Roman Luna Rodriguez, Jr. v. State ( 2011 )

NUMBER 13-10-00061-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JEFFERY WAYNE MARKERT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
A jury convicted appellant, Jeffery Wayne Markert, of the felony offense of driving
while intoxicated, see TEX. PENAL CODE ANN. § 49.04 (West 2003), § 49.09(b)(2) (West
Supp. 2010), enhanced by a prior felony conviction to a second-degree felony, see id. §
12.42(a)(3) (West Supp. 2010). The trial court sentenced him to twelve years‘
imprisonment in the Texas Department of Criminal Justice—Institutional Division. See
id. § 12.33 (West Supp. 2010). By one issue, appellant challenges the court‘s denial of
his motion to suppress all evidence seized as a result of his arrest. Specifically,
appellant contends there was insufficient probable cause to support (1) the initial stop of
his vehicle and (2) his subsequent arrest. We affirm.
I. BACKGROUND
The only witness at the suppression hearing was the arresting officer, Brandon
Burdick, a deputy with the Bee County Sheriff‘s Department. Viewed in the light most
favorable to the trial court‘s ruling, see Valtierra v. State, 310 S.W.3d 442, 447 (Tex.
Crim. App. 2010), Deputy Burdick‘s testimony established the following facts:
On March 14, 2009, at around 12:40 a.m., Deputy Burdick was patrolling
northbound on St. Mary‘s Street in Beeville, Texas. As he approached the intersection
at Charco Road, he observed a vehicle pointed southbound on St. Mary‘s Street
stopped in the middle of the intersection. Although Deputy Burdick could not see the
traffic signal for the southbound traffic, he assumed the light was green because the
light was green for the northbound traffic on St. Mary‘s Street. Deputy Burdick
continued through the intersection, made a U-turn, activated his lights, pulled behind the
vehicle, and used his speaker to instruct the driver—later identified as appellant—to pull
over to the right of the roadway. As Deputy Burdick approached the open driver‘s side
window, he detected a strong odor of an alcoholic beverage. Deputy Burdick smelled
alcohol on appellant‘s breath and observed that his eyes were glassy and bloodshot.
As appellant complied with the deputy‘s request that he exit the vehicle, Deputy Burdick
noticed that appellant‘s balance was unsteady and he was ―staggering.‖ Deputy
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Burdick requested that appellant perform field sobriety tests, but appellant refused to
cooperate. Based on the odor of alcohol, appellant‘s glassy eyes and slurred speech,
and the fact that he was stopped in the middle of an intersection on a green light,
Deputy Burdick concluded that appellant was intoxicated and arrested him for driving
while intoxicated. A search of appellant‘s vehicle revealed a mixed drink that smelled of
alcohol. State‘s Exhibit One, a video recording of the traffic stop and appellant‘s arrest,
was admitted in evidence and played at the suppression hearing.1
On cross-examination, Deputy Burdick admitted that initially, he assumed the
southbound traffic signal was green because it was green for northbound traffic.
However, after he turned around and pulled behind appellant‘s vehicle, he confirmed
that the light was green. Deputy Burdick stated that appellant had committed a traffic
violation by stopping or parking his vehicle in an intersection.
The trial court denied appellant‘s motion to suppress.2 Appellant was tried and
convicted, and this appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
Whether the trial court properly denied a defendant's motion to suppress is
reviewed under a bifurcated standard of review. Valtierra, 310 S.W.3d at 447; St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total
deference to the trial court's determination of historical facts and review de novo the trial
court's application of law to facts not turning on credibility and demeanor. Valtierra, 310
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We have reviewed the video recording of the stop. However, the video does not clearly show
appellant‘s vehicle stopped in the intersection. The video does show appellant‘s vehicle pulling over after
Deputy Burdick activated his lights and the events that followed.
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The court granted the motion to suppress certain statements concerning appellant‘s prior
arrests made by the dispatcher which were audible on the video recording; however, the court found that
there was probable cause for the initial stop and the arrest.
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S.W.3d at 447; Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus Christi
2009, no pet.). When, as in this case, the trial court makes no explicit findings of
historical fact, the evidence must be viewed in the light most favorable to the trial court's
ruling. Valtierra, 310 S.W.3d at 447. 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. Id. at 447–48.
The Fourth Amendment is not a guarantee against all searches and
seizures, but only against unreasonable searches and seizures. For
Fourth Amendment purposes, a traffic stop is a seizure and must be
reasonable to be lawful. A traffic stop is reasonable if the police officer
was justified in making the stop and his actions during the stop were
confined in length and scope to that necessary to fulfill the purpose of the
stop. In other words, an officer may initiate a traffic stop if he has a
reasonable basis for suspecting that a person has committed a traffic
violation.
