








State v. Lopez





COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-337-CR*
  
  
THE 
STATE OF TEXAS                                                                  STATE
  
V.
  
JUAN 
ZARATE LOPEZ                                                               APPELLEE
  
  
------------
 
FROM 
COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
 
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OPINION
 
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        The 
State of Texas appeals the trial court’s order granting appellee Juan Zarate 
Lopez’s motion to suppress evidence.  The trial court granted 
appellee’s motion on the ground that there was no reasonable suspicion to 
justify the investigative stop that led to appellee’s arrest for driving while 
intoxicated (DWI).  We will reverse the trial court’s ruling and remand 
the case to the trial court.
        At 
9:40 p.m. on November 23, 2002, Officer John Wesley Galloway responded to a call 
that painting equipment had just been burgled from the back of a couple’s 
truck, which was parked in front of their home.  It was dark outside, and 
visibility was poor because there were no street lights. While Galloway was 
talking with the complainants in their front yard, appellee and a companion 
drove by very slowly.  The complainants told Galloway that they had seen 
the same truck—or what they thought was the same truck—drive by very slowly 
several times that night and therefore suspected that it might have been 
involved in the burglary.
        Although 
he had only about fifteen months’ experience as a Fort Worth police officer, 
Galloway was assigned to the police department’s burglary unit.  He knew 
from his experience that it was common for burglars to return to the scene of 
the crime if they had found particular equipment to steal the first time.  
Based on the complainants’ information, the fact that a burglary had just 
occurred, his observation of the vehicle’s slow driving, and his knowledge of 
burglars’ behavior patterns, Galloway decided to stop appellee’s truck.
        Upon 
waiving him down, Galloway explained to appellee and his passenger that he was 
investigating a burglary of painting equipment and asked to see a driver’s 
license and proof of insurance.  As soon as appellee spoke, Galloway 
noticed that he smelled of alcohol, that his eyes were watery, and that he 
exhibited other symptoms of intoxication.  At that point, Galloway began to 
investigate appellee for the offense of DWI.  Ultimately, appellee was 
arrested and charged with misdemeanor DWI.
        Appellee 
moved to suppress any evidence the police had seized as a result of the November 
23 stop.  After a hearing, the trial court granted the motion.  This 
appeal followed.
        We 
review a trial court’s ruling on a motion to suppress for an abuse of 
discretion.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 
2000); Lemmons v. State, 133 S.W.3d 751, 755 (Tex. App.—Fort Worth 
2004, pet. ref’d).  We afford almost total deference to a trial court’s 
determination of historical facts that the record supports, especially when the 
trial court’s fact findings are based upon an evaluation of credibility and 
demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 
2000).  We afford the same amount of deference to the trial court’s 
rulings on mixed questions of law and fact, if the resolution of those questions 
turns on an evaluation of credibility and demeanor.  Carmouche, 10 
S.W.3d at 332; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 
1997).  We review de novo, however, the trial court’s application of law 
to the facts in determining whether reasonable suspicion supported an 
investigative detention.  See Carmouche, 10 S.W.3d at 327; Guzman, 
955 S.W.2d at 89; Lemmons, 133 S.W.3d at 755.
        An 
investigative “stop” by law enforcement personnel is a sufficient intrusion 
on an individual’s privacy to implicate the Fourth Amendment’s 
protections.  United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 
S. Ct. 2574, 2579 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 
1877 (1968).  Nevertheless, an officer is generally justified in briefly 
detaining an individual on less than probable cause to investigate the 
possibility of criminal behavior.  Terry, 392 U.S. at 22, 88 S. Ct. 
at 1880; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).  
An investigative detention is justified when the officer possesses a reasonable 
suspicion; that is, the officer is able to point to specific, articulable facts 
that, taken together with rational inferences from those facts, reasonably 
warrant the detention.  Davis v. State, 947 S.W.2d 240, 244 (Tex. 
Crim. App. 1997); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 
1989).  The articulable facts used by the officer must indicate that some 
activity out of the ordinary is occurring or has occurred, that the detainee is 
connected with the unusual activity, and that the unusual activity is related to 
a crime. Garza, 771 S.W.2d at 558; State v. Adkins, 829 S.W.2d 
900, 901 (Tex. App.—Fort Worth 1992, pet. ref’d).
        The 
reasonable suspicion determination is made by considering the totality of the 
circumstances.  Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 
2001); Lemmons, 133 S.W.3d at 756.  The facts and circumstances that 
provide a reasonable suspicion of criminal activity need not be criminal in 
nature themselves as long as they include facts that in some way would increase 
the likelihood of the presence or occurrence of criminal activity.  See 
Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).  Under 
the reasonable suspicion standard, if circumstances are consistent with criminal 
activity, “they permit—even demand—an investigation: the public rightfully 
expects a police officer to inquire into such circumstances” in the proper 
discharge of the officer’s duties. Woods, 956 S.W.2d at 37.
        In 
deciding whether the facts of the situation would justify an investigative 
detention, it is expected that an officer will draw on his experience and 
personal knowledge.  Garza, 771 S.W.2d at 558.  “[W]hen used 
by trained law enforcement officers, objective facts, meaningless to the 
untrained, can be combined with permissible deductions from such facts to form a 
legitimate basis for suspicion of a particular person . . . .”  Woods, 
956 S.W.2d at 37-38 (quoting United States v. Cortez, 449 U.S. 411, 419, 
101 S. Ct. 690, 695-96 (1981)).  Information given to an officer by a 
civilian can be used in the officer’s decision to make a stop.  See 
State v. Stolte, 991 S.W.2d 336, 341 (Tex. App.—Fort Worth 1999, no pet.).
        In 
this case, the trial court concluded that Galloway’s stop of appellee was 
based on a “mere hunch” that appellee’s vehicle “might” have been 
connected to the burglary rather than on specific, articulable facts that raised 
a reasonable suspicion as to appellee’s involvement in the crime.  
Consequently, the trial court concluded that Galloway’s initial stop of 
appellee was unreasonable.  We disagree.
        Galloway 
articulated several specific facts upon which he based his suspicion that 
appellee’s truck might have been involved in the burglary: the burglary had 
just occurred, the complainants had noticed appellee’s truck drive very slowly 
by their residence—the scene of the crime—several times that evening, 
Galloway also noticed appellee drive slowly past the residence, and Galloway 
knew it was common for burglars to return to the crime scene if their first 
attempts to steal property had been successful.
        Even 
appellee’s attorney conceded at the motion to suppress hearing that 
Galloway’s stop of appellee’s vehicle was proper based on these facts.  
His sole complaint was that Galloway had exceeded the scope of the detention by 
investigating appellee for DWI after discovering that he smelled of alcohol. 
Defense counsel argued:
  
