Harvey Chevalier v. The State of Texas--Appeal from 114th District Court of Smith County

 NO. 12-04-00317-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

 HARVEY CHEVALIER,   ' APPEAL FROM THE 114TH

APPELLANT

 V.   ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

 APPELLEE   ' SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Harvey Chevalier appeals his conviction for driving while intoxicated. In one issue, Appellant asserts that the trial court erred in denying his motion to suppress. We affirm.

Background

The Arp city marshal, a peace officer, was on routine patrol late in the evening when he observed a vehicle traveling on Highway 64 East with smoke trailing behind it. As it passed his location, the officer observed that the vehicle was actually on fire and that there were flames underneath it. The officer initiated a traffic stop. Appellant was driving and asked why he had been stopped. This seemed unusual to the officer because of the amount of smoke emitting from the vehicle. In fact, the smoke was so dense that motorists traveling in the opposite direction had to stop their vehicles because they could not see through the smoke. While talking with Appellant, the officer noticed what he believed to be indicators that Appellant was intoxicated. Specifically, Appellant appeared to be confused, was unable to easily maintain his balance, had bloodshot eyes, and had slurred speech. Additionally, after the fire went out and the smoke cleared, the officer was able to detect what he described as the Apretty strong smell@ of alcohol on Appellant=s breath.

These signs of intoxication caused the officer to investigate further. He administered field sobriety tests and ultimately arrested Appellant for driving while intoxicated. Appellant was indicted for the offense of driving while intoxicated. The indictment also alleged that he had two prior driving while intoxicated convictions and two prior unrelated felony convictions. See Tex. Pen. Code Ann. '' 49.09(b)(2), 12.42(d) (Vernon 2005). During the trial, Appellant objected to the evidence derived from his continued detention following the initial traffic stop. The trial court overruled his objection. The jury found Appellant guilty, found the enhancement allegations to be true, and assessed punishment at imprisonment for life. This appeal followed.

 Motion to Suppress Evidence

In his sole issue, Appellant asserts that the trial court erred when it overruled his motion to suppress evidence.

Standard of Review

We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). A trial court=s express or implied determinations of historical facts, especially those that turn on credibility and demeanor, are entitled to almost total deference. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)). We review de novo the court=s application of the law of search and seizure to those facts. Id. We will sustain the trial court=s decision if it is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 856.Applicable Law

The Fourth Amendment to the United States Constitution guarantees Athe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.@ U.S. Const. amend. IV. The Fourth Amendment is applicable to the states through the Fourteenth Amendment. See U.S. Const. amend. XIV; Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961).

The touchstone of the Fourth Amendment is reasonableness, which is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996). It is reasonable for a law enforcement officer to conduct a brief investigative detention without a warrant when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 31, 88 S. Ct. 1868, 1885, 20 L. Ed. 2d 889 (1968); Balentine, 71 S.W.3d at 768; Carmouche,10 S.W.3d at 328. Reasonable suspicion exists if there are specific articulable facts that, when combined with rational inferences from those facts, would reasonably lead an officer to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Balentine, 71 S.W.3d at 768.

It is also reasonable for a police officer to stop or detain an individual through the exercise of a community caretaking function, even if there is not reasonable suspicion or probable cause that an offense has been committed. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). Police officers are often called upon to perform duties that relate to public safety other than the gathering of evidence, enforcement of the law, or investigation of crime, and courts have held the community caretaking function to be both reasonable and lawful. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973); Wright v. State, 7 S.W.3d 148, 151 52 (Tex. Crim. App. 1999). Accordingly, an officer may stop and assist an individual if a reasonable person, given the totality of the circumstances, would believe the individual to be in need of help. Corbin,85 S.W.3d at 276. This function, however, is separate and apart from a police officer=s duties related to the detection and investigation of violations of a criminal statute. Cady, 413 U.S. at 441, 93 S. Ct. at 2528; Corbin, 85 S.W.3d at 276B77.

Analysis

Appellant does not challenge either the initial stop of his vehicle pursuant to the community caretaking function or, directly, his ultimate arrest for driving while intoxicated. Rather, Appellant argues that the officer lacked Areasonable suspicion@ to detain him after the initial stop. The trial court found that the officer had sufficient grounds to believe that further investigation was necessary for public safety reasons and because it appeared that Appellant was Aimpaired.@

These findings are supported by the record. On fairly short order after the stop of the vehicle, the officer learned that Appellant had not only been unaware that his vehicle was on fire but was unable to determine, after standing on a roadside with the officer and a profusely smoking vehicle, why he had been stopped. Appellant smelled of the odor of an alcoholic beverage, lacked good balance, and had slurred speech and bloodshot eyes. The officer had seen him operate a vehicle on a public roadway. These facts were sufficient to give rise to a reasonable suspicion that Appellant was engaged in the criminal activity of driving under the influence of alcohol. See, e.g., Perales v. State, 117 S.W.3d 434, 439 (Tex. App.BCorpus Christi 2003, pet. ref=d). Therefore, it was lawful for the officer to continue his investigation.

Appellant directs our attention to Loesch v. State, 958 S.W.2d 830 (Tex. Crim. App. 1997) for the proposition that Areasonable suspicion@ must be evaluated only in terms of the information known to the officer at the moment of detention. But the court in Loesch considered reasonable suspicion for the stop of a vehicle, not the continued detention of a motorist after a lawful stop. The general rule is that the scope of the detention must be carefully tailored to its underlying justification. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). In this case, reasonable suspicion that Appellant was intoxicated arose during the time it took the officer to investigate the burning vehicle and take necessary remedial steps. Once the officer reasonably suspected that Appellant was intoxicated, it was reasonable for him to continue his investigation.

Appellant=s other arguments relate to the credibility of the officer=s testimony and the weight it should be afforded. The trial court is in the best position to evaluate the demeanor and credibility of a witness, and we decline to disturb the trial court=s findings on those grounds. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

There were specific articulable facts that supported Appellant=s continued detention after the initial traffic stop. The court did not abuse its discretion when it overruled Appellant=s motion to suppress evidence. We overrule Appellant=s sole issue.

Disposition

We affirm the trial court=s judgment.

DIANE DEVASTO

Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)