SAUL ALANIZ CANTU v. THE STATE OF TEXAS--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-04-355-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  SAUL ALANIZ CANTU, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 92nd District Court

of Hidalgo County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Saul Alaniz Cantu, was charged with Driving While Intoxicated (DWI), a third-degree felony. The trial court denied appellant's motion to suppress; a motion filed, in part, on the basis that the stop of his vehicle was made without probable cause. Appellant pleaded guilty, and the trial court sentenced him to three years in the Institutional Division of the Texas Department of Corrections and assessed a $1,000.00 fine. The trial court has certified that this case "[i]s a plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2)(A). By one issue, appellant contends the trial court erred in denying his motion to suppress. We affirm.

I. Facts

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Motion to Suppress

By his sole issue, appellant asserts that because the arresting officer had no probable cause to "go further once he was apprised of the reason [appellant] was traveling on the improved shoulder," the trial court erred in denying his motion to suppress.

A. Standard of Review

A trial court's denial of a motion to suppress alleging a lack of probable cause, as in this case, is typically reviewed under a bifurcated standard of review combining the first and third categories of Guzman. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997) (en banc)). Almost total deference is given to the trial court's express or implied determination of historical fact,[1] and we review de novo the court's application of the law of search and seizure to those facts.[2] Id. (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman, 955 S.W. 2d at 89).

B. Analysis

Appellant concedes probable cause existed for the initial stop. See Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (concluding a police officer may lawfully stop a motorist who commits a traffic violation); see also Tex. Transp. Code Ann. ' 545.058 (Vernon 1999) (articulating traffic offense of driving on the improved shoulder of a highway). However, appellant contends that once Trooper Martin Arteaga, Jr., the arresting officer, was informed that appellant was traveling on the improved shoulder because he had a flat tire, he had no probable cause to go further in his investigation.

The reasonableness of the investigative detention must be evaluated in objective terms by examining the totality of the circumstances. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)); see Terry v. Ohio, 392 U.S. 1, 19-21 (articulating Fourth Amendment "reasonableness" analysis for traffic stop investigation). In examining reasonableness under the Fourth Amendment, bright line rules are avoided; instead, the emphasis is on the fact specific nature of the inquiry. Kothe, 152 S.W.3d at 63 (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996)).

At the hearing on appellant's motion to suppress, Trooper Arteaga testified that after stopping appellant for driving on the improved shoulder of the road, inspecting the vehicle, and determining that appellant's tire was flat, he asked appellant for his license. See id. (explaining that the license and warrants check is an additional component to a routine traffic stop). Trooper Arteaga further testified that when he asked appellant for his license, he "detected the odor of alcohol." At that point, Trooper Arteaga continued his investigation by conducting a field sobriety test which appellant failed. Appellant also told Trooper Arteaga he had last eaten at 4:00 p.m. and had consumed the last of three to four beers at 1:00 a.m. Trouper Arteaga stopped appellant at 1:29 a.m. Appellant was later arrested for DWI.

Examining the totality of the circumstances, we cannot conclude that Trooper Arteaga's conduct exceeded that associated with a routine traffic stop to investigate driving on the improved shoulder of a highway. Kothe, 152 S.W.3d at 63. Therefore, based on the fact specific nature of the inquiry, see id., and giving almost total deference to the trial court's implied determination of historical facts, see Guzman, 32 S.W.3d at 856, we conclude the officer had probable cause to continue the investigation of the traffic stop and arrest appellant. See id. The trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's sole issue is overruled.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 4th day of August, 2005.

[1]Because the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony at a motion to suppress hearing, the criminal court of appeals has noted the following:

[E]ven if there is only the testimony of the officer, which adds up to probable cause if believed, and the trial court denies the motion without express findings of fact, there will be two implied fact findings: the officer's testimony was credible and the facts are as the officer testified.

State v. Ross, 32 S.W.3d 853, 855 & 856 n.22 (Tex. Crim. App. 2000) (citing State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) and Guzman v. State, 955 S.W.2d 85, 88 n.3 & 90-91 (Tex. Crim. App. 1997) (en banc)).

[2]The court of criminal appeals applies the second category of Guzman, "almost total deference," when the trial court grants a motion to suppress without explanation after hearing only testimony of the arresting officer (which, if believed, would have added up to probable cause). See Ross, 32 S.W.3d at 857.