                              NUMBER 13-07-337-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOHN CASTANEDA, JR,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                       On appeal from the County Court
                         of Matagorda County, Texas


                         MEMORANDUM OPINION

                 Before Justices Yañez, Rodriguez and Vela
                   Memorandum Opinion by Justice Vela

      A jury convicted John Castaneda Jr. of driving while intoxicated and assessed

punishment at 180 days in jail, probated for fifteen months, and an $800 fine. By a single

issue, Castaneda argues the trial court erred in denying his motion to suppress evidence

seized during his traffic stop because there was no probable cause and no reasonable

suspicion to stop him. We affirm.
                                   A. Background Facts

       In the early morning of July 15, 2006, James Orr, a Matagorda County sheriff’s

deputy, was patrolling Bay City when he saw a vehicle stop at an intersection and then

accelerate “real fast,” “faster than normal.” This behavior caught Deputy Orr’s attention,

prompting him to follow the vehicle. While pacing the vehicle, he determined that it was

exceeding the posted thirty-mile-per-hour speed limit. About six blocks ahead, Deputy Orr

saw flashing emergency lights on other officers’ vehicles, which had pulled over to make

a separate traffic stop.    Deputy Orr testified that the proper action to take when

approaching an emergency vehicle with flashing lights is to vacate the lane of the

emergency vehicle or slow to twenty miles under the posted speed limit.

       As the vehicle Deputy Orr was following headed toward the traffic stop, it appeared

as if the driver attempted to change lanes by veering to the left. Instead of changing lanes,

however, the vehicle came back into the extreme right-hand side of the lane, passing the

emergency traffic stop without either vacating the lane or slowing its speed. Deputy Orr

activated his overhead lights and followed the vehicle until it stopped. At the time of the

stop, Deputy Orr smelled a strong odor of alcohol on Castaneda, the driver. When he

asked Castaneda for his driver’s license, he noticed Castaneda also had bloodshot, glassy

eyes, and slurred speech.

       Troopers Strawn and Kopacz, whose emergency vehicle lights Castaneda had

driven by, pulled up to assist Deputy Orr. Trooper Strawn asked Castaneda to exit the

vehicle, at which point Trooper Strawn noticed an open can of beer inside. Trooper Strawn

also smelled a strong odor of alcohol on Castaneda’s breath and asked him how much

beer he had had to drink. Castaneda replied “five or six.”


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       Trooper Strawn testified that Castaneda performed poorly on the field-sobriety tests.

Castaneda’s eyes jerked during the horizontal-gaze-and-nystagmus test, which is one

indication of the loss of the normal use of physical faculties. In addition, Castaneda lost

his balance during the walk-and-turn and the one-legged-raise tests. Trooper Strawn

arrested him for DWI.

                                       B. Discussion

       By his sole issue, Castaneda argues the trial court erred in denying his motion to

suppress evidence seized during the stop because Deputy Orr had neither probable cause

nor reasonable suspicion to stop him.

                                    Standard of Review

       In St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), the court stated:

       Whether a specific search or seizure was reasonable is a mixed question of
       law and fact and is conducted de novo. We review a trial court's ruling on a
       motion to suppress evidence under a bifurcated standard of review. We do
       not engage in our own factual review; rather, the trial judge is the sole trier
       of fact and judge of the credibility of the witnesses and the weight to be given
       to their testimony. Trial courts are given almost complete deference in
       determining historical facts. We review the record to determine whether the
       trial court's ruling is supported by the record and correct under some theory
       of law applicable to the case.

Id. at 725 (citations omitted). ”We conduct a de novo review of evidence when the

resolution of mixed questions of law and fact do not turn on an evaluation of credibility and

demeanor." Id. When, as in this case, there are no explicit fact findings, and neither party

timely requested findings and conclusions, we imply the necessary fact findings that would

support the court's ruling if the evidence, viewed in the light most favorable to the court's

ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App.

2006). We then review the court's legal ruling de novo, unless the implied fact findings

supported by the record are also dispositive of the legal ruling. Id.
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                              Reasonableness of the Detention

       The Fourth Amendment to the United States Constitution and Article 1, Section 9

of the Texas Constitution guarantee the right of the people to be secure against

unreasonable searches of their persons, houses, papers, and effects. See U.S. CONST .

amend. IV; TEX . CONST . art.1,§ 9. In deciding whether Castaneda's detention was

reasonable, we view the trial court's factual findings in the light most favorable to his ruling,

but we decide the issue of reasonableness as a question of Fourth Amendment law under

United States Supreme Court precedent. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.

App. 2004). In Kothe, the court of criminal appeals noted that the supreme court has

stated that "Fourth Amendment 'reasonableness' is measured 'in objective terms by

examining the totality of the circumstances;' it 'eschew[s] bright-line rules, instead

emphasizing the fact-specific nature of the . . . inquiry.'" Id. (quoting Ohio v. Robinette, 519

U.S. 33, 39 (1996)).

