Opinion issued June 2, 2015




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                              NO. 01-14-00547-CR
                          ———————————
                   ROLAND A. ALVARADO, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



              On Appeal from the County Court at Law No. 12
                           Bexar County, Texas
                      Trial Court Case No. 354155



                                 OPINION

     A jury convicted appellant, Roland Alvarado, of the Class B misdemeanor

offense of driving while intoxicated (“DWI”). 1       The trial court assessed


1
     See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2014).
punishment at a $750 fine and 180 days’ confinement in the Bexar County Jail. 2

The trial court suspended the confinement portion of the sentence and placed

appellant on community supervision for one year. In one issue, appellant contends

that the trial court erroneously denied his motion to suppress evidence because his

detention was unreasonably long and violated the Fourth Amendment.

      We affirm.

                                    Background

      In the early morning hours of February 11, 2011, Garrett Griffin, the

manager of Players, a members-only nightclub in San Antonio, asked appellant to

leave the club after he became involved in an incident with another member.

Griffin escorted appellant out of the club and to his vehicle. As appellant backed

out of a parking space, he struck a parked vehicle. Griffin witnessed this accident.

Griffin then approached appellant and told him that he had just backed into another

vehicle, but appellant denied that he had done so. Griffin called 9-1-1 and ensured

that appellant remained at the club until the police arrived.

      San Antonio Police Department (“SAPD”) Officer J. Chandler testified that

he received a dispatch at 12:54 a.m. concerning an accident that had occurred in


2
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Fourth District of Texas to this Court pursuant to its docket-equalization
      powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme
      court may order cases transferred from one court of appeals to another at any time
      that, in the opinion of the supreme court, there is good cause for the transfer.”).

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the parking lot at Players. Officer Chandler arrived at the scene at 12:57 a.m. and

contacted the owners of the car appellant had hit and discussed the incident with

them.    Officer Chandler estimated that he spoke with the owners and other

witnesses, including Griffin, for approximately five to ten minutes. The vehicle’s

owners pointed out appellant, who had been walking in the parking lot between his

truck and Officer Chandler’s patrol car, and Chandler began taking information

from appellant.       Officer Chandler testified that conducting an accident

investigation usually takes him between twenty and thirty minutes.

        Officer Chandler testified that appellant had a “strong odor of alcohol on his

breath,” had bloodshot eyes, was swaying, and appeared as though he had been

drinking, and that the other witnesses had informed him that appellant had been

drinking while inside the club. Appellant had the hood of his sweatshirt up over

his head at the time Officer Chandler first made contact with him, but, during the

course of their conversation, appellant pushed his hood down and Chandler

recognized appellant as a fellow police officer who worked at the same substation

as Chandler.

        Once Officer Chandler determined that appellant was a police officer, he

returned to his patrol car and contacted his direct supervisor, Sergeant M. Wilson,

as required by an SAPD policy that requires officers to notify their direct

supervisors any time they investigate an incident involving an off-duty officer.



                                           3
According to Officer Chandler, the policy required that “should an officer be

involved in any incident involving anywhere from a disturbance all up to an

offense, we have to contact our immediate supervisor to make the location.” It

took Sergeant Wilson, who appeared on the scene with Lieutenant P. Biasiolli,

approximately fifteen to twenty minutes to arrive at the scene after Officer

Chandler contacted him. During that time, Officer Chandler allowed appellant to

sit in his truck and keep his cell phone in his possession, and Chandler sat in his

patrol car and completed the paperwork relevant to the initial accident

investigation.

      When Sergeant Wilson and Lieutenant Biasiolli arrived, Officer Chandler

informed them of what had happened and who was involved in the incident,

appellant spoke with all three officers about the accident, and Chandler then began

conducting field sobriety tests on appellant. Officer Chandler testified that he

began the sobriety tests “close to 2 a.m. in the morning, a little bit before [2 a.m.]

possibly.” 3 He estimated that he finished the tests approximately fifteen or twenty

minutes later, and he then placed appellant under arrest. After being arrested,

appellant asked Officer Chandler if he could speak with Lieutenant Biasiolli,

which Chandler allowed. The officers then spoke with appellant about whether he

could contact someone to pick up his truck from the scene so that the officers

3
      At trial, Officer Chandler estimated that he began the field sobriety tests around
      1:50 and ended the tests around 2:00 a.m.

