                                                                 PD-0871-15
                     PD-0871-15                COURT OF CRIMINAL APPEALS
                                                                AUSTIN, TEXAS
                                               Transmitted 7/10/2015 5:09:28 PM
                                                 Accepted 7/15/2015 2:54:15 PM
               CAUSE NO. ________________                        ABEL ACOSTA
                                                                         CLERK

                          IN the

                Court of Criminal Appeals

                        of Texas
________________________________________________________

        On Petition for Discretionary Review from
                The First Court of Appeals
               In Cause No. 01-14-00807-CR
                 Affirming the Conviction
                   In Cause No. 1923909
            From Harris County Criminal Court
                      At Law No. 12
________________________________________________________

                 ALLISON LEIGH CAMPBELL,
                          Appellant

                           vs.

                   THE STATE OF TEXAS,
                          Appellee.
________________________________________________________

              PETITION FOR DISCRETIONARY REVIEW
             PURSUANT TO RULE 68.01 OF THE TEXAS
                  RULES OF APPELLATE PROCEDURE
________________________________________________________
                                  PAUL MEWIS
                                  ATTORNEY AT LAW
                                  4202 Windy Chase Lane
                                  Katy, Texas 77494-1071
       July 15, 2015              281.392.2306 (telephone)
                                  281.392.7203 (facsimile)
                                  STATE BAR NO. 13986500
                                  ATTORNEY FOR APPELLANT
July 10, 2015
           STATEMENT REGARDING ORAL ARGUMENT

The Appellant WAIVES oral argument in this case.




                           ii
               IDENTIFICATION OF THE PARTIES


A complete list of the names of all interested parties
is provided below:

Counsel for the State:

    DEVON ANDERSON – District Attorney of Harris County

    KIMBERLY APERAUCH STELTER – Assistant District
    Attorney on appeal
    Appellate Division
    Harris County District Attorney’s Office
    1201 Franklin, Suite 600
    Houston, Texas 77002-1923


Appellant or criminal defendant:

    ALLISON LEIGH CAMPBELL

Counsel for Appellant:

    PAUL MEWIS, Attorney
    Texas Bar Card No. 13986500
    4202 Windy Chase Lane
    Katy, Texas 77494-1071
    713.857.7003 (cell)
    281.392.2306 (office)
    281.392.7203 (facsimile)
    paul@mewislaw.com (e-mail)

Trial Judge:

    HON. ROBIN BROWN – Presiding Judge



                             iii
                    TABLE OF CONTENTS
                                                     Page

STATEMENT REGARDING ORAL ARGUMENT ..................... ii
IDENTIFICATION OF THE PARTIES ........................ iii
INDEX OF AUTHORITIES ................................... v
STATEMENT OF THE CASE .................................. 2
STATEMENT OF PROCEDURAL HISTORY ........................ 3
SOLE GROUND FOR REVIEW ................................. 3
    The First Court of Appeals erred in refusing to
    acknowledge that Appellant’s initial legal
    detention was unlawfully prolonged, after the
    detaining officer concluded that Appellant was
    not either publically intoxicated or driving
    while intoxicated.

ARGUMENT ON REASON FOR GRANTING REVIEW ................. 3
SUMMARY OF THE ARGUMENT ................................ 6
CONCLUSION AND PRAYER .................................. 9
CERTIFICATE OF SERVICE ................................. 9
WORD COUNT CERTIFICATE OF COMPLIANCE .................. 10
APPENDIX .............................................. 11




                            iv
                  INDEX OF AUTHORITIES

Cases                                               Page

Branch v. State,
 335 S.W.3d 893, 900 (Tex.App.-Austin 2011
 pet ref'd)........................................... 3

Davis v. State,
 947 S.W.2d 240, 243 (Tex.Crim.App. 1997).......... 4, 5

Florida v. Royer,
 460 U.S. 491, 500, 103 S.Ct. 1319, 1325,
 75 L.Ed.2d 229 (1983)................................ 5

Kothe,
 152 S.W.3d at 63-64)................................. 4

Parker v. State,
 297 S.W.3d 803, 809 (Tex.App.-Eastland 2009
 pet ref'd)........................................... 3

