Joseph Nizar Al-Hanna v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSEPH NIZAR AL-HANNA, §
No. 08-17-00037-CR
Appellant, §
Appeal from the
v. §
County Criminal Court No. 1
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20150C05817)
§
OPINION
Joseph Nizar Al-Hanna pleaded guilty to driving while intoxicated (DWI) with a blood
alcohol concentration (BAC) in excess of 0.15. Al-Hanna preserved his right to appeal matters
raised by motion filed before entering his plea. Al-Hanna raises one issue on appeal, contending
that law enforcement lacked reasonable suspicion to conduct the traffic stop at issue, that his
warrantless arrest did not occur pursuant to sufficient probable cause, and that the trial court erred
in denying his motion to suppress evidence. We affirm.
BACKGROUND
Officer Miguel Acuña, a twelve-year veteran of the El Paso Police Department, testified to
the following during a suppression hearing: around midnight on June 25, 2015, Officer Acuña was
driving in his patrol vehicle with another officer on Mesa Street in El Paso, Texas when he saw a
vehicle “going a little faster than . . . the posted limit of 30 [miles per hour],” which then revved
its engine as it travelled through an intersection. Based on his perceptions, Officer Acuña
estimated the vehicle’s speed as approximately 40 to 45 miles per hour, while his own speed was
approximately 35 or 40 miles per hour. Officer Acuña claimed that he was able to keep an eye
on the vehicle while scanning for other vehicles in the area in the patrol vehicle’s mirrors. After
further observing the vehicle, Officer Acuña concluded the driver’s actions were “reckless” and
“unsafe” and he initiated a traffic stop for a speed violation. After he activated his emergency
lights, the vehicle stopped approximately eight seconds later when it entered the driveway of a
nearby residence.
The driver of the vehicle, later identified as Al-Hanna, immediately exited the vehicle and
began to walk away from the officers and toward the entrance of the residence, which he told
Officer Acuña was his home. Al-Hanna began calling for his parents and told the officers that he
did not want to stay and meet with them. Officer Acuña noticed that Al-Hanna’s speech was
slurred, his eyes were bloodshot, and that the smell of alcohol was emanating from his person.
Officer Acuña also noted that Al-Hanna was “very excited[,] . . . just wanted to go home[, and]
was calling for his parents,” who eventually came out of the house. Officer Acuña could not
recall whether the other officer knocked on the door of the house, or whether Al-Hanna’s parents
came out on their own. Eventually, Officer Acuña handcuffed Al-Hanna and placed him in the
patrol vehicle due to his “belligerent” behavior and his refusal to obey their commands, and to
ensure that nobody would be injured. Realizing that Al-Hanna was not listening to his commands
and concluding that further investigation at the scene would be difficult due to the presence of
several family members, Officer Acuña transported Al-Hanna to the local police station to
2
continue the DWI investigation. While driving to the station, Al-Hanna voluntarily told Officer
Acuña that his uncle was a lawyer and that his uncle “was going to take care of it,” and that he had
cameras at the house which he claimed would exonerate him.
In addition to Officer Acuna’s testimony, Officer Arturo Senclair also testified at the
suppression hearing that when Al-Hanna arrived at the police station, he also noted that Al-
Hanna’s eyes were bloodshot and his speech was slurred. Officer Senclair read Al-Hanna
Miranda warnings and asked him to perform field sobriety tests, but he refused. Al-Hanna did
consent to give specimens of his breath, which yielded BACs of .189 and .186. Al-Hanna was
subsequently arrested for DWI.
By information, the State charged Al-Hanna with DWI with a blood alcohol content (BAC)
in excess of 0.15. Al-Hanna filed a pretrial motion to suppress the evidence collected pursuant to
the stop and his subsequent arrest. Following the foregoing testimony by the officers at the
suppression hearing, Al-Hanna argued that it was not reasonable to believe that Officer Acuña
could have accurately estimated Al-Hanna’s speed while he was simultaneously checking for other
vehicles in the vicinity. Al-Hanna also pointed to the fact that Officer Acuña’s report, which
stated that Al-Hanna had tried to run toward the door, was not borne out by the patrol vehicle’s
dashcam video. He also argued that Officer Acuña should have felt safe enough to conduct field
sobriety tests at the scene because Al-Hanna’s family was cooperative and would not have
interfered with the investigation.
The State countered that reasonable suspicion to stop Al-Hanna existed because he was
driving recklessly in a residential area late at night, Officer Acuña had sufficient experience to
accurately determine a vehicle’s speed, and Al-Hanna did not stop immediately after Officer
3
Acuña activated his emergency lights. The State also argued that the dashcam video confirmed
Officer Acuña’s testimony that Al-Hanna had attempted to get away from the officers by walking
toward the front door of his house. The State further contended that it was reasonable to conduct
the field sobriety tests at the police station because it was likely that Al-Hanna’s parents would
have interfered with the investigation, and that they would not likely stand idly by if the officers
had performed these tests in their presence. Following the suppression hearing, the trial court
denied Al-Hanna’s motion to suppress. In its findings of fact and conclusions of law, the trial
court noted that Officer Acuña was a twelve-year veteran of the El Paso Police Department and
that he had observed Al-Hanna’s vehicle revving its engine and traveling ten miles per hour over
the designated speed limit. The trial court also concluded that “[t]he observations made of [Al-
Hanna] justified the continued detention and transportation of [Al-Hanna] to the [police station]
for further investigation of a possible DWI[,]” and that based on their observations of Al-Hanna’s
behavior, the officers had probable cause to arrest Al-Hanna for DWI.
