Lorenzo Heredia v. State ( 2007 )

Criminal Case Template

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LORENZO HEREDIA, Appellant, v. THE STATE OF TEXAS, Appellee.

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No. 08-06-00011-CR Appeal from the County Court at Law No. Seven of El Paso County, Texas (TC# 20050C07039)

O P I N I O N  

This is an appeal from a conviction for the offense of driving while intoxicated. Appellant pled guilty to the court and the court assessed punishment at 180 days' confinement in the El Paso County Jail, probated for fifteen months, and a fine of $750, $250 of which was probated. We affirm.

I. SUMMARY OF THE EVIDENCE

Sergeant Luis Ortiz of the El Paso Police Department testified at the hearing on Appellant's motion to suppress the evidence. On May 23, 2005, at approximately 3:46 p.m., he was on patrol on Global Reach Street, facing east, when he observed Appellant's vehicle traveling westbound. He saw the vehicle overtake another car at a high rate of speed, which caused the officer to suspect that Appellant's vehicle was traveling in excess of the fifty-mile-per-hour speed limit. Sgt. Ortiz had been at the location for an hour, and he had observed the vehicular traffic traveling at between forty and fifty miles per hour. He made a U-turn to catch up with Appellant, and positioned his patrol car to "pace" Appellant's vehicle. The officer testified that his patrol car had a factory-certified calibrated speedometer. The pacing is accomplished by maintaining a given distance and comparing the speed of the other vehicle with the patrol car's speedometer. Sgt. Ortiz paced Appellant's vehicle for one-half mile, and he determined that Appellant was traveling in the high range of sixty-five miles per hour.

Sgt. Ortiz pulled up behind Appellant's vehicle and attempted to effect a stop by activating the patrol car's lights and siren. Appellant continued for approximately one-half to three-quarters of a mile before coming to a stop. The officer stated that he finally had to use his air horn to get Appellant to stop. This was not a typical response time.

When Sgt. Ortiz started to question him, Appellant fumbled for his driver's license and insurance. His eyes were bloodshot, his eyes were watery, and his speech was slow and slurred. There was a strong odor of alcohol about his person. Appellant acknowledged to Sgt. Ortiz that he had consumed a few beers.

The officer testified on cross-examination that he had not received any training to visually determine the exact rate of speed of a moving vehicle, but he stated that such training was not required in order to stop a speeding vehicle. Sgt. Ortiz testified that his experience as a driver and as a police officer made him familiar with how a moving vehicle appeared at different speeds. The officer related that he suspected that Appellant was speeding after observing the flow of traffic and seeing Appellant overtake another vehicle. Although he was not qualified to use radar, such a qualification was not needed to utilize the pacing procedure. The witness stated that he was not a mechanic, and he did not check the speedometer on the day of the arrest. He did not know if the tires had been replaced, but he thought the vehicle had factory-installed tires. He was not aware of any mechanical problems with the patrol vehicle, aside from the fact that the patrol car's video equipment was inoperative. The trial court denied Appellant's motion to suppress the evidence.

II. DISCUSSION

In Appellant's sole issue on appeal, he asserts that the court erred in denying his motion to suppress the evidence. Specifically, Appellant contends that Sgt. Ortiz did not have reasonable suspicion to detain him, because he lacked training to determine whether Appellant was speeding, and the patrol car's equipment was inadequate.

We review a motion to suppress evidence by both abuse of discretion and de novo standards. Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997); Urquhart v. State, 128 S.W.3d 701, 704-05 (Tex. App.--El Paso 2003, pet. ref'd). Purely factual questions, based upon evaluation of credibility and demeanor of witnesses, require application of the abuse of discretion standard. Guzman, 955 S.W.2d at 89. Mixed questions of law and fact, which are not dependent on credibility or demeanor, are reviewed de novo. Id. We review the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In a suppression hearing, the trial court is the sole finder of fact. Pace v. State, 986 S.W.2d 740, 744 (Tex. App.--El Paso 1999, pet. ref'd). The trial judge may believe or disbelieve any of the evidence presented. Id. Where, as here, the trial court made no explicit findings of fact, we must imply the necessary fact findings that would support the trial court's ruling, if the evidence, viewed in the light most favorable to the trial court's ruling, supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). The totality of the circumstances is considered to determine whether the trial court's findings are supported by the record. In re D.A.R., 73 S.W.3d 505, 509 (Tex. App.--El Paso 2002, no pet.) (citing Brewer v. State, 932 S.W.2d 161, 166 (Tex. App.--El Paso 1996, no pet.)). ⁽¹⁾

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. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868 (1968). Under the Fourth Amendment, a temporary detention is justified when the detaining officer has specific, articulable facts which, together with rational inferences from those facts in light of the officer's experience and general knowledge, would lead a reasonable officer to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. at 21-22, 88 S. Ct. at 1880; Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 1172 (2006); Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). The officer must be able to articulate more than an "inchoate and unparticularized suspicion or 'hunch' of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673 (2000). "Reasonableness," under Fourth Amendment standards, is a fact-specific inquiry measured in objective terms by examining the totality of the circumstances. Kothe, 152 S.W.3d at 63.

Generally, what appears to be a violation of the Texas Transportation Code gives rise to reasonable suspicion in support of a valid traffic stop. See Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.--Fort Worth 2005, no pet.); see also Powell v. State, 5 S.W.3d 369, 376 (Tex. App.--Texarkana 1999, pet. ref'd) (citing Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim. App. 1977)). Speeding and failure to control speed are traffic violations. Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App. --Houston [14th Dist.] 2000, pet. ref'd) (citing Tex. Transp. Code Ann. § 545.351).

Appellant maintains that Sgt. Ortiz lacked reasonable suspicion, because he lacked training. While the officer did not have radar training, and he had no specific training in determining the speed of vehicles, Sgt. Ortiz testified that no such training is required to determine whether someone is speeding. He saw Appellant pass other vehicles, while traveling in excess of the speed limit. This was sufficient to establish reasonable suspicion. See Icke v. State, 36 S.W.3d 913, 915-16 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd).

Appellant also argues that the pacing procedure was invalid due to lack of substantiation that the vehicle's equipment, including the speedometer, was working properly. However, even if it were later shown that Sgt. Ortiz's estimation of Appellant's speed was incorrect due to equipment problems, a stop that meets the test for reasonable suspicion is lawful, notwithstanding a subsequent determination that the equipment was faulty. ⁽²⁾ See id. at 916. We find that the court did not err in denying Appellant's motion to suppress the evidence. Appellant's sole issue is overruled.

III. CONCLUSION

We affirm the judgment of the trial court.

KENNETH R. CARR, Justice

June 14, 2007

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. Appellant also urges that we apply a legal and factual sufficiency standard of review to the question of whether the traffic stop was valid. However, such a review does not apply in that context. Johnson v. State, 95 S.W.3d 568, 572 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd); Ex parte Taylor, No. 08-01-00252-CR, 2003 WL 21761670, at *4 n.1 (Tex. App.--El Paso July 31, 2003, pet. ref'd) (mem. op.) (not designated for publication).

2. We express no opinion regarding whether such a subsequent determination might be grounds for setting aside a conviction for speeding, since Appellant was not charged with speeding in this proceeding.