                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 LOUIS THOMAS,                                   §
                                                                  No. 08-12-00229-CR
                        Appellant,               §
                                                                    Appeal from the
 v.                                              §
                                                                  346th District Court
 THE STATE OF TEXAS,                             §
                                                                of El Paso County, Texas
                        Appellee.                §
                                                                  (TC#20090D04037)
                                                  §


                                          OPINION

       Appellant, Louis Thomas, was indicted for felony driving while intoxicated (DWI).        See

TEX. PENAL CODE ANN. § 49.09(b) (West 2011).          After a jury trial, Appellant was found guilty

of the charged offense, and the trial court assessed punishment at 30 years’ imprisonment.

Appellant now appeals his conviction. In two issues, he contends that the trial court reversibly

erred by failing to grant his motion for continuance and that he was deprived of due process of

law because his conviction was obtained as a result of an illegal seizure.   We affirm.

                                        BACKGROUND

       On December 12, 2008, Louis Santibanez and Armando Valdez, of the El Paso County

Sheriff’s Department, were working an off-duty job providing security services at the Fire
Fighter’s Hall.          During this off-duty job, Detective Santibanez was informed about a

disturbance across the street at a duplex on Forney Street. Detective Santibanez went across the

street to investigate the disturbance where his attention was drawn to a light-colored SUV

driving on Forney Street because it emitted a metal-on-metal scraping sound.1                            The vehicle

drove into the cul-de-sac where Detective Santibanez was located and parked about two feet

from the curb—just feet from where he stood.

           At trial, Detective Santibanez agreed the vehicle was parked “close enough to the curb to

be illegally parallel parked[.]” Detective Santibanez observed the front end of the vehicle

appeared to have fresh damage.              He testified that based on his training and experience, the fresh

vehicle damage and screeching noises he heard was indicative of an accident having recently

occurred.       Under the circumstances, he thought someone may have left the scene of an accident.

He called dispatch to see if police were trying to locate a vehicle involved in an automobile

accident.

           Detective Santibanez approached the driver’s side of the vehicle and observed the driver.2

He instructed Appellant to exit the vehicle because he appeared to be intoxicated.                         Detective

Santibanez observed Appellant had slurred speech, droopy eyes like he was half asleep, and

swaying when he stood.             Appellant was not handcuffed and was instructed to wait away from

the vehicle.       Detective Santibanez flagged down an El Paso Police Department unit driven by

Officer Rogelio Ledesma who was responding to a call referencing a suspicious vehicle on

Forney Street.        After informing Officer Ledesma that Appellant was the driver of the vehicle,

Detective Santibanez turned over the scene to Officer Ledesma.                          At the scene, Officer Ledesma


1
    Detective Santibanez was in uniform.
2
    At trial, Detective Santibanez identified Appellant as the driver of the vehicle.
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observed a silver GMC Yukon with extensive front-end damage that appeared to be fresh.

Officer Ledesma observed pieces of broken glass at the bottom of the windshield which were not

from the vehicle’s windshield.     Based on his training and experience, the broken glass was

indicative of a possible hit-and-run accident.

          Officer Ledesma approached and spoke with Appellant who told him the silver Yukon

belonged to him.      Officer Ledesma took Appellant to his patrol unit and detained him.       At

trial, Officer Ledesma testified that Appellant appeared to be intoxicated because he had

balancing difficulties, slow, slurred speech, and a strong odor of alcohol emanated from his

person.     After detaining Appellant, Officer Ledesma turned him over to another unit because he

was not certified to conduct Standard Field Sobriety Tests (SFST).

          El Paso Police Department Officer Judas Sanchez was dispatched to Forney Street on

December 12, 2008, to investigate a suspected DWI.         At the scene, Officer Sanchez met with

Officer Ledesma and two off-duty sheriff’s deputies.          At trial, Officer Sanchez identified

Appellant as the person who was detained in the back of Officer Ledesma’s vehicle.          Officer

Sanchez made contact with Appellant and conducted a basic roadside interview. Appellant

stated the silver Yukon belonged to him and that he had consumed a glass of wine at a restaurant.

