COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS THE STATE OF TEXAS, Appellant,

v. L I Z ETH CADENA , Appellee

. § § § § § § No. 08-09-00322- CR

Appea l from the County Criminal Court at L aw No. F our of El Paso County , Texas (TC# 20090C05477)

O P I N I O N I n a sing le issue, the State appe als the trial cour t’s suppression of e vidence . We reve rse. BACK GR OUND By complaint and information, Appellee was char g ed with driving whi le intox icated. Appellee filed a motion to suppress all pre- Miranda evidenc e, including evi d en ce of her

conver sations w ith police office rs as well as all brea th te sts and examinations m ade by police. As g rounds for suppressing this evidenc e, Appell e e c la im e d th at she was illega lly detained, arr ested, and

sear ched without rea sonable suspicion or probable cause to believe that she was eng ag ed in criminal activity , that she was arr ested without a war rant, that the acqu i s i t i o n of such evidenc e was made without her conse nt, and that all fruits of the se arc h should be suppresse d. 1 I n its writ t en re s p onse to Appellee ’s suppression motion, the State complained that the motion was vag ue, conclusory , and failed to make ref ere nce to the fac ts in the case . Consequently , the State arg ued Appellee was not enti tled to a hear ing beca use her motion failed to identify any

A l t h o u g h “ r e a s o n a b l e s u s p i c i o n ” a n d “ p r o b a b l e c a u s e ” a r e n o t i n t e r c h a n g a b l e t e r m s , A p p e l l e e o f t e n u s e d 1 t h e t e r m s i n t e r c h a n g a b l y .leg al basis with sufficie nt specific ity to provide the trial court and the State with proper notice. The

State also objected upon the basis that Appellee was arr ested pursuant to two outstanding criminal

war rants and that, even if the detention was illega l, the evidenc e obtained pursuant to the outstanding

arr est war rants was admissible. Attache d to the State’s response wer e two war rants of arr est, one for failure to maintain financ ial responsibi lity and one for passing in a school zone, and a copy of the offic er’ s complaint aff idavit. I n his sworn and notarized complaint aff idavi t , Of

fi cer Alvare z stated that he stopped Appellee afte r he observe d her: (1) stop her vehicle in two lanes at a red light; (2) fail to dr ive in a single lane of

traff ic by driving onto a cur

b, swerving , and tra

veling in severa l lanes; (3) c hang ing lanes without signa ling; and (4) speeding

. Upon speaking with Appellee , Offic er Alvare z observe d that her ey es wer e bloodshot, g lassy , and water y , her speec h, movement and ref lexes wer e slow, her walk was stag g ere d, and that she emitted the strong odor of an unknown alcoholic bever ag e. After Appellee failed the field-sobrie ty tests, Offic er Alvare z arr ested her f o r driving while intox icated and asked tha t she submit to a breath a lcohol test, the result of whic h was 0.13. At the suppression hear ing, Appelle e ar gu ed that she was stopped without rea sonable suspicion or probable cause , was arr ested wi t h o u t a war rant, should not have been detained for driving while intox icated, and as a result, all evidenc e resulting there from should be suppressed. Appellee also arg ued that the office r did not have a valid basis for making the initial stop, and that afte r the offic er m ad e t h e stop and arr ested her, the deter mination that Appellee had outstanding

war rants was insufficient to “obviate the responsibility [of] having rea sonable suspicion to stop her in the first place .” Acc ording to App el l ee , t h e o fficer could not stop her unless she committed a traff ic vio l at i o n , an d t he office rs could not have known she had war rants befor e stopping her. During the proce eding s, Appellee testified that prior to the driving -while-intoxicated ch ar ge, anar re st war rant had issued for her arr est in rela tion to the offe nse of failure to maintain finan ci al responsibility

