NUMBER 13-13-00017-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ROBERTO PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza

Appellant, Roberto Perez, pleaded guilty to possession of more than one but less 

than four grams of cocaine, a third-degree felony, and possession of less than one gram 

of heroin, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c) 

(West 2010). Perez pleaded true to an enhancement paragraph alleging that he had 

twice been previously convicted of felonies, and was sentenced to twenty-five and 
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fifteen years’ imprisonment for the respective offenses, with the sentences ordered to 

run concurrently. See TEX. PENAL CODE ANN. §§ 12.42(d), 12.425(b) (West Supp. 

2011). On appeal, Perez claims that the trial court erred by denying his motion to 

suppress evidence. We affirm.

I. BACKGROUND

Robstown, Texas police officer Ernest Martinez testified that, on the afternoon of 

March 22, 2012, he observed “a vehicle parked on the wrong side of the road and what 

appeared to be a hand-to-hand transaction.” Officer Martinez noted that this apparent 

transaction took place in an area of Robstown where police had “been dealing with a lot 

of narcotics.” It appeared to the officer that two individuals standing outside the vehicle 

“were passing back and forth an item.” Officer Martinez testified that, as soon as the 

two individuals saw that a police officer was present, they “tried to leave that area” and 

attempted to get back into the parked vehicle. Officer Martinez asked the men to stop. 

Officer Martinez stated that he recognized Perez as one of the individuals as a result of 

Perez’s “prior experiences through the Robstown Police Department.” The other 

individual was identified as Ricky Guzman.

Officer Martinez testified that both Perez and Guzman were “acting totally 

different and extremely nervous” and that Perez “had his eyes wide open.” The officer 

stated: “The way [Perez] looks at me and the way he immediately starts acting, I—

that’s not something normal that a normal citizen would have done.” According to 

Officer Martinez, as soon as Perez saw him, Perez “tried to wave down another vehicle. 

And it was a city vehicle, so I don’t know why he was trying to wave them down.” 
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Because the officer did not feel safe, he conducted a pat-down.1 At that point, Perez 

informed Officer Martinez that he had a syringe in one of his pockets. Officer Martinez 

placed Perez under arrest for possession of drug paraphernalia. He then asked Perez 

to stay in place while he questioned Guzman. Police officer John Garcia arrived to 

assist and observed what appeared to be drugs “right next to [Perez’s] feet.”

A video recording from Officer Martinez’s patrol unit was played for the trial court 

and admitted into evidence at the suppression hearing. The video shows Perez walking 

away from an unidentified male and towards Guzman’s car as Officer Martinez 

approaches in his patrol unit. Guzman’s car is parked in front of a residence on the left 

side of a residential street. Perez is about to open the passenger-side front door of 

Guzman’s car when Officer Martinez pulls up and stops behind Guzman’s car. At that 

point, Perez closes the car door and looks quizzically at the patrol unit. A white pickup 

truck then passes by, and Perez attempts to get the attention of the truck’s driver by 

waving. Officer Martinez gets out of his unit, directs Perez to stand at the rear of 

Guzman’s car, and proceeds to question Guzman, who is sitting in the driver’s seat. 

When Perez is standing near the rear of Guzman’s vehicle, he appears to attempt to 

kick at something on the ground. Later, Officer Garcia arrives and picks up a small 

baggie containing a white substance from the area where Perez was standing.

On cross-examination, Officer Martinez conceded that, although his police report 

described Perez emerging from Guzman’s car before the “hand-to-hand transaction” 

took place, the video recording did not show that. Officer Martinez explained that the 

patrol unit’s video camera “is not going to capture exactly what I could see from the 

 

1 Officer Martinez initially testified that he asked Perez for consent to conduct a pat-down. On 

cross-examination, he acknowledged that he did not ask for consent.
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window.” Officer Martinez further conceded that there is “[n]othing illegal” about 

conducting a “hand-to-hand transaction”; rather, “it’s just suspicious, when that whole 

area is known for drug activity and there is a car parked on the side [of the road].” He 

agreed with defense counsel that the “hand-to-hand transaction” he observed might 

have been a handshake. He further conceded that Perez’s father works for the City of 

Robstown, although he did not remember seeing Perez’s father driving the “city vehicle” 

that Perez tried to “wave down.” Officer Martinez agreed with defense counsel that 

Perez never made any “furtive movements.”

The trial court denied Perez’s motion to suppress the drug evidence. No findings 

of fact or conclusions of law were requested. Perez later pleaded guilty and was 

convicted. The trial court certified Perez’s right to appeal, and this appeal followed.2

II. DISCUSSION

A. Standard of Review

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

bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. 

App. 2007). Trial judges are uniquely situated to observe the demeanor and 

appearance of any witnesses and, as the sole fact-finder at a suppression hearing, may 

believe or disbelieve any portion of a witness’s testimony and make reasonable 

inferences from the evidence presented. Amador v. State, 275 S.W.3d 872, 878 (Tex.

