Campbell, Allison Leigh ( 2015 )

PD-0871-15
PD-0871-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/10/2015 5:09:28 PM
Accepted 7/15/2015 2:54:15 PM
CAUSE NO. ________________ ABEL ACOSTA
CLERK
IN the
Court of Criminal Appeals
of Texas
________________________________________________________
On Petition for Discretionary Review from
The First Court of Appeals
In Cause No. 01-14-00807-CR
Affirming the Conviction
In Cause No. 1923909
From Harris County Criminal Court
At Law No. 12
________________________________________________________
ALLISON LEIGH CAMPBELL,
Appellant
vs.
THE STATE OF TEXAS,
Appellee.
________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
PURSUANT TO RULE 68.01 OF THE TEXAS
RULES OF APPELLATE PROCEDURE
________________________________________________________
PAUL MEWIS
ATTORNEY AT LAW
4202 Windy Chase Lane
Katy, Texas 77494-1071
July 15, 2015 281.392.2306 (telephone)
281.392.7203 (facsimile)
STATE BAR NO. 13986500
ATTORNEY FOR APPELLANT
July 10, 2015
STATEMENT REGARDING ORAL ARGUMENT
The Appellant WAIVES oral argument in this case.
ii
IDENTIFICATION OF THE PARTIES
A complete list of the names of all interested parties
is provided below:
Counsel for the State:
DEVON ANDERSON – District Attorney of Harris County
KIMBERLY APERAUCH STELTER – Assistant District
Attorney on appeal
Appellate Division
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1923
Appellant or criminal defendant:
ALLISON LEIGH CAMPBELL
Counsel for Appellant:
PAUL MEWIS, Attorney
Texas Bar Card No. 13986500
4202 Windy Chase Lane
Katy, Texas 77494-1071
713.857.7003 (cell)
281.392.2306 (office)
281.392.7203 (facsimile)
paul@mewislaw.com (e-mail)
Trial Judge:
HON. ROBIN BROWN – Presiding Judge
iii
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ..................... ii
IDENTIFICATION OF THE PARTIES ........................ iii
INDEX OF AUTHORITIES ................................... v
STATEMENT OF THE CASE .................................. 2
STATEMENT OF PROCEDURAL HISTORY ........................ 3
SOLE GROUND FOR REVIEW ................................. 3
The First Court of Appeals erred in refusing to
acknowledge that Appellant’s initial legal
detention was unlawfully prolonged, after the
detaining officer concluded that Appellant was
not either publically intoxicated or driving
while intoxicated.
ARGUMENT ON REASON FOR GRANTING REVIEW ................. 3
SUMMARY OF THE ARGUMENT ................................ 6
CONCLUSION AND PRAYER .................................. 9
CERTIFICATE OF SERVICE ................................. 9
WORD COUNT CERTIFICATE OF COMPLIANCE .................. 10
APPENDIX .............................................. 11
iv
INDEX OF AUTHORITIES
Cases Page
Branch v. State,
335 S.W.3d 893, 900 (Tex.App.-Austin 2011
pet ref'd)........................................... 3
Davis v. State,
947 S.W.2d 240, 243 (Tex.Crim.App. 1997).......... 4, 5
Fla. v. Royer,
460 U.S. 491, 500, 103 S. Ct. 1319, 1325,
75 L. Ed. 2d 229 (1983)................................ 5
Kothe,
152 S.W.3d at 63-64)................................. 4
Parker v. State,
297 S.W.3d 803, 809 (Tex.App.-Eastland 2009
pet ref'd)........................................... 3
Robinson,
334 S.W.3d at 778-79................................. 4
Tanner v. State,
228 S.W.3d 852, 855 (Tex.App.-Austin 2007
no pet.)............................................. 4
Terry,
382 U.S. at 19-20................................. 4, 6
Wolf v. State,
137 S.W.3d 797, 802 (Tex.App.-Waco 2004).......... 4, 5
York v. State,
342 S.W.3d 528,531 (Tex.Crim.App. 2011).............. 7
v
Index of Authorities
(Continued)
Cases Page
AMENDMENTS:
FOURTH AMENDMENT .................................... 4, 5
STATUTES:
TEXAS RULES OF APPELLATE PROCEDURE,
RULE 68.01 ......................................... 2
vi
CAUSE NO. ________________
IN the
Court of Criminal Appeals
of Texas
________________________________________________________
On Petition for Discretionary Review from
The First Court of Appeals
In Cause No. 01-14-00807-CR
Affirming the Conviction
In Cause No. 1923909
From Harris County Criminal Court
At Law No. 12
________________________________________________________
ALLISON LEIGH CAMPBELL,
Appellant
vs.
