Opinion issued March 8, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00753-CR
                           ———————————
                    MARK AARON MAHLOW, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



            On Appeal from County Criminal Court at Law No. 4
                           Harris County, Texas
                       Trial Court Case No. 1931546



                       MEMORANDUM OPINION

      A jury convicted appellant, Mark Aaron Mahlow, of driving while

intoxicated1 and assessed his punishment at one hundred-eighty days in the Harris


1
      See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(a) (West Supp. 2015).
County jail, probated for one year. In his first two points of error, appellant

contends that the trial court abused its discretion when it denied his motions to

suppress because his initial detention was not supported by reasonable suspicion

and his arrest at the scene of the traffic stop was unsupported by probable cause.

In his third point of error, appellant argues that the trial court abused its discretion

in denying his motion for new trial. We affirm.

                                     Background

      While on patrol in downtown Houston in the early morning hours of

November 24, 2013, Officer James Kneipp observed appellant driving next to

another vehicle, “drag racing down Fannin.”2 Officer Kneipp testified that he

worked in downtown Houston and that the speed limit there is thirty miles per

hour. He further testified that appellant was driving at a very high rate of speed,

his vehicle’s tires were spinning in the back, and he was “blowing through lights

without slowing down.” According to Officer Kneipp, appellant was driving in an

unsafe manner and that, at “[t]he speed he was going, he could’ve caused an

accident or actually killed somebody.”

      Despite having activated the emergency lights and siren on his patrol car,

Officer Kneipp “had to chase [appellant] down.” After pursuing appellant for


2
      At the time of trial, Officer Kneipp had been employed by the Houston Police
      Department for five and a half years and had previously been a military police
      officer for twenty years.

                                           2
twenty or thirty seconds, Officer Kneipp caught up to appellant five blocks away

as he was pulling into his apartment complex. The record reflects that Officer

Kneipp stopped appellant at 2:47 a.m.

      As he approached appellant’s black Chevy Camaro, Officer Kneipp smelled

a strong odor of alcohol emanating from the vehicle. He told appellant that he had

stopped him for driving at a high rate of speed downtown. Officer Kneipp testified

that appellant had “glossy red eyes,” slurred speech, and that he could smell a lot

of alcohol coming from his breath. Appellant told the officer that he was coming

from Coaches, a bar and grill in Katy. Officer Kneipp also observed appellant

swaying from side to side and staggering at the scene.

      Officer Kneipp administered the horizontal gaze nystagmus (HGN) test to

appellant. Officer Kneipp testified that, based on appellant’s signs of intoxication

and the results of the HGN test, he detained appellant by handcuffing him and

placing him in the patrol car to transport him to central intox for further field

sobriety testing.   According to Officer Kneipp, he did not continue testing

appellant at the scene because there was no video camera in his car and he wanted

the additional tests to be videotaped.

      During Officer’s Kneipp’s testimony, trial counsel conducted a voir dire

examination of the officer outside the presence of the jury. Thereafter, counsel

moved to suppress the HGN test as well as “everything after the detention based on



                                         3
[the] HGN that was performed improperly.” The trial court granted the motion to

suppress the HGN test but ruled that “anything after this is not going to be

suppressed.” Counsel later moved to suppress the initial detention arguing that the

officer had failed to demonstrate specific and articulable facts supporting

reasonable suspicion for the initial stop. The trial found that the officer had

reasonable suspicion to stop appellant and denied the motion.

      After appellant arrived at the police station, Mary Skelton, an HPD evidence

technician, administered the one-leg stand test, the walk-and-turn test, and a breath

test to appellant. The video of appellant performing the tests as well as his breath

test results were admitted at trial. Skelton testified that there are four clues of

impairment for the one-leg stand test and six clues for the walk-and-turn test, and

that exhibiting at least two clues on a given test indicates intoxication. She further

testified that appellant exhibited no clues of impairment on the one-leg stand test

but exhibited four clues on the walk-and-turn test. Following the two tests, Officer

Kneipp read the DIC-24 form to appellant and placed him under arrest. Based on

the appellant’s test results, Skelton testified that it was her opinion that appellant

had lost the normal use of his mental and physical faculties.

      Carly Bishop, an HPD technical supervisor, testified that the results from

appellant’s two breath samples showed a breath-alcohol concentration (BAC) of




                                          4
0.128 and 0.134, respectively.3 Bishop testified that a person with these BAC

levels would have lost the normal use of his mental and physical faculties.

