CAUSE NO. ________________ 

IN the

Court of Criminal Appeals 

of Texas 

________________________________________________________ 

On Petition for Discretionary Review from 

The First Court of Appeals 

In Cause No. 01-14-00807-CR

Affirming the Conviction 

In Cause No. 1923909 

From Harris County Criminal Court 

At Law No. 12 

________________________________________________________ 

ALLISON LEIGH CAMPBELL, 

Appellant 

vs. 

THE STATE OF TEXAS, 

Appellee. 

________________________________________________________ 

PETITION FOR DISCRETIONARY REVIEW 

PURSUANT TO RULE 68.01 OF THE TEXAS 

RULES OF APPELLATE PROCEDURE 

________________________________________________________ 

PAUL MEWIS 

ATTORNEY AT LAW 

4202 Windy Chase Lane 

Katy, Texas 77494-1071 

281.392.2306 (telephone) 

281.392.7203 (facsimile) 

STATE BAR NO. 13986500 

ATTORNEY FOR APPELLANT 

July 10, 2015 

PD-0871-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/10/2015 5:09:28 PM

Accepted 7/15/2015 2:54:15 PM

ABEL ACOSTA

CLERK
ii

STATEMENT REGARDING ORAL ARGUMENT

The Appellant WAIVES oral argument in this case.
iii

IDENTIFICATION OF THE PARTIES

A complete list of the names of all interested parties 

is provided below:

Counsel for the State:

DEVON ANDERSON – District Attorney of Harris County

KIMBERLY APERAUCH STELTER – Assistant District 

Attorney on appeal

Appellate Division

Harris County District Attorney’s Office

1201 Franklin, Suite 600

Houston, Texas 77002-1923

Appellant or criminal defendant:

ALLISON LEIGH CAMPBELL

Counsel for Appellant:

PAUL MEWIS, Attorney

Texas Bar Card No. 13986500

4202 Windy Chase Lane

Katy, Texas 77494-1071

713.857.7003 (cell)

281.392.2306 (office)

281.392.7203 (facsimile)

paul@mewislaw.com (e-mail)

Trial Judge:

HON. ROBIN BROWN – Presiding Judge
iv

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT .....................ii

IDENTIFICATION OF THE PARTIES ........................iii

INDEX OF AUTHORITIES ...................................v

STATEMENT OF THE CASE ..................................2

STATEMENT OF PROCEDURAL HISTORY ........................3

SOLE GROUND FOR REVIEW .................................3

The First Court of Appeals erred in refusing to 

acknowledge that Appellant’s initial legal 

detention was unlawfully prolonged, after the 

detaining officer concluded that Appellant was 

not either publically intoxicated or driving 

while intoxicated.

ARGUMENT ON REASON FOR GRANTING REVIEW .................3

SUMMARY OF THE ARGUMENT ................................6

CONCLUSION AND PRAYER ..................................9

CERTIFICATE OF SERVICE .................................9

WORD COUNT CERTIFICATE OF COMPLIANCE ..................10

APPENDIX ..............................................11
v

INDEX OF AUTHORITIES

Cases Page

Branch v. State, 

335 S.W.3d 893, 900 (Tex.App.-Austin 2011

pet ref'd)...........................................3

Davis v. State, 

947 S.W.2d 240, 243 (Tex.Crim.App. 1997)..........4, 5

Florida v. Royer, 

460 U.S. 491, 500, 103 S.Ct. 1319, 1325,

75 L.Ed.2d 229 (1983)................................5

Kothe, 

152 S.W.3d at 63-64).................................4

Parker v. State, 

297 S.W.3d 803, 809 (Tex.App.-Eastland 2009

pet ref'd)...........................................3

Robinson, 

334 S.W.3d at 778-79.................................4

Tanner v. State, 

228 S.W.3d 852, 855 (Tex.App.-Austin 2007

no pet.).............................................4

Terry, 

382 U.S. at 19-20.................................4, 6

Wolf v. State, 

137 S.W.3d 797, 802 (Tex.App.-Waco 2004)..........4, 5

York v. State, 

342 S.W.3d 528,531 (Tex.Crim.App. 2011)..............7
vi

Index of Authorities

(Continued)