Robinson,
 334 S.W.3d at 778-79................................. 4

Tanner v. State,
 228 S.W.3d 852, 855 (Tex.App.-Austin 2007
 no pet.)............................................. 4

Terry,
 382 U.S. at 19-20................................. 4, 6

Wolf v. State,
 137 S.W.3d 797, 802 (Tex.App.-Waco 2004).......... 4, 5

York v. State,
 342 S.W.3d 528,531 (Tex.Crim.App. 2011).............. 7



                           v
                  Index of Authorities
                      (Continued)

Cases                                                Page



AMENDMENTS:

FOURTH AMENDMENT .................................... 4, 5



STATUTES:

TEXAS RULES OF APPELLATE PROCEDURE,
    RULE 68.01 ......................................... 2




                            vi
                  CAUSE NO. ________________

                             IN the

                  Court of Criminal Appeals

                        of Texas
________________________________________________________

        On Petition for Discretionary Review from
                The First Court of Appeals
               In Cause No. 01-14-00807-CR
                 Affirming the Conviction
                   In Cause No. 1923909
            From Harris County Criminal Court
                      At Law No. 12
________________________________________________________

                   ALLISON LEIGH CAMPBELL,
                            Appellant

                               vs.

                   THE STATE OF TEXAS,
                          Appellee.
________________________________________________________

             PETITION FOR DISCRETIONARY REVIEW
            PURSUANT TO RULE 68.01 OF THE TEXAS
               RULES OF APPELLATE PROCEDURE
________________________________________________________


     Comes now ALLISON LEIGH CAMPBELL, hereinafter referred

to   as   the   Appellant,   and   submits   this   Petition   for
Discretionary Review, Pursuant to Rule 68.01 of the Texas

Rules    of   Appellate   Procedure,   in    the   above   styled   and

numbered cause.    As grounds to be considered in granting this

Petition for Discretionary Review, the Appellant would show

the Court the following set of facts and circumstances:,


                      STATEMENT OF THE CASE

       Appellant was charged with the misdemeanor offense

of Driving While Intoxicated, alleged to have occurred

on or about October 13, 2013.          Appellant pled not guilty

and a motion to suppress evidence was presented and

heard by the trial court (Harris County Criminal Court

at Law No. 12) on August 21, 2014.            At the conclusion of

this    hearing,   the    trial   judge     denied   the   motion   to

suppress evidence.        On September 10, 2014, the Appellant

pled guilty and the Court assessed punishment at one

year in the Harris County Jail, probated for one year,

and a Five Hundred ($500.00) Dollar fine.

       Appellant gave written notice of appeal on September

24, 2014.      The Court signed an order granting permission

to appeal the denial of the motion to suppress.



                                  2
                STATEMENT OF PROCEDURAL HISTORY

    Appellant’s conviction was affirmed by the First

Court of Appeals, in Cause No. 01-14-00807-CR, which

delivered its opinion on June 4, 2015.              A Motion for

Rehearing was filed on June 17, 2015 and denied by the

First Court of Appeals on July 2,2015.



                    SOLE GROUND FOR REVIEW

    The First Court of Appeals erred in refusing to
    acknowledge that Appellant’s initial legal
    detention was unlawfully prolonged, after the
    detaining officer concluded that Appellant was
    not either publically intoxicated or driving
    while intoxicated.


         ARGUMENT ON REASON FOR GRANTING REVIEW

    This Court of Appeals’ decision conflicts with other

courts of appeals’ decisions on the same issue.

    On a routine traffic stop, an officer may inquire

into matters unrelated to the stop as long as the stop

is not unreasonably extended.          See Branch v. State, 335

S.W.3d   893,     900      (Tex.App.      –     Austin       2011,   pet

ref’d)(citing     Parker    v.   State,       297   S.W.3d    803,   809

(Tex.App. – Eastland 2009, pet ref’d).


                                  3
    Once the traffic stop investigation is concluded,

the officer must no longer detain the driver, who must

be permitted to leave.        Kothe, 152 S.W.3d at 63-64.