THE STATE OF TEXAS,
Appellee.
________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
PURSUANT TO RULE 68.01 OF THE TEXAS
RULES OF APPELLATE PROCEDURE
________________________________________________________
Comes now ALLISON LEIGH CAMPBELL, hereinafter referred
to as the Appellant, and submits this Petition for
Discretionary Review, Pursuant to Rule 68.01 of the Texas
Rules of Appellate Procedure, in the above styled and
numbered cause. As grounds to be considered in granting this
Petition for Discretionary Review, the Appellant would show
the Court the following set of facts and circumstances:,
STATEMENT OF THE CASE
Appellant was charged with the misdemeanor offense
of Driving While Intoxicated, alleged to have occurred
on or about October 13, 2013. Appellant pled not guilty
and a motion to suppress evidence was presented and
heard by the trial court (Harris County Criminal Court
at Law No. 12) on August 21, 2014. At the conclusion of
this hearing, the trial judge denied the motion to
suppress evidence. On September 10, 2014, the Appellant
pled guilty and the Court assessed punishment at one
year in the Harris County Jail, probated for one year,
and a Five Hundred ($500.00) Dollar fine.
Appellant gave written notice of appeal on September
24, 2014. The Court signed an order granting permission
to appeal the denial of the motion to suppress.
2
STATEMENT OF PROCEDURAL HISTORY
Appellant’s conviction was affirmed by the First
Court of Appeals, in Cause No. 01-14-00807-CR, which
delivered its opinion on June 4, 2015. A Motion for
Rehearing was filed on June 17, 2015 and denied by the
First Court of Appeals on July 2,2015.
SOLE GROUND FOR REVIEW
The First Court of Appeals erred in refusing to
acknowledge that Appellant’s initial legal
detention was unlawfully prolonged, after the
detaining officer concluded that Appellant was
not either publically intoxicated or driving
while intoxicated.
ARGUMENT ON REASON FOR GRANTING REVIEW
This Court of Appeals’ decision conflicts with other
courts of appeals’ decisions on the same issue.
On a routine traffic stop, an officer may inquire
into matters unrelated to the stop as long as the stop
is not unreasonably extended. See Branch v. State, 335
S.W.3d 893, 900 (Tex.App. – Austin 2011, pet
ref’d)(citing Parker v. State, 297 S.W.3d 803, 809
(Tex.App. – Eastland 2009, pet ref’d).
3
Once the traffic stop investigation is concluded,
the officer must no longer detain the driver, who must
be permitted to leave. Kothe, 152 S.W.3d at 63-64.
Prolonging a detention beyond the conclusion of a
routine traffic stop is a violation of the Fourth
Amendment unless an officer has developed a reasonable
suspicion of illegal activity that would justify the
extended detention. Wolf, 137 S.W.3d 802 (citing Terry,
392 U.S. at 19-20). Such suspicion must be based on
more than a mere hunch or non-specific suspicion of
criminal activity. Tanner v. State, 228 S.W.3d 852, 855
(Tex.App. – Austin 2007, no pet.) The burden is on the
State to prove that a reasonable suspicion justified the
prolonged detention of Ibanez. See Robinson, 334 S.W.3d
at 778-79.