Cases Page

AMENDMENTS:

FOURTH AMENDMENT ....................................4, 5

STATUTES:

TEXAS RULES OF APPELLATE PROCEDURE,

RULE 68.01 .........................................2
CAUSE NO. ________________

IN the

Court of Criminal Appeals

of Texas

________________________________________________________

On Petition for Discretionary Review from

The First Court of Appeals

In Cause No. 01-14-00807-CR

Affirming the Conviction

In Cause No. 1923909

From Harris County Criminal Court

At Law No. 12

________________________________________________________

ALLISON LEIGH CAMPBELL,

Appellant

vs.

THE STATE OF TEXAS,

Appellee.

________________________________________________________

PETITION FOR DISCRETIONARY REVIEW

PURSUANT TO RULE 68.01 OF THE TEXAS

RULES OF APPELLATE PROCEDURE

________________________________________________________

Comes now ALLISON LEIGH CAMPBELL, hereinafter referred 

to as the Appellant, and submits this Petition for 
2

Discretionary Review, Pursuant to Rule 68.01 of the Texas 

Rules of Appellate Procedure, in the above styled and 

numbered cause. As grounds to be considered in granting this 

Petition for Discretionary Review, the Appellant would show 

the Court the following set of facts and circumstances:, 

STATEMENT OF THE CASE

Appellant was charged with the misdemeanor offense 

of Driving While Intoxicated, alleged to have occurred 

on or about October 13, 2013. Appellant pled not guilty 

and a motion to suppress evidence was presented and 

heard by the trial court (Harris County Criminal Court 

at Law No. 12) on August 21, 2014. At the conclusion of 

this hearing, the trial judge denied the motion to 

suppress evidence. On September 10, 2014, the Appellant 

pled guilty and the Court assessed punishment at one 

year in the Harris County Jail, probated for one year, 

and a Five Hundred ($500.00) Dollar fine. 

Appellant gave written notice of appeal on September 

24, 2014. The Court signed an order granting permission 

to appeal the denial of the motion to suppress.
3

STATEMENT OF PROCEDURAL HISTORY

Appellant’s conviction was affirmed by the First 

Court of Appeals, in Cause No. 01-14-00807-CR, which 

delivered its opinion on June 4, 2015. A Motion for 

Rehearing was filed on June 17, 2015 and denied by the 

First Court of Appeals on July 2,2015.

SOLE GROUND FOR REVIEW

The First Court of Appeals erred in refusing to 

acknowledge that Appellant’s initial legal 

detention was unlawfully prolonged, after the 

detaining officer concluded that Appellant was 

not either publically intoxicated or driving 

while intoxicated.

ARGUMENT ON REASON FOR GRANTING REVIEW

This Court of Appeals’ decision conflicts with other 

courts of appeals’ decisions on the same issue.

On a routine traffic stop, an officer may inquire 

into matters unrelated to the stop as long as the stop 

is not unreasonably extended. See Branch v. State, 335 

S.W.3d 893, 900 (Tex.App. – Austin 2011, pet 

ref’d)(citing Parker v. State, 297 S.W.3d 803, 809

(Tex.App. – Eastland 2009, pet ref’d).
4

Once the traffic stop investigation is concluded, 

the officer must no longer detain the driver, who must 

be permitted to leave. Kothe, 152 S.W.3d at 63-64.

Prolonging a detention beyond the conclusion of a 

routine traffic stop is a violation of the Fourth

Amendment unless an officer has developed a reasonable 

suspicion of illegal activity that would justify the 

extended detention. Wolf, 137 S.W.3d 802 (citing Terry, 

392 U.S. at 19-20). Such suspicion must be based on 

more than a mere hunch or non-specific suspicion of 

criminal activity. Tanner v. State, 228 S.W.3d 852, 855 

(Tex.App. – Austin 2007, no pet.) The burden is on the 

State to prove that a reasonable suspicion justified the 

prolonged detention of Ibanez. See Robinson, 334 S.W.3d 

at 778-79.