Vasquez v. State, 324 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref‘d) (citations omitted). Once an officer concludes the investigation of the conduct that
initiated the traffic stop, he may continue to detain a person if he has reasonable
suspicion to believe another offense has been or is being committed. Id. “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.‖
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (citing Garcia v. State, 43
S.W.3d 527, 530 (Tex. Crim. App. 2001)). The determination of reasonable suspicion is
made by considering the totality of the circumstances. Id. at 492–93; Vasquez, 324
S.W.3d at 919.
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III. DISCUSSION
A. Probable Cause for Initial Stop
Appellant contends that the trial court erred in denying his motion to suppress
evidence because ―Deputy Burdick lacked a reasonable suspicion to initiate a traffic
stop and detain [him].‖ We disagree.
Section 545.302(3) of the transportation code provides that an operator may not
stop, stand, or park a vehicle in an intersection. See TEX. TRANSP. CODE ANN. §
545.302(3) (West Supp. 2010). Deputy Burdick testified that: (1) he observed
appellant‘s vehicle stopped at a green light near the middle of an intersection; and (2)
stopping or parking a vehicle in an intersection is a traffic violation. We conclude that
this evidence establishes that Officer Burdick had a reasonable basis for suspecting that
appellant was committing a traffic violation. See Vasquez, 324 S.W.3d at 919; see also
Hicks v. State, 255 S.W.3d 351, 354 (Tex. App.—Texarkana 2008, no pet.) (holding that
officer‘s statement that he saw vehicle stopped in intersection in violation of section
545.302(a)(3) of transportation code was unequivocal statement that violation of law
was occurring). Thus, we conclude that Officer Burdick lawfully stopped appellant for a
traffic violation after observing appellant‘s vehicle stopped in an intersection. See
Vasquez, 324 S.W.3d at 919. After Officer Burdick smelled alcohol on appellant‘s
breath and observed his glassy eyes and slurred speech, his detention of appellant was
justified because he had reasonable suspicion to believe that another offense—driving
while intoxicated—had been or was being committed. See id. at 919–20.
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B. Probable Cause to Arrest
Appellant also contends that there was insufficient probable cause to support his
arrest. ―Probable cause for a warrantless arrest exists if, at the moment the arrest is
made, the facts and circumstances within the arresting officer‘s knowledge and of which
he has reasonably trustworthy information are sufficient to warrant a prudent man as
believing that the person arrested had committed or was committing an offense.‖ Tex.
Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.—Fort Worth 2009,
no pet.) (en banc, op. on reh'g) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). ―‗An
offense is deemed to have occurred within the presence or view of an officer when any
of his senses afford him an awareness of its occurrence.‘‖ Id. (quoting State v.
Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002)).
Deputy Burdick observed: (1) a strong odor of alcohol on appellant‘s breath; (2)
appellant‘s eyes were glassy and bloodshot and his speech was slurred; (3) appellant
was staggering and could not maintain his balance; (4) an open alcoholic beverage was
found in the vehicle; and (5) when asked to perform field sobriety tests, appellant
refused to cooperate. Based on the totality of the evidence presented, we conclude that
the signs of intoxication observed by Deputy Burdick were sufficient to establish
probable cause to arrest appellant. See Learning v. State, 227 S.W.3d 245, 249 (Tex.
App.—San Antonio 2007, no pet.) (holding officer had probable cause to arrest
defendant for driving while intoxicated where officer observed defendant swerve into
adjacent lane, smelled alcohol on defendant‘s breath, and defendant admitted he had
been drinking) (citing Dyar v. State, 125 S.W.3d 460, 464 (Tex. Crim. App. 2003)
(finding probable cause to arrest where driver admitted drinking and officer smelled
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alcohol and observed slurred speech, unintelligible answers, and red, glassy eyes);
Espericueta v. State, 838 S.W.2d 880, 881, 883 (Tex. App.—Corpus Christi 1992, no
writ) (finding probable cause to arrest where officer smelled alcohol and driver admitted
drinking and failed sobriety test)); see also Hogan v. State, 329 S.W.3d 90, 96 (Tex.
App.—Fort Worth 2010, no pet.) (holding where appellant recklessly drove vehicle, had
―strong odor‖ of alcohol, ―bloodshot, watery[,] and heavy eyes,‖ a swayed and unsteady
balance, and a staggered walk, and refused to provide a breath specimen, facts were
sufficient to show probable cause that appellant committed DWI); Gilfeather, 293
S.W.3d at 880–81 (holding there was substantial evidence to show probable cause for
DWI when appellee was stopped for speeding, had bloodshot eyes, swayed, smelled
like alcohol, and refused to participate in field sobriety tests).
IV. CONCLUSION
Viewing the evidence in the light most favorable to the trial court‘s ruling, see
Valtierra, 310 S.W.3d at 447, we conclude that the record supports the trial court‘s
denial of appellant's motion to suppress evidence. We overrule appellant‘s sole issue
and affirm the trial court‘s judgment.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of July, 2011.
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