. The State, without prese nting any witnesses, explained to the trial court that it was uncer tain what Appellee was challeng ing, noting that Appellee had not been subjected to a war rantless arr est, and asked the trial court to take judicial notice of both the arr esting office r’s complaint aff idavit, in which it was noted that Ap p el l ee had been drivi ng in two lanes, thus providing a valid basis for a stop, as well as the war

rants that wer e attache d to the State’s written response . The State noted that

rea sonable suspicion, not probable cause , is the proper basis for conducting a stop, reminded the trial court that an o ff

i ce r h as a duty to detain a person with an outstanding war rant, and stated that beca use a person with an outstanding war rant is a fug itive subject to being appre hended, there is no

rea son to have a

basis for stopping the per son. The trial c ourt asked, “ What y ou are telling me is that they [can] st op any

body , and then if [t hey ] subsequently find a war rant, that justifies ever

y thing that came befor e? ” The State responde d aff irmat i v el y b y cit ing two case s in support of the trial court’s statement. Johnson v. State , 496 S.W .2d 72, 74 (Tex. Crim. App. 1973); Jara v. State , No. 08-06-00243-CR, 2008 WL 101395, at *4 (Tex. App. – El Paso J an. 10, 2008, no pet.) (not desig nated for publication). The State reiter ated that beca use Appellee was arr ested under two outstanding war rants, she had no basis to complain. The trial c ourt noted, “Just so the Court is clear , she wa sn’t only arr ested for

the war rants bec ause from my understanding , she did fail the sobriety tests and there wer e other indicators that she might have been int o x i ca t ed

. ” Appellee arg ued that Johnson require s a valid initial detention as a prer equisite befor e a pre- exis ting, outstanding war rant would permit otherwise tainted evidenc e to be admitted at trial. She then asked the trial court to find that there was no probable cause to detain her and arr est her without a war rant, and to suppress “all information.” The trial co u rt g rante dAppellee ’s motion to suppress the evidenc e and, in its finding s of fac t, made a finding that Appellee

“ac knowledg es having two outstanding w arr ants.” DISCUSSIO N I n its sole issue, the State contends on appeal that the trial court err ed and abused its discretion in g ranting Appellee ’s suppression motion bec ause under the Attenuation Doctrine , the two outstanding war

rants clea nsed the alleg ed tain t resulti ng from the alleg edly improper stop of Appellee ’s vehicle

. We ag ree . 2 Standard of Review We revie w a trial court’s ruling on a motion to suppress for an abuse of discretion. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Cr i m . Ap p . 2 0 06). When revie wing a trial court’s ruling on a motion to suppress evidenc e, we utiliz e a birfurc ated standard. Guzman v. State , 955 S.W .2d 85, 87- 91 (Tex. Cr i m . Ap p . 1 997). As the sole fac t finder at a suppression hear ing, the trial court may choose to be lieve or disbelieve any or all of a w itness’s testimony

. Alvarado v. State , 853 S.W .2d 17, 23 (Tex. Crim. App. 1993). When it is supported by the rec ord, we g ive almost total defe renc e t o t h e trial court’s deter

mination of historical fac ts, particula rly if the finding s turn on witnes s

cre dibilit y and demea

nor. State v. Ross , 32 S.W .3d 853, 856 (Tex. Crim. App. 2000); Carmouche

v. State, 10 S.W .3d 323, 327 (Tex. Crim. App. 2000). We af fo rd the same defe renc e to deter minations of mix ed questions of fac t and law when their res o l u t ion depends upon witness

cre dibilit y and demea

nor. Amador v. State , 221 S.W .3d 666, 673 (Tex. Crim. App. 2007); Ross , 32 S.W .3d at 856

. Ho we v er , when mix ed questions of fac t and law do not turn on an evalua tion of

cre dibilit y and demea

nor, we consider them under a de novo standard. Amador , 221 S.W .3d at 673; Ross , 32 S.W .3d at 856. I f it is reasona bly sustained by the record and is corr ect on any theory of

A p p e l l e e d i d n o t f

i l e a r e p l y b r i e f

. 2law applicable to the case , we will sustain a trial court’s ruling

. Villarreal v. State , 935 S.W .2d 134,

138 (Tex. Crim. App. 1996). As the issue b ef ore us turns not upon a deter mination of witness

cre dibilit y but, rathe r, upon the application of the law to the historical fac ts, we conduct our revie w de novo. A mador , 221 S.W .3d at 673. Application The United States Supreme Court has held that, as a g ener al rule, the “fr uit of the poisonous t re e” d o ct rine bars the use of evidenc e obtained following an illega l arr est. W ong Sun v. Un i t ed States , 371 U.S. 471, 484, 83 S.Ct