                                          4
would not have to tow it. Officer Chandler left the scene with appellant in his

patrol car around 2:30 a.m.

      Appellant filed a motion to suppress, arguing that his detention was

unreasonably long and violated the Fourth Amendment.           At the close of the

suppression hearing, the trial court stated on the record:

      I’m going to go ahead and deny the defendant’s motion to suppress.
      The Court will find that it was a long period of time, an hour and a
      half, but given the specific facts in this particular case involving the
      fact that it was initially an accident investigation which turned into a
      DWI officer-involved investigation which necessitated contacting
      supervisors, the Court finds that the circumstances warrant or justify
      the extended length of the detention. And so at this time, I will deny
      the defendant’s motion to suppress.

The trial court did not make written findings of fact and conclusions of law.

      At trial, Officer Chandler testified to essentially the same facts as he had at

the suppression hearing. Sergeant Wilson and Lieutenant Biasiolli, who had not

testified at the suppression hearing, both testified at trial concerning their

involvement in the investigation. Both officers testified that SAPD policy requires

a patrol officer to notify his immediate superior, generally a sergeant, when they

encounter an off-duty officer involved in an incident. The policy also requires the

sergeant to then go to the scene and supervise the patrol officer’s investigation to

ensure that all relevant protocols are followed and to make the proper notifications

regarding the officer-involved offense “through the chain of command.” Sergeant

Wilson testified that it took him approximately fifteen or twenty minutes to arrive

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at the scene after he received Officer Chandler’s call. He stated that, upon his

arrival, Officer Chandler explained the circumstances of the incident.           Both

Sergeant Wilson and Lieutenant Biasiolli denied giving any instructions to Officer

Chandler as to how to proceed with his investigation, and they denied ordering

Chandler to place appellant under arrest. Sergeant Wilson testified that he did not

conduct the field sobriety tests himself because he “was confident in [Officer

Chandler’s] abilities to administer the tests, and it’s standard procedure for officers

to administer the tests to other officers.”

      After Sergeant Wilson and Lieutenant Biasiolli testified, appellant re-urged

his motion to suppress, arguing that Wilson and Biasiolli played no role in the

investigation, and, therefore, Officer Chandler’s delay in the DWI investigation to

allow the supervising officers to arrive at the scene served no legitimate law

enforcement purpose. The trial court again noted that the delay was “a long period

of time” but then stated, “I think that there is some reasonable—some reasonable,

justifiable reason for the delay in this case and that is because this is an

extraordinary circumstance. It is an officer-involved case. There are protocols that

have to be followed. And so I’m going to go ahead and overrule the motion.”

      The jury found appellant guilty of DWI.          The trial court assessed his

punishment at a $750 fine and 180 days’ confinement in the Bexar County Jail.




                                              6
The trial court suspended the confinement and placed appellant on community

supervision for one year. This appeal followed.

                                Motion to Suppress

      In his sole issue, appellant contends that the trial court erred in denying his

motion to suppress evidence because the detention was unreasonably long and

therefore violated the Fourth Amendment.

      A. Standard of Review

      We review a denial of a motion to suppress evidence for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citing

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When we review a

trial court’s denial of a motion to suppress, we give “almost total deference to a

trial court’s express or implied determination of historical facts [while] review[ing]

de novo the court’s application of the law of search and seizure to those facts.” Id.

We view the evidence in the light most favorable to the trial court’s ruling. Wiede

v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact

and judge of the credibility of witnesses and the weight to be given to their

testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

The trial court may choose to believe or disbelieve any part or all of a witness’s

testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain



                                          7
the trial court’s ruling only if it is reasonably supported by the record and correct

on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857

(Tex. Crim. App. 2003).