Officer Sanchez noted Appellant had red, bloodshot eyes, slurred speech, blood on his nose, a

strong odor of alcohol, and Appellant was acting belligerently.

          Officer Sanchez noticed the vehicle had fresh, front-end damage. He observed pieces of

broken glass on the vehicle although the vehicle itself did not have any type of glass damage.

The vehicle was missing the front bumper.        Based on his training and experience, the blood on

Appellant’s nose and the damage to the vehicle indicated Appellant’s injury was most likely


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caused by an accident and Appellant hitting his face on the steering wheel.

       Officer Sanchez attempted to administer SFSTs on Appellant, but Appellant refused and

was subsequently arrested.    After Appellant refused to provide a breath or blood specimen,

Officer Sanchez obtained a search warrant to get a sample of Appellant’s blood.    Appellant was

transported to Del Sol Medical Center for a blood draw. The lab results showed Appellant had

a blood alcohol concentration of 0.22.

       Valerie Vivar testified that she heard a loud crash and when she ran outside she saw that

a large, light-colored Chevrolet had crashed into her sister’s car. The car fled the scene, but

Vivar got the vehicle’s license plate number. Vivar was able to refresh her memory as to the

license plate number by looking at her pretrial statement to police.

                                          DISCUSSION

                                    Motion for Continuance

       In Issue One, Appellant contends the trial court erred when it failed to grant his oral

motion for continuance on the grounds that he was taken by surprise when the State attempted to

use Vivar’s police statement for the purpose of refreshing a witness’s memory.          Appellant

maintains the trial court erred in denying his oral motion for continuance which addressed the

equitable powers of the trial court. Specifically, he argues he lodged an equitable motion for

continuance when he made the following statement in the trial court:

               Your Honor, we did have the overnight hours to review the statement, but
       it is the Defense’s position that even given the amount of time now from
       yesterday at 5:00 or four o’clock until now, that is not a remedy in this situation.
       In good faith, we are saying that we never saw this statement before trial.

       In response, the State argues Appellant did not preserve his complaint for review because

his argument on appeal does not comport with the argument presented below. We agree with

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the State.    To preserve a complaint for appellate review, the record must show Appellant made

a timely request, objection, or motion that stated the grounds for the ruling with sufficient

specificity to make the trial court aware of the complaint, unless the grounds were apparent from

the context, and obtained a ruling.     See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a). The

appellate complaint must comport with the specific objection made at trial or else error is

waived.      Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009); Lovill v. State, 319 S.W.3d

687, 691-92 (Tex.Crim.App. 2009) (same); Wilson v. State, 71 S.W.3d 346, 348-49

(Tex.Crim.App. 2002) (same).       An objection stating one legal theory may not be utilized to

support a different legal theory on appeal.           Broxton v. State, 909 S.W.2d 912, 918

(Tex.Crim.App. 1995).       Even constitutional errors may be waived by the failure to object at

trial. Id.

       Although Appellant argues that he moved for a continuance when he informed the trial

court that the time given to review the statement did not remedy the situation and he had never

seen the statement before trial, nothing in Appellant’s argument specifically informed the court

he was asking for a continuance or seeking a postponement of the proceedings.              Rather,

Appellant specifically asked the trial court “to exclude the statement and the mentioning of this

statement during the trial in front of the jury.”    Appellant also asserted Vivar could testify to

what she recalled, that there was a license plate number that Appellant had no knowledge of, and

to allow Vivar to use the statement to refresh her memory would be very prejudicial, and

therefore, he re-urged the trial court to exclude the complained-of statement.      The trial court

overruled Appellant’s objection and denied the motion for mistrial.

             Appellant did not move for a continuance orally or otherwise, but instead complained


                                                 5
only that the witness’s statement should be excluded and not mentioned in front of the jury. We

conclude Appellant’s contention on appeal does not comport with the objection he made at trial

and thus, is waived.   Issue One is overruled.