In Davis v. State, 947 S.W.2d 240 (Tex.Crim.App. 

1997), the Court of Criminal Appeals found that the 

initial stop, for the purpose of determining if the 

defendant was driving while intoxicated, was reasonable. 

However, the court also found that the purpose of 

investigative detention had been concluded when the 
5

officers determined that the defendant was not 

intoxicated. The continuation of the detention and the 

investigation after that point was unreasonable.

Wolf v. State, 137 S.W.3d 797 (Tex.App. – Waco 2004)

– Possession of MDA or ecstasy. Reversed. DPS trooper 

Nelson, stopped Wolf and his companion. An 

investigative detention must be temporary and last no 

longer than is necessary to effectuate the purpose of 

the stop. Davis, 947 S.W.2d at 243 (citing Florida v. 

Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 

L.Ed.2d 229 (1983).

The Waco Court of Appeals held that Officer Nelson’s 

initial detention of Wolf for a defective tag lamp was 

justified at its inception, but his prolonged detention 

to allow time for the drug-sniffing dog to arrive was 

neither necessary to allow Nelson time to issue a 

warning to Wolf, nor was it reasonably related in scope 

to his inquiry about the defective tag lamp. This 

prolonged detention violated the Fourth Amendment 

because Officer Nelson did not have reasonable suspicion
6

of illegal activity that would justify the extended 

detention under Terry.

SUMMARY OF THE ARGUMENT:

After his initial reasonable suspicion had been 

negated, the officer’s prolonged detention for further 

investigation was unreasonable under the law.

The Court of Appeals’ opinion, in finding that the 

officer had reasonable suspicion to initiate an 

investigation for the offense of public intoxication in 

his initial approach of Appellant, does not address the 

reasonableness of his continued detention of Appellant.

The officer made it clear in his testimony that,

after approaching Appellant, he had not observed any 

signs of intoxication and, by his actions of ordering 

Appellant to drive her car some 500 feet, then park and 

wait for him, is direct evidence that he had formed no 

reasonable suspicion to believe that Appellant was a 

danger to herself or others. Had the officer believed 

that Appellant posed a threat to herself, her passenger 
7

or other people (customers) that were parking or 

entering and leaving the parking lot, he surely would 

not have allowed a dangerous, intoxicated person to 

drive away some 500 feet (unescorted) as he turned his 

back and proceeded to the Taco Cabana pick-up window to 

pay for and pick-up his food.

Appellant does not argue that, under the proper set 

of facts and circumstances, a person asleep in a car 

(with the engine running) may provide sufficient 

probable cause for an officer to detain for further 

investigation, as the court in York found (York v. 

State, 342 S.W.3d 528, 531 (Tex.Crim.App. 2011).

However, once our officer dispelled his belief that 

any crime had been committed, i.e., he failed to smell 

alcohol and observed no facts to support his belief that 

Appellant was a danger to herself or others, she should 

have been free to leave.

Unlike in York, supra., where “nothing else occurred 

that would have negated reasonable suspicion”. Once our 

officer awoke Appellant, his observations supported his 

conclusion that Appellant was not intoxicated. Thus, he 
8

thought it was safe to order her to drive unescorted 

some 500 feet without being a danger to herself or 

others. Appellant should have been free to leave. The 

officer’s prolonged and continuous detention of 

Appellant, by holding her Texas driver’s license, was 

unreasonable.

In Appellant’s case, the officer, after his initial 

encounter, clearly thought he had no reasonable 

suspicion to continue a public intoxication nor driving 

while intoxicated investigation (in that he ordered and 

allowed Appellant to drive some 500 feet through the 

parking lot of an open Taco Cabana to a location some 

500 feet away [an open WalMart]). All of this 

transpired while the officer left to go pick-up his food 

order.

The officer’s seizure of Appellant’s Texas driver’s 

license was a prolonged detention not supported by any 

new facts or evidence.
9

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, having considered 

the authorities and arguments presented herein, the

Appellant prays the Court to enter an order setting 

aside the judgment and sentence in this matter for the 

reasons enumerated above.

