                             NUMBER 13-12-00668-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

AUDREY KENNEDY,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


              On appeal from the County Criminal Court No. 4
                         of Denton County, Texas.


                        MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
       By one issue, appellant Audrey Kennedy contends that the trial court erred when

it denied her motion to suppress by finding that the officer who arrested her had

reasonable suspicion to effectuate a traffic stop when she drove a vehicle with a flat tire.

We affirm.
                                       I. BACKGROUND1

       On April 1, 2011, Corporal Pete Uranga was on night duty at the University of

North Texas’s (UNT’s) campus in Denton, Texas.               Corporal Uranga, a twelve-year

veteran of UNT’s police force, was patrolling Welch Street, a busy area of campus with

several campus parking lots, apartment complexes, and businesses nearby.

       At about 2:20 a.m., Corporal Uranga heard a noise and noticed that the sound

came from a white, two-door passenger vehicle “being operated with a flat tire.” He

described the tire as having “absolutely no air”; he could “hear it flopping as it revolved

around.” Corporal Uranga observed the driver of the vehicle, Kennedy, continue to

drive on the flat tire. She passed several gas stations and opportunities to make a safe

stop, but did not do so.     Although Kennedy was driving within the speed limit, did not

swerve, and was not close to striking any other vehicle or object, Corporal Uranga

initiated a traffic stop because Kennedy was driving with defective equipment in violation

of the Texas Transportation Code.         See TEX. TRANSP. CODE ANN. §§ 547.004, 548.604

(West 2011). In Corporal Uranga’s experience, driving on a flat tire was “unsafe” and

compromised a vehicle’s braking and turning functions. The loss of driving capability

was a concern, especially in an area of campus that was “fairly heavily populated” with

high pedestrian traffic. When the vehicle stopped, Corporal Uranga noticed that the tire

was “smoking.” Although the tire was still attached to the wheel, the seal had broken

around the tire.

       Corporal Uranga requested Kennedy’s driver’s license and vehicle registration

       1
          This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2013).


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and asked if she knew why she was being stopped. Kennedy responded that she

assumed it was because of her flat tire; in fact, she had been on her cell phone with a

friend to ask what a flat tire sounded like. While talking to Kennedy, Corporal Uranga

detected a moderate odor of an alcoholic beverage coming from within the vehicle.                        He

also noticed that Kennedy had bloodshot eyes and that her movements were slow and

unusually deliberate. He reported that “as she attempted to find her license, [she]

fumbled through her wallet and thumbed past her license several times before finding it.”

Upon further questioning, Kennedy admitted that she had recently consumed four

glasses of Shiner Bock beer while at a friend’s home.                     Corporal Uranga then had

Kennedy exit her vehicle so that he could administer several standardized field sobriety

tests, such as the horizontal gaze nystagmus, walk-and-turn, one-leg stand, and

alphabet tests. When Kennedy failed these tests, Corporal Uranga arrested her for

driving while intoxicated.       See TEX. PENAL CODE ANN. § 49.04 (West 2011). Later, a

blood test revealed that Kennedy’s blood-alcohol concentration was .21 grams of alcohol

per 100 milliliters of blood—more than twice the legal limit.2

        Kennedy filed a motion to suppress, arguing that the mere occurrence of a flat tire

did not give Corporal Uranga reasonable suspicion to make the initial traffic stop. The

trial court denied Kennedy’s motion to suppress and issued findings of fact and

conclusions of law to support its order. Kennedy subsequently pleaded guilty to driving

while intoxicated, but received permission from the trial court to file this appeal. 3


        2
            According to the police report, Kennedy verbally consented to the blood draw.
        3
            In a plea bargain case, a defendant may only appeal matters that were raised by written motion
filed and ruled on before trial, or after getting the trial court’s permission to appeal. See TEX. R. APP. P.
25.2(a)(2). Both occurred in this case.


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                                   II. APPLICABLE LAW

1.     Standard of Review

       “In reviewing a trial court's ruling on a motion to suppress evidence and its

determination of the reasonableness of either a temporary investigative detention or an

arrest, appellate courts use a bifurcated standard of review.”       Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007). Appellate courts must give “almost total

deference to a trial court's determination of the historical facts that the record supports

especially when the trial court's fact findings are based on an evaluation of credibility and

demeanor.”    Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

We must also defer to a trial court's ruling on “application of law to fact questions,” or

“mixed questions of law and fact,” if the resolution of those questions turns on an

evaluation of credibility and demeanor.     Id. However, appellate courts review “mixed

questions of law and fact” that do not depend upon credibility and demeanor by a de

novo standard. Id.

