### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00707-CR

Jam es C. Shakespea re, Appellant

v. The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVI S COUNTY NO. 548, 151, HONORAB LE DAVID F. CRAIN, JUDGE PRESIDING
Appellant James C. Shakespeare pleaded no contest to the ch arge o f operating a motor vehicle while intoxicated. See Tex. Penal Code Ann. § 49. 04 (West Supp. 2001). The trial court asse ssed

punishme

nt at ninetydays 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 arr esting officer did not have r easonable suspic ion to detain appellant further in order to investigate whether he was intoxicated. Appellant complains that the trial court thus er red in denying his motion to suppress all evidence obtained pursuant to his

detentio n. We will

af fi rm th e t ria l c ou rt’ s orde r.
BACKGROUND OnNovember 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 Safe tyofficer witnessed the violation2

and stopped appellant. The officer di d not observe anything else improper abou t 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 t he vehicle. The officer asked ap pellant to step o ut of his c ar and to accompany him to the side walk. Throughout thistime , appella nt’s speec h and gait were norm al. While standing together on the sidewalk, the officer again smelled a moderate odor of alcohol on appellant’s br eath.

The officer conse quently as ked appe llant to pe

rform standard field sobriety te sts to determine whether he was into xicated
. Appellan t failed the

horizontal gaz e nysta

gmus tes t, the
wa lk -a nd -t urn test, and the one-leg stand test. The officer arr ested appellant for DWI. Appellant

“ failed” the breath test later administer ed at the police station.

Appellant filed a timely motion to suppress all evidence obtained at the time of his detentionfor suspected intoxicat ion. After a hear ing, the trial cour t denied the motion and appellant entered his plea.
DISCUSSI ON

Inreviewing a tr ial court’s r uling on a m otion to suppress, we defer to the tr ial court’s deter mination of histor ical facts. Guzmanv. State , 955 S. W. 2d 85, 88-89 (Tex. Crim. App. 1997). We do so because in a s uppression hearing, the trial judge is the sole trier of fact and th e s ol e j ud

ge of th e cre dibilit y of witnesses and the weight to be given their testimony. Romer o v. State , 800 S. W. 2d

539, 543 (Tex. Crim. App. 1990). B ut where, as here, the facts3

ina case are undisputed, we conduct a de novo review to dete rmin e if the trial court properly applied th e law to those f acts. Id
. Appellant does not challenge the validity of the initial traffic stop. He concedes that the officer obser ved him failing to stop at a posted stop sign. Appellant argues, however, that th ere was no justification for any “ detention” that exceeded what was ne cessary to ticket him for this violation. The sole issue in this case, therefor e, is whether reasonable suspicion arose during the traffic stop sufficient to pe rmit the of ficer to fur ther investigate whether appellant was intoxicated. The Supreme Court has held that la w enforcement o fficers may det ain individua

ls for investigative purposes e ven if the o fficers do not ha ve probable c ause to

make an a

rr est. Terry
v. Ohio , 392 U. S. 1, 21 (1968). To justify such a detention under the F ourth Amendment, the officer must hav e a reasona ble sus picion of criminal activity , based on “ specific

and articulab le facts which, taken together with r ational inferences from thos e facts would reasonably warr ant that intrusion. ” Id
. Generally, there must be some suggestion or indication that activity out of the ord in ary is occurring or has occurred, that the detained person is connected w ith the unusual activity, and that the activity is related to a crime. Gurro la v. State , 877 S. W. 2d 300, 302 (Tex. Crim. App. 1994). If the deten tion is un lawful, any evidence obtained as a result of the detention is inadmissible. Id
. This Court has he ld that when

an officer exten

ds a va lid traffic stop in order to investigate possible intoxication, this investigation is a “ detention” for F ourth 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.
S Aust in 199 7, no writ).4 Inthis case, the officer witnessed appellant commit a traff ic violation. Appellant does not dispute that the officer had the right to stop him once the offi cer observed the offense. The offense occurr ed during the very earl y hours of the morning, in the dow

ntown area of Fourth and Color ado Streets; when stopped, the officer smelled alco hol on appellant’ s breat h. These specific facts and the inferences that may reasonably be drawn fr om them support the conclusion that the officer had r easonable suspic ion to briefly detain ap pel lant to inve stigate his pos sible intoxication. We do not c onsider whet her any one of the se fact ors is suffici e nt, but we do conclude that in combination they rise to the level of reasonable suspicion.