Crim. App. 2009). Accordingly, we afford almost total deference to a trial court’s 

determination of the historical facts that the record supports, especially when the 

determination is based on an evaluation of credibility and demeanor. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). We afford the same amount of 

 

2

The State has not filed a brief to assist us in the resolution of this matter.
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deference to trial courts’ rulings on “application of law to fact questions,” also known as 

“mixed questions of law and fact,” if the resolution of those ultimate questions turns on 

an evaluation of credibility and demeanor. See id. On the other hand, we conduct a de 

novo review of evidence when the resolution of mixed questions of law and fact do not 

turn on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725 

(citing Guzman, 955 S.W.2d at 89).

Whether a specific search or seizure is reasonable or supported by probable 

cause is a question of law subject to de novo review. Dixon v. State, 206 S.W.3d 613, 

616 (Tex. Crim. App. 2006). During our review, we consider all the evidence in the light 

most favorable to the trial court’s ruling. State v. Iduarte, 268 S.W.3d 544, 548 (Tex.

Crim. App. 2008). Where a trial court does not enter any findings of fact, we “assume 

that the trial court made implicit findings of fact that support its ruling as long as those 

findings are supported by the record.” State v. Ross, 32 S.W.3d 853, 858 (Tex. Crim.

App. 2000) (en banc). We will uphold the ruling so long as it is supported by the record 

and correct under any legal theory applicable to the case. Iduarte, 268 S.W.3d at 548.

B. Applicable Law

“It has been an accepted part of state and federal jurisprudence for many years 

that law enforcement officers may stop and briefly detain persons suspected of criminal 

activity on less information than is constitutionally required for probable cause to arrest.” 

Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (quoting Crockett v. State, 

803 S.W.2d 308, 311 (Tex. Crim. App. 1991)). To justify an investigative detention, the 

officer must have a reasonable suspicion that the person detained is, has been, or soon 

will be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914–15 
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(Tex. Crim. App. 2011). Reasonable suspicion requires specific, articulable facts based 

on the officer’s experience and personal knowledge that, when coupled with the logical 

inferences from those facts, would warrant the intrusion on the detainee. Davis, 947 

S.W.2d at 244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). 

“These facts must amount to more than a mere hunch or suspicion.” Id. “The 

articulable facts used by the officer must create some reasonable suspicion that some 

activity out of the ordinary is occurring or has occurred, some suggestion to connect the 

detainee with the unusual activity, and some indication that the unusual activity is 

related to crime.” Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983), abrogated 

on other grounds by Holcomb v. State, 745 S.W.2d 903 (Tex. Crim. App. 1988). The 

test for reasonable suspicion focuses solely on whether an objective basis exists for the 

detention and disregards the officer’s subjective intent. See Abney v. State, 394 

S.W.3d 542, 550 (Tex. Crim. App. 2013) (“[A]n officer’s mistake about the legal 

significance of facts, even if made in good faith, cannot provide probable cause or 

reasonable suspicion.”).

C. Analysis

Perez argues that there is “nothing suspicious” about “approaching a car and 

shaking hands with the driver,” “[waving] towards a city vehicle as it pass by,” or “being 

nervous around police officers.” Therefore, according to Perez, Officer Martinez’s 

actions amounted to an illegal detention and the drug evidence obtained by police as a 

result of that detention should have been suppressed by the trial court. See TEX. CODE 

CRIM. PROC. ANN. art. 38.23 (West 2005) (“No evidence obtained by an officer or other 

person in violation of any provisions of the Constitution or laws of the State of Texas, or 
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of the Constitution or laws of the United States of America, shall be admitted in 

evidence against the accused on the trial of any criminal case.”).

Perez contends that his case is analogous to Hawkins v. State, 758 S.W.2d 255 

(Tex. Crim. App. 1988). In that case, a Fort Worth police officer encountered the 

defendant, Charles Hawkins, walking in the parking lot of a nightclub located in a highcrime area. Id. at 256. The officer knew Hawkins’s name from his prior dealings with 

the police department. Id. As here, the officer conceded that he observed no criminal 

activity. Id. When the officer asked Hawkins to “[c]ome here a minute,” Hawkins 

instead continued walking. Id. Another officer arrived, stepped out of his vehicle and 

confronted Hawkins, at which point Hawkins threw a paper bag, later confirmed to 

contain cocaine and heroin, into a nearby drainage ditch. Id. at 256–57. The Hawkins

Court stated that, “[a]lthough a voluntary abandonment of evidence can remove the taint 

of an illegal stop or arrest, ‘it is equally true that for this to occur the abandonment must 

be truly voluntary and not merely the product of police misconduct.’” Id. at 258 (quoting 