      After the State rested, trial counsel moved to suppress appellant’s initial

detention on the grounds that it lasted longer than necessary and amounted to an

illegal custodial arrest unsupported by probable cause. The trial court denied the

motion.

      The jury ultimately found appellant guilty of driving while intoxicated and

assessed his punishment at one hundred-eighty days in the Harris County jail,

probated for one year. After judgment was entered, appellant filed a motion for

new trial contending, among other things, that the trial court erred in denying his

motions to suppress. The trial court denied his motion for new trial on October 29,

2014. Appellant timely filed this appeal.

                                Standard of Review

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

of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial

court abuses its discretion when its ruling is arbitrary or unreasonable. State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court’s ruling on a

3
      Under the Texas DWI statute, intoxication may be proven in either of two ways:
      (1) loss of normal use of mental or physical faculties or (2) alcohol concentration
      in the blood, breath, or urine of 0.08 or more. See Kirsch v. State, 306 S.W.3d
      738, 743 (Tex. Crim. App. 2010).



                                            5
motion to suppress will be affirmed if it is reasonably supported by the record and

is correct under any theory of law applicable to the case. Young v. State, 283

S.W.3d 854, 873 (Tex. Crim. App. 2009).

      We apply a bifurcated standard of review, giving almost total deference to a

trial court’s determination of historic facts and mixed questions of law and fact that

turn on the credibility of a witness, and applying a de novo standard of review to

pure questions of law and mixed questions that do not depend on credibility

determinations. Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App.

2011). The reviewing court views the evidence in the light most favorable to the

trial court’s ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App.

2007). At the suppression hearing, the trial judge is the sole trier of fact and

exclusive judge of the credibility of the witnesses and the weight to be given to

their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

Absent a showing that the trial court abused its discretion by making a finding

unsupported by the record, we defer to the trial court’s findings of fact and will not

disturb them on appeal. State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App.

2011).

      A trial court’s denial of a motion for new trial is also reviewed under an

abuse of discretion standard. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim.

App. 2014).



                                          6
                                    Applicable Law

      An investigative detention requires a police officer to have reasonable

suspicion of criminal activity. See Matthews v. State, 431 S.W.3d 596, 602–03

(Tex. Crim. App. 2014).          The reasonableness of a temporary detention is

determined from the totality of the circumstances. See id. at 603. If an officer has

a reasonable basis for suspecting a person has committed a traffic offense, then the

officer legally may initiate a traffic stop. Miller v. State, 418 S.W.3d 692, 696

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).              Reasonable suspicion is

present if the officer has specific, articulable facts that, when combined with

rational inferences from those facts, would lead the officer reasonably to conclude

that a person actually is, has been, or soon will be engaged in criminal activity.

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The State bears the

burden to show that an officer had at least a reasonable suspicion the defendant

either had committed an offense, or was about to do so, before they made the

warrantless stop.4 Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.

2011) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581 (1989)).

      Under the Fourth Amendment, a warrantless arrest for an offense committed

in the officer’s presence is reasonable if the officer has probable cause. Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing United States v.


4
      The State stipulated at trial that appellant was arrested without a warrant.

                                            7
Watson, 423 U.S. 411, 418, 96 S. Ct. 820 (1976)).              “Probable cause” for a

warrantless arrest exists if, at the moment the arrest is made, 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, 275 S.W.3d at 878. “The test for probable cause is an objective one,

unrelated to the subjective beliefs of the arresting officer, and it requires a

consideration of the totality of the circumstances facing the arresting officer.” Id.

(citations omitted).    “A finding of probable cause requires ‘more than bare

suspicion’ but ‘less than . . . would justify . . . conviction.’” Id. (citation omitted).

                                        Analysis

   A. Investigative Detention or Arrest?

      In his second point of error, appellant contends that the trial court abused its

discretion in denying his motion to suppress because his initial detention at the

scene was actually an unlawful custodial arrest unsupported by probable cause.

      “Whether a person is under arrest or subject to a temporary investigative

detention is a matter of degree and depends upon the length of the detention, the

amount of force employed, and whether the officer actually conducts an

investigation.” Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). Additionally, “whether a detention is an actual arrest or an



                                            8
investigative detention depends on the reasonableness of the intrusion under all of

the facts.” Id. (citing Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App.