    Prolonging a detention beyond the conclusion of a

routine    traffic   stop    is   a   violation   of    the   Fourth

Amendment unless an officer has developed a reasonable

suspicion of illegal activity that would justify the

extended detention.        Wolf, 137 S.W.3d 802 (citing Terry,

392 U.S. at 19-20).          Such suspicion must be based on

more than a mere hunch or non-specific suspicion of

criminal activity.        Tanner v. State, 228 S.W.3d 852, 855

(Tex.App. – Austin 2007, no pet.)            The burden is on the

State to prove that a reasonable suspicion justified the

prolonged detention of Ibanez.         See Robinson, 334 S.W.3d

at 778-79.

    In Davis v. State, 947 S.W.2d 240 (Tex.Crim.App.

1997), the Court of Criminal Appeals found that the

initial stop, for the purpose of determining if the

defendant was driving while intoxicated, was reasonable.

However,    the   court    also   found   that    the   purpose   of

investigative     detention    had    been   concluded    when    the


                                  4
officers         determined      that        the        defendant     was     not

intoxicated.        The continuation of the detention and the

investigation after that point was unreasonable.

     Wolf v. State, 137 S.W.3d 797 (Tex.App. – Waco 2004)

– Possession of MDA or ecstasy.                    Reversed.        DPS trooper

Nelson,      stopped       Wolf     and           his     companion.           An

investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose of

the stop.         Davis, 947 S.W.2d at 243 (citing Florida v.

Royer,     460    U.S.   491,     500,      103    S.Ct.     1319,    1325,    75

L.Ed.2d 229 (1983).

     The Waco Court of Appeals held that Officer Nelson’s

initial detention of Wolf for a defective tag lamp was

justified at its inception, but his prolonged detention

to allow time for the drug-sniffing dog to arrive was

neither     necessary      to    allow        Nelson      time   to    issue   a

warning to Wolf, nor was it reasonably related in scope

to   his   inquiry       about    the       defective      tag   lamp.      This

prolonged        detention       violated          the     Fourth     Amendment

because Officer Nelson did not have reasonable suspicion




                                        5
of   illegal    activity    that   would    justify   the   extended

detention under Terry.



                      SUMMARY OF THE ARGUMENT:


     After     his   initial   reasonable      suspicion    had   been

negated, the officer’s prolonged detention for further

investigation was unreasonable under the law.

     The Court of Appeals’ opinion, in finding that the

officer      had     reasonable    suspicion     to   initiate     an

investigation for the offense of public intoxication in

his initial approach of Appellant, does not address the

reasonableness of his continued detention of Appellant.

     The officer made it clear in his testimony that,

after approaching Appellant, he had not observed any

signs of intoxication and, by his actions of ordering

Appellant to drive her car some 500 feet, then park and

wait for him, is direct evidence that he had formed no

reasonable suspicion to believe that Appellant was a

danger to herself or others.           Had the officer believed

that Appellant posed a threat to herself, her passenger
                                   6
or    other    people     (customers)      that       were   parking    or

entering and leaving the parking lot, he surely would

not   have     allowed    a   dangerous,      intoxicated      person   to

drive away some 500 feet (unescorted) as he turned his

back and proceeded to the Taco Cabana pick-up window to

pay for and pick-up his food.

      Appellant does not argue that, under the proper set

of facts and circumstances, a person asleep in a car

(with    the     engine       running)   may      provide      sufficient

probable cause for an officer to detain for further

investigation,      as    the    court   in    York    found    (York   v.

State, 342 S.W.3d 528, 531 (Tex.Crim.App. 2011).

      However, once our officer dispelled his belief that

any crime had been committed, i.e., he failed to smell

alcohol and observed no facts to support his belief that

Appellant was a danger to herself or others, she should

have been free to leave.

      Unlike in York, supra., where “nothing else occurred

that would have negated reasonable suspicion”.                  Once our

officer awoke Appellant, his observations supported his

conclusion that Appellant was not intoxicated.                  Thus, he


                                    7
thought it was safe to order her to drive unescorted

some    500    feet   without    being      a    danger   to   herself    or

others.       Appellant should have been free to leave.                  The

officer’s       prolonged       and       continuous      detention      of

Appellant, by holding her Texas driver’s license, was

unreasonable.