Al-Hanna subsequently pleaded guilty to the offense and received one year of community
supervision as punishment. This appeal follows.
DISCUSSION
In his sole issue, Al-Hanna challenges the trial court’s denial of the motion to suppress
arguing that the trial court should have granted the motion because (1) the officers did not have
reasonable suspicion to stop him, and (2) he was illegally arrested at the scene without a warrant
or probable cause. We address these matters separately.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
4
standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). At a
suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony, and it may accept or reject all or any part of
the witness’s testimony. Thomas v. State, No. 08-05-00247-CR, 2007 WL 1404425, at *1 (Tex.
App.—El Paso May 10, 2007, pet. ref’d) (not designated for publication) (citing State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000)). Under this standard, we give almost total deference
to the trial court’s determination of questions of historical fact which are supported by the record,
as well as mixed questions of law and fact turning on the credibility and demeanor of witnesses.
Amador, 221 S.W.3d at 673. We review de novo those mixed questions of law and fact not
turning on witnesses’ credibility and demeanor. Id. We may uphold the trial court’s ruling
under any applicable theory of law, even if the trial court did rely on that theory in coming to its
decision. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
Reasonable Suspicion
An officer is justified in conducting a traffic stop if he has reasonable suspicion to believe
that the driver is committing an offense, including a traffic offense. Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific,
articulable facts that, when combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person actually is, has been, or soon will be engaged in
criminal activity. Id. Whether an officer has reasonable suspicion to conduct a traffic stop is an
objective standard which disregards any subjective intent of the officer making the stop, and
instead looks solely to whether an objective basis for the stop exists under the totality of the
circumstances. Id. at 492–93. To suppress evidence on an alleged Fourth Amendment violation,
5
the defendant bears the burden of producing evidence that rebuts the presumption of proper police
conduct; the defendant satisfies this burden by showing that the search or seizure occurred without
a warrant. Id. at 492. Once this occurs, the burden shifts to the State to prove the warrantless
search or seizure was reasonable. Id. Thus, the State bore the burden in this case to establish
that the warrantless seizure of Al-Hanna was reasonable. See id.
Under the Texas Transportation Code, a person commits a traffic offense if he drives at a
speed greater than is reasonable and prudent under the circumstances. TEX. TRANSP. CODE ANN.
§ 545.351(a). A speed in excess of the limits established by Section 545.352(b) is prima facie
evidence that the speed is not reasonable and prudent and that the speed is unlawful. Id. §
545.352(a). It is undisputed that Al-Hanna was observed and later stopped while driving on a
residential street which was subject to a speed limit of 30 miles per hour; thus, if Al-Hanna was
traveling in excess of that speed, doing so is prima facie evidence that the speed was unlawful.
See id. § 545.352(b)(1). Likewise, a person commits reckless driving “if the person drives a
vehicle in willful or wanton disregard for the safety of persons or property.” Id. § 545.401(a).
Speeding is an example of a traffic violation which is determined subjectively, and an
officer’s opinion that a motorist committed a violation, without supporting objective proof, is
insufficient to establish reasonable suspicion or probable cause. Castro v. State, 227 S.W.3d 737,
742 (Tex. Crim. App. 2007) (an officer’s opinion on whether a driver was committing a traffic
offense is “not an effective substitute for specific, articulable facts in a reasonable-suspicion
analysis when the nature of the offense requires an officer to make a subjective determination[,]”
including when the suspected traffic offense is speeding) (citing Ford, 158 S.W.3d at 493). This
stands in contrast to a traffic offense such as failure to signal a lane change, which is an offense
6
which is objectively reasonable and can be established without a detailed account of the officer’s
observations. Id. Although the Court of Criminal Appeals did not state in Castro whether
reckless driving is an offense to be determined by objective or subjective perceptions by the officer,
we believe it falls within the latter category because whether a person is driving recklessly is a
subjective opinion, and the offense cannot be determined by an objective measure. See id.; see
also TEX. TRANSP. CODE ANN. § 545.401(a) (“[a] person commits [reckless driving] if the person
drives a vehicle in willful or wanton disregard for the safety of persons or property”).
In this case, Officer Acuña testified at the suppression hearing that he had previously seen
speeding cars before, that he can determine whether a car is speeding by “get[ting] [an]
approximate speed[,]” that he is certified and trained to use radar to detect speeding vehicles, and
that he had previously used radar detectors on the highway for over six years. Officer Acuña
stated that he initially noticed Al-Hanna when he revved his vehicle’s engine. Officer Acuña
estimated that Al-Hanna was traveling at approximately 40 to 45 miles per hour in an area with a
posted speed limit of 30 miles per hour, and that he based these perceptions on his experience in
estimating the speed of moving vehicles, as well as the relative speed of his own vehicle.