1997), cert. denied, 522 U.S. 894 (1997)). During an investigative detention, an

officer may employ the force reasonably necessary to effect the goal of the

detention: investigation, maintenance of the status quo, or officer safety. Rhodes,

945 S.W.2d at 117.       However, if the force utilized exceeds that reasonably

necessary to effect the goal of the stop, this force may transform an investigative

detention into a full-blown arrest. Mount, 217 S.W.3d at 724–25.

      Additional factors that courts consider in determining the reasonableness of

the detention include the nature of the crime under investigation, the degree of

suspicion, the location of the stop, the time of day, and the reaction of the suspect.

State v. Moore, 25 S.W.3d 383, 386 (Tex. App.—Austin 2000, no pet.). The

officer’s opinion, while not determinative, is another factor to be considered.

Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Moore, 25 S.W.3d

at 386. We also consider whether the officer actually conducted an investigation

after seizing the suspect. Moore, 25 S.W.3d at 386. “‘Reasonableness’ must be

judged from the perspective of a reasonable officer at the scene, rather than with

the advantage of hindsight.” Rhodes, 945 S.W.2d at 118.




                                          9
   1. Length of Detention

       Officer Kneipp testified that he stopped appellant at 2:47 a.m. The record

reflects that appellant’s vehicle was towed from the scene at 3:05 a.m. Skelton

administered the breath test to appellant at 4:08 a.m. Less than an hour and a half

passed between the initial traffic stop and appellant’s transport to the station and

the administration of the last test to him. This period of time supports a finding

that appellant was reasonably detained. See Castro v. State, 373 S.W.3d 159, 165

(Tex. App.—San Antonio 2012, no pet.) (“A detention’s duration must

demonstrate the officers efficiently pursued an investigation to confirm or dispel

their suspicions.”).

   2. Amount of Force and Continued Investigation

       Here, Officer Kneipp was alone when he conducted the initial traffic stop of

appellant in the early morning hours. Officer Kneipp testified that he handcuffed

appellant in order to transport him to the station so that the additional field sobriety

tests could be videotaped.     See Amores, 816 S.W.2d at 412 (noting officer’s

testimony is factor to be considered, along with other facts and circumstances of

detention, in determining whether arrest has taken place). There is no evidence

suggesting that appellant was handcuffed prior to his transport and the record

reflects that the handcuffs were removed once the investigation continued at the

station.   Handcuffing alone does not necessarily transform an investigative



                                          10
detention into an arrest. See Sheppard v. State, 271 S.W.3d 281, 283 (Tex. Crim.

App. 2008) (“[A] person who has been handcuffed has been ‘seized’ and detained

under the Fourth Amendment, but he has not necessarily been ‘arrested.’”);

Rhodes, 945 S.W.2d at 118 (agreeing with court of appeals’s conclusion that there

is no bright-line test providing that mere handcuffing is always equivalent of

arrest); see also Hauer v. State, 466 S.W.3d 886, 891–92 (Tex. App.—Houston

[14th Dist.] 2015, no pet.) (concluding officer’s actions in handcuffing defendant

suspected of driving while intoxicated and keeping him in patrol car for

approximately thirty minutes until DWI task force officer arrived at scene to

conduct field sobriety tests was temporary detention). We find Officer Kneipp’s

handcuffing of appellant to transport him to the station to conduct additional tests

was a reasonable detention “for the purpose of conducting an investigation.”

Hauer, 466 S.W.3d at 892.

   3. Additional Factors

      Courts may also consider the nature of the crime under investigation, the

degree of suspicion, the location of the stop, the time of day, and the reaction of the

suspect when determining the reasonableness of the detention. Moore, 25 S.W.3d

at 386.    Here, Officer Kneipp testified that based in part on the signs of

intoxication he observed—the odor of alcohol emanating from appellant’s car,

appellant’s glossy red eyes, slurred speech, swaying, and staggering—he believed



                                          11
appellant had been drinking and detained him. The record reflects that the initial

traffic stop took place at 2:47 a.m. and that Officer Kneipp was alone when he

conducted it. These factors support a conclusion that appellant was reasonably

detained at the scene.

      In light of the above, we conclude that Officer Kneipp’s seizure of appellant

was not an arrest, but rather a temporary detention for the purpose of continuing

the DWI investigation at the station. Because the trial court did not abuse its

discretion in denying his motion to suppress, we overrule appellant’s second issue.