      B. Whether Length of Detention Was Reasonable

      The Fourth Amendment protects against unreasonable searches and seizures.

U.S. CONST. amend. IV; Belcher v. State, 244 S.W.3d 531, 538 (Tex. App.—Fort

Worth 2007, no pet.). Absent a warrant or some functional equivalent that gives

probable cause to arrest, “only a limited, investigatory detention of an individual is

permitted.” Belcher, 244 S.W.3d at 538 (citing Burkes v. State, 830 S.W.2d 922,

925 (Tex. Crim. App. 1991)). An investigative detention during the course of a

traffic stop in which the subject is not free to leave is a seizure under the Fourth

Amendment, and we must analyze the detention under the reasonableness standard.

Id. “Reasonableness” under the Fourth Amendment “is measured ‘in objective

terms by examining the totality of the circumstances’” and is a fact-specific

inquiry. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (quoting Ohio

v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996)).          Reasonableness

requires “a balance between the public interest served and the individual’s right to

be free from arbitrary detentions and intrusions.” Id.

      The determination of whether an investigative detention is reasonable is a

two-pronged inquiry, focusing first on whether the officer’s action was justified at



                                          8
its inception and then on whether the action was “reasonably related, in scope, to

the circumstances that justified the stop in the first place.” Id. (citing Terry v.

Ohio, 392 U.S. 1, 19–20, 88 S. Ct. 1868, 1879 (1968)). This determination is a

factual one and is made by considering the totality of the circumstances existing

throughout the detention. Belcher, 244 S.W.3d at 538–39.

      “In deciding whether the scope of a Terry detention is ‘reasonable,’ the

general rule is that an investigative stop can last no longer than necessary to effect

the purpose of the stop.” Kothe, 152 S.W.3d at 63; see also Florida v. Royer, 460

U.S. 491, 500, 103 S. Ct. 1319, 1325–26 (1983) (“[A]n investigative detention

must be temporary and last no longer than is necessary to effectuate the purpose of

the stop.   Similarly, the investigative methods employed should be the least

intrusive means reasonably available to verify or dispel the officer’s suspicion in a

short period of time.”).    Although the length of a detention may render that

detention unreasonable, there is “no rigid, bright-line time limitation.” Belcher,

244 S.W.3d at 539; see also United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct.

1568, 1575 (1985) (“[I]n evaluating whether an investigative detention is

unreasonable, common sense and ordinary human experience must govern over

rigid criteria.”); United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645

(1983) (“[T]he brevity of the invasion of the individual’s Fourth Amendment

interests is an important factor in determining whether the seizure is so minimally



                                          9
intrusive as to be justifiable on reasonable suspicion.”). The Supreme Court has

held that it is “appropriate to examine whether the police diligently pursued a

means of investigation that was likely to confirm or dispel their suspicions quickly,

during which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at

686, 105 S. Ct. at 1575; Kothe, 152 S.W.3d at 64 (stating same).

      Courts may consider legitimate law enforcement purposes served by any

delay in the officer’s investigation. Belcher, 244 S.W.3d at 539. Texas appellate

courts have concluded that “legitimate law enforcement purposes” in cases

involving a DWI investigation include

      a delay to permit the arrival of a DWI enforcement officer so that the
      supervisory officer initiating the stop can return to duty, a delay for
      the arrival of a video camera so that the DWI investigation and the
      field sobriety tests can be taped in accordance with department
      procedures, and a delay for the arrival of a rookie officer who needs
      training.

Id. at 541 (citing Hartman v. State, 144 S.W.3d 568, 573 (Tex. App.—Austin

2004, no pet.), Smith v. State, No. 03-06-00085-CR, 2007 WL 700834, at *4 (Tex.

App.—Austin Mar. 7, 2007, pet. ref’d) (mem. op., not designated for publication),

and Dickson v. State, No. 03-06-00126-CR, 2006 WL 3523789, at *4 (Tex. App.—

Austin Dec. 6, 2006, no pet.) (mem. op., not designated for publication)); see also

Hartman, 144 S.W.3d at 572 (“Reasonable purposes include investigation,

maintenance of the status quo, and officer safety, considering the totality of the

circumstances.”). “[T]he key inquiry is not whether a less intrusive alternative was

                                         10
available to law enforcement officials, but whether the police acted unreasonably

in failing to choose that alternative.” Hartman, 144 S.W.3d at 574.