Judge, I have no problems, as a matter of fact, up to the point that the officer 
stopped this vehicle.  I think that was a legal thing for the officer to 
do. . . . [T]he people said, Well, you know, that vehicle has been 
driving real slowly in front of us. . . . May be 
enough to find out, Okay.  Do you have any stolen property? and 
that’s the extent of the intrusion that’s allowed.
 
                . 
. . .
  
I 
maintain that only a very limited intrusion is allowed under these facts, and 
“odor of alcoholic beverage” is not sufficient to go forward. Once that was determined, who the person was, the 
driver, the passenger, . . . and the owners of the stolen property could see 
that there was nothing stolen, that all — all they should have done is just 
let them go.1 [Emphasis supplied.]
 
        Based 
on the totality of the circumstances, we hold that Galloway reasonably suspected 
that some activity out of the ordinary was occurring or had occurred that 
justified his stop of appellee.  See Davis, 947 S.W.2d at 244; Garza, 
771 S.W.2d at 558.  While appellee’s action of driving slowly down the 
street was not apparently criminal in itself, when combined with the information 
available to Galloway, appellee’s conduct was consistent with criminal 
activity and demanded further investigation.  See Woods, 956 S.W.2d 
at 37.  Accordingly, the trial court erred by concluding otherwise and 
granting appellee’s motion to suppress.  See Carmouche, 10 S.W.3d 
at 327; Lemmons, 133 S.W.3d at 755.
        We 
sustain the State’s points, reverse the trial court’s order granting the 
motion to suppress, and remand the case to the trial court for further 
proceedings.
 
 
                                                                  JOHN 
CAYCE
                                                                  CHIEF 
JUSTICE
 
 
PANEL 
A:   CAYCE, C.J.; WALKER and MCCOY, JJ.
 
WALKER, 
J. filed a dissenting opinion.
 
PUBLISH
 
DELIVERED: 
September 30, 2004

 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-337-CR
  
  
THE 
STATE OF TEXAS                                                                  STATE
  
V.
  
