NUMBER 13-19-00275-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

THE STATE OF TEXAS, Appellant,

v.

ISABELLA RODRIGUEZ, Appellee.

 

On appeal from the County Court at Law No. 15

of Bexar County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina

Memorandum Opinion by Justice Tijerina

The State of Texas appeals the trial court’s order granting appellee Isabella 

Rodriguez’s motion to suppress evidence following a traffic stop. By two issues, the State 

argues the trial court erred in concluding the detaining officer lacked (1) reasonable 

suspicion to believe that Rodriguez committed the offense of driving while intoxicated 

(DWI) and (2) probable cause to arrest her. See TEX. PENAL CODE ANN. § 49.04. We 
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affirm.1

I. BACKGROUND

Rodriguez was charged by information with DWI on April 20, 2018. See id. 

Rodriguez subsequently filed a motion to suppress oral statements and her arrest during 

the traffic stop.

Officer Trevor Tustison with the San Antonio Police Department was the State’s 

sole witness at the suppression hearing. He testified that he stopped Rodriguez’s vehicle

for speeding. Once Officer Tustison made contact with Rodriguez, he noticed that she 

had “kind of a glazed look” and that she looked “a little lethargic.” Rodriguez told him that 

she needed to use the restroom and that is why she was speeding. He smelled a faint 

odor of intoxicants, but “it was faint enough to where [he] wasn’t entirely sure o[f] the 

origin.” Rodriguez told Officer Tustison she was on her way from a sorority community 

service event. She produced her driver’s license and gave her name and date of birth. 

Officer Tustison asked Rodriguez how much she had to drink, and she responded, “none.” 

Officer Tustion testified that he asked Rodriguez to step out of her vehicle, and at this 

point, his traffic stop for speeding became a DWI investigation.

On cross-examination, Officer Tustison admitted Rodriguez was not swerving or 

getting into cross traffic. He stated that his reason for suspecting DWI was the fact that 

she was speeding and that she “came up very close to [his] vehicle at a high rate of speed 

and then slowed down immediately.” He testified that when he pulled Rodriguez over, she 

1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio by 

order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of 

appellate courts); 73.001 (granting the supreme court the authority to transfer cases from one court of 

appeals to another at any time that there is “good cause” for the transfer).
3

did not have any trouble parking and that nothing stood out about her parking. He 

conceded that she stepped out of her vehicle without any problems, and she was not 

fumbling or shaking while retrieving her driver’s license. He testified that he performed a 

“preliminary HGN test,” which he agreed was an invalid test. Officer Tustison’s dash cam 

video was submitted into evidence. The “invalid” HGN test portion of the dash cam video 

was not entered into evidence, and it was not played for the trial court.

The trial court granted Rodriguez’s motion to suppress and issued findings of fact 

and conclusions of law pursuant to the State’s request. This interlocutory appeal followed. 

See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5).

II. MOTION TO SUPPRESS

By its first issue, the State argues the trial court erred in concluding that Officer 

Tustison lacked reasonable suspicion to believe that Rodriguez committed the offense of 

DWI.

A. Standard of Review

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

of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford 

almost total deference to a trial court’s determination of historical facts when supported 

by the record, but we review pure questions of law de novo. Alford v. State, 358 S.W.3d 

647, 652 (Tex. Crim. App. 2012). Likewise, we defer to a trial court’s resolution of mixed 

questions of law and fact if those questions turn on the credibility and demeanor of 

witnesses. Id. However, if credibility and demeanor are not necessary to the resolution of 

a mixed question of law and fact, we review the question de novo. Id. 
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When the trial judge makes express findings of fact, as here, we first determine

whether the evidence, when viewed in the light most favorable to the trial court’s ruling, 

supports those findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). 

“[W]hen evidence is conclusive, such as . . . ‘indisputable visual evidence,’ then any trial 

court findings inconsistent with that conclusive evidence may be disregarded as 

unsupported by the record, even when that record is viewed in a light most favorable to 

the trial court’s ruling.” Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012). That 

said, a trial court’s findings of historical fact based on a videotape recording are reviewed 

under a “deferential standard” and we must defer to those findings unless the video 

recording “indisputably contradicts” them. Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. 

App. 2010); State v. Houghton, 384 S.W.3d 441, 446 (Tex. App.—Fort Worth 2012, no 

pet.).

We uphold the trial court’s ruling if it is supported by the record and is correct under 

any theory of law applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. 

Crim. App. 2008). Thus, if supported by the record, a trial court’s ruling on a motion to 

suppress will not be overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Here, we review de novo whether Officer Tustison 

was justified in converting the traffic stop into an investigative detention for DWI. See 

State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim. App. 2017) (“[W]hether the facts, as 

determined by the trial court, add up to reasonable suspicion . . . is a question to be 

reviewed de novo.”).
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B. Reasonable Suspicion 

The Fourth Amendment protects against unreasonable searches and seizures. 

