COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOHN ANTHONY CHAVEZ, )
) No. 08-05-00371-CR
Appellant, )
) Appeal from the
v. )
) County Criminal Court of Appeals #2
THE STATE OF TEXAS, )
) of Dallas County, Texas
Appellee. )
) (TC# MA0460970-M)
)
O P I N I O N
John Anthony Chavez appeals his conviction of driving while intoxicated. Appellant pled nolo contendre and the trial court sentenced him to 365 days= confinement in the Dallas County Jail. The sentence was then probated to 24 months, and Appellant was fined $1,500. We affirm.
On October 8, 2004, Appellant was stopped by Officer Gilbert Arevalo about 12:55 a.m. Officer Arevalo was on patrol and saw Appellant speeding. The radar unit in Officer Arevalo=s vehicle indicated Appellant was driving sixty-two miles per hour. The speed limit in the area was forty-five miles per hour. Appellant was arrested for driving while intoxicated. Subsequent to his arrest, Appellant filed a motion to suppress alleging the initial detention by Officer Arevalo was made without reasonable suspicion.
At the motion to suppress hearing, Officer Arevalo testified he received forty hours of classroom training, which also included eight hours of hands on training in using the radar unit. The radar unit used in Officer Arevalo=s vehicle consisted of two antennas and an LED panel that displays the speed at which the targeted vehicle is traveling. Every four hours, Officer Arevalo calibrates the radar unit with a tuning fork to verify the unit is functioning properly.
On the night Appellant was stopped, Officer Arevalo had calibrated his radar unit and was operating the radar with his patrol car parked. He was facing eastbound and the radar was aimed towards westbound vehicles on the
Northwest Highway. According to the officer, the radar unit is designed to shoot a radio beam and then clock the return pulse to measure the speed of the biggest vehicle first, then as the cars come closer, the unit focuses on the fastest vehicle. The beam reaches a maximum distance of about one thousand feet. Officer Arevalo estimated Appellant=s distance was 250 feet.In his first issue, Appellant contends the trial court erred in allowing Officer Arevalo to testify at the motion to suppress hearing regarding his speed because the State did not establish the radar unit was scientifically reliable. In his second issue, Appellant argues Officer Arevalo lacked reasonable suspicion to initiate the stop because he did not provide any evidence demonstrating Appellant=s actual driving speed. Because Appellant=s issues are related, we will address them together.
Standard of Review
We review a trial court=s ruling on a motion to suppress using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 88-9 (Tex.Crim.App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--El Paso 2002, pet. ref=d). We do not engage in our own factual review of the trial court=s decision because the trial judge is the sole trier of fact regarding credibility and weight to be given to a witnesses testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Almost total deference is given to the trial court=s ruling on questions of historical fact and application-of-law-to fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). A trial court=s rulings on mixed questions of law and fact that do not turn on the credibility and demeanor of witnesses are reviewed under the de novo standard. Johnson, 68 S.W.3d at 652-53.
When a trial court fails to file findings of fact, such as in this case, we will view the evidence in the light most favorable to the trial court=s ruling. Ross, 32 S.W.3d at 855. As long as the trial court=s ruling is supported by the record, we will assume the trial court made implicit findings of fact. Id. Furthermore, a court=s ruling regarding a motion to suppress will be upheld if the decision made was based on any correct theory of law applicable to the case. Id. at 856.
Reasonable Suspicion
An officer=s temporary detention is lawful if the stop was made based on reasonable suspicion. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exists if the officer has specific articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. Whether an officer has reasonable suspicion to make an investigatory stop must be based on an objective standard and we must take into consideration the totality of the circumstances. Id. at 492-93.
Officer Arevalo testified Appellant=s speed drew his attention to the vehicle and the radar unit indicated Appellant was driving sixty-two miles per hour in a forty-five mile per hour zone. A person commits a traffic offense if they drive at a speed greater than is reasonable and prudent under the circumstances. Tex.Transp.Code Ann. ' 545.351(a)(Vernon 1999). Under the Texas Transportation Code, a speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful. Tex.Transp.Code Ann. ' 545.352(a)(Vernon Supp. 2006). In considering the totality of circumstances and in viewing the evidence in the light most favorable to the trial court=s ruling, Officer Arevalo had articulable facts that Appellant had committed a traffic violation. Therefore, Appellant=s stop was based on reasonable suspicion and the trial court did not err in denying the motion to suppress. See e.g., Perales v. State, 117 S.W.3d 434, 438 (Tex.App.--Corpus Christi 2003, pet. ref=d)(officer=s testimony during suppression hearing that defendant=s car was seen traveling at a high rate of speed and use of radar confirmed defendant was speeding, justified reasonableness for the traffic stop); Elliott v. State, No. 03-00-00676-CR, 2001 WL 1231904 at *2 (Tex.App.--Austin Oct. 11, 2001, no pet.)(traffic violation standing alone is sufficient to establish officer had reasonable suspicion to stop and detain a defendant); Icke v. State, 36 S.W.3d 913, 916 (Tex.App.--Houston [1st Dist.] 2001, pet. ref=d)(officer=s observation that a defendant was speeding alone or with radar confirmation of defendant=s speed will rise to the level of reasonable suspicion).
In addition, Appellant also contends the trial court erred in denying his motion to suppress because the State failed to present evidence regarding the scientific reliability of the radar unit. Appellant argues that because the radar unit was not proven to be scientifically reliable, Officer Arevalo=s testimony regarding his speed was inadmissible. However, even if the radar reading is ultimately shown to be inaccurate or false at the time of the stop, Officer Arevalo had developed a reasonable suspicion Appellant was speeding. Icke, 36 S.W.3d at 916 (a stop that meets the test for reasonable suspicion is lawful even if the facts supporting the stop are ultimately shown to be inaccurate or false); see also Kelly v. State, 721 S.W.2d 586, 587 (Tex.App.--Houston [1st Dist.] 1986, no pet.), citing Williams v. State, 621 S.W.2d 613, 615 (Tex.Crim.App. 1981). Therefore, based on the totality of circumstances, Officer Arevalo was justified in making the lawful stop because the radar reading indicated Appellant had exceeded the posted speed limit. We overrule Issues One and Two and affirm the judgment of the trial court.
August 31, 2006
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)