                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00501-CR


ROBERT RICHARDSON                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

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                                   OPINION

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                                I. Introduction

      Appellant Robert Richardson appeals following his guilty plea to driving

while intoxicated, challenging the trial court’s denial of his motion to suppress

evidence. He contends in one point that the trial court erred by denying the
motion to suppress because any detention beyond the issuance of a written

warning for a traffic violation was unreasonable. We affirm. 1

                                     II. Background

       At the suppression hearing, Trooper Preston Fulford testified that he

worked the 4 p.m. to 3 a.m. shift and was on routine patrol for the Texas

Department of Public Safety on August 25, 2010, when he observed a vehicle

make an unsafe maneuver while traveling north on Interstate 35-E near the City

of Lewisville. Trooper Fulford had been observing a motorcycle because it had

been speeding, but he saw Richardson’s vehicle, a Tahoe, change lanes without

signaling and move into the path of the motorcycle, almost hitting it. Trooper

Fulford followed the Tahoe and observed as it weaved within its lane of traffic

and crossed into the other lane of traffic, and he testified that he decided to make

a traffic stop for failing to drive in a single lane.

       Trooper Fulford testified that he followed the vehicle until it was in a safer

area to stop before activating his overhead lights. When the vehicle pulled over,

it slowed down very quickly and almost completely stopped before moving off of

       1
        By affirming, we necessarily disagree with the dissent’s contention that
the trial court’s ruling on Richardson’s motion to suppress is not before us due to
the lack of a written order denying it. The State is not attempting an interlocutory
appeal of the grant of a motion to suppress. Rather, Richardson is appealing the
judgment that followed the denial of his motion to suppress. Our holding in State
v. Cox is therefore inapplicable here. See 235 S.W.3d 283, 284 (Tex. App.—Fort
Worth 2007, no pet.) (en banc). This court has previously declined to adopt the
dissent’s contentions, and we do so again. See, e.g., Dahlem v. State, 322
S.W.3d 685, 690–92 (Tex. App.—Fort Worth 2010, pet. ref’d); Bracken v. State,
282 S.W.3d 94, 96 n.1 (Tex. App.—Fort Worth 2009, pet. ref’d).


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the freeway. In addition, the vehicle stopped on the fog line, very close to the

lanes of traffic on the freeway. Trooper Fulford testified that his main objective in

stopping the vehicle was the traffic violation but that the possibility of intoxication

was in his mind given the time of day and location.

      Trooper Fulford testified that he approached Richardson’s vehicle on the

passenger side because of its proximity to the fog line and that he noticed a mild

odor of an alcoholic beverage while speaking with Richardson through the

passenger-side window. Richardson and the passengers in the vehicle denied

having consumed alcohol. 2 Trooper Fulford advised Richardson that he had

stopped him for failure to maintain a single lane and, while speaking with

Richardson, noticed that there was a prescription pill bottle in the vehicle.

Richardson told Trooper Fulford that the pill bottle belonged to his girlfriend, and

Trooper Fulford asked Richardson to give him the pill bottle. Trooper Fulford

testified that Richardson’s hands were shaking when he handed him the pill

bottle and that Richardson appeared nervous when he was asked about drinking

and about the pill bottle.

      Trooper Fulford testified that he, at that moment, was suspicious that

Richardson was driving while intoxicated based on his driving behavior before

the stop, the manner in which Richardson stopped the vehicle, the mild odor of

      2
         Trooper Fulford testified that Richardson was driving for a limousine
service at the time of the stop, that Richardson was dressed as a professional
driver would be dressed, and that the passengers reported having just left the
airport.


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alcohol, Richardson’s nervousness, the pill bottle, and the passengers’ denials of

any alcohol use. Even so, Trooper Fulford testified that he had not yet decided

to conduct a DWI investigation.

      Trooper Fulford testified that he returned to his patrol car to process

Richardson’s driver’s license after advising Richardson that he would receive a

warning for the traffic violation. After processing Richardson’s driver’s license

and preparing the written warning, Trooper Fulford returned to the passenger

window of Richardson’s vehicle. Trooper Fulford testified that, upon arriving at

the passenger window of the vehicle, he noticed an “overwhelming” odor of

breath mints and that he then decided to conduct a DWI investigation.

      Trooper Fulford asked Richardson if he had put a breath mint into his

mouth, Richardson confirmed that he had, and Trooper Fulford asked

Richardson to step out of the vehicle. Trooper Fulford testified that he had not

yet advised Richardson that he was free to leave or that the traffic stop was

otherwise complete, but he could not recall if he had previously returned

Richardson’s driver’s license or given him the written warning. He also testified

that the reasons to suspect intoxication at that moment were the failure to

maintain a single lane of traffic, stopping the vehicle very close to the fog line, the

mild odor of alcoholic beverages, the passengers’ denials of alcohol use, the

empty pill bottle, and the breath mints.

      Richardson testified that when Trooper Fulford returned from his patrol car

and approached the passenger-side window of the Tahoe, Trooper Fulford


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handed him his driver’s license and a warning ticket.         Trooper Fulford then

looked up and said, “Did you just take a breath mint?” Richardson testified that

he had put a breath mint into his mouth, but he denied that it was to mask the

odor of alcohol. Richardson also testified that he returned his driver’s license

and the warning ticket to Trooper Fulford after Trooper Fulford had asked him to

exit the vehicle.