RESPECTFULLY SUBMITTED,

/s/ Paul Mewis

PAUL MEWIS

Texas Bar Card No.13986500

4202 Windy Chase Lane

Katy, Texas 77494-1071

281.392.2306

281.392.7203 Facsimile

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and 

correct copy of the foregoing Appellant’s Brief was 

mailed by U.S. certified mail #70083230000206358562 to 

the attention of Ms. Kimberly Aperauch Stelter,
10

Assistant District Attorney, Appellate Division, Harris 

County District Attorney's Office, 1201 Franklin, Suite 

600, Houston, Texas 77002-1923 and by U.S. certified 

mail #70083230000206358555 to Ms. Lisa McMinn, State’s 

Prosecuting Attorney, P. O. Box 13046, Austin, Texas 

78711 on this the 13th day of July, 2015.

/s/ Paul Mewis

PAUL MEWIS

WORD COUNT CERTIFICATE OF COMPLIANCE

I, PAUL MEWIS, the undersigned attorney for 

Appellant Allison Leigh Campbell, in Appellate Cause No. 

01-14-00807-CR, certify that Appellant’s Petition for 

Discretionary Review contains 1,849 words. This 

Petition for Discretionary Review is a computergenerated document created in Microsoft Word 2010, using 

Courier New 14 point font. I am relying on the word 

count provided by the software used to prepare the 

document.

/s/ Paul Mewis

PAUL MEWIS
11

A P P E N D I X
Opinion issued July 2, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00807-CR

———————————

ALLISON LEIGH CAMPBELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Case No. 1923909

MEMORANDUM OPINION ON REHEARING

Appellant, Allison Leigh Campbell, was charged by information with 

driving while intoxicated. After the trial court denied her motion to suppress, 

Appellant pleaded guilty subject to the right to challenge the ruling on the motion 

on appeal. In four issues on appeal, Appellant argues the trial court abused its 
2

discretion by denying her motion to suppress because the detaining officer lacked 

reasonable suspicion or probable cause to detain her.

On June 4, 2015, we issued our original opinion in this case. On June 17, 

2015, Campbell filed a motion for rehearing. We deny the motion for rehearing, 

withdraw our prior opinion and judgment, and issue this opinion and a new 

judgment in their place. Our disposition remains the same.

We affirm.

Background

Officer J. Pena was working his off-duty job as a security officer at a WalMart early in the morning on October 13, 2013. At 1:00 A.M., he took a break and 

drove to the adjoining Taco Cabana to get some food. He ordered his food and 

pulled up behind three other cars in the line. Two cars moved forward in the line, 

but the car in front of Officer Pena remained in place. Officer Pena honked his car 

five times, but the car did not move. 

Officer Pena stepped out of his car and approached the car in front of him. 

He saw Appellant asleep in the driver’s seat and another person asleep in the frontpassenger’s seat. He tapped on the window repeatedly, and no one stirred. He 

then noticed the driver’s side door was unlocked, opened the door, and shook 

Appellant multiple times. Appellant finally woke up.
3

After Appellant woke up, Officer Pena asked for her driver’s license. 

Appellant gave it to him. Officer Pena pointed at a parking space and instructed 

Appellant to drive to it and park. At trial, Officer Pena testified that the space was 

500 feet away. Appellant complied. Officer Pena kept Appellant’s driver’s license 

with him. He retrieved his food order and then parked next to Appellant.

He approached Appellant’s car and began talking with her. This time, 

Officer Pena noticed the aroma of alcohol. After she noticed Officer Pena was not 

driving a marked patrol car, Appellant became verbally aggressive, cussing at him 

and claiming he was harassing her. Appellant opened the car door and stepped out. 

As she did, Officer Pena placed his hand on her. Appellant fell to the ground. 

Appellant stood up, but had trouble maintaining her balance. She fell again. 

Officer Pena then placed Appellant in handcuffs.

Officer Pena requested a back-up unit. A DWI unit came out and took over 

the investigation. Officer Pena had no further involvement in the investigation.

