheriff’s Department, and Officer R. Davis, a member of the Town of Corrigan Police Department, located in Polk County, were working off-duty, handling traffic control at a road construction site on San Felipe near West Loop 610 in Harris County, Texas. According to their testimony, shortly after midnight on August 9, Deputy Stanley and Officer Davis noticed Rincon’s car heading toward them at a high rate of speed. Deputy Stanley, using a flashlight and hand signals, directed Rincon to slow down. Rincon did not comply, and instead continued speeding toward the construction site. Deputy Stanley quickly moved out of the way to avoid being struck. Before coming to a stop, Rincon crashed into several large construction barrels colored safety orange with reflective stripes, nearly hit some construction workers who were standing near a large hole, and then narrowly missed driving into the hole.
After Rincon passed the barrels and the workers, Officer Davis waved his flashlight and yelled at Rincon to stop. Rincon did not pull over, but finally came to a halt in the main lane of San Felipe. Officer Davis approached Rincon and asked her what was wrong and whether she had not seen the barrels. Rincon, slurring her words, replied, “I have not done anything; I have not done anything. I don’t know why you are doing this to me.” Rincon appeared excited and had a strong odor of alcohol on her breath.
Officer Davis asked Rincon to step out of her vehicle, and she did. Then, Officer Davis moved Rincon’s vehicle out of the main lane of traffic. Deputy Stanley noticed scrapes along the side of Rincon’s vehicle. Deputy Stanley contacted the Houston Police Department, and Rincon for a short time waited at a nearby parking lot until the Houston police officers arrived.
At trial, Rincon moved to suppress the evidence against her, challenging the legality of her stop and detention, and her subsequent arrest. After hearing testimony from Deputy Stanley, Officer Davis, and Rincon, the trial court denied Rincon’s motion, concluding that Deputy Stanley and Officer Davis had reasonable suspicion to stop and detain her. Rincon then pleaded guilty to driving while intoxicated and admitted to a prior conviction for driving while intoxicated, which resulted in an enhanced sentence.
Discussion
All but one of Rincon’s issues challenge the trial court’s denial of her motion to suppress. Rincon contends that the trial court erred in denying her motion to suppress because reasonable suspicion did not exist to stop or detain her for investigation of (1) driving while intoxicated, (2) violating section 472.022 of the Texas Transportation Code, or (3) breaching the peace. Rincon also contends Article 14.03 of the Texas Code of Criminal Procedure prohibits her stop and detention by peace officers outside their jurisdiction. We address these issues in turn.
Motion to suppress
Standard of review
In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State. 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to the trial court’s determination of historical facts and review de novo the trial court’s application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955 S.W.2d at 88–89). If the issue involves the credibility of a witness, we defer to the trial court’s ruling, as the trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 87, 89. On the other hand, if the ultimate resolution of the issue depends on application of the law to the facts and not the credibility of a witness, we review that issue de novo. Id. at 89. If the trial court files no findings of fact, we view the evidence in a light most favorable to its ruling and will uphold that ruling on any theory of law supported by the evidence. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
In this case, testimony at the suppression hearing presents two conflicting versions of the events surrounding Rincon’s stop and detention. As a result, the trial court had to make a credibility determination, and credit either the testimony of Deputy Stanley and Officer Davis, who both testified for the State, or of Rincon. The trial court found that Deputy Stanley and Officer Davis had reasonable suspicion to stop and detain Rincon and, accordingly, denied her motion to suppress. Viewing the evidence in a light favorable to that ruling, we credit Deputy Stanley and Officer Davis’s account of the incident.
Because it is undisputed that Rincon was stopped without a warrant, the State bears the burden to prove the reasonableness of the warrantless detention. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). An officer conducts a lawful stop when he has reasonable suspicion to believe that the person is violating the law. Id. A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or will soon be engaged in criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)). We disregard any subjective intent of the officer making the stop and look solely to whether an objective basis for the stop exists. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The determination of the presence of reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the time of the stop. Icke v. State, 36 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d) (citing Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997)).
