ALMA GARZA MARTINEZ v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Hidalgo County

 NUMBER 13-05-00540-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

ALMA GARZA MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court at Law Number 2

of Hidalgo County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

After the trial court denied her motion to suppress the evidence, appellant, Alma Garza Martinez, pleaded guilty to the offense of driving while intoxicated.[1] The trial court (1) found appellant guilty, (2) assessed her punishment at ninety days in the county jail and a $400 fine, (3) suspended the jail sentence, and (4) placed her on community supervision for a term of eighteen months. In a single issue, appellant contends the trial court erred in denying her motion to suppress the evidence. We reverse and remand.

A. Factual Background

While on patrol at 2:00 a.m. on August 4, 2004, McAllen Police Officer Leo Escalon=s attention was drawn to a vehicle, directly in front of him, heading east on Nolana Street. As the car approached the intersection of Nolana and 2nd Street, Officer Escalon saw the car stop in the intersection, beyond the designated point.[2] The driver placed the car in reverse until it was behind the designated point and waited for the traffic light to turn green. When the light turned green, the car proceeded through the intersection. Officer Escalon then stopped the car. Appellant was the driver of the car.

Officer Escalon testified that after he approached the car, he smelled alcohol on appellant=s breath. He then performed several field sobriety tests which indicated that appellant was intoxicated. Officer Escalon arrested appellant and took her to the police station.

B. Discussion

In a single issue, appellant contends the trial court erred in denying her motion to suppress the evidence. Specifically, she asserts that Officer Escalon did not have reasonable suspicion to make an investigatory detention.

1. Applicable Law

To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Once the defendant has made this showing, the burden of proof shifts to the State to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. When a traffic violation is committed within an officer=s view, the officer may lawfully stop and detain the person for the traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). 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. A reasonable-suspicion determination is made by considering the totality of the circumstances. Id.

2. Standard of Review

In evaluating the totality of the circumstances, we use a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.BFort Worth 2003, no pet.). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Because the trial court did not make explicit findings of fact in this case, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record. Balentine, 71 S.W.3d at 768. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero, 800 S.W.2d at 543.

On appeal, the question of whether a specific search or seizure is "reasonable" under the Fourth Amendment is subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 691 (1996) ("we hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo"). Despite its fact-sensitive analysis, "reasonableness" is ultimately a question of substantive Fourth Amendment law. See U.S. v. Sharpe, 470 U.S. 675, 682 (1985); Guzman, 955 S.W.2d at 88-89. Questions involving legal principles and the application of law to established facts are properly reviewed de novo. Ornelas, 517 U.S. at 691; Walter, 28 S.W.3d at 540.

Thus, in deciding whether appellant=s stop was "reasonable" under the specific circumstances, we view the trial court's factual findings in the light most favorable to its ruling, but we decide the issue of "reasonableness" as a question of Fourth Amendment law under Supreme Court precedent.

C. Application

Because Officer Escalon admitted that he did not have a warrant, the burden of proof shifted from the defendant to the State to show that the stop was reasonable. At the hearing on the motion to suppress, Officer Escalon answered the State=s questions as follows:

Q: Okay. What drew your attention to [appellant=s] vehicle?

A: The driver of the vehicle failed to stop at a designated point at the intersection of 2nd and Nolana. To me, it was a moving violation, so . . . .

Q: Okay. When you say failed to stop at a B what do you mean by failed to stop at a designated point?

A: The driver of the vehicle stopped after crossing the B the cross lines.

The State contends that appellant was stopped because she violated section 544.007(d) of the Texas Transportation Code, which provides as follows:

An operator of a vehicle facing only a steady red signal shall stop at a clearly marked stop line. In the absence of a stop line, the operator shall stop before entering the crosswalk on the near side of the intersection. A vehicle that is not turning shall remain standing until an indication to proceed is shown. After stopping, standing until the intersection may be entered safely, and yielding right-of-way to pedestrians lawfully in an adjacent crosswalk and other traffic lawfully using the intersection, the operator may:

(1) turn right; or

(2) turn left, if the intersecting streets are both one-way streets and a left turn is permissible.

Tex. Transp. Code Ann. ' 544.007(d) (Vernon Supp. 2005) (emphasis added).

On cross-examination, Officer Escalon answered defense counsel=s questions as follows:

Q: You didn=t ticket [appellant] for running a red light, did you?

A: No, sir.

Q: Okay. She didn=t run a red light, right?

A: No, she did not.

Officer Escalon never testified that the traffic signal was red when appellant crossed the clearly marked stop line. The record contains no evidence that appellant violated section 544.007(d) of the transportation code. See id.

Further, the record contains no evidence that Officer Escalon saw appellant commit any other traffic violation. Officer Escalon testified that (1) he did not give appellant a ticket for obstructing traffic, (2) appellant was not weaving or going over curbs, (3) there was no accident, and (4) after backing up, appellant was behind the designated line and waited for the traffic light to turn green before proceeding through the intersection.

After reviewing the entire record, we conclude the State failed to provide any evidence showing how Officer Escalon could reasonably conclude that appellant had been, was, or was about to be engaged in criminal activity. Because the record contains no evidence which would allow the trial court to conclude that reasonable suspicion existed, we hold the trial court erred in denying appellant's motion to suppress the evidence.

The dissent asserts that Officer Escalon testified that Athe light changed to green as appellant was backing up.@ However, Officer Escalon testified as follows: A[Appellant] started backing up and then the light changed to green and she proceeded to move forward again.@ Unlike the dissent, we do not interpret this testimony to mean that Athe light changed to green as appellant was backing up.@ The State had the burden of proving that the officer had reasonable suspicion to believe that appellant was violating the law. Officer Escalon could have easily testified that the light was red when appellant crossed the clearly marked stop line. He did not.

D. Disposition

We conclude that the State did not carry its burden of demonstrating the reasonableness of the stop on the basis of a suspicion that appellant had violated section 544.007(d) of the transportation code . Therefore, we reverse the trial court's judgment of conviction and remand the cause to that court for further proceedings consistent with this opinion.

FEDERICO G. HINOJOSA

Justice

Dissenting Memorandum Opinion by Justice Garza.

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 6th day of July, 2006.

[1] See Tex. Pen. Code Ann. ' 49.04 (Vernon 2003).

[2] Officer Escalon considered this a moving violation.