      Here, appellant does not contend that Officer Chandler’s detention of him

was unlawful at the outset, so we therefore consider only whether the detention

was unreasonably prolonged. Officer Chandler received a dispatch concerning an

accident that had occurred at the Players nightclub, and he arrived at the club at

12:57 a.m. Officer Chandler estimated that he spent between five and ten minutes

obtaining information about the incident from the owners of the vehicle that

appellant hit and other witnesses, including Garrett Griffin, the nightclub manager.

He then met with appellant about the incident and noticed a “strong odor” of

alcohol on appellant’s breath, observed that appellant had bloodshot eyes and was

swaying, and concluded that appellant appeared as though he had been drinking.

Appellant was wearing a hooded sweatshirt at the time, but, during the course of

his conversation with Officer Chandler, appellant pushed back the hood of the

sweatshirt, and Chandler recognized appellant as a fellow police officer who

worked out of the same police substation.

      Officer Chandler, Sergeant Wilson, and Lieutenant Biasiolli all testified that

SAPD policy requires that the investigating officer notify his immediate supervisor

when an off-duty officer is involved in an incident. The supervisor, usually a

sergeant, must “make the location,” or supervise the original officer’s



                                        11
investigation.   After Officer Chandler determined that appellant was a fellow

SAPD officer, he returned to his patrol car and contacted Sergeant Wilson. While

waiting for Sergeant Wilson to arrive at the scene, Officer Chandler completed

paperwork concerning the accident in his patrol car, and he allowed appellant to sit

in his own vehicle and use his cell phone. Sergeant Wilson arrived at the scene

with Lieutenant Biasiolli approximately fifteen or twenty minutes after he received

the call from Officer Chandler.           Officer Chandler briefly spoke with his

commanding officers about the situation concerning appellant and then began

performing the standardized field sobriety tests on appellant. Officer Chandler

estimated that he began performing these tests shortly before 2:00 a.m. 4 Appellant

displayed several clues of intoxication on each of the tests, and, as a result, Officer

Chandler placed appellant under arrest. Officer Chandler permitted appellant to

speak with Lieutenant Biasiolli in a bid for leniency, and the officers and appellant

also arranged for appellant’s mother to pick his truck up from the club’s parking




4
      On appeal, appellant asserts that Officer Chandler did not begin conducting the
      field sobriety tests until 2:10 a.m. He bases his argument on defense counsel’s
      assertions regarding timing during cross-examination of Officer Chandler at the
      suppression hearing. Counsel began with the time Officer Chandler left the scene
      with appellant—2:30 a.m., which is undisputed—and worked backwards using
      Chandler’s estimations of how long it took to arrange transport of appellant’s
      vehicle, for appellant to speak with Lieutenant Biasiolli, and to administer the
      sobriety tests. Chandler, however, testified at both the suppression hearing and at
      trial that he began the sobriety tests around 1:50 a.m. or by 2:00 a.m. at the latest.

                                            12
lot to avoid towing of the truck. Officer Chandler and appellant left the scene at

approximately 2:30 a.m.

      Appellant argues that, contrary to cases such as Belcher, in which the Fort

Worth Court of Appeals held that a delay to wait for a more experienced officer to

perform the DWI sobriety tests was for a legitimate law enforcement purpose that

did not unreasonably prolong the investigative detention, in this case the SAPD

policy “had no bearing [on] the timing of the investigation,” “there is no evidence

that these procedures would cause a delay in the investigation,” and the additional

officers were not “necessary to conduct the [DWI] investigation.”           Officer

Chandler, Sergeant Wilson, and Lieutenant Biasiolli all testified, however, that the