                                          Illegal Seizure

         In Issue Two, Appellant contends he was denied due process of law because his conviction

was obtained as a result of an illegal seizure. Specifically, he complains that his initial detention

was unconstitutional and that his detention amounted to an unlawful arrest.

         Three categories of interactions between police officers and citizens exist: encounters,

investigative detentions, and arrests.   State v. Woodard, 341 S.W.3d 404, 411 (Tex.Crim.App.

2011); State v. Castleberry, 332 S.W.3d 460, 466 (Tex.Crim.App. 2011).           Not all encounters

between the police and citizens affect the Fourth Amendment’s protection against unreasonable

seizures.   Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991);

Woodard, 341 S.W.3d at 411.        The difference between a detention and encounter is that a

detention implicates the Fourth Amendment’s search and seizure restrictions and requires

articulable suspicion to support a temporary seizure, while an encounter is not subject to those

requirements or restrictions.    State v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex.Crim.App.

2008).

         An encounter is a seizure-free interaction between a police officer and a citizen, and

because the citizen is under no compulsion to remain, a police officer is not required to possess

any particular level of suspicion before interacting with a citizen.   Hawkins v. State, 758 S.W.2d

255, 259 (Tex.Crim.App. 1988); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App. 1986).

However, a detention occurs when a person submits to a police officer’s show of authority or


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when a reasonable person would not be free to decline the officer’s requests or otherwise

terminate the encounter.   Bostick, 501 U.S. at 434, 111 S.Ct. at 2386; California v. Hodari D.,

499 U.S. 621, 629, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991); State v. Velasquez, 994

S.W.2d 676, 678-79 (Tex.Crim.App. 1999); Johnson v. State, 912 S.W.2d 227, 235

(Tex.Crim.App. 1995); Martin v. State, 104 S.W.3d 298, 300-01 (Tex.App. – El Paso 2003, no

pet.). Moreover, a detention occurs when a citizen in a parked car complies with a police

officer’s request to roll down the window, open the door, or get out of the car.   Ebarb v. State,

598 S.W.2d 842, 850 (Tex.Crim.App. [Panel Op.] 1979).        An investigative detention must be

supported by reasonable suspicion. York v. State, 342 S.W.3d 528, 536 (Tex.Crim.App. 2011).

       Reasonable suspicion exists when the investigating police officer is aware of, “specific

articulable facts that, when combined with rational inferences from those facts, would lead him

to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in

criminal activity.”   Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001).       Reasonable

suspicion is determined from the totality of the circumstances.    Id.   The facts relied upon to

support a conclusion of reasonable suspicion must amount to something more than an inchoate

and general suspicion or hunch.     Hernandez v. State, 376 S.W.3d 863, 869 (Tex.App. – Fort

Worth 2012, no pet.).

       Whether a seizure of a person is an investigative detention or arrest is dependent upon the

facts and circumstances surrounding the seizure.       Amores v. State, 816 S.W.2d 407, 412

(Tex.Crim.App. 1991). A person is arrested when he has been actually placed under restraint or

taken into custody by an officer.   TEX. CODE CRIM. PROC. ANN. art. 15.22 (West 2005). When

an arrest is made without a warrant, probable cause exists “if, at the moment the arrest is made,


                                                7
the facts and circumstances within the arresting officer’s knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a prudent man in believing that the

person arrested had committed or was committing an offense.”       Amador v. State, 275 S.W.3d

872, 878 (Tex.Crim.App. 2009); see Parker v. State, 206 S.W.3d 593, 596 (Tex.Crim.App.

2006). The test for probable cause is objective, unrelated to the subjective beliefs of the

arresting officer, and it requires a consideration of the totality of the circumstances facing the

arresting officer.   Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769

(2003); Amador, 275 S.W.3d at 878. A finding of probable cause requires “more than bare

suspicion” but “less than…would justify…conviction[.]” Brinegar v. United States, 338 U.S.

