                                MEMORANDUM OPINION
                                        No. 04-09-00722-CR

                                          Jose ZAMORA,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No 4, Bexar County, Texas
                                     Trial Court No. 256425
                       Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen A. Angelini, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: November 10, 2010

AFFIRMED

           This appeal arises from the denial of Appellant Jose Zamora’s motion to suppress

evidence of his driving while intoxicated. Zamora argues that the trial court erred in denying his

motion based on the arresting officer’s lack of probable cause to conduct (1) the initial stop of

Zamora’s vehicle and (2) the field sobriety tests. We affirm the order of the trial court.
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                                                    BACKGROUND

           Around 2:00 a.m., on June 27, 2008, Officer Chris Ruiz stopped Zamora for traveling

sixty miles per hour, fifteen miles over the posted speed limit. Officer Ruiz asked Zamora to exit

the car, and, after performing several field sobriety tests, determined that Zamora was intoxicated

and placed him under arrest for driving while intoxicated. Following Zamora’s arrest, Officer

Ruiz conducted an interview.

           Zamora moved to suppress evidence based on Officer Ruiz’s lack of reasonable suspicion

to (1) stop Zamora’s vehicle and (2) conduct field sobriety tests. 1 After a hearing, the trial court

denied the motion. In accordance with Zamora’s plea agreement, the trial court sentenced

Zamora to six months confinement in the Bexar County jail, and assessed a fine in the amount of

$300.00. Zamora appeals the trial court’s denial of his motion to suppress.

                                               STANDARD OF REVIEW

           An appellate court reviews a trial court’s order on a motion to suppress under a bifurcated

standard, and affords almost total deference to the trial court’s factual determinations. 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). If the resolution of the factual determinations turns on the evaluation of a

witness’s credibility and demeanor, an appellate court also affords the same level of deference to

a trial court’s ruling on “application of law to fact questions,” or “mixed questions of law and

fact.” Amador, 221 S.W.3d at 673 (internal quotes omitted). If not, the appellate court reviews

the application of law to the facts de novo. See id.




1
    The trial court granted the motion to suppress with regard to a post-arrest interview.

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                                      MOTION TO SUPPRESS

       Zamora argues that the trial court erred in denying his motion to suppress because Officer

Ruiz lacked reasonable suspicion both to stop Zamora and to conduct field sobriety tests. The

State disagrees based on the totality of the circumstances of the stop and arrest.

A. Applicable Law

       Routine traffic stops are investigative detentions that must be based on reasonable

suspicion. Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, pet. ref’d,

untimely filed) (citing Berkemer v. McCarty, 468 U.S. 420, 436 (1984)). These investigative

detentions are governed by the two-pronged test in Terry v. Ohio, 392 U.S. 1 (1968). See id.

First, a court must determine whether the officer’s action was justified at its inception. Kothe v.

State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In making this determination, it must consider

whether the testifying officer has pointed to “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). “These facts must amount to more than a mere hunch

or suspicion.” Brother v. State, 166 S.W.3d 255, 277 (Tex. Crim. App. 2005). Second, the

circumstances that justify the stop must be reasonably related to the scope of the seizure. Kothe,

152 S.W.3d at 63. In deciding whether a detention is reasonable, the stop may last no longer

than necessary to fulfill the purpose of the stop. Id. A court measures reasonableness in

objective terms by examining the totality of the circumstances. Id. at 62.

B. The Stop

       Officer Ruiz pointed to several specific, articulable facts relating to two distinct crimes

that led him to stop Zamora’s vehicle: speeding and suspicion of driving while intoxicated. At



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the hearing, Officer Ruiz testified that Zamora was traveling at a speed of sixty miles per hour in

an area with a posted speed limit of forty-five miles per hour. Officer Ruiz explained that he was

driving at forty-five miles per hour, as indicated by his speedometer, and that he observed

Zamora “spe[e]d right by [him];” followed Zamora for a few moments; and paced Zamora as

traveling at sixty miles per hour.

        Additionally, Officer Ruiz testified that Zamora failed to maintain a single lane and

crossed over lane markers. Although failing to maintain a lane is not necessarily a criminal

offense, it may give rise to a reasonable suspicion that a driver is intoxicated. See Arizpe v.

State, 308 S.W.3d 89, 94 (Tex. App.—San Antonio, 2010, no pet.); Tex. Dep’t of Pub. Safety v.

Bell, 11 S.W.3d 282, 284 (Tex. App.—San Antonio, 1999, no pet.). Because Officer Ruiz

developed reasonable suspicion to stop Zamora’s vehicle for speeding, as well as for suspicion of

driving while intoxicated, we overrule Zamora’s contention that Officer Ruiz lacked reasonable

suspicion to initiate the stop.

C. The Field Sobriety Tests

        We next address Zamora’s contention based on the second prong of Terry, that Officer

Ruiz lacked reasonable suspicion to conduct the field sobriety tests. See Terry, 392 U.S. at 37.

At the hearing, Officer Ruiz testified that when Zamora pulled his vehicle over onto the left

shoulder, he obstructed the left lane of travel on the interstate. Officer Ruiz further relayed that

Zamora had a “strong odor of alcoholic beverage;” his eyes were “glossy and bloodshot;” and

Zamora admitted to having four drinks before driving. At that point, Officer Ruiz asked Zamora

to exit his vehicle and proceeded to conduct several field sobriety tests. As Zamora exited his

vehicle and attempted to follow the officer’s instructions, Officer Ruiz observed several specific,

articulable instances that led him to reasonably believe that Zamora might have been driving



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while intoxicated. During such time, Officer Ruiz developed the necessary reasonable suspicion

to conduct the field sobriety tests to determine whether Zamora was intoxicated. See State v.

Wharton-Hasty, No. 04-09-00428-CR, 2010 WL 2403730, at *2 (Tex. App.—San Antonio June

16, 2010, no pet.) (holding that bloodshot eyes and “slight” odor of alcohol were sufficient to

constitute reasonable suspicion to conduct field sobriety tests).

         Zamora argues that Officer Ruiz lacked reasonable suspicion because Officer Ruiz

testified at the hearing that Zamora was cooperative, that Zamora’s speech was not slurred, and

that Zamora did not fumble when he handed Officer Ruiz his driver’s license and registration.

However, because we measure reasonableness in objective terms by examining the totality of the

circumstance, these facts do not negate Officer Ruiz’s reasonable suspicion that Zamora was

driving while intoxicated. See Kothe, 152 S.W.3d at 62–63. Consequently, not all of a driver’s

actions must suggest that he is driving while intoxicated. See id. Because Officer Ruiz had

reasonable suspicion that Zamora was driving while intoxicated, we overrule Zamora’s second

issue on appeal.

                                           CONCLUSION

         Officer Ruiz developed reasonable suspicion to stop Zamora for speeding, and because

Zamora’s conduct provided further evidence to substantiate reasonable suspicion to conduct field

sobriety tests, we cannot say the trial court abused its discretion in denying the motion to

suppress the initial stop and the field sobriety tests. We, therefore, affirm the order of the trial

court.


                                                        Rebecca Simmons, Justice

DO NOT PUBLISH




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