      The trial court, after reviewing the entire video of the traffic stop, denied

Richardson’s motion to suppress and dictated findings of fact onto the record.

Among the trial court’s findings of fact were that Trooper Fulford returned

Richardson’s driver’s license to him contemporaneously with noticing the smell of

breath mints and that the totality of the circumstances, up through and including

the smell of the breath mints, provided Trooper Fulford with reasonable suspicion

to continue the detention. Richardson pleaded guilty following the trial court’s

ruling on the motion to suppress, and this appeal followed.

                                 III. Discussion

      Richardson argues in one point that the trial court erred by denying his

motion to suppress. Richardson does not challenge the traffic stop itself, arguing

instead that there was not reasonable suspicion to continue the detention beyond

the issuance of the written warning.

A. Applicable Law

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.   Amador v. State, 221 S.W.3d 666, 673 (Tex.


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Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an

alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct.

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on


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specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable

suspicion exists when, based on the totality of the circumstances, the officer has

specific, articulable facts that when combined with rational inferences from those

facts, would lead him to reasonably conclude that a particular person is, has

been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This

is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists. Id.

B. Analysis

      Richardson argues that the purpose of the traffic stop was complete when

Trooper Fulford returned his driver’s license and gave him the written warning

and that any detention beyond that moment was unreasonable. As mentioned,

Richardson does not challenge the legality of the initial stop.

      An investigative detention must be temporary, and the questioning must

last no longer than is necessary to effectuate the purpose of the stop. Florida v.

Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Balentine v. State, 71

S.W.3d 763, 770–71 (Tex. Crim. App. 2002); Davis v. State, 947 S.W.2d 240,

245 (Tex. Crim. App. 1997). Once an officer concludes the investigation of the


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

the purpose of issuing a citation. Kothe v. State, 152 S.W.3d 54, 65 n.43 (Tex.

Crim. App. 2004) (citing United States v. Wellman, 185 F.3d 651, 656 (6th Cir.

1999)); see Coleman v. State, 188 S.W.3d 708, 719 (Tex. App.—Tyler 2005, pet.

ref’d) (holding that purpose of stop was complete upon the issuance of the

citation), cert. denied, 549 U.S. 999 (2006). Further, once the reason for the stop

has been satisfied, the stop may not be used as a “fishing expedition for

unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette,

519 U.S. 33, 41, 117 S. Ct. 417, 422 (1996) (Ginsburg, J., concurring)).

      However, if an officer develops reasonable suspicion during a valid traffic

stop and detention that the detainee is engaged in criminal activity, prolonged or

continued detention is justified. See Davis, 947 S.W.2d at 244; Haas v. State,

172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d); see also United States v.

Brigham, 382 F.3d 500, 510–11 (5th Cir. 2004); McQuarters v. State, 58 S.W.3d

250, 256 (Tex. App.—Fort Worth 2001, pet. ref’d).           Additional facts and

information discovered by an officer during a lawful detention may form the basis

for a reasonable suspicion that another offense has been or is being committed.

Haas, 172 S.W.3d at 52.

      The question in this case is whether Trooper Fulford had specific

articulable facts that, when combined with rational inferences from those facts,

would lead him to reasonably suspect that Richardson had engaged in criminal

activity. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Garcia v. State, 43 S.W.3d


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527, 530 (Tex. Crim. App. 2001); McQuarters, 58 S.W.3d at 255. The trial court

found    that   Trooper    Fulford    returned    Richardson’s    driver’s   license

contemporaneously with noticing the smell of breath mints. And before smelling

the breath mints, Trooper Fulford had previously observed or learned of

Richardson’s failure to maintain a single lane of traffic, Richardson’s quick

deceleration when pulling the vehicle off of the highway, Richardson’s parking

the vehicle very close to the fog line, the empty pill bottle, Richardson’s

nervousness, the mild odor of alcoholic beverages, and the passengers’ denials

of alcohol use. These facts, which Trooper Fulford identified during his testimony

at the suppression hearing, were sufficient to provide him with reasonable

suspicion that Richardson had been driving while intoxicated. See Mohmed v.

State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d) (“An officer

is entitled to rely on all of the information obtained during the course of his

contact with the citizen in developing the articulable facts which would justify a

continued investigatory detention.”) (citing Ortiz v. State, 930 S.W.2d 849, 856

(Tex. App.—Tyler 1996, no pet.)); see also Newman v. State, No. 01-00-00106-

CR, 2001 WL 279182, at *3 (Tex. App.—Houston [1st Dist.] Mar. 22, 2001, no

pet.) (not designated for publication) (affirming denial of motion to suppress and

holding trial court could have found reasonable suspicion based on the

appellant’s nervousness and strong odor of alcohol, which was inconsistent with

the appellant’s explanation). Trooper Fulford was thus justified in continuing the

traffic stop to further investigate the driving while intoxicated offense. See Davis,


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947 S.W.2d at 244; Haas, 172 S.W.3d at 52. We overrule Richardson’s sole

point.

                                 IV. Conclusion

         Having overruled Richardson’s sole point, we affirm the trial court’s

judgment.




                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: April 18, 2013




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