       In Appellant’s case, the officer, after his initial

encounter,       clearly     thought        he    had     no     reasonable

suspicion to continue a public intoxication nor driving

while intoxicated investigation (in that he ordered and

allowed Appellant to drive some 500 feet through the

parking lot of an open Taco Cabana to a location some

500    feet    away    [an   open         WalMart]).       All    of   this

transpired while the officer left to go pick-up his food

order.

       The officer’s seizure of Appellant’s Texas driver’s

license was a prolonged detention not supported by any

new facts or evidence.




                                      8
                  CONCLUSION AND PRAYER


    WHEREFORE,   PREMISES   CONSIDERED,   having   considered

the authorities and arguments presented herein, the

Appellant prays the Court to enter an order setting

aside the judgment and sentence in this matter for the

reasons enumerated above.

                                 RESPECTFULLY SUBMITTED,

                                 /s/ Paul Mewis

                                 PAUL MEWIS
                                 Texas Bar Card No.13986500
                                 4202 Windy Chase Lane
                                 Katy, Texas 77494-1071
                                 281.392.2306
                                 281.392.7203 Facsimile
                                 ATTORNEY FOR APPELLANT


                  CERTIFICATE OF SERVICE

    The undersigned hereby certifies that a true and
correct copy of the foregoing Appellant’s Brief was
mailed by U.S. certified mail #70083230000206358562 to
the attention of Ms. Kimberly Aperauch Stelter,




                             9
Assistant District Attorney, Appellate Division, Harris
County District Attorney's Office, 1201 Franklin, Suite
600, Houston, Texas 77002-1923 and by U.S. certified
mail #70083230000206358555 to Ms. Lisa McMinn, State’s
Prosecuting Attorney, P. O. Box 13046, Austin, Texas
78711 on this the 13th day of July, 2015.

                                /s/ Paul Mewis

                                PAUL MEWIS



          WORD COUNT CERTIFICATE OF COMPLIANCE


    I, PAUL MEWIS, the undersigned attorney for
Appellant Allison Leigh Campbell, in Appellate Cause No.
01-14-00807-CR, certify that Appellant’s Petition for
Discretionary Review contains 1,849 words.          This
Petition for Discretionary Review is a computer-
generated document created in Microsoft Word 2010, using
Courier New 14 point font.    I am relying on the word
count provided by the software used to prepare the
document.

                                /s/ Paul Mewis

                                PAUL MEWIS




                           10
A P P E N D I X




      11
Opinion issued July 2, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00807-CR
                           ———————————
                  ALLISON LEIGH CAMPBELL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


            On Appeal from County Criminal Court at Law No. 12
                           Harris County, Texas
                       Trial Court Case No. 1923909


               MEMORANDUM OPINION ON REHEARING

      Appellant, Allison Leigh Campbell, was charged by information with

driving while intoxicated. After the trial court denied her motion to suppress,

Appellant pleaded guilty subject to the right to challenge the ruling on the motion

on appeal. In four issues on appeal, Appellant argues the trial court abused its
discretion by denying her motion to suppress because the detaining officer lacked

reasonable suspicion or probable cause to detain her.

      On June 4, 2015, we issued our original opinion in this case. On June 17,

2015, Campbell filed a motion for rehearing. We deny the motion for rehearing,

withdraw our prior opinion and judgment, and issue this opinion and a new

judgment in their place. Our disposition remains the same.

      We affirm.

                                   Background

      Officer J. Pena was working his off-duty job as a security officer at a Wal-

Mart early in the morning on October 13, 2013. At 1:00 A.M., he took a break and

drove to the adjoining Taco Cabana to get some food. He ordered his food and

pulled up behind three other cars in the line. Two cars moved forward in the line,

but the car in front of Officer Pena remained in place. Officer Pena honked his car

five times, but the car did not move.

      Officer Pena stepped out of his car and approached the car in front of him.

He saw Appellant asleep in the driver’s seat and another person asleep in the front-

passenger’s seat. He tapped on the window repeatedly, and no one stirred. He

then noticed the driver’s side door was unlocked, opened the door, and shook

Appellant multiple times. Appellant finally woke up.