160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

        First, Appellant claims he was detained without reasonable suspicion the instant Detective

Santibanez asked him to exit his vehicle. Appellant contends his detention was based upon a

mere hunch that something illegal was occurring.       In support of this contention, Appellant

maintains Detective Santibanez only observed “a damaged car idle outside of a residence.”

        Although the State attempts to characterize Appellant’s initial contact with Detective

Santibanez as a mere encounter, the record reflects Detective Santibanez approached Appellant’s

vehicle and asked him to exit the vehicle. Appellant complied with the detective’s request. At

trial, Detective Santibanez testified he detained Appellant when Appellant stepped out of his

vehicle. Detective Santibanez did not handcuff Appellant, but had him stand away from the

vehicle. Moreover, Detective Santibanez testified he would not have let Appellant go inside of

one of the townhomes.       Officer Ledesma also testified that when he arrived at the scene,

Appellant was not being held, but stated he was not free to go because he was under investigative


                                                8
detention.   In this case, we assume without deciding that Appellant’s initial contact with

Detective Santibanez was a detention and not a mere encounter. See Ebarb, 598 S.W.2d at 850

(holding that a detention occurs when a citizen in a parked car complies with a police officer’s

request to roll down the window, open the door, or get out of the car).

       Next, we must determine whether Detective Santibanez had reasonable suspicion founded

on specific, articulable facts which, when combined with rational inferences from those facts,

would lead him to conclude that Appellant actually was, had been, or soon would be engaged in

criminal activity.   See Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App. 2010).      The record

shows Detective Santibanez was investigating a disturbance at a duplex when his attention was

drawn to a light-colored SUV driving on Forney Street because it emitted a metal-on-metal

scraping sound. The vehicle subsequently parked just feet from where Detective Santibanez

stood. According to Detective Santibanez’s trial testimony, the vehicle was parked “close

enough to the curb to be illegally parallel parked[.]” Detective Santibanez observed fresh,

front-end damage to the vehicle.    Based on his training and experience, Detective Santibanez

testified the fresh vehicle damage and screeching noises he heard were indicative of an accident

having recently occurred.

       Detective Santibanez instructed Appellant to exit the vehicle because he appeared to be

intoxicated. Detective Santibanez observed Appellant had slurred speech, droopy eyes, and that

he swayed while standing. According to Detective Santibanez, Appellant was detained when

he stepped out of the car.   Based on the totality of the circumstances, Detective Santibanez had

sufficient articulable facts supporting a reasonable suspicion to believe Appellant had been

driving the vehicle while intoxicated.


                                                9
       Detective Santibanez could have considered Appellant’s conduct as being out of the

ordinary and unusual such that it justified a closer look.   See Garza v. State, 771 S.W.2d 549,

558 (Tex.Crim.App. 1989) (explaining reasonable suspicion means that there is something out of

the ordinary occurring and some indication that unusual activity is related to crime).   Detective

Santibanez could have reasonably inferred Appellant did not have capacity to drive as he

witnessed Appellant close enough to the curb to be parked illegally and observed several

indicators consistent with being intoxicated.   See Martinez v. State, No. 14-00-00132-CR, 2001

WL 1288891, at *2 (Tex.App. – Houston [14th Dist.] 2001, no pet.) (op., not designated for

publication) (finding officer had reasonable suspicion to detain appellant where appellant

demonstrated inability to park, had bloodshot eyes, poor balance, and odor of alcohol was on his

breath); Alonzo v. State, 251 S.W.3d 203, 208-09 (Tex.App. – Austin 2008, pet. ref’d) (police

had sufficient articulable facts to detain appellant where officer noticed glassy eyes,

unsteadiness, slurred speech, and moderate odor of alcohol); Rubeck v. State, 61 S.W.3d 741,

745 (Tex.App. – Fort Worth 2001, no pet.) (reasonable suspicion to detain supported by

appellant’s slurred speech and odor of alcohol on her breath).