Motion to Suppress

Appellant argues in four issues that the trial court abused its discretion by 

denying her motion to suppress because Officer Pena lacked reasonable suspicion 

or probable cause to detain her. Specifically, Appellant argues (1) the initial 

encounter constituted an investigatory detention, (2) Officer Pena lacked the 

requisite indicia of criminal activity to conduct an investigatory detention, (3) the 
4

second encounter constituted an arrest, and (4) Officer Pena lacked the requisite 

indicia of criminal activity to arrest her.

A. Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated 

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 

2013). We review the trial court’s factual findings for abuse of discretion and 

review the trial court’s application of the law to the facts de novo. Id. Almost total 

deference should be given to a trial court’s determination of historical facts, 

especially those based on an evaluation of witness credibility or demeanor. 

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression 

hearing, the trial court is the sole and exclusive trier of fact and judge of the 

witnesses’ credibility and may choose to believe or disbelieve all or any part of the 

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Where, as here, a trial judge does not make explicit findings of fact, we 

review the evidence in the light most favorable to the trial court’s ruling. Walter v. 

State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial 

court’s fact findings and not disturb the findings on appeal unless the trial court 

abused its discretion in making a finding not supported by the record. Cantu v. 

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
5

B. Analysis

For the purposes of reviewing Fourth Amendment rights against 

unreasonable search and seizures, there are generally three categories of 

interactions between police and citizens: consensual encounters, investigatory 

detentions, and arrests. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. 

App. 2011). Each of these categories defines (1) the permissible level of 

intrusiveness of the officer’s conduct and (2) the indicia of criminal activity needed 

to support that level of the officer’s intrusion.1

 See id. 

Consensual encounters consist of mutually voluntary conversations between 

an officer and another person. See id. “An officer is just as free as anyone to stop 

and question a fellow citizen,” and the citizen is free to terminate the encounter at 

any time. Id. For consensual encounters, there does not need to be any indicia of 

criminal activity. Id. 

Investigatory detentions consist of encounters where “an officer, ‘by means 

of physical force or show of authority, has in some way restrained the liberty of a 

citizen.’” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008)

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). An 

 1 Each of these categories also has a prescribed scope for a reasonable search. See 

United States v. Robinson, 414 U.S. 218, 228, 94 S. Ct. 467, 473 (1973) 

(recognizing greater restrictions on scope of search when probable cause does not 

exist). Appellant, however, has not challenged the scope of any officer’s search in 

this appeal. Accordingly, the law on the permissible scope of a search is not 

pertinent to this appeal.
6

encounter with the police rises to the level of an investigatory detention if (1) the 

officer asserts his authority in a way that (2) would cause a reasonable person to 

believe she is not free to leave. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. 

App. 2010). 

For investigatory detentions, the officer must have reasonable suspicion of 

criminal activity in order to detain the person. Castleberry, 332 S.W.3d at 466. 

The officer has reasonable suspicion if he “has specific, articulable facts that, 

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

conclude that the person detained is, has been, or soon will be engaged in criminal 

activity.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). Such a 

conclusion is justified when the officer observes “unusual activity.” Id. “These 

facts must show unusual activity, some evidence that connects the detainee to the 

unusual activity, and some indication that the unusual activity is related to crime.” 

Id. The facts observed do not need to be criminal in nature themselves. Woods v. 

State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). They only need to lead to a 

reasonable conclusion that the person is, has been, or soon will be engaged in 

criminal activity. Kerwick, 393 S.W.3d at 273.

Finally, arrests consist of restrictions or restraints on a person’s movement 

that is greater than investigatory detention or where no investigation is taking 

place. See Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). Whether 
7

an investigatory detention elevates to an arrest depends on the facts and 

circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412 

(Tex. Crim. App. 1991); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). We look to the reasonableness of the 

officer’s actions, which is to be judged from the perspective of a reasonable officer 

at the scene, rather than with the advantage of hindsight. Rhodes v. State, 945 

S.W.2d 115, 118 (Tex. Crim. App. 1997). “Whether a person is under arrest or 

subject to a temporary investigative detention is a matter of degree and depends 

upon the length of the detention, the amount of force employed, and whether the 

officer actually conducts an investigation.” Mount v. State, 217 S.W.3d 716, 724 

(Tex. App.—Houston [14th Dist.] 2007, no pet.).