. 407, 415, 9 L .Ed.2d 441 (1963). I n Texas, A rticle 38.23 of the Texas Code of Criminal Procedur e provides that evidenc e obtained by an office r or other person in violation of the Texas or U.S. Constit utions or laws is to b e ex cluded from evidenc e ag ainst the

acc used in a c riminal trial. T E X . C O D E C R I M . P R O C . AN N . art. 38.23(a ) (Ve rnon 2005). How ever , the attenuation doctrine permits evide nce to be admitted if the connec tion betwee n the initial illega lity and the means throug h which the evidenc e was secur ed is so attenuate d as to dissipate the taint. Hudson v. State , 247 S.W .3d 780, 787 (Tex. App. – Amarillo 2008, no pet.); W elcome v. State , 865 S.W .2d 128, 133 (Tex. App. – Dallas 1993, pet. ref ’d), citing W

icke r v. State , 667 S.W .2d 137, 141-42 (Tex. Crim. App.), cert. denied, 469 U.S. 892, 105 S.Ct

. 268, 83 L .Ed.2d 204 (1984). More than thirty -five y ear s ag o, the Texas Court of Cr i m i n al Appea ls held that the discovery of an outstanding war

rant during an illega l detention of an individual may brea k the connec tion betwee n the primary taint a

nd the subsequently discovere d evidenc e. See Johnson v. State , 496 S.W .2d 72, 74 (Tex. Crim. App. 1973). We ha ve also rec og nized that “eve n in a situation involving an illega l detention, wher e a valid war rant for the appellant’ s arr est is discovere d, and the appellant is arr ested under the authority of that war rant, evidenc e found during a subsequent sear ch pursuant to the arr est is admissible into evidenc e aga i nst the appellant.” Jara v. State , No. 08-06-00243-CR, 2008 WL101395, at *4 (Te x . App. – El Paso J an. 10, 2008, no pet.) (not desig nated f or publication). I n the ca se bef

ore us, the rec ord conta ins some evidence that Appellee stopped her ve hicle in two lanes of traff

ic at a red light, failed to drive in a single lane of traff ic by driving onto a curb,

swerve d, trave led in sever al lanes without signa ling, and was speeding

. T E X . T R A N S P . C O D E A N N . § 545.060(a) (Ve rnon 1999) (Driving on Roadway L aned for Traf fic); T E X . T R A N S P . C O D E AN N . § 545.352(a) & (b) (Ve rnon Supp. 2010) (Prima Fa cie Spee d L imits ). At a minimum, this evidenc e shows that the office r wa s authorized to make the traff ic stop afte r observing Appellee commit a speeding violation. T E X . T R A N S P . C O D E AN N . § 545.352(a) & (b) (Ve rnon Supp. 2010) (Prima Fa cie Speed L imits ). Moreove r, we have rec ently noted that t h er e i s n o require ment that a traff ic reg ulation be violated befor e an office r has rea sonable suspicion to justify a stop of a vehicle. State

v. Alderete , 314 S.W .3d 469, 473 (Tex. App. – El Paso 2010, pet. ref ’d) ( police off

icer s trained to detec t persons driving while intox icated had rea sonable suspicion to stop driver suspected of driving while intox icated afte r observing driver continuously swerving within a lane for a distance of onehalf mile, even though driver did not violate any traff ic reg ulations). There fore , we do not ag ree that Appellee ’s detention was illega l. Moreo v er , even if the detention was illega l, the outstanding

war rants for which Appellee was arr ested remove d any taint and rende red the subsequently obtained evidenc e admissible. Johnson , 496 S.W .2d at 74; Jara , 2008 WL 101395, at *4. For these rea sons,

we cannot conclude that the trial court’s decision to suppress the evidenc e was corr ect on any theory of law a pplicable to the c ase. See V illarreal , 935 S.W .2d at 138. The State’ s issue is sustained. CONCLUSION The trial c ourt’s judg ment is rever sed and the case is remande d for f urther pr ocee dings.

GUADA L UPE RI VERA, J usticeDec ember 29, 2010 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)