                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  CURTIS WAYNE ROBERTSON,                         §
                                                                  No. 08-17-00109-CR
                       Appellant,                 §
                                                                     Appeal from the
  v.                                              §
                                                                   112th District Court
  THE STATE OF TEXAS,                             §
                                                                of Crockett County, Texas
                       Appellee.                  §
                                                                       (TC# 2888)
                                                  §

                                          OPINION

       Appellant Curtis Wayne Robertson appeals his conviction for felony driving while

intoxicated. Robertson’s conviction was enhanced by three prior convictions for DWI, and he

was sentenced to ten years’ imprisonment. In two issues, Robertson contends: (1) the trial court

abused its discretion in finding that Agent Sulaica was acting as a private citizen and not as a

Border Patrol agent when he arrested Robertson; and (2) the trial court abused its discretion in

denying his motion to suppress because a Border Patrol agent lacks the authority to detain a citizen

for violations of state law. We affirm.

                                          BACKGROUND

       On April 28, 2015, U.S. Border Patrol Agent Jesus Sulaica Jr. was conducting an operation

to intercept undocumented immigrants in Crockett County, Texas. While Sulaica was on patrol,
he noticed Appellant Robertson’s vehicle traveling at a slow rate of speed in front of him.

Robertson’s vehicle then pulled off the side of the road and Robertson rolled down his window.

It was common in the area for ranchers to stop and speak with Border Patrol agents regarding the

goings-on near their ranches, and Sulaica thought nothing of it at the time. Sulaica pulled over

and rolled down his passenger-side window, greeted Robertson, and the two engaged in idle

conversation for a moment. Robertson then exited his vehicle to walk over and speak with

Sulaica. Sulaica noticed Robertson was unsteady on his feet as he approached the patrol vehicle.

As he began speaking with him, Robertson had to hang onto the patrol car for balance and was

having difficulty standing. Robertson also smelled of alcohol. Sulaica, a former police officer

and sheriff’s deputy, believed Robertson was intoxicated and asked him if he had been drinking.

Robertson responded that he had indeed been drinking. Believing it would be dangerous to allow

him to get back on the road, Sulaica detained him by placing him in the back of his patrol vehicle.

Sulaica then turned on his overhead lights to warn oncoming traffic of his presence and contacted

local law enforcement.

        Robertson asked to leave, but Sulaica informed him he was not free to go until local law

enforcement arrived and determined whether or not he could drive. Trooper Nancy Mata arrived

on the scene shortly thereafter. Mata detected a strong odor of alcohol emanating from Robertson.

She asked Robertson to explain what had happened, and he replied that he had pulled over to chat

with Sulaica and Sulaica had detained him. Robertson then refused Mata’s request that he

perform field sobriety tests. Mata arrested Robertson for driving while intoxicated. She later

obtained a warrant for a blood draw, and the subsequent blood test revealed Robertson was

significantly over the legal limit.


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       Robertson was indicted for felony driving while intoxicated, enhanced by three prior

convictions for driving while intoxicated. He filed a motion to suppress, alleging a Border Patrol

agent lacked the authority to stop and detain a motorist for a suspected violation of state traffic

law. After a hearing on the motion to suppress, the trial court entered written findings of fact and

conclusions of law in which it found Sulaica had authority to detain Robertson under Article 14.01

of the Texas Code of Criminal Procedure, which authorizes a “citizen’s arrest” when a felony or

breach of the public peace is committed in the citizen’s presence. The court concluded that

because driving while intoxicated is a breach of the peace, the statute authorized Sulaica to arrest

Robertson because Sulaica had probable cause to believe Robertson had been driving while

intoxicated. Robertson subsequently pleaded guilty, and the trial court sentenced him to ten years

in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

                                          DISCUSSION

       In his first issue, Robertson contends the State failed to carry its burden to show that Sulaica

was acting in his capacity as a private citizen and not as a Border Patrol agent when he detained

Robertson. Robertson asserts that because the State failed to carry this alleged burden, the trial

court abused its discretion in finding Sulaica was acting as a private citizen. In his second issue,

Robertson argues that a Border Patrol agent lacks the authority to seize a person for a state traffic

violation. Because Sulaica was acting as a Border Patrol agent when he seized Robertson, the

seizure was illegal, and the trial court abused its discretion in denying his motion to suppress and

allowing Sulaica to testify regarding his observations of Robertson and the statements he made.

                                         Findings of Fact

                                        Standard of Review


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       We review a trial court’s suppression ruling under a bifurcated standard, deferring to the

trial court’s findings of fact while evaluating the application of the applicable law to those facts de

novo. State v. Saenz, 411 S.W.3d 488, 494 (Tex.Crim.App. 2013). If the trial court’s decision

falls within the zone of reasonable disagreement, is reasonably supported by the record, and is

correct under any theory of law applicable to the case, it will be upheld. State v. Dixon, 206

S.W.3d 587, 590 (Tex.Crim.App. 2006)(citing Romero v. State, 800 S.W.2d 539, 543

(Tex.Crim.App. 1990)).