For arrests, the officer must have probable cause. Castleberry, 332 S.W.3d 

at 466. “[P]robable cause for . . . arrest exists when facts and circumstances within 

the officer’s knowledge and about which he or she has reasonably trustworthy 

information are sufficient to warrant a person of reasonable caution to believe that 

an offense was or is being committed.” Torres v. State, 182 S.W.3d 899, 901 (Tex. 

Crim. App. 2005) (emphasis in original).

Appellant argues that, by holding on to her driver’s license and by directing 

her to park her car in the parking lot, Officer Pena’s interaction with her became an 

investigatory detention. She further argues that, when Officer Pena later placed 
8

handcuffs on her, the encounter became an arrest. Finally, she argues that Officer 

Pena lacked the requisite indicia of criminal activity for either of these levels of 

encounters. We do not need to determine whether Officer Pena’s retaining 

Appellant’s driver’s license elevated the encounter to an investigatory detention or 

whether his handcuffing Appellant amounted to an arrest. Even assuming 

Appellant is correct on both these points, we hold Officer Pena observed the 

requisite indicia of criminal activity for each of these levels of encounters.

By the time he took and retained Appellant’s driver’s license, Officer Pena 

had honked at Appellant five times, tapped on the window multiple times, and 

even shaken her multiple times without any response from her. Appellant was 

parked in a drive-through lane with the engine running.

Appellant argues that these facts are comparable to those in State v. Griffey, 

241 S.W.3d 700 (Tex. App.—Austin 2007, pet. ref’d). In Griffey, the police 

received a call from a fast-food restaurant manager that someone was passed out in 

the drive-through lane. Id. at 702. When the officer arrived, an employee 

identified Griffey’s car. Id. At that time, Griffey was awake and retrieving her 

food order. Id. The officer parked his patrol car in front of Griffey’s car, 

effectively blocking her car. Id. After he had Griffey turn off the car and exit the 

vehicle, the officer noticed the odor of alcohol. Id. 
9

The Austin Court of Appeals held that the officer lacked reasonable 

suspicion based on the legal principle that “[a] tip by an unnamed informant of 

undisclosed reliability may justify the initiation of an investigation; standing alone, 

however, it rarely will establish the requisite level of reasonable suspicion.” Id. at 

704. While the officer had received information from an informant that the officer 

had not previously known, the information was not corroborated by the officer 

upon arrival. Id. at 705. Accordingly, the officer lacked reasonable suspicion. Id.

at 707.

Appellant points out that the Austin Court of Appeals also held that reports 

“that an individual was passed out behind the wheel in the drive-through line . . . 

does not constitute criminal behavior.” Id. at 705. This holding has been called 

into question by the Court of Criminal Appeals, however.

In York, an officer passed a closed gas station but saw a car parked partially 

on the sidewalk in front of the store. York v. State, 342 S.W.3d 528, 531 (Tex. 

Crim. App. 2011). York was asleep in the driver’s seat with the lights on and the 

engine running. Id. The officer did not smell any alcohol or see any evidence of a 

burglary from the store. Id. Nevertheless, the Court of Criminal Appeals held that 

these facts supported reasonable suspicion, warranting an investigative detention 

based on the potential offense of public intoxication. Id. at 536–37. In its analysis, 

the Court of Criminal Appeals distinguished Griffey based on the fact that Griffey
10

involved corroboration of a citizen-informant tip. Id. at 537 n.31. It went on, 

however, to recognize authority from other jurisdictions holding that reasonable 

suspicion exists when an officer sees a person asleep in the driver’s seat of a car 

with the engine running. Id. (citing People v. Brown, 217 P.3d 1252, 1256 (Colo. 

2009); State v. Keller, 403 So.2d 693, 696 (La. 1981)). Griffey’s holding that 

sleeping in a car in a drive-through is no evidence of a crime, then, is of limited 

persuasive value. See 241 S.W.3d at 705.