Rincon contends that reasonable suspicion did not exist to stop or detain her for investigation of driving while intoxicated. According to the Texas Penal Code, a person commits the offense of driving while intoxicated if she is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). “Intoxicated” means not having the normal use of mental or physical functions, by reason of the introduction of alcohol into the body or having an alcohol concentration of 0.08 or more. Tex. Penal Code Ann. § 49.01(2) (Vernon 2003).
Officer Davis testified that many establishments selling alcohol operated in the area around the construction site. Officer Davis explained that, given the late hour and the location, he stopped Rincon after her observing her driving dangerously because he was concerned about possible intoxication. As a trained police officer with twenty years’ experience with the Corrigan Police Department, Officer Davis has dealt with intoxicated drivers on many occasions. Based on his training and experience, Officer Davis attributed Rincon’s bad driving to possible intoxication.
Officer Davis testified that he decided to detain Rincon after his initial conversation with her, during which she appeared excited, slurred her speech, and had a strong odor of alcohol on her breath. Officer Davis also thought that he saw an open container in her vehicle. Deputy Stanley testified that he, too, smelled alcohol on Rincon’s breath and noticed her slurred speech before he called the Houston Police Department. Like Officer Davis, Deputy Stanley has dealt with intoxicated persons and intoxicated drivers on many occasions in his nine years as a peace officer.
In reviewing the totality of the circumstances surrounding Rincon’s stop and detention, we find articulable facts—namely, Rincon’s erratic driving, the time and place of the incident, the smell of alcohol on her breath, and her slurred speech—that reasonably could have led Officer Davis and Deputy Stanley to suspect that Rincon was driving while intoxicated in violation of the Texas Penal Code, and thereby justified their stop and detention of Rincon.[1] See Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding that defendant’s erratic driving—leaving bar at considerable rate of speed, pulling into gas station and leaving within 10 to 15 seconds, driving all over unmarked road, and constantly weaving across broken traffic lines—supported finding of reasonable suspicion of driving while intoxicated); Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding that reasonable suspicion existed to stop defendant for driving while intoxicated where driver was observed weaving across both solid and broken lines dividing traffic); Ortiz v. State, 930 S.W.2d 849, 853, 856 (Tex. App.—Tyler 1996, no pet.) (holding that reasonable suspicion existed to stop defendant for driving while intoxicated where defendant struck stripes on both sides of lane two or three times while weaving and ran car onto grassy median).
Jurisdiction of Peace Officers
Rincon further contends that Deputy Stanley and Officer Davis unlawfully stopped and detained her because both officers had no jurisdiction to act in Harris County pursuant to article 14.03 of the Texas Code of Criminal Procedure. Rincon did not, however, move to suppress the evidence on this basis or otherwise object to the officer’s testimony of the events leading to her arrest. We hold that Rincon waived this issue by failing to present it to the trial court in a timely manner. See Tex. R. App. P. 33.1.
Conclusion
The record supports the trial court’s conclusion that a reasonable suspicion existed to stop and detain Rincon for investigation of driving while intoxicated and thus, we conclude that the trial court did not err in denying her motion to suppress.
We further conclude that she waived any complaint as to the officers’ out‑of‑county status by failing to object in the trial court. Accordingly, we affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Hanks, Bland, and Wilson.[2]
Do not publish. See Tex. R. App. P. 47.2(b).
[1]We must uphold the trial court’s ruling on any theory of law supported by the evidence. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). Because we hold that the officers were justified in detaining Rincon based on their reasonable suspicion that she was driving while intoxicated, we need not reach Rincon’s contentions that reasonable suspicion did not exist to stop or detain her for violating the Texas Transportation Code, or for breaching the peace. Tex. Transp. Code Ann. § 472.022 (Vernon 2007); see Miles v. State, 241 S.W.3d 28, 42 (Tex. Crim. App. 2007) (holding that officer justified in making warrantless arrest of person who commits misdemeanor within his presence or view if evidence shows that person’s conduct poses threat of continuing violence or harm to self or public).
[2] The Hon. Davie L. Wilson, retired Justice, First Court of Appeals, participating
by assignment.