U.S. CONST. amend. IV. “A seizure for a traffic violation justifies a police investigation of 

that violation.” Rodriguez v. United States, 575 U.S. 348, 354 (2015). A routine traffic stop 

is more analogous to a so-called Terry stop than to a formal arrest. Id. “Like a Terry stop, 

the tolerable duration of police inquiries in the traffic-stop context is determined by the 

seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to 

related safety concerns.” Id. Because addressing the infraction is the purpose of the stop, 

it may not last longer than necessary to effectuate that purpose. Id. “Authority for the 

seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have 

been—completed.” Id. “Beyond determining whether to issue a citation, an officer’s 

mission includes ordinary inquiries incident to the traffic stop, such as checking the 

driver’s license, determining whether there are outstanding warrants against the driver, 

and inspecting the automobile’s registration and proof of insurance.” Id. at 355. 

Reasonable suspicion exists if the officer has specific, articulable facts that, 

combined with rational inferences from those facts, would lead the officer to reasonably 

conclude that the person is, has been, or soon will be engaged in criminal activity. Castro 

v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). We consider the totality of the 

circumstances to make a reasonable-suspicion determination. Curtis v. State, 238 

S.W.3d 376, 379 (Tex. Crim. App. 2007).

A person commits the offense of driving while intoxicated if he “is intoxicated while 

operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a). 
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“Intoxicated” means “not having the normal use of mental or physical faculties by reason 

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a 

combination of two or more of those substances, or any other substance into the body.” 

Id. § 49.01(2)(A). Thus, we must determine whether under the totality of the 

circumstances, Officer Tustison had specific, articulable facts that, combined with rational 

inferences from those facts, led him to reasonably conclude that Rodriguez was driving 

her vehicle while not having the normal use of her mental or physical faculties by reason 

of the introduction of alcohol into her body. See Evans, 500 S.W.3d at 537; see also 

Rodriguez, 575 U.S. at 354 (“A seizure justified only by a police-observed traffic 

violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to 

complete th[e] mission of issuing a ticket for the violation.”); Davis v. State, 947 S.W.2d 

240, 243 (Tex. Crim. App. 1997) (noting that an investigative stop which is reasonable at 

its inception may violate the Fourth Amendment because of excessive intensity or scope).

C. Analysis

There is no dispute here that Officer Tustison had reasonable suspicion to make 

the initial traffic stop because he observed Rodriguez commit a traffic violation. The 

question in this case is whether Officer Tustison, after the traffic stop, had reasonable 

suspicion to investigate whether she was driving while intoxicated.2 See Evans, 500 

S.W.3d at 537.

The State argues that Officer Tustison had reasonable suspicion to investigate 

whether Rodriguez was driving while intoxicated because of the following circumstances: 

2 We note that the parties do not deny that the stop was prolonged, i.e., lasted longer than 

necessary to check Rodriguez’s driver’s license and issue a ticket.
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the day of the week and time of night, the fact that she was coming from a sorority event, 

and Officer Tustison’s testimony regarding Rodriguez’s alleged glazed look, lethargic 

reactions, the faint odor of alcohol, and her slow response time. However, “[t]he trial court 

considered more than just the specific instances of [Officer Tustison’s] testimony pointed 

out by the State.” See id. The trial court considered the totality of the circumstances, and

found the following: 

1. Officer Tustison detained Isabella Rodriguez for speeding and that she 

“came up too fast” to his unit at approximately 12:30 a.m.

2. Officer Tustison testified that he noticed Rodriguez had a glazed look 

and looked a little lethargic.

3. Officer Tustison smelled a faint odor of intoxicants but was faint enough 

that he was unsure of the origin.

4. Officer Tustison was aggressive in his demeanor and approach with 

Rodriguez. 

5. Officer Tustison described Rodriguez as slow to respond, and he felt 

she might be under the influence of something. 

6. On the video, Rodriguez was soft-spoken. Her speech was clear and not 

slurred. She was polite and nervous. 

7. Rodriguez appropriately parked her car in a parking space between 

lines.

8. Rodriguez gave her name and date of birth without issues.

9. She stated she needed to use the restroom as the basis for speeding.

10.Officer Tustison did not see any problems with Rodriguez getting out of 

her car. She did not stumble or fall and was steady on her feet. 

11.She consistently denied drinking. 

12.Officer Tustison did not have any problems communicating with 

Rodriguez. 
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13.Officer Tustison testified that he did not perform a valid HGN test. He 

described it as “preliminary, just to make sure.” 