                                         2
      After Appellant woke up, Officer Pena asked for her driver’s license.

Appellant gave it to him. Officer Pena pointed at a parking space and instructed

Appellant to drive to it and park. At trial, Officer Pena testified that the space was

500 feet away. Appellant complied. Officer Pena kept Appellant’s driver’s license

with him. He retrieved his food order and then parked next to Appellant.

      He approached Appellant’s car and began talking with her. This time,

Officer Pena noticed the aroma of alcohol. After she noticed Officer Pena was not

driving a marked patrol car, Appellant became verbally aggressive, cussing at him

and claiming he was harassing her. Appellant opened the car door and stepped out.

As she did, Officer Pena placed his hand on her. Appellant fell to the ground.

Appellant stood up, but had trouble maintaining her balance. She fell again.

Officer Pena then placed Appellant in handcuffs.

      Officer Pena requested a back-up unit. A DWI unit came out and took over

the investigation. Officer Pena had no further involvement in the investigation.

                                Motion to Suppress

      Appellant argues in four issues that the trial court abused its discretion by

denying her motion to suppress because Officer Pena lacked reasonable suspicion

or probable cause to detain her. Specifically, Appellant argues (1) the initial

encounter constituted an investigatory detention, (2) Officer Pena lacked the

requisite indicia of criminal activity to conduct an investigatory detention, (3) the



                                          3
second encounter constituted an arrest, and (4) Officer Pena lacked the requisite

indicia of criminal activity to arrest her.

A.    Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and

review the trial court’s application of the law to the facts de novo. Id. Almost total

deference should be given to a trial court’s determination of historical facts,

especially those based on an evaluation of witness credibility or demeanor.

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression

hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Where, as here, a trial judge does not make explicit findings of fact, we

review the evidence in the light most favorable to the trial court’s ruling. Walter v.

State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial

court’s fact findings and not disturb the findings on appeal unless the trial court

abused its discretion in making a finding not supported by the record. Cantu v.

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).



                                              4
B.    Analysis

      For the purposes of reviewing Fourth Amendment rights against

unreasonable search and seizures, there are generally three categories of

interactions between police and citizens: consensual encounters, investigatory

detentions, and arrests. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim.

App. 2011).      Each of these categories defines (1) the permissible level of

intrusiveness of the officer’s conduct and (2) the indicia of criminal activity needed

to support that level of the officer’s intrusion. 1 See id.

      Consensual encounters consist of mutually voluntary conversations between

an officer and another person. See id. “An officer is just as free as anyone to stop

and question a fellow citizen,” and the citizen is free to terminate the encounter at

any time. Id. For consensual encounters, there does not need to be any indicia of

criminal activity. Id.

      Investigatory detentions consist of encounters where “an officer, ‘by means

of physical force or show of authority, has in some way restrained the liberty of a

citizen.’” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008)

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). An

1
      Each of these categories also has a prescribed scope for a reasonable search. See
      United States v. Robinson, 414 U.S. 218, 228, 94 S. Ct. 467, 473 (1973)
      (recognizing greater restrictions on scope of search when probable cause does not
      exist). Appellant, however, has not challenged the scope of any officer’s search in
      this appeal. Accordingly, the law on the permissible scope of a search is not
      pertinent to this appeal.

                                            5
encounter with the police rises to the level of an investigatory detention if (1) the

officer asserts his authority in a way that (2) would cause a reasonable person to

believe she is not free to leave. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim.

App. 2010).

      For investigatory detentions, the officer must have reasonable suspicion of

criminal activity in order to detain the person. Castleberry, 332 S.W.3d at 466.

The officer has reasonable suspicion if he “has specific, articulable facts that,

combined with rational inferences from those facts, would lead him to reasonably

conclude that the person detained is, has been, or soon will be engaged in criminal

activity.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). Such a

conclusion is justified when the officer observes “unusual activity.” Id. “These

facts must show unusual activity, some evidence that connects the detainee to the

unusual activity, and some indication that the unusual activity is related to crime.”

Id. The facts observed do not need to be criminal in nature themselves. Woods v.

State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). They only need to lead to a

reasonable conclusion that the person is, has been, or soon will be engaged in

criminal activity. Kerwick, 393 S.W.3d at 273.