                                           Applicable Law

       Under the Texas Code of Criminal Procedure, a person may, without a warrant, arrest an

individual when that individual commits a felony or a breach of the public peace within the

presence or view of the arresting person. TEX.CODE CRIM.PROC.ANN. art. 14.01(a). A citizen’s

arrest must be supported by probable cause in order to justify an arrest or detention. Garner v.

State, 779 S.W.2d 498, 501 (Tex.App.—Fort Worth 1989, pet. ref’d). Driving while intoxicated

is a breach of the public peace that authorizes a citizen’s arrest under the Code. Romo v. State,

577 S.W.2d 251, 253 (Tex.Crim.App. [Panel Op.] 1979).

                                              Analysis

       Here, Robertson contends Agent Sulaica was not acting as a citizen of the State of Texas

when he detained him but was instead acting in his capacity as a United States Border Patrol Agent.

He bases this contention on the following facts: (1) Sulaica testified he was working to intercept

a group of undocumented immigrants at the time of the encounter with Robertson; (2) Sulaica

testified he was wearing his uniform and carrying a weapon when he detained Robertson; and (3)

Sulaica placed Robinson in the back of his Border Patrol vehicle, which had its overhead lights


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activated.

        We are required to defer to the trial court’s findings of fact if they are supported by the

record. Saenz, 411 S.W.3d at 494. While Robertson draws our attention to testimony that could

support his contention that Sulaica was not acting as a citizen—if such a showing is even possible

here—he does not address testimony that contradicts his argument. Sulaica testified he did not

stop Robertson and that Robertson was the one who initiated the encounter by pulling over and

rolling down his window to speak to Sulaica. Sulaica also testified he did not detain Robertson

pursuant to his duties as a Border Patrol agent, but rather was concerned that an accident would

occur if he allowed him to drive. Accordingly, the trial court’s finding that Sulaica’s actions in

detaining Robertson until local law enforcement arrived were done in his capacity as a citizen of

the State of Texas and not as a Border Patrol agent was supported by the record. We therefore

defer to that finding. Issue One is overruled.

                                           Citizen’s Arrest

        In his second issue, Robertson contends that a Border Patrol agent is never authorized to

detain an individual for suspected violations of state law. He asserts that because Sulaica was a

Border Patrol agent, the trial court abused its discretion in denying his motion to suppress evidence

seized as a result of the illegal detention.

        Robertson cites several cases allegedly supporting his contention that his detention was

illegal. In Foster v. State, the court of appeals addressed a situation where a driver on a two-lane

road pulled up behind an unmarked police vehicle at a stop light and began revving his engine and

lurching forward behind the police vehicle. Foster v. State, 297 S.W.3d 386, 389 (Tex.App.—

Austin 2009), rev’d, 326 S.W.3d 609 (Tex.Crim.App. 2010). A marked police cruiser pulled


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along side the driver, effectively boxing him in so that he could not leave, and the respective police

officers exited their vehicles and approached the driver. Id. The officers noticed a strong smell

of alcohol emanating from the driver, and after failing field sobriety tests, the driver was charged

with and subsequently convicted of driving while intoxicated. Id. The Austin court held the

officers lacked reasonable suspicion of either a traffic violation or impaired driving that would

justify detaining the driver, and therefore the driver’s motion to suppress should have been granted.

Id., at 394. The Court of Criminal Appeals reversed, concluding the officers had reasonable

suspicion to believe the driver was intoxicated and thus make an investigatory stop because an

officer only needs to be able to “point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion.” Foster v. State, 326

S.W.3d 609, 613 (Tex.Crim.App. 2010)(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Because

the driver was acting erratically near a high-DWI area, the officers had sufficient facts to support

a reasonable suspicion of DWI. Id.

       Foster is inapplicable here because reasonable suspicion to initiate a traffic stop or

investigatory detention is not at issue. Robertson himself initiated the encounter by pulling over

in front of Sulaica and rolling down his window to speak with him. Still at liberty to end the

encounter, Robertson voluntarily exited his vehicle and displayed further signs of intoxication by

being unsteady on his feet and holding onto Sulaica’s patrol vehicle for balance.            Finally,

Robertson admitted to drinking alcohol. It was only at this point that Sulaica detained Robertson

until local law enforcement arrived. Because an investigatory stop did not occur, and Sulaica only

detained Robertson after developing probable cause, Foster is irrelevant to our analysis.

       Robertson also relies on United States v. Valdes-Vega, a Ninth Circuit case involving the


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stop of a vehicle by a Border Patrol agent, which Robertson contends stands for the proposition

that Border Patrol agents cannot stop a vehicle for violations of state traffic laws. United States

v. Valdes-Vega, 685 F.3d 1138 (9th Cir. 2012), rev’d en banc, 738 F.3d 1074 (9th Cir. 2013).