SAPD policy not only required the officer investigating the involvement of an off-

duty officer in an incident to call his immediate supervisor and notify him of the

incident, but also required the supervisor to visit the scene. Lieutenant Biasiolli

testified that a senior officer’s presence is required at the scene of an officer-

involved incident to “make sure that all protocol and everything is—is followed as

well as so we can make notification through the chain of command all the way up

to and including the chief [of police].” Thus, although the policy did not require

Sergeant Wilson, as Officer Chandler’s immediate supervisor, to conduct any

portion of the DWI investigation himself, the policy did require Wilson to be

present on the scene while Chandler conducted the field sobriety tests of appellant,



                                        13
an off-duty SAPD officer. See Hartman, 144 S.W.3d at 573–74 (“Although it is

possible that Officer Smith could have conducted unrecorded field sobriety tests on

his own, the key inquiry is not whether a less intrusive alternative was available to

law enforcement officials, but whether the police acted unreasonably in failing to

choose that alternative.”); see also Belcher, 244 S.W.3d at 541 (“[T]he record

viewed in the light most favorable to the trial court’s ruling reflects that a DWI

investigation was underway when Officer Willenbrock requested Officer Martin’s

assistance at the scene and that a legitimate law enforcement purpose was served

by the delay in the DWI investigation that occurred while awaiting the arrival of

Officer Martin.”).

      The delay in Officer Chandler’s DWI investigation of appellant occurred

pursuant to an SAPD policy requiring the presence of a supervising officer at the

scene of an incident involving an off-duty police officer.        Officer Chandler

followed SAPD policy when he contacted Sergeant Wilson, informed him of the

incident, and awaited Wilson’s arrival at the scene before proceeding with the

investigation.   See Hartman, 144 S.W.3d at 574 (noting, in upholding

reasonableness of detention despite delay, that “Officer Smith followed police

department procedure and was not dilatory in his investigation”). We conclude

that the delay in the investigation while Officer Chandler was waiting for Sergeant

Wilson to arrive at the scene furthered a legitimate law enforcement purpose. See



                                         14
Bullock v. State, 426 S.W.3d 226, 231 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (holding that delay caused by waiting for DWI task force officer “furthered

legitimate law enforcement purposes—specifically, ensuring that an adequate

number of patrol cars are available to respond to emergency calls and utilizing a

DWI unit that has greater experience in investigating DWIs and can perform such

investigations with greater expediency”); Belcher, 244 S.W.3d at 541 (holding that

waiting for arrival of officer with greater experience in DWI investigations

furthered legitimate law enforcement purpose).

      We further conclude that the length of the delay, given the totality of the

circumstances, did not render appellant’s detention unreasonable. As we have

discussed, Officer Chandler testified concerning the actions taken from the time he

arrived on the scene of the accident to the time he left the scene with appellant

under arrest in the back of his patrol car. There are no unexplained periods of

inactivity, and Officer Chandler arrested appellant as soon as he completed the

field sobriety tests, during which appellant displayed several clues of intoxication.

See Josey v. State, 981 S.W.2d 831, 841 (Tex. App.—Houston [14th Dist.] 1998,

pet. ref’d) (“The officers did not continue to hold appellant after all legitimate

components of the investigative detention had been completed.          Instead, they

arrested him when they had probable cause to arrest him. From this record, we

find appellant’s detention to be reasonable under the circumstances.”).



                                         15
Furthermore, while appellant and Officer Chandler waited for Sergeant Wilson to

arrive, Chandler completed paperwork relevant to the earlier accident in his patrol

car while he allowed appellant to wait in his own vehicle, un-handcuffed, and to

retain possession of his cell phone.         See Belcher, 244 S.W.3d at 542

(“Additionally, Officer Willenbrock permitted Belcher to smoke and to answer his

cell phone during the detention, thus reducing to some extent the level of intrusion

generated by the detention.”).

      Viewing the evidence in the light most favorable to the trial court’s ruling,

as we must, we conclude that the trial court reasonably determined, based on the

totality of the circumstances, that appellant’s detention was not unreasonably

prolonged. We hold that the trial court did not err in denying appellant’s motion to

suppress.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).

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