      Finally, arrests consist of restrictions or restraints on a person’s movement

that is greater than investigatory detention or where no investigation is taking

place. See Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). Whether



                                         6
an investigatory detention elevates to an arrest depends on the facts and

circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412

(Tex. Crim. App. 1991); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d).         We look to the reasonableness of the

officer’s actions, which is to be judged from the perspective of a reasonable officer

at the scene, rather than with the advantage of hindsight. Rhodes v. State, 945

S.W.2d 115, 118 (Tex. Crim. App. 1997). “Whether a person is under arrest or

subject to a temporary investigative detention is a matter of degree and depends

upon the length of the detention, the amount of force employed, and whether the

officer actually conducts an investigation.” Mount v. State, 217 S.W.3d 716, 724

(Tex. App.—Houston [14th Dist.] 2007, no pet.).

      For arrests, the officer must have probable cause. Castleberry, 332 S.W.3d

at 466. “[P]robable cause for . . . arrest exists when facts and circumstances within

the officer’s knowledge and about which he or she has reasonably trustworthy

information are sufficient to warrant a person of reasonable caution to believe that

an offense was or is being committed.” Torres v. State, 182 S.W.3d 899, 901 (Tex.

Crim. App. 2005) (emphasis in original).

      Appellant argues that, by holding on to her driver’s license and by directing

her to park her car in the parking lot, Officer Pena’s interaction with her became an

investigatory detention. She further argues that, when Officer Pena later placed



                                           7
handcuffs on her, the encounter became an arrest. Finally, she argues that Officer

Pena lacked the requisite indicia of criminal activity for either of these levels of

encounters.    We do not need to determine whether Officer Pena’s retaining

Appellant’s driver’s license elevated the encounter to an investigatory detention or

whether his handcuffing Appellant amounted to an arrest.              Even assuming

Appellant is correct on both these points, we hold Officer Pena observed the

requisite indicia of criminal activity for each of these levels of encounters.

      By the time he took and retained Appellant’s driver’s license, Officer Pena

had honked at Appellant five times, tapped on the window multiple times, and

even shaken her multiple times without any response from her. Appellant was

parked in a drive-through lane with the engine running.

      Appellant argues that these facts are comparable to those in State v. Griffey,

241 S.W.3d 700 (Tex. App.—Austin 2007, pet. ref’d). In Griffey, the police

received a call from a fast-food restaurant manager that someone was passed out in

the drive-through lane.     Id. at 702.    When the officer arrived, an employee

identified Griffey’s car. Id. At that time, Griffey was awake and retrieving her

food order.    Id.   The officer parked his patrol car in front of Griffey’s car,

effectively blocking her car. Id. After he had Griffey turn off the car and exit the

vehicle, the officer noticed the odor of alcohol. Id.




                                           8
      The Austin Court of Appeals held that the officer lacked reasonable

suspicion based on the legal principle that “[a] tip by an unnamed informant of

undisclosed reliability may justify the initiation of an investigation; standing alone,

however, it rarely will establish the requisite level of reasonable suspicion.” Id. at

704. While the officer had received information from an informant that the officer

had not previously known, the information was not corroborated by the officer

upon arrival. Id. at 705. Accordingly, the officer lacked reasonable suspicion. Id.

at 707.

      Appellant points out that the Austin Court of Appeals also held that reports

“that an individual was passed out behind the wheel in the drive-through line . . .

does not constitute criminal behavior.” Id. at 705. This holding has been called

into question by the Court of Criminal Appeals, however.

      In York, an officer passed a closed gas station but saw a car parked partially

on the sidewalk in front of the store. York v. State, 342 S.W.3d 528, 531 (Tex.

Crim. App. 2011). York was asleep in the driver’s seat with the lights on and the

engine running. Id. The officer did not smell any alcohol or see any evidence of a

burglary from the store. Id. Nevertheless, the Court of Criminal Appeals held that

these facts supported reasonable suspicion, warranting an investigative detention

based on the potential offense of public intoxication. Id. at 536–37. In its analysis,

the Court of Criminal Appeals distinguished Griffey based on the fact that Griffey



                                          9
involved corroboration of a citizen-informant tip. Id. at 537 n.31. It went on,

however, to recognize authority from other jurisdictions holding that reasonable

suspicion exists when an officer sees a person asleep in the driver’s seat of a car

with the engine running. Id. (citing People v. Brown, 217 P.3d 1252, 1256 (Colo.