United States v. Beck, 602 F.2d 726, 729–30 (5th Cir. 1979)); see Clapp v. State, 639 

S.W.2d 949, 953 (Tex. Crim. App. 1982) (holding that, when police take possession of 

abandoned property, there is no “seizure” under the Fourth Amendment). Thus, “if an 

accused abandons property in response to unlawful police misconduct, the 

abandonment will not be considered a voluntary or independent act and thus the 

protections of the Fourth Amendment will apply.” Id. at 259. The admissibility of the 

drug evidence therefore turned on whether the detention was illegal. See id. at 260 

(“The validity of a search of allegedly abandoned evidence will turn on the nexus 

between the alleged abandonment and the legality of a person’s detention.”). The Court 
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concluded that Hawkins’s detention was illegal because “police had no specific and 

articulable facts on which to base a valid investigative stop”:

In the instant case, neither [officer] testified that they believed appellant 

had or was engaged in criminal activity. Furthermore, there was no 

testimony that either police officer had received information that appellant 

was engaged in criminal activity. . . . There is nothing inherently 

suspicious about an individual standing in a parking lot of a club at 8:30 

p.m. Neither are there any facts indicating anything suspicious about 

appellant’s decision not to be questioned by [the first officer] but instead to 

proceed on his way. . . . The facts in this case do not reveal any sort of 

suspicious conduct on the part of appellant or items in his possession to 

warrant a stop.

Id. (contrasting Lara v. State, 469 S.W.2d 177 (Tex. Crim. App. 1971), and Galitz v. 

State, 617 S.W.2d 949 (Tex. Crim. App. 1981), wherein officers involved observed 

“suspicious conduct on the part of the person detained and suspicious items on that 

individual prior to the stop”).

Perez also directs us to Comer v. State, where the court of criminal appeals held 

that evidence should have been suppressed because: “We find it difficult to discover 

any facts showing activity out of the ordinary . . . save that the officer described the area 

as being one of high crime and that appellant attempted to leave as the officers 

approached.” 754 S.W.2d 656, 658 (Tex. Crim. App. 1986).

The instant case is similar but not directly analogous to Comer and Hawkins. In 

those cases, as here, the suspect abandoned contraband as a result of police action, so 

the admissibility of the evidence turns on the legality of the detention. As in Comer, the 

investigative stop took place in a high-crime area. See id. And, as in Hawkins, there 

was no direct evidence that the accused was doing anything illegal at the time he was 

stopped. See 758 S.W.2d at 260. However, Officer Martinez testified as to additional 

“articulable facts” that would support reasonable suspicion in this case. In particular, 
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Officer Martinez testified that Perez emerged from a vehicle that was parked on the 

wrong side of the road. The officer could have logically inferred from this fact alone that 

Perez and Guzman were involved in criminal activity; i.e., violating traffic laws by driving 

on the wrong side of the road. See TEX. TRANSP. CODE ANN. § 542.301 (West 2011) 

(stating that failure to comply with traffic laws is a misdemeanor); id. § 545.051(a) (West 

2011) (providing generally that “[a]n operator on a roadway of sufficient width shall drive 

on the right half of the roadway” and providing exceptions not applicable here); see also 

Johnson v. State, 06-11-00004-CR, 2011 WL 2418422, at *3 (Tex. App.—Texarkana 

June 14, 2011, no pet.) (mem. op., not designated for publication) (noting that the 

investigative stop of a suspect was legal because the suspect “parked his vehicle in 

front of a driveway, and this is a violation of the [transportation code]”).3

The evidence in this case, considered in the light most favorable to the trial 

court’s ruling, see Iduarte, 268 S.W.3d at 548, establishes that Officer Martinez had 

more than a “mere hunch or suspicion” that Perez had engaged or was about to engage 

in criminal behavior. See Davis, 947 S.W.2d at 244. Accordingly, the investigative stop 

was legal and trial court did not err by denying Perez’s motion to suppress evidence 

obtained as a result of that stop.

 

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As noted, Officer Martinez also testified that Perez acted “extremely nervous,” “had his eyes 

wide open” and “tried to wave down another vehicle” when the officer approached Guzman’s vehicle. A

suspect’s nervousness is not suspicious in and of itself but may be considered as a factor in making a 

determination of reasonable suspicion. Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012). 

The video recording shows Perez attempting to wave down a vehicle, but we cannot say that it clearly 

shows Perez acting “extremely nervous.” In any event, we need not determine whether these actions 

established reasonable suspicion because of our conclusion herein that the officer may have logically 

inferred that Perez and Guzman violated traffic laws. For the same reason, we need not determine 

whether Perez’s “hand-to-hand transaction”—which Officer Martinez conceded may have merely been a 

handshake—gave rise to reasonable suspicion.
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III. CONCLUSION

We affirm the judgment of the trial court.

DORI CONTRERAS GARZA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

21st day of November, 2013.