2.     Reasonable Suspicion

       “An officer conducts a lawful temporary detention when he has reasonable

suspicion to believe that an individual is violating the law.”   Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005) (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex.

Crim. App. 2002)).    “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.   (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex.

Crim. App. 2001)).    “This is an objective standard that disregards any subjective intent


                                             4
of the officer making the stop and looks solely to whether an objective basis for the stop

exists.” Id.   “A reasonable-suspicion determination is made by considering the totality

of the circumstances.” Id. at 492–93.

3.     Texas Transportation Code

       Section 547.004 of the Texas Transportation Code makes it a misdemeanor

offense for a person to operate a vehicle that is unsafe so as to endanger a person or is

not equipped in a manner that complies with the vehicle equipment standards.           See

TEX. TRANSP. CODE ANN. § 547.004.        Further, section 548.604 makes it an offense for a

person to operate a vehicle that is equipped in violation of the transportation code or in a

mechanical condition that endangers a person, including the operator, an occupant, or

property.   Id. § 548.604.   The State relied on these two statutory provisions when

arguing that Corporal Uranga had reasonable suspicion to believe that Kennedy was

violating the law.   See Ford, 158 S.W.3d at 492.

                                     III. DISCUSSION

       By one issue, Kennedy contends that the trial court erred when it denied her

motion to suppress by finding that Corporal Uranga had reasonable suspicion to

effectuate a traffic stop solely due to a flat tire. We disagree. Texas case law holds

that an officer can make a traffic stop if the officer has reasonable suspicion to believe

that an individual is violating a law.   See Ford, 158 S.W.3d at 492.      Here, the State

alleged that Kennedy’s continued use of a vehicle with a flat tire violated two

misdemeanor statutes of the Texas Transportation Code:            section 547.004, which

makes it a crime to operate a vehicle that can endanger a person or does not comply

with vehicle equipment standards; and section 548.604, concerning the operation of a


                                              5
vehicle in a mechanical state that can endanger other persons.       See TEX. TRANSP. CODE

ANN. §§ 547.004, 548.604.        Kennedy’s flat tire met the elements of both of these

statutes.

       Our court is not alone in this conclusion.      Other appellate courts have ruled that

driving with a flat tire can warrant a traffic stop.   See Carrillo v. State, 235 S.W.3d 353,

358 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that a traffic stop for a flat tire was

justified when the arresting officer smelled burning rubber, witnessed the car swerve,

and saw sparks fly from the rim); State v. Kloecker, 939 S.W.2d 209, 211 (Tex.

App.—Houston [1st Dist.] 1997, no pet.) (reversing the granting of a motion to suppress

when the driver was stopped for driving at a low rate of speed and without a tire).

Although Kennedy attempts to distinguish these cases in her brief, focusing on the fact

that she was driving within the speed limit, not swerving, and not in danger of striking

anything, we find her arguments unpersuasive.          Kennedy was driving in a busy section

of the UNT campus which had pedestrian traffic.             Corporal Uranga heard the tire

flapping and witnessed the seal broken from the wheel and smoke coming from the tire.

In Corporal Uranga’s twelve-year experience as a peace officer, he surmised that this flat

tire could present a danger because it could compromise the vehicle’s turning and

braking capabilities in this populated area.       We hold that all of these observations

constitute “specific, articulable facts that, when combined with rational inferences from

those facts, would lead him to reasonably conclude” that Kennedy was violating the

transportation code.     Ford, 158 S.W.3d at 492.           Thus, under the totality of the

circumstances, Corporal Uranga had an objective basis to make this traffic stop.       Id.




                                               6
        In light of the foregoing, we overrule Kennedy’s sole issue.4

                                           IV. CONCLUSION

        We affirm the trial court’s judgment.




                                                                 __________________________
                                                                 GINA M. BENAVIDES,
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
23rd day of January, 2014.




        4
             Because we hold that Corporal Uranga’s stop was reasonable under the Texas Transportation
Code, we need not address the State’s argument that Corporal Uranga’s stop was also reasonable under a
peace officer’s “community caretaking” function. See TEX. R. APP. P. 47.1 (“the court of appeals must hand
down an written opinion that is as brief as practicable but that addresses every issue raised and necessary
to final disposition of the appeal.”).

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