2009); State v. Keller, 403 So.2d 693, 696 (La. 1981)). Griffey’s holding that

sleeping in a car in a drive-through is no evidence of a crime, then, is of limited

persuasive value. See 241 S.W.3d at 705.

      As in York, we hold Officer Pena had reasonable suspicion of public

intoxication to warrant conducting an investigative detention at the time that he

took Appellant’s driver’s license. See 342 S.W.3d at 536–37. “A person commits

an offense [of public intoxication] if the person appears in a public place while

intoxicated to the degree that the person may endanger the person or another.”

TEX. PENAL CODE ANN. § 49.02(a) (Vernon 2011). The drive-through lane of a

fast-food restaurant is a public place. See York, 342 S.W.3d at 537 (holding

parking lot and sidewalk around gas station is public place). Officer Pena found

Appellant asleep in the driver’s seat of a car with the engine running while in a

drive-through of a fast-food restaurant at 1:00 in the morning. This is sufficient to

create reasonable suspicion that Appellant was intoxicated.        See id. (holding

evidence of defendant asleep in car at 3:00 A.M. with engine running, car parked

partially on sidewalk, and headlights on created reasonable suspicion of



                                         10
intoxication). Finally, Appellant’s condition could have posed a risk to herself.

See id. (holding, with engine running, intoxicated driver could, in stupor, drive into

building or pose threat on road).

      Appellant emphasizes the fact that, when he first approached her the first

time, Officer Pena did not smell any alcohol. That was true in York as well.

“Although Officer Johnson did not smell alcohol as he approached the car, that fact

did not cause reasonable suspicion to dissipate, in part because [the defendant]

could still have been intoxicated by drugs.” Id.

      In her motion for rehearing, Appellant claims that Officer Pena “made it

clear in his testimony that he had not observed any signs of intoxication.”

Appellant claims that this is proved by the fact that Officer Pena ordered her to

drive 500 feet. Even if Officer Pena personally believed at the time that Appellant

was not intoxicated, this is not relevant to a determination of reasonable suspicion.

“This standard is an objective one that disregards the actual subjective intent or

motive of the detaining officer and looks, instead, to whether there was an

objective justification for the detention.” State v. Elias, 339 S.W.3d 667, 674 (Tex.

Crim. App. 2011). The fact that Officer Pena ordered Appellant to drive 500 feet

does not disprove that he found her asleep in a fast-food-restaurant drive-through

lane at 1:00 in the morning or that honking, knocking on her window, and initial

physical contact did not wake her. Accordingly, it was within the trial court’s



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discretion to deny the motion to suppress based on reasonable suspicion. See

Turrubiate, 399 S.W.3d at 150 (holding appellate courts review trial court’s factual

findings for abuse of discretion).

      By the time he handcuffed Appellant, Officer Pena had noticed the smell of

alcohol, Appellant had become agitated and began cussing at him, and Appellant

had difficulty standing, falling to the ground more than once. We hold these facts,

coupled with the facts that it was 1:00 A.M. and that Appellant had fallen into a

deep sleep in a brief amount of time, was in a location requiring her attention, and

left the car running, are sufficient to create probable cause for public intoxication.

See Gutierrez v. State, 419 S.W.3d 547, 551 (Tex. App.—San Antonio 2013, no

pet.) (holding argumentative behavior, slurred speech, dazed appearance, and

glassy, bloodshot eyes sufficient to support probable cause for public intoxication);

Campbell v. State, 325 S.W.3d 223, 232 (Tex. App.—Fort Worth 2010, no pet.)

(holding sleeping in car, smelling of alcohol, slurring words, and reaching for keys

already in ignition support probable cause for public intoxication).

      We hold the trial court could have determined within its discretion that

Officer Pena had reasonable suspicion to conduct an investigative detention and

then had probable cause to arrest Appellant. Accordingly, we overrule Appellant’s

second and fourth issues. Because these rulings are dispositive to affirming the




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trial court’s ruling on Appellant’s motion to suppress, we do not need to reach

Appellant’s first and third issues. See TEX. R. APP. P. 47.1.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

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




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