14.Officer Tustison did not have specific articulable facts or reasonable 

inferences therefrom that would cause a reasonable person to believe 

that Rodriguez was, had been, or soon would be engaged in criminal 

conduct when he performed an incomplete, invalid HGN. 

In its conclusions of law, the trial court determined that Officer Tustison unlawfully 

prolonged the legitimate traffic stop on a “mere hunch”; and that he lacked reasonable 

suspicion to investigate Rodriguez for DWI because she did not exhibit signs of 

impairment when she exited the vehicle; she was not unsteady; she did not exhibit slurred 

speech; she consistently denied drinking; she had at most, “a faint odor” of alcohol; and 

she handed Officer Tustison her license as requested and gave her name and date of 

birth without any issues. The trial court reiterated that it was the sole judge of the credibility 

and demeanor of the witnesses. It further concluded that “from the lack of evidence of 

impairment when [Rodriguez] pulled over and exited her vehicle, the court finds it 

apparent that Officer Tustison made his mind up that [Rodriguez] was driving while 

intoxicated when he pulled her over and did not have reason to continue her detention.” 

The State challenges two of the trial court’s findings, contending they are clearly 

contrary to the record and evidence: (1) that Rodriguez appeared to be soft-spoken, but 

her speech was clear and not slurred, and (2) that Officer Tustison did not have problems 

communicating with Rodriguez. We disagree that these findings are contrary to the record

and evidence. The dash cam video shows that Rodriguez: did not have trouble parking 

her vehicle; did not have a glazed or dazed look in her eyes; was not belligerent or 

argumentative; did not slur her speech, much less exhibit a “heavy slur” as the State 
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asserts; retrieved her license as requested; and did not have problems communicating 

with Officer Tustison; she answered every question asked of her and was polite. We 

further note that as Rodriguez stepped out of her vehicle, she did not sway, she was 

steady on her feet, she stood still and erect for a significant period, and she did not 

stumble.

3 See id. (concluding that the officer lacked reasonable suspicion though he 

smelled alcohol emanating from the vehicle and on the defendant’s breath; the defendant 

admitted consuming two alcoholic beverages; the defendant was not slow to respond to 

the officer’s emergency lights and pulled over in safe manner; the officer did not observe 

evidence of impairment when the defendant exited the vehicle; and the video reflected

the defendant did not exhibit signs of intoxication, as he was not unsteady, stood still and 

erect for significant period of time, was polite, did not have slurred speech, and walked 

normally).

We conclude the evidence supports the trial court’s findings that Rodriguez’s 

speech was clear and not slurred and Officer Tustison did not have problems 

communicating with Rodriguez. See Valtierra, 310 S.W.3d at 447. Moreover, Rodriguez’s 

denial of alcohol consumption is not evidence that she was consuming alcohol. Because

the trial court did not find Officer Tustison’s testimony credible in light of the video, there 

are no specific articulable facts in this case that point to Rodriguez not having the normal 

use of her physical and mental faculties at the time she was stopped for a traffic violation.

See id. (“The trial judge is the sole trier of fact and judge of the credibility of the witnesses 

and the weight to be given their testimony.”); Evans, 500 S.W.3d at 537. In addition, we 

3 We limited our review of the video from 2 minutes 45 seconds to 5 minutes and 33 seconds as 

did the trial court.
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have not found a case upholding an officer’s reasonable suspicion based solely on an 

officer smelling a “faint” odor of alcohol without knowing its origin. See Evans, 500 S.W.3d 

at 537; Domingo v. State, 82 S.W.3d 617, 622 (Tex. App.—Amarillo 2002, no pet.) (“[S]o 

long as consumption of alcohol is not illegal in and of itself, a standard permitting or 

requiring detention and investigation of persons for alcohol-based offenses solely on 

whether the odor of alcohol is present invites unwarranted police intrusions into the affairs 

and freedom of persons.”). 

Considering the totality of the circumstances and viewing the evidence in the light 

most favorable to the trial court’s ruling, we cannot conclude the trial court erred when it 

found Officer Tustison did not have reasonable suspicion to extend the scope of the stop

to investigate Rodriguez for DWI. See Valtierra, 310 S.W.3d at 447; Evans, 500 S.W.3d 

at 538. Thus, we cannot conclude that the trial court erred by granting Rodriguez’s motion 

to suppress. See Mount, 217 S.W.3d at 724 (holding that if supported by the record, a 

trial court’s ruling on a motion to suppress will not be overturned). We overrule the State’s 

first issue, and we need not address the State’s second issue as it is not dispositive. See

TEX. R. APP. P. 47.1

III. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA

Justice

Do not publish.

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

Delivered and filed on the

13th day of May, 2021.