In Davis v. State, 947 S.W.2d 240 (Tex.Crim.App.
1997), the Court of Criminal Appeals found that the
initial stop, for the purpose of determining if the
defendant was driving while intoxicated, was reasonable.
However, the court also found that the purpose of
investigative detention had been concluded when the
4
officers determined that the defendant was not
intoxicated. The continuation of the detention and the
investigation after that point was unreasonable.
Wolf v. State, 137 S.W.3d 797 (Tex.App. – Waco 2004)
– Possession of MDA or ecstasy. Reversed. DPS trooper
Nelson, stopped Wolf and his companion. An
investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of
the stop. Davis, 947 S.W.2d at 243 (citing Florida v.
Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75
L. Ed. 2d 229 (1983).
The Waco Court of Appeals held that Officer Nelson’s
initial detention of Wolf for a defective tag lamp was
justified at its inception, but his prolonged detention
to allow time for the drug-sniffing dog to arrive was
neither necessary to allow Nelson time to issue a
warning to Wolf, nor was it reasonably related in scope
to his inquiry about the defective tag lamp. This
prolonged detention violated the Fourth Amendment
because Officer Nelson did not have reasonable suspicion
5
of illegal activity that would justify the extended
detention under Terry.
SUMMARY OF THE ARGUMENT:
After his initial reasonable suspicion had been
negated, the officer’s prolonged detention for further
investigation was unreasonable under the law.
The Court of Appeals’ opinion, in finding that the
officer had reasonable suspicion to initiate an
investigation for the offense of public intoxication in
his initial approach of Appellant, does not address the
reasonableness of his continued detention of Appellant.
The officer made it clear in his testimony that,
after approaching Appellant, he had not observed any
signs of intoxication and, by his actions of ordering
Appellant to drive her car some 500 feet, then park and
wait for him, is direct evidence that he had formed no
reasonable suspicion to believe that Appellant was a
danger to herself or others. Had the officer believed
that Appellant posed a threat to herself, her passenger
6
or other people (customers) that were parking or
entering and leaving the parking lot, he surely would
not have allowed a dangerous, intoxicated person to
drive away some 500 feet (unescorted) as he turned his
back and proceeded to the Taco Cabana pick-up window to
pay for and pick-up his food.
Appellant does not argue that, under the proper set
of facts and circumstances, a person asleep in a car
(with the engine running) may provide sufficient
probable cause for an officer to detain for further
investigation, as the court in York found (York v.
State, 342 S.W.3d 528, 531 (Tex.Crim.App. 2011).
However, once our officer dispelled his belief that
any crime had been committed, i.e., he failed to smell
alcohol and observed no facts to support his belief that
Appellant was a danger to herself or others, she should
have been free to leave.
Unlike in York, supra., where “nothing else occurred
that would have negated reasonable suspicion”. Once our
officer awoke Appellant, his observations supported his
conclusion that Appellant was not intoxicated. Thus, he
7
thought it was safe to order her to drive unescorted
some 500 feet without being a danger to herself or
others. Appellant should have been free to leave. The
officer’s prolonged and continuous detention of
Appellant, by holding her Texas driver’s license, was
unreasonable.
In Appellant’s case, the officer, after his initial
encounter, clearly thought he had no reasonable
suspicion to continue a public intoxication nor driving
while intoxicated investigation (in that he ordered and
allowed Appellant to drive some 500 feet through the
parking lot of an open Taco Cabana to a location some
500 feet away [an open WalMart]). All of this
transpired while the officer left to go pick-up his food
order.
The officer’s seizure of Appellant’s Texas driver’s
license was a prolonged detention not supported by any
new facts or evidence.
8
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, having considered
the authorities and arguments presented herein, the
Appellant prays the Court to enter an order setting
aside the judgment and sentence in this matter for the
reasons enumerated above.