       Routine traffic stops are analogous to investigative detentions and are governed by

Terry v. Ohio, 392 U.S. 1 (1968); Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.–Fort

Worth 2007, pet. dism'd); and Gansky v. State, 180 S.W.3d 240, 242-43 (Tex. App.–Fort

Worth 2005, pet. ref'd). A Terry analysis has two prongs. First, a court must decide if an

officer's action was justified at its inception. Martinez, 236 S.W.3d at 369. Second, the

court must determine whether the search and seizure was reasonably related in scope to

the circumstances that justified the interference in the first place. St. George, 237 S.W.3d

at 726; Kothe, 152 S.W.3d at 63.




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                   Whether Deputy Orr's Action was Justified at its Inception

        Deputy Orr's stop was valid for two reasons. First, he saw Castaneda commit a

traffic violation by driving at a speed above the posted limit. Speeding is a traffic violation

for which an officer may lawfully stop and detain a person. See TEX . TRANSP . CODE ANN .

§ 545.351 (Vernon 1999); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000)

(stating that the decision to stop a vehicle is reasonable when the police have probable

cause to believe a traffic violation has occurred). Second, Deputy Orr saw that Castaneda

failed to either change lanes or reduce his speed when he approached the emergency

vehicle. When an authorized emergency vehicle is stationary and using visual signals that

meet statutory requirements, an operator of an approaching vehicle must comply with

section 545.157(a) of the transportation code. See TEX . TRANSP . CODE ANN . § 545.157

(Vernon Supp. 2007).1 Therefore, Deputy Orr had reasonable suspicion to conclude that

Castaneda violated the law. See id. This allowed him to stop Castaneda. See State v.

Gray, 158 S.W.3d 465, 469-70 (Tex. Crim. App. 2005) (providing that officer has probable

cause to stop and arrest a driver if officer sees the driver commit a traffic offense).



        1
         Section 545.157(a) of the transportation code provides as follows:
        (a) On approaching a stationary authorized em ergency vehicle using visual signals that m eet
        the requirem ents of Sections 547.305 and 547.702, an operator, unless otherwise directed
        by a police officer, shall:
        (1) vacate the lane closest to the em ergency vehicle when driving on a highway with two or
        m ore lanes traveling in the direction of the em ergency vehicle; or
        (2) slow to a speed not to exceed:
        (A) 20 m iles per hour less than the posted speed lim it when the posted speed lim it is 25 m iles
        per hour or m ore; or
        (B) five m iles per hour when the posted speed lim it is less than 25 m iles per hour.


T E X . T R ANSP . C OD E A N N . § 545.157 (a) (Vernon Supp. 2007); see id. § 547.305 (Vernon Supp.2007), §
547.702 (Vernon 1999). The statute defines an “authorized em ergency vehicle” as, am ong other things, “a
fire departm ent or police vehicle[.]” Id. § 541.201(1)(A) (Vernon Supp. 2007).



                                                        5
       Deputy Orr’s subsequent detention of Castaneda pursuant to either traffic violation

is considered to be valid as well. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App.

1992) ("As long as an actual violation occurs, law enforcement officials are free to enforce

the laws and detain a person for that violation, regardless of whatever the usual practices

or standards of the local law enforcement agency are and regardless of the officer's

subjective reasons for the detention.") (Emphasis in original). Once an officer concludes

the investigation of the conduct that initiated the stop, a continued detention is permitted

only if there is reasonable suspicion to believe another offense has been or is being

committed. Saldivar v. State, 209 S.W.3d 275, 282 (Tex. App.–Fort Worth 2006, no pet.);

see Davis v. State, 947 S.W.2d 240, 243, 245 (Tex. Crim. App. 1997); McQuarters v.

State, 58 S.W.3d 250, 256 (Tex. App.–Fort Worth 2001, pet. ref'd).

       After making a stop for a traffic violation, an officer may rely on all of the facts

ascertained during the course of his or her contact with a defendant to develop articulable

facts that would justify a continued detention. Sims v. State, 98 S.W.3d 292, 295 (Tex.

App.–Houston [1st Dist.] 2003, pet. ref'd); Powell v. State, 5 S.W.3d 369, 377 (Tex.

App.–Texarkana 1999, pet. ref’d).

                                        Conclusion

       Upon contacting Castaneda, Deputy Orr smelled a strong odor of alcohol. When

he asked Castaneda for his driver’s license, he noticed Castaneda had bloodshot, glassy

eyes, and slurred speech.      Thus, Deputy Orr had reasonable suspicion to believe

Castaneda had either committed or was committing another offense, namely DWI. This

permitted him to continue the detention in order to administer the field-sobriety tests. See

Saldivar, 209 S.W.3d at 282; Davis, 947 S.W.2d at 245; McQuarters, 58 S.W.3d at 256.



                                             6
       We hold that the evidence shows that both probable cause and reasonable

suspicion existed to support Deputy Orr’s stop of Castaneda. We overrule the issue and

affirm the trial court’s judgment.




                                              ROSE VELA
                                              Justice


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

Memorandum Opinion delivered and
filed this 10th day of April, 2008.




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