JUAN 
ZARATE LOPEZ                                                               APPELLEE
 
 
------------
 
FROM 
COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
 
------------
 
DISSENTING OPINION
 
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        I 
respectfully dissent. Affording almost total deference to the trial court’s 
determination of historical facts that are supported by the record and to the 
trial court’s credibility determinations, the trial court did not abuse its 
discretion by concluding that Officer Galloway did not possess reasonable, 
articulable suspicion justifying his investigatory stop of Lopez.  
Accordingly, I would affirm the trial court’s order granting Lopez’s motion 
to suppress.
        The 
law is well-settled that an officer’s investigative detention of a suspect 
based on reasonable, articulable facts that an offense has been or is being 
committed does not violate the Fourth Amendment as long as: (1) the officer’s 
action was justified at its inception; and (2) the officer’s action was 
reasonably related in scope to the circumstances which justified the 
interference in the first place.  See Terry v. Ohio, 392 U.S. 1, 
19-20, 88 S. Ct. 1868, 1879 (1968); Davis v. State, 947 S.W.2d 240, 242 
(Tex. Crim. App. 1997).  Under the first prong, “the police officer must 
be able to point to specific and articulable facts which, taken together with 
rational inferences from those facts, reasonably warrant that 
intrusion.”  Davis, 947 S.W.2d at 242 (citing Terry, 392 
U.S. at 21, 88 S. Ct. at 1880).  The facts must be viewed together, and 
those facts that do not show reasonable suspicion in isolation may do so when 
combined with other facts.  Jones v. State, 926 S.W.2d 386, 388-89 
(Tex. App.—Fort Worth 1996, pet. ref’d) (op. on reh’g).  
Additionally, an officer’s experience may be considered when determining if 
the officer had a basis for reasonable suspicion to justify an investigative 
detention.  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 
1989).
        A 
trial court’s granting of a motion to suppress is reviewed for an abuse of 
discretion.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 
2000); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  
Under this standard of review, we afford 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 upon an evaluation 
of credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 
(Tex. Crim. App. 2000).
        Officer 
Galloway responded to a burglary call relating to painting equipment taken from 
the back of a vehicle parked on the street in front of complainants’ 
residence.  Officer Galloway explained that the street running by the front 
of complainants’ home was a narrow asphalt road.  He explained, “It’s 
considered two lanes, but it’s a very small roadway.  And just directly 
in front of the residence is - - is a turn, a bend in the road.”  He 
admitted that it would not be unusual for drivers to slow in front of 
complainants’ residence as they approached the curve.  As Officer 
Galloway stood in front of complainants’ residence speaking with them about 
the burglary, the trio observed Lopez drive slowly down the street in front of 
complainants’ home.  The complainants told Officer Galloway that they had 
observed that same truck drive by several times earlier in the evening.1  The complainants did not see who had burglarized 
their property, did not identify Lopez as the burglar, and did not identify 
Lopez’s truck as the automobile used in the burglary.  Nonetheless, 
Officer Galloway decided to stop Lopez’s vehicle by running into the street 
and flagging him over.  When asked to explain why he detained Lopez, 
Officer Galloway responded,
  
More or less it was an investigatory detention. We - - I was stopping them to 
ask them questions, where they had been that evening, pertaining to the theft to 
see if - - maybe if they had been involved with that. I was trying to 
investigate the theft based on the complainants’ suspicions that maybe 
they were involved.
  
When 
we saw them, they were also driving very slowly through the neighborhood.  
Of course, at that time I didn’t know that they lived there or anywhere 
close.  And it was just suspicious activity, I felt like, with thefts - - 
or a recent burglary in the area. [Emphasis added].
 
 
On 
redirect examination Officer Galloway testified:
   
Q. 
Do you have any experience in your - - in your training with the police academy, 
or whatever, whereever [sic] it may come from, with defendants returning to - - 
suspects, that is - - returning to the scene of a crime?
 
A. 
Well with the unit that I’m currently assigned to, a burglary unit, we find 
that that happens, yes, the scene of an area.  If they find particular 
equipment or anything that they’ve stolen, they’ll return and try to - -
 
Q. 
So you’ve found that to be common in your training?
 
A. 
Some - - yeah. Yes, ma’am.  Some criminals have that M.O., yes, ma’am.
 
At 
the time of Lopez’s stop, Officer Galloway had been employed as a police 
officer by the city of Fort Worth for fifteen months.  He was “vaguely 
familiar” with the area and had been working in that district for 
approximately two months.
        The 
majority holds that Officer Galloway’s two months’ experience in the area 
and fifteen months’ experience as a police officer, the fact that complainants 
reported that Lopez had driven by several times earlier in the evening, and 
Officer Galloway’s training that “some” burglars drive by a successful 
burglary crime scene constitute reasonable articulable facts so compelling that 
the trial court abused its discretion and misapplied the law by holding to the 
contrary.  I cannot agree.  Applying the required deferential standard 
of review to the record before us, the trial court could reasonably have 
determined that Officer Galloway stopped Lopez’s vehicle as he testified, 
simply to investigate complainants’ suspicions, not because he 
possessed reasonable articulable suspicion that Lopez had committed the 
burglary.  Additionally, the trial court could reasonably have determined 
that Officer Galloway’s testimony that “some” criminals return to the 
crime scene was global and did not support any reasonable inference of criminal 
activity by Lopez.  The trial court could reasonably have determined that 
driving slowly down a poorly lit street while approaching a curve did not 
constitute activity out of the ordinary related to a crime.  In short, I do 
not believe that the trial court abused its discretion in holding that Officer 
Galloway failed to point to specific and articulable facts which, taken together 
with rational inferences from those facts, reasonably warranted his stop of 
Lopez.  See, e.g., Davis, 947 S.W.2d at 242-43.  Accordingly, I 
would affirm the trial court’s order granting Lopez’s motion to suppress.
  
  
                                                                  SUE 
WALKER
                                                                  JUSTICE
 
 
PUBLISH
 
DELIVERED: 
September 30, 2004


NOTES
* MAJORITY OPINION BY CHIEF JUSTICE CAYCE; DISSENTING OPINION 
BY JUSTICE WALKER
 
MAJORITY OPINION NOTES:
1.  
Neither party challenges the trial court’s conclusion that Galloway’s 
request to see appellee’s license and identification did not exceed the scope 
of the temporary detention.  Also, neither party claims that Galloway 
lacked probable cause for the DWI arrest. Therefore, we do not address these 
issues.
  
DISSENTING OPINION NOTES:
1.  
Officer Galloway subsequently learned that Lopez lived in the neighborhood on a 
nearby street.