RESPECTFULLY SUBMITTED,
/s/ Paul Mewis
PAUL MEWIS
Texas Bar Card No.13986500
4202 Windy Chase Lane
Katy, Texas 77494-1071
281.392.2306
281.392.7203 Facsimile
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the foregoing Appellant’s Brief was
mailed by U.S. certified mail #70083230000206358562 to
the attention of Ms. Kimberly Aperauch Stelter,
9
Assistant District Attorney, Appellate Division, Harris
County District Attorney's Office, 1201 Franklin, Suite
600, Houston, Texas 77002-1923 and by U.S. certified
mail #70083230000206358555 to Ms. Lisa McMinn, State’s
Prosecuting Attorney, P. O. Box 13046, Austin, Texas
78711 on this the 13th day of July, 2015.
/s/ Paul Mewis
PAUL MEWIS
WORD COUNT CERTIFICATE OF COMPLIANCE
I, PAUL MEWIS, the undersigned attorney for
Appellant Allison Leigh Campbell, in Appellate Cause No.
01-14-00807-CR, certify that Appellant’s Petition for
Discretionary Review contains 1,849 words. This
Petition for Discretionary Review is a computer-
generated document created in Microsoft Word 2010, using
Courier New 14 point font. I am relying on the word
count provided by the software used to prepare the
document.
/s/ Paul Mewis
PAUL MEWIS
10
A P P E N D I X
11
Opinion issued July 2, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00807-CR
———————————
ALLISON LEIGH CAMPBELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Case No. 1923909
MEMORANDUM OPINION ON REHEARING
Appellant, Allison Leigh Campbell, was charged by information with
driving while intoxicated. After the trial court denied her motion to suppress,
Appellant pleaded guilty subject to the right to challenge the ruling on the motion
on appeal. In four issues on appeal, Appellant argues the trial court abused its
discretion by denying her motion to suppress because the detaining officer lacked
reasonable suspicion or probable cause to detain her.
On June 4, 2015, we issued our original opinion in this case. On June 17,
2015, Campbell filed a motion for rehearing. We deny the motion for rehearing,
withdraw our prior opinion and judgment, and issue this opinion and a new
judgment in their place. Our disposition remains the same.
We affirm.
Background
Officer J. Pena was working his off-duty job as a security officer at a Wal-
Mart early in the morning on October 13, 2013. At 1:00 A.M., he took a break and
drove to the adjoining Taco Cabana to get some food. He ordered his food and
pulled up behind three other cars in the line. Two cars moved forward in the line,
but the car in front of Officer Pena remained in place. Officer Pena honked his car
five times, but the car did not move.
Officer Pena stepped out of his car and approached the car in front of him.
He saw Appellant asleep in the driver’s seat and another person asleep in the front-
passenger’s seat. He tapped on the window repeatedly, and no one stirred. He
then noticed the driver’s side door was unlocked, opened the door, and shook
Appellant multiple times. Appellant finally woke up.
2
After Appellant woke up, Officer Pena asked for her driver’s license.
Appellant gave it to him. Officer Pena pointed at a parking space and instructed
Appellant to drive to it and park. At trial, Officer Pena testified that the space was
500 feet away. Appellant complied. Officer Pena kept Appellant’s driver’s license
with him. He retrieved his food order and then parked next to Appellant.
He approached Appellant’s car and began talking with her. This time,
Officer Pena noticed the aroma of alcohol. After she noticed Officer Pena was not
driving a marked patrol car, Appellant became verbally aggressive, cussing at him
and claiming he was harassing her. Appellant opened the car door and stepped out.
As she did, Officer Pena placed his hand on her. Appellant fell to the ground.
Appellant stood up, but had trouble maintaining her balance. She fell again.
Officer Pena then placed Appellant in handcuffs.
Officer Pena requested a back-up unit. A DWI unit came out and took over
the investigation. Officer Pena had no further involvement in the investigation.