In similar cas es, Texas

courtshave

held that a n odor of a

lcoh ol on a

motoris t’s breathin conjunction with another violation constitutes reasonable suspicion for an investigation of intoxication. Sanchez

v. State , 582 S. W. 2d 813, 814-15 (Tex. Cri m. App. 1979) (holding that detentionwas justified based on odor of alcohol about defendant who fled from police when they attempted to st op him for spee ding); State v. Brabson , 899 S. W. 2d 741, 747 (Tex. App.
S Dallas 1995) (holding that off-duty off icer had reasonable

suspic ion to investigate DWI when, at 3: 00
a. m. , de fe ndan

t h on ke d h orn exce ssi vely and smelle d of al coho l), aff’d , 976 S. W. 2d

182 (Tex. Crim. App. 1998)
.

Appellant argues, however, that

this case i s controlled by this Court’s dec ision in Rodriguez
. In Rodriguez , the recor d before the administr ative law judge was completely silent
as to anycausal connection between the initial stop and the subseq uent inves tigation of intoxication. Rodriguez , 9 53 S. W. 2d at 364. This court held that ther e must be “ some causal link” conn ecti

ng the initi al st op to t he subse quen

t fi eld sobriety t ests. Id
. The present c ase is5

directly distinguishable on the facts: the smell of alcohol and the circumstances surroundi ng the stop provide exactly the causal connection missing from the recor d in Rodriguez.

The app ellant next ass erts that Texa s cas es do no t support the c ontention that a

“ moderate” as opposed to a “ strong” smell of alcohol can be a basis for an officer’s reasonabl e suspicion. Reas onable s uspicion involves

common s ense ju

dgments and is no t susc eptible to formalistic analysis. Ill. v. Wardlow , 528 U. S. 119, 125 (2000). Dr awing a fine distinction between varying degr ees of

smell wo uld encou rage just su

ch formalism. While a s

mell of alc ohol, how ever strong, does not definitively signal legal impairment, such a smell is sugge stive o f intoxication and therefor e maylegitimately be considered when determining whether the detaining officer had r easonable suspic ion.

Appellant also argues that

we should weigh the absence of various factor s indicating ine briation (slurr ing words, weaving, staggering, swaying) against the presence of an odor o f alcohol when determining whether t he officer posse ssed reasonable

suspicion for the detention. As this Court has noted, ho wever, th e absence of factors is only a part of the totality of the circumstances considered; the reasonable suspicion st anda rd does not demand a rigid balancing of suspicious against unsuspicious activity. State v. Garr ett , 2 2 S. W. 3d 650, 655 (Tex. App.
S Austin

2000, no pet. ). Instead, the proper inquiry asks whether a reasonable

person could articulatespecific

facts and circumstances that would warr ant a detention for fur ther investigation. The absence of a factor “ typical” of inebriation is ther efore not dispositive.6 We hold that the traffic violation, the time of night, and the odor of alco hol o n appe llant ’s breath combi ne d to give th e officer reasonab le sus picion to d

etain ap pellant to investigate his possible intoxication. We therefor e overr ule appellant’s single issue.
CONCLU SION Having overruled

appe llant ’s sing le is sue , we af firm the t rial cou rt’s order denying the motio n to suppr ess.

Marilyn Aboussie, Chief Justice B efore Chief

Justice Abouss ie, Justices Yeake l and Patter son Affirm ed F iled: April 26, 2001 Do N ot Pu blish