     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00707-CR




                               James C. Shakespeare, Appellant

                                                v.

                                  The State of Texas, Appellee



             FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
              NO. 548,151, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING




                Appellant James C. Shakespeare pleaded no contest to the charge of operating a

motor vehicle while intoxicated. See Tex. Penal Code Ann. § 49.04 (West Supp. 2001). The

trial court assessed punishment at ninety days in jail probated for two years, and a fine of $1200

probated to $200. In a single issue, appellant contends that, although his initial traffic stop was

lawful, the arresting officer did not have reasonable suspicion to detain appellant further in order

to investigate whether he was intoxicated. Appellant complains that the trial court thus erred in

denying his motion to suppress all evidence obtained pursuant to his detention. We will affirm

the trial court’s order.


                                        BACKGROUND

                On November 4, 1999, at 2:30 a.m., appellant ran a stop sign while making a right

turn in downtown Austin. A Texas Department of Public Safety officer witnessed the violation
and stopped appellant. The officer did not observe anything else improper about appellant’s

driving. The officer approached appellant’s vehicle and asked for his driver’s license and proof

of insurance. Appellant produced these without incident. At the same time, the officer smelled

a “moderate” odor of an alcoholic beverage coming from within the vehicle. The officer asked

appellant to step out of his car and to accompany him to the sidewalk. Throughout this time,

appellant’s speech and gait were normal. While standing together on the sidewalk, the officer

again smelled a moderate odor of alcohol on appellant’s breath.

               The officer consequently asked appellant to perform standard field sobriety tests

to determine whether he was intoxicated. Appellant failed the horizontal gaze nystagmus test, the

walk-and-turn test, and the one-leg stand test. The officer arrested appellant for DWI. Appellant

“failed” the breath test later administered at the police station.

               Appellant filed a timely motion to suppress all evidence obtained at the time of his

detention for suspected intoxication. After a hearing, the trial court denied the motion and

appellant entered his plea.


                                          DISCUSSION

               In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial

court’s determination of historical facts. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.

App. 1997). We do so because in a suppression hearing, the trial judge is the sole trier of fact

and the sole judge of the credibility of witnesses and the weight to be given their testimony.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). But where, as here, the facts



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in a case are undisputed, we conduct a de novo review to determine if the trial court properly

applied the law to those facts. Id.

               Appellant does not challenge the validity of the initial traffic stop. He concedes

that the officer observed him failing to stop at a posted stop sign. Appellant argues, however, that

there was no justification for any “ detention” that exceeded what was necessary to ticket him for

this violation. The sole issue in this case, therefore, is whether reasonable suspicion arose during

the traffic stop sufficient to permit the officer to further investigate whether appellant was

intoxicated.

               The Supreme Court has held that law enforcement officers may detain individuals

for investigative purposes even if the officers do not have probable cause to make an arrest. Terry

v. Ohio, 392 U. S. 1, 21 (1968). To justify such a detention under the Fourth Amendment, the

officer must have a reasonable suspicion of criminal activity, based on “specific and articulable

facts which, taken together with rational inferences from those facts would reasonably warrant that

intrusion. ” Id. Generally, there must be some suggestion or indication that activity out of the

ordinary is occurring or has occurred, that the detained person is connected with the unusual

activity, and that the activity is related to a crime. Gurrola v. State, 877 S.W.2d 300, 302 (Tex.

Crim. App. 1994). If the detention is unlawful, any evidence obtained as a result of the detention

is inadmissible. Id. This Court has held that when an officer extends a valid traffic stop in order

to investigate possible intoxication, this investigation is a “detention” for Fourth Amendment

purposes and must be justified by reasonable suspicion. Tex. Dep’t of Pub. Safety v. Rodriguez,

953 S.W.2d 362, 364 (Tex. App. SAustin 1997, no writ).


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               In this case, the officer witnessed appellant commit a traffic violation. Appellant

does not dispute that the officer had the right to stop him once the officer observed the offense.

The offense occurred during the very early hours of the morning, in the downtown area of Fourth

and Colorado Streets; when stopped, the officer smelled alcohol on appellant’s breath. These

specific facts and the inferences that may reasonably be drawn from them support the conclusion

that the officer had reasonable suspicion to briefly detain appellant to investigate his possible

intoxication. We do not consider whether any one of these factors is sufficient, but we do

conclude that in combination they rise to the level of reasonable suspicion.

               In similar cases, Texas courts have held that an odor of alcohol on a motorist’s

breath in conjunction with another violation constitutes reasonable suspicion for an investigation

of intoxication. Sanchez v. State, 582 S.W.2d 813, 814-15 (Tex. Crim. App. 1979) (holding that

detention was justified based on odor of alcohol about defendant who fled from police when they

attempted to stop him for speeding); State v. Brabson, 899 S.W.2d 741, 747 (Tex. App. SDallas

1995) (holding that off-duty officer had reasonable suspicion to investigate DWI when, at 3:00

a.m., defendant honked horn excessively and smelled of alcohol), aff’d, 976 S.W.2d 182 (Tex.

Crim. App. 1998).

               Appellant argues, however, that this case is controlled by this Court’s decision in

Rodriguez. In Rodriguez, the record before the administrative law judge was completely silent

as to any causal connection between the initial stop and the subsequent investigation of

intoxication. Rodriguez, 953 S.W.2d at 364. This court held that there must be “some causal

link” connecting the initial stop to the subsequent field sobriety tests. Id. The present case is


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directly distinguishable on the facts: the smell of alcohol and the circumstances surrounding the

stop provide exactly the causal connection missing from the record in Rodriguez.

               The appellant next asserts that Texas cases do not support the contention that a

“moderate” as opposed to a “strong” smell of alcohol can be a basis for an officer’s reasonable

suspicion. Reasonable suspicion involves common sense judgments and is not susceptible to

formalistic analysis. Ill. v. Wardlow, 528 U. S. 119, 125 (2000). Drawing a fine distinction

between varying degrees of smell would encourage just such formalism. While a smell of alcohol,

however strong, does not definitively signal legal impairment, such a smell is suggestive of

intoxication and therefore may legitimately be considered when determining whether the detaining

officer had reasonable suspicion.

               Appellant also argues that we should weigh the absence of various factors indicating

inebriation (slurring words, weaving, staggering, swaying) against the presence of an odor of

alcohol when determining whether the officer possessed reasonable suspicion for the detention.

As this Court has noted, however, the absence of factors is only a part of the totality of the

circumstances considered; the reasonable suspicion standard does not demand a rigid balancing

of suspicious against unsuspicious activity.      State v. Garrett, 22 S.W.3d 650, 655 (Tex.

App. SAustin 2000, no pet.). Instead, the proper inquiry asks whether a reasonable person could

articulate specific facts and circumstances that would warrant a detention for further investigation.

The absence of a factor “typical” of inebriation is therefore not dispositive.




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               We hold that the traffic violation, the time of night, and the odor of alcohol on

appellant’s breath combined to give the officer reasonable suspicion to detain appellant to

investigate his possible intoxication. We therefore overrule appellant’s single issue.


                                        CONCLUSION

               Having overruled appellant’s single issue, we affirm the trial court’s order denying

the motion to suppress.




                                             Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: April 26, 2001

Do Not Publish




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