As in York, we hold Officer Pena had reasonable suspicion of public 

intoxication to warrant conducting an investigative detention at the time that he 

took Appellant’s driver’s license. See 342 S.W.3d at 536–37. “A person commits 

an offense [of public intoxication] if the person appears in a public place while 

intoxicated to the degree that the person may endanger the person or another.” 

TEX. PENAL CODE ANN. § 49.02(a) (Vernon 2011). The drive-through lane of a 

fast-food restaurant is a public place. See York, 342 S.W.3d at 537 (holding 

parking lot and sidewalk around gas station is public place). Officer Pena found 

Appellant asleep in the driver’s seat of a car with the engine running while in a 

drive-through of a fast-food restaurant at 1:00 in the morning. This is sufficient to 

create reasonable suspicion that Appellant was intoxicated. See id. (holding 

evidence of defendant asleep in car at 3:00 A.M. with engine running, car parked 

partially on sidewalk, and headlights on created reasonable suspicion of 
11

intoxication). Finally, Appellant’s condition could have posed a risk to herself. 

See id. (holding, with engine running, intoxicated driver could, in stupor, drive into 

building or pose threat on road). 

Appellant emphasizes the fact that, when he first approached her the first 

time, Officer Pena did not smell any alcohol. That was true in York as well. 

“Although Officer Johnson did not smell alcohol as he approached the car, that fact 

did not cause reasonable suspicion to dissipate, in part because [the defendant] 

could still have been intoxicated by drugs.” Id. 

In her motion for rehearing, Appellant claims that Officer Pena “made it 

clear in his testimony that he had not observed any signs of intoxication.” 

Appellant claims that this is proved by the fact that Officer Pena ordered her to 

drive 500 feet. Even if Officer Pena personally believed at the time that Appellant 

was not intoxicated, this is not relevant to a determination of reasonable suspicion. 

“This standard is an objective one that disregards the actual subjective intent or 

motive of the detaining officer and looks, instead, to whether there was an 

objective justification for the detention.” State v. Elias, 339 S.W.3d 667, 674 (Tex. 

Crim. App. 2011). The fact that Officer Pena ordered Appellant to drive 500 feet 

does not disprove that he found her asleep in a fast-food-restaurant drive-through 

lane at 1:00 in the morning or that honking, knocking on her window, and initial 

physical contact did not wake her. Accordingly, it was within the trial court’s 
12

discretion to deny the motion to suppress based on reasonable suspicion. See 

Turrubiate, 399 S.W.3d at 150 (holding appellate courts review trial court’s factual 

findings for abuse of discretion).

By the time he handcuffed Appellant, Officer Pena had noticed the smell of 

alcohol, Appellant had become agitated and began cussing at him, and Appellant 

had difficulty standing, falling to the ground more than once. We hold these facts, 

coupled with the facts that it was 1:00 A.M. and that Appellant had fallen into a 

deep sleep in a brief amount of time, was in a location requiring her attention, and 

left the car running, are sufficient to create probable cause for public intoxication. 

See Gutierrez v. State, 419 S.W.3d 547, 551 (Tex. App.—San Antonio 2013, no 

pet.) (holding argumentative behavior, slurred speech, dazed appearance, and 

glassy, bloodshot eyes sufficient to support probable cause for public intoxication); 

Campbell v. State, 325 S.W.3d 223, 232 (Tex. App.—Fort Worth 2010, no pet.)

(holding sleeping in car, smelling of alcohol, slurring words, and reaching for keys 

already in ignition support probable cause for public intoxication).

We hold the trial court could have determined within its discretion that 

Officer Pena had reasonable suspicion to conduct an investigative detention and 

then had probable cause to arrest Appellant. Accordingly, we overrule Appellant’s 

second and fourth issues. Because these rulings are dispositive to affirming the 
13

trial court’s ruling on Appellant’s motion to suppress, we do not need to reach 

Appellant’s first and third issues. See TEX. R. APP. P. 47.1.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).