       Next, Appellant argues his detention constituted an unlawful arrest because Santibanez

did not conduct any type of investigation after he detained Appellant. He further contends his

due process rights were violated because he was arrested without a warrant or probable cause.

As correctly noted by the State, Appellant’s argument focuses solely on the actions of Detective

Santibanez and entirely ignores the cooperative efforts that occurred between Detective

Santibanez and El Paso Police Officers Ledesma and Sanchez.        The Texas Court of Criminal

Appeals has noted that the sum of information known to officer at the time of arrest may be


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considered in determining whether there was probable cause to effectuate an arrest.                       Woodward

v. State, 668 S.W.2d 337, 345 (Tex.Crim.App. 1982).

         On the day in question, Detective Santibanez was working an off-duty job when a

disturbance across the street was reported to him.                  During the investigation of the reported

disturbance, Detective Santibanez observed Appellant operate and park his vehicle in a public

place.    Because Appellant appeared to be intoxicated, Detective Santibanez asked him to step

out of the vehicle and was detained. Detective Santibanez then turned over the case to the

police who arrived at the scene.3

         Officer Ledesma responded to a call concerning a suspicious vehicle on Forney Street

and was flagged down by Detective Santibanez. Officer Ledesma then spoke with Appellant

and observed Appellant exhibited signs of intoxication.                  Officer Ledesma detained Appellant

for suspicion of having left the scene of an accident and DWI.                    Because Officer Ledesma was

not certified to administer SFSTs, he placed Appellant in his patrol unit pending further

investigation.      Officer Sanchez subsequently arrived at the scene and spoke with Officer

Ledesma and Detective Santibanez. When he made contact with Appellant, Officer Sanchez

observed Appellant exhibited signs of intoxication. Appellant told him that the Yukon was his

vehicle and that he had consumed one glass of wine at a restaurant.                          Appellant refused to

perform the requested SFSTs.

         Officer Sanchez subsequently read Appellant his Miranda rights and took him into

custody for DWI.         Based on the foregoing, we conclude that Appellant was subjected to an

investigation, which was a cooperative effort between Detective Santibanez and officers of the El

3
  On redirect, Detective Santibanez explained the Sheriff’s Department has jurisdiction in El Paso County and
regularly patrols areas within the city. He further clarified that he turned the scene over to the police because the
Sheriff Department’s jurisdiction is waived to the El Paso Police Department.
                                                          11
Paso Police Department, and that Appellant’s arrest was not unlawful as it was supported by

probable cause to believe Appellant had committed the offense of DWI.     See Dyar v. State, 125

S.W.3d 460, 464 (Tex.Crim.App. 2003) (holding probable cause existed to arrest defendant for

DWI where driver admitted to drinking and driving, officer smelled alcohol, observed slurred

speech, unintelligible answers, and red, glassy eyes); Hogan v. State, 329 S.W.3d 90, 96

(Tex.App. – Fort Worth 2010, no pet.) (holding strong odor of alcohol, bloodshot, watery, and

heavy eyes, swaying, unsteady balance, reckless driving, and refusal to provide a breath sample

sufficient to establish probable cause for DWI arrest); Maxwell v. State, 253 S.W.3d 309, 314

(Tex.App. – Fort Worth 2008, pet. ref’d) (noting suspect’s refusal to perform SFSTs is a factor

supporting probable cause to make DWI arrest); State v. Garrett, 22 S.W.3d 650, 654-55

(Tex.App. – Austin 2000, no pet.) (holding probable cause existed to arrest defendant for DWI

where defendant violated traffic laws, smelled like alcohol, had watery eyes, was unsteady on his

feet, and refused to perform SFSTs).   Issue Two is overruled.

                                        CONCLUSION

       The judgment of the trial court is affirmed.



                                             GUADALUPE RIVERA, Justice
August 29, 2014

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

(Do Not Publish)




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