Motion to Suppress
Appellant argues in four issues that the trial court abused its discretion by
denying her motion to suppress because Officer Pena lacked reasonable suspicion
or probable cause to detain her. Specifically, Appellant argues (1) the initial
encounter constituted an investigatory detention, (2) Officer Pena lacked the
requisite indicia of criminal activity to conduct an investigatory detention, (3) the
3
second encounter constituted an arrest, and (4) Officer Pena lacked the requisite
indicia of criminal activity to arrest her.
A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and
review the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on an evaluation of witness credibility or demeanor.
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression
hearing, the trial court is the sole and exclusive trier of fact and judge of the
witnesses’ credibility and may choose to believe or disbelieve all or any part of the
witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Where, as here, a trial judge does not make explicit findings of fact, we
review the evidence in the light most favorable to the trial court’s ruling. Walter v.
State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial
court’s fact findings and not disturb the findings on appeal unless the trial court
abused its discretion in making a finding not supported by the record. Cantu v.
State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
4
B. Analysis
For the purposes of reviewing Fourth Amendment rights against
unreasonable search and seizures, there are generally three categories of
interactions between police and citizens: consensual encounters, investigatory
detentions, and arrests. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim.
App. 2011). Each of these categories defines (1) the permissible level of
intrusiveness of the officer’s conduct and (2) the indicia of criminal activity needed
to support that level of the officer’s intrusion. 1 See id.
Consensual encounters consist of mutually voluntary conversations between
an officer and another person. See id. “An officer is just as free as anyone to stop
and question a fellow citizen,” and the citizen is free to terminate the encounter at
any time. Id. For consensual encounters, there does not need to be any indicia of
criminal activity. Id.
Investigatory detentions consist of encounters where “an officer, ‘by means
of physical force or show of authority, has in some way restrained the liberty of a
citizen.’” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008)
(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). An
1
Each of these categories also has a prescribed scope for a reasonable search. See
United States v. Robinson, 414 U.S. 218, 228, 94 S. Ct. 467, 473 (1973)
(recognizing greater restrictions on scope of search when probable cause does not
exist). Appellant, however, has not challenged the scope of any officer’s search in
this appeal. Accordingly, the law on the permissible scope of a search is not
pertinent to this appeal.
5
encounter with the police rises to the level of an investigatory detention if (1) the
officer asserts his authority in a way that (2) would cause a reasonable person to
believe she is not free to leave. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.
App. 2010).
For investigatory detentions, the officer must have reasonable suspicion of
criminal activity in order to detain the person. Castleberry, 332 S.W.3d at 466.
The officer has reasonable suspicion if he “has specific, articulable facts that,
combined with rational inferences from those facts, would lead him to reasonably
conclude that the person detained is, has been, or soon will be engaged in criminal
activity.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). Such a
conclusion is justified when the officer observes “unusual activity.” Id. “These
facts must show unusual activity, some evidence that connects the detainee to the
unusual activity, and some indication that the unusual activity is related to crime.”
Id. The facts observed do not need to be criminal in nature themselves. Woods v.
State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). They only need to lead to a
reasonable conclusion that the person is, has been, or soon will be engaged in
criminal activity. Kerwick, 393 S.W.3d at 273.
Finally, arrests consist of restrictions or restraints on a person’s movement
that is greater than investigatory detention or where no investigation is taking
place. See Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). Whether
6
an investigatory detention elevates to an arrest depends on the facts and
circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412
(Tex. Crim. App. 1991); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). We look to the reasonableness of the
officer’s actions, which is to be judged from the perspective of a reasonable officer
at the scene, rather than with the advantage of hindsight. Rhodes v. State, 945
S.W.2d 115, 118 (Tex. Crim. App. 1997). “Whether a person is under arrest or
subject to a temporary investigative detention is a matter of degree and depends
upon the length of the detention, the amount of force employed, and whether the
officer actually conducts an investigation.” Mount v. State, 217 S.W.3d 716, 724
(Tex. App.—Houston [14th Dist.] 2007, no pet.).