There, a Border Patrol agent pulled over a vehicle that was speeding and driving erratically. Id.,

at 1141–42. The agent testified that, based on the driver’s erratic and evasive driving, the older

body type of the vehicle, and its Mexican license plates, the driver’s behavior was consistent with

that of an alien and drug smuggler. Id., at 1142. A subsequent consent search of the vehicle

revealed seven kilograms of cocaine. Id. In holding the trial court should have granted the

driver’s motion to suppress, the court concluded that a driver with Mexican license plates

committing traffic infractions on an interstate seventy miles away from the U.S.-Mexico border

encompassed too broad a category of people to justify reasonable suspicion. Id., at 1144. On

rehearing en banc, the court concluded it had failed to consider the totality of the circumstances

and the agent’s experience in analyzing reasonable suspicion. United States v. Valdes-Vega, 738

F.3d 1074, 1080 (9th Cir. 2013). The court also noted the argument raised by the driver that

Border Patrol agents do not enforce state traffic law was irrelevant because the traffic law

violations were factors adding to the agent’s reasonable suspicion. Id. At no point did the court

address the issue of a Border Patrol agent’s ability to conduct a stop based on violations of state

law; it merely considered traffic violations as a factor in the agent’s reasonable suspicion of drug

smuggling activity. Id.

       Valdes-Vega is inapplicable here for the same reason Foster is inapplicable: it only

addresses what may constitute reasonable suspicion to make an investigatory stop. Here, it is a

citizen’s arrest that is at issue; no investigatory stop was made. While it is true that citizen may


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not pull over a vehicle for a traffic violation or an investigatory detention, a citizen may detain or

arrest an individual when he has probable cause to believe a felony or breach of the public peace

has been committed in his presence. TEX.CODE CRIM.PROC.ANN. art. 14.01(a); Garner, 779

S.W.2d at 501.

       A factual situation like the present case was addressed by the Court of Criminal Appeals

in Romo v. State. In Romo, a suspect was detained by an employee of the Lubbock County Water

Control District. Romo, 577 S.W.2d at 252. The district employee, Joe Weatherford, was a

member of the Buffalo Springs Lake Patrol. Id. While Weatherford was driving to work, he

encountered the defendant driving “erratically” and at a high rate of speed. Id. Weatherford was

outside of his own jurisdiction at the time of the encounter.         Id. He began following the

defendant and observed him weaving across the center lane and onto the shoulder of the road. Id.

Weatherford radioed the Department of Public Safety and was put in contact with a trooper who

was in the area. Id. The trooper told Weatherford that he was caught in traffic and advised him

to stop the defendant in order to prevent an accident. Id. Weatherford turned on his emergency

lights and the defendant pulled over. Id. Weatherford noticed the defendant smelled strongly of

alcohol, staggered while walking, had to lean against the car to support himself, and had red,

bloodshot eyes. Id., at 253. Weatherford took the defendant’s driver’s license and stayed with

him until the trooper arrived on the scene. Id. The defendant was convicted of driving while

intoxicated, based in part on Weatherford’s testimony. Id., at 251.

       On appeal, the defendant argued the trial court had erred in admitting Weatherford’s

testimony because Weatherford was outside his jurisdiction when he made the arrest and therefore

lacked the authority to make it. Romo, 577 S.W.2d at 253. In concluding Weatherford had


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authority to make a citizen’s arrest, the Court cited Article 14.01(a) of the Texas Code of Criminal

Procedure, which authorizes a citizen to make a warrantless arrest for a breach of the peace. Id.

It then concluded that because driving while intoxicated was a breach of the peace, Weatherford

was authorized to make a citizen’s arrest despite his lack of jurisdiction as a peace officer when

the arrest was made. Id.

          Here, Robertson makes substantially the same arguments that were raised unsuccessfully

in Romo. Sulaica, a federal law enforcement officer, had no jurisdictional authority as a Border

Patrol agent to act as a peace officer in investigating violations of state law. But while a Border

Patrol agent is not a peace officer under Article 2.12 of the Code of Criminal Procedure,1 and

therefore lacks jurisdiction to conduct investigatory detentions for violations of state law, it does

not follow that he loses the ability to make a citizen’s arrest when he puts on his uniform. Romo,

577 S.W.2d at 253; Sanchez v. State, 582 S.W.2d 813, 814–15 (Tex.Crim.App. [Panel Op]

1979)(holding Border Patrol agents did not act unlawfully when they detained a suspect found on

the side of the road who smelled of alcohol and displayed signs of intoxication because public

drunkenness is an offense against the public peace and the agents could therefore make a citizen’s

arrest); see also Garner, 779 S.W.2d at 501 (holding that while a private citizen may not conduct

an investigatory stop based only on an articulable suspicion, a citizen may effect an arrest or

detention when he has probable cause to believe a crime is being committed).                         Based on

Robertson’s obvious signs of intoxication and his own statement that he had been drinking alcohol,

Sulaica had probable cause to believe the crime of driving while intoxicated was being committed,

a breach of the public peace. Romo, 577 S.W.2d at 253. He therefore had authority under Article



1
    See TEX.CODE CRIM.PROC.ANN. art. 2.12, detailing who are peace officers in the State of Texas.
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14.01(a) of the Texas Code of Criminal Procedure to perform a citizen’s arrest of Robertson.

Accordingly, the trial court did not abuse its discretion in denying Robertson’s motion to suppress.

Robertson’s second issue is overruled.

                                         CONCLUSION

       Having overruled Issues One and Two, the decision of the trial court is affirmed.



June 12, 2019
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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