   B. Validity of Investigative Detention

      Having found that the stop was a temporary detention, we next consider

appellant’s first point of error contending that the trial court abused its discretion in

denying his motion to suppress because his initial detention was not supported by

reasonable suspicion. In support of his argument, appellant relies on Ford v. State,

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

      In Ford, the defendant moved to suppress evidence asserting that his initial

detention for failure to maintain a proper following distance was not supported by

reasonable suspicion. See id. at 490. The trial court overruled the defendant’s

motion and the court of appeals upheld the ruling. See id. Finding that the stop

was not valid because the evidence was insufficient to establish reasonable

suspicion, the Court of Criminal Appeals reversed. See id.



                                           12
      The Ford court noted that the only testimony describing the circumstances

leading up to the initial traffic stop was the trooper’s testimony that the defendant

was “following another car too closely.” Id. at 493. In the “absence of any facts

allowing an appellate court to determine the circumstances upon which [the

trooper] could reasonably conclude that the defendant actually was, had been, or

soon would have been engaged in criminal activity,” the court concluded that “the

trial court was presented only with a conclusory statement that the defendant was

violating a traffic law,” and that, “without specific, articulable facts, a court has no

means in assessing whether this opinion was objectively reasonable.” Id.

      Ford is distinguishable from the case before us.          Here, Officer Kneipp

testified that he worked downtown and that the speed limit in downtown Houston

is thirty miles per hour. He testified that he observed appellant “driving at a very

high rate of speed” and in an unsafe manner and that, at “[t]he speed he was going,

he could’ve caused an accident or actually killed somebody.” The officer also

noted that appellant’s tires were spinning in the back and that he “was blowing

through lights without slowing down.” Despite the fact that Officer Kneipp had

activated his patrol car’s emergency lights and siren, appellant did not stop and

Officer Kneipp had to “chase him down.” It took Officer Kneipp twenty or thirty

seconds and approximately five blocks to catch up to appellant. Officer Kneipp




                                          13
also testified that appellant was racing another vehicle whose driver also did not

stop once the pursuit began.

      Considering the totality of the circumstances, we conclude that the record

contains sufficient facts to support a finding that Officer Kneipp had a reasonable

basis upon which to conclude that appellant was committing a traffic offense when

he initiated the stop.    See Ford, 158 S.W.3d at 492 (concluding reasonable

suspicion is present if officer has specific, articulable facts that, when combined

with rational inferences from those facts, would lead officer reasonably to

conclude that person actually is, has been, or soon will be engaged in criminal

activity). The trial court did not abuse its discretion in denying appellant’s motion

to suppress the initial detention. We overrule appellant’s first point of error.

    C. Motion for New Trial

      In his third point of error, appellant contends that the trial court abused its

discretion in denying his motion for new trial.

      Following the entry of judgment, appellant timely filed a motion for new

trial. The trial court held a hearing and subsequently denied the motion. Although

appellant asserted several grounds for new trial in his motion,5 he argues in his



5
      In his motion, appellant also argued that (1) there was an improper communication
      between a member of the jury and the bailiff during deliberations; (2) the jury was
      allowed to view evidence and deliberate in the courtroom while members of the
      court staff were present; and (3) an acquaintance of one of the jury members was

                                          14
brief only that the trial court abused its discretion in denying his motion for new

trial because the trial court’s denial of his motions to suppress was improper.

      When evaluating whether a motion for new trial was properly denied based

upon prior motions raised before or during trial, we first determine whether the

initial motions were properly denied—if so, the trial court does not abuse its

discretion in denying a defendant’s new trial motion on the same grounds. See

Hughes v. State, 962 S.W.2d 689, 696 (Tex. App.—Houston [1st Dist.] 1998, pet.

ref’d) (finding because the “trial court did not err in denying [a defendant’s]

motion to suppress, it did not err in denying the motion for new trial on this same

basis.”). Because we previously concluded that the trial court did not abuse its

discretion in denying appellant’s motions to suppress, it did not abuse its discretion

in denying his motion for new trial on these same grounds. See id.; see also Hewitt

v. State, No. 01-03-00404-CR, 2004 WL 2476572, at *5–6 (Tex. App.—Houston

[1st Dist.] Nov. 4, 2004, pet. ref’d) (not designated for publication) (holding trial

court did not err in denying defendant’s motion for new trial to extent it was based

upon trial court’s denial of his motions to suppress and exclude that were upheld

by appellate court). Because appellant’s complaint that the trial court denied his

motion for new trial raises nothing that we have not already addressed and

overruled in previous points of error, we overrule his third point of error.

      permitted to join the jury for lunch before the trial had adjourned. However,
      appellant has advanced none of these arguments on appeal.

                                          15
                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

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




                                        16