For arrests, the officer must have probable cause. Castleberry, 332 S.W.3d
at 466. “[P]robable cause for . . . arrest exists when facts and circumstances within
the officer’s knowledge and about which he or she has reasonably trustworthy
information are sufficient to warrant a person of reasonable caution to believe that
an offense was or is being committed.” Torres v. State, 182 S.W.3d 899, 901 (Tex.
Crim. App. 2005) (emphasis in original).
Appellant argues that, by holding on to her driver’s license and by directing
her to park her car in the parking lot, Officer Pena’s interaction with her became an
investigatory detention. She further argues that, when Officer Pena later placed
7
handcuffs on her, the encounter became an arrest. Finally, she argues that Officer
Pena lacked the requisite indicia of criminal activity for either of these levels of
encounters. We do not need to determine whether Officer Pena’s retaining
Appellant’s driver’s license elevated the encounter to an investigatory detention or
whether his handcuffing Appellant amounted to an arrest. Even assuming
Appellant is correct on both these points, we hold Officer Pena observed the
requisite indicia of criminal activity for each of these levels of encounters.
By the time he took and retained Appellant’s driver’s license, Officer Pena
had honked at Appellant five times, tapped on the window multiple times, and
even shaken her multiple times without any response from her. Appellant was
parked in a drive-through lane with the engine running.
Appellant argues that these facts are comparable to those in State v. Griffey,
241 S.W.3d 700 (Tex. App.—Austin 2007, pet. ref’d). In Griffey, the police
received a call from a fast-food restaurant manager that someone was passed out in
the drive-through lane. Id. at 702. When the officer arrived, an employee
identified Griffey’s car. Id. At that time, Griffey was awake and retrieving her
food order. Id. The officer parked his patrol car in front of Griffey’s car,
effectively blocking her car. Id. After he had Griffey turn off the car and exit the
vehicle, the officer noticed the odor of alcohol. Id.
8
The Austin Court of Appeals held that the officer lacked reasonable
suspicion based on the legal principle that “[a] tip by an unnamed informant of
undisclosed reliability may justify the initiation of an investigation; standing alone,
however, it rarely will establish the requisite level of reasonable suspicion.” Id. at
704. While the officer had received information from an informant that the officer
had not previously known, the information was not corroborated by the officer
upon arrival. Id. at 705. Accordingly, the officer lacked reasonable suspicion. Id.
at 707.
Appellant points out that the Austin Court of Appeals also held that reports
“that an individual was passed out behind the wheel in the drive-through line . . .
does not constitute criminal behavior.” Id. at 705. This holding has been called
into question by the Court of Criminal Appeals, however.
In York, an officer passed a closed gas station but saw a car parked partially
on the sidewalk in front of the store. York v. State, 342 S.W.3d 528, 531 (Tex.
Crim. App. 2011). York was asleep in the driver’s seat with the lights on and the
engine running. Id. The officer did not smell any alcohol or see any evidence of a
burglary from the store. Id. Nevertheless, the Court of Criminal Appeals held that
these facts supported reasonable suspicion, warranting an investigative detention
based on the potential offense of public intoxication. Id. at 536–37. In its analysis,
the Court of Criminal Appeals distinguished Griffey based on the fact that Griffey
9
involved corroboration of a citizen-informant tip. Id. at 537 n.31. It went on,
however, to recognize authority from other jurisdictions holding that reasonable
suspicion exists when an officer sees a person asleep in the driver’s seat of a car
with the engine running. Id. (citing People v. Brown, 217 P.3d 1252, 1256 (Colo.
2009); State v. Keller, 403 So. 2d 693, 696 (La. 1981)). Griffey’s holding that
sleeping in a car in a drive-through is no evidence of a crime, then, is of limited
persuasive value. See 241 S.W.3d at 705.
As in York, we hold Officer Pena had reasonable suspicion of public
intoxication to warrant conducting an investigative detention at the time that he
took Appellant’s driver’s license. See 342 S.W.3d at 536–37. “A person commits
an offense [of public intoxication] if the person appears in a public place while
intoxicated to the degree that the person may endanger the person or another.”
TEX. PENAL CODE ANN. § 49.02(a) (Vernon 2011). The drive-through lane of a
fast-food restaurant is a public place. See York, 342 S.W.3d at 537 (holding
parking lot and sidewalk around gas station is public place). Officer Pena found
Appellant asleep in the driver’s seat of a car with the engine running while in a
drive-through of a fast-food restaurant at 1:00 in the morning. This is sufficient to
create reasonable suspicion that Appellant was intoxicated. See id. (holding
evidence of defendant asleep in car at 3:00 A.M. with engine running, car parked
partially on sidewalk, and headlights on created reasonable suspicion of
10
intoxication). Finally, Appellant’s condition could have posed a risk to herself.
See id. (holding, with engine running, intoxicated driver could, in stupor, drive into
building or pose threat on road).
Appellant emphasizes the fact that, when he first approached her the first
time, Officer Pena did not smell any alcohol. That was true in York as well.
“Although Officer Johnson did not smell alcohol as he approached the car, that fact
did not cause reasonable suspicion to dissipate, in part because [the defendant]
could still have been intoxicated by drugs.” Id.
In her motion for rehearing, Appellant claims that Officer Pena “made it
clear in his testimony that he had not observed any signs of intoxication.”
Appellant claims that this is proved by the fact that Officer Pena ordered her to
drive 500 feet. Even if Officer Pena personally believed at the time that Appellant
was not intoxicated, this is not relevant to a determination of reasonable suspicion.
“This standard is an objective one that disregards the actual subjective intent or
motive of the detaining officer and looks, instead, to whether there was an
objective justification for the detention.” State v. Elias, 339 S.W.3d 667, 674 (Tex.
Crim. App. 2011). The fact that Officer Pena ordered Appellant to drive 500 feet
does not disprove that he found her asleep in a fast-food-restaurant drive-through
lane at 1:00 in the morning or that honking, knocking on her window, and initial
physical contact did not wake her. Accordingly, it was within the trial court’s
11
discretion to deny the motion to suppress based on reasonable suspicion. See
Turrubiate, 399 S.W.3d at 150 (holding appellate courts review trial court’s factual
findings for abuse of discretion).
By the time he handcuffed Appellant, Officer Pena had noticed the smell of
alcohol, Appellant had become agitated and began cussing at him, and Appellant
had difficulty standing, falling to the ground more than once. We hold these facts,
coupled with the facts that it was 1:00 A.M. and that Appellant had fallen into a
deep sleep in a brief amount of time, was in a location requiring her attention, and
left the car running, are sufficient to create probable cause for public intoxication.
See Gutierrez v. State, 419 S.W.3d 547, 551 (Tex. App.—San Antonio 2013, no
pet.) (holding argumentative behavior, slurred speech, dazed appearance, and
glassy, bloodshot eyes sufficient to support probable cause for public intoxication);
Campbell v. State, 325 S.W.3d 223, 232 (Tex. App.—Fort Worth 2010, no pet.)
(holding sleeping in car, smelling of alcohol, slurring words, and reaching for keys
already in ignition support probable cause for public intoxication).
We hold the trial court could have determined within its discretion that
Officer Pena had reasonable suspicion to conduct an investigative detention and
then had probable cause to arrest Appellant. Accordingly, we overrule Appellant’s
second and fourth issues. Because these rulings are dispositive to affirming the
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trial court’s ruling on Appellant’s motion to suppress, we do not need to reach
Appellant’s first and third issues. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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