Nevertheless, Officer Acuña admitted on cross-examination that he did not recall the speed his
vehicle was traveling at when he estimated Al-Hanna’s speed. Officer Acuña testified that he
conducted the traffic stop based on his belief that Al-Hanna was committing a traffic violation by
speeding, and agreed with the prosecutor that Al-Hanna was driving in a reckless manner.
On appeal, Al-Hanna contends that Officer Acuña’s articulated reasons for conducting the
traffic stop were “patently conclusory,” and his testimony did not establish specific facts to support
reasonable suspicion that a traffic violation had occurred because his estimation of Al-Hanna’s
7
speed was based on guesswork. Al-Hanna cites Ford, 158 S.W.3d at 494, for the proposition that
an officer’s conclusory statements, without more, cannot support reasonable suspicion to justify a
traffic stop. In Ford, an officer stopped the defendant based on his belief that the defendant was
“following too close,” without giving further explanation for why he conducted the traffic stop.
Id. at 491, 493. The Court of Criminal Appeals held that the officer did not present sufficient
articulable facts to justify the detention, reasoning that the officer’s conclusory statement, without
more, could not allow the trial court to assess whether the officer’s opinion was objectively
reasonable. Id. at 493. The Court also noted that while training and experience in evaluating a
vehicle’s speed can play a part in the reasonable-suspicion analysis, an officer’s reliance on his
training and his subjective opinion that a driver committed a traffic offense, without objective
factual support, are insufficient to establish reasonable suspicion. Id. at 494; see also United
States v. Cortez, 449 U.S. 411, 419, 101 S. Ct. 690, 695–96, 66 L. Ed. 2d 621 (1981) (stating that
although “objective facts, meaningless to the untrained, can be combined with permissible
deductions from such facts to form a legitimate basis for suspicion of a particular person and for
action on that suspicion[,]” reliance on special training cannot establish reasonable suspicion
without objective factual support).
We disagree with Al-Hanna’s contentions that Officer Acuña’s testimony was too
conclusory to satisfy the test established in Ford, and that his testimony did not establish specific
and articulable facts sufficient to establish reasonable suspicion. During the suppression hearing,
the State presented Officer Acuña’s testimony that (1) based on his perception of Al-Hanna’s
vehicle’s speed, as well as his own vehicle’s speed and his training and experience (including six
years of observing speeding vehicles while using a radar gun on the highway), he estimated Al-
8
Hanna was traveling 40 to 45 miles per hour in an area with a posted speed limit of 30 miles per
hour; (2) because of the manner in which Al-Hanna entered the intersection and “revved” his
engine, Al-Hanna was driving recklessly; and (3) the dashcam footage which showed Al-Hanna’s
vehicle traveling through the intersection. While this evidence may not have established that Al-
Hanna was speeding or driving recklessly beyond a reasonable doubt, an officer does not need to
meet that burden of proof to have reasonable suspicion to conduct a traffic stop. See Ford, 158
S.W.3d at 492 (an officer only needs a reasonable basis to conduct a traffic stop, and is not required
to prove the commission of a traffic offense beyond a reasonable doubt). Instead, these are
specific and articulable facts which show that an objective officer would have reasonable suspicion
that, under the totality of the circumstances, Al-Hanna was speeding or driving recklessly in the
officer’s presence.
Likewise, the facts established during the suppression hearing, such as the estimated speed
at which Al-Hanna was traveling and the description of the area in which he was driving,
constituted “specific facts rather than the type of bare conclusions which will not suffice under
Ford.” See Tuong Du v. State, No. 13-16-00188-CR, 2017 WL 227859, at *4 (Tex. App.—
Corpus Christi Jan. 19, 2017, no pet.) (mem. op., not designated for publication); see also
Hausherr v. State, 404 S.W.3d 669, 671 (Tex. App.—Beaumont 2013, no pet.) (officer who was
trained to visually estimate speed had reasonable suspicion to stop driver where, based on his
perceptions, the officer observed the driver traveling above the posted speed limit in an area with
apartment complexes, businesses, pubs, and pedestrian traffic, which was not reasonable and
prudent under the circumstances). Officer Acuña’s observations were relayed in terms of the facts
which make up the offense of speeding, rather than a bare conclusory statement overlaying the
9
offense which is impermissible under Ford. See Tuong Du, 2017 WL 227859, at *4 (citing
Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh’g); Gutierrez v. State, 327
S.W.3d 257, 263 (Tex. App.—San Antonio 2010, no pet.); McAfee v. State, 204 S.W.3d 868, 870
(Tex. App.—Corpus Christi 2006, pet. ref’d); Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d)); see also Hausherr, 404 S.W.3d at 671 (rejecting driver’s
contention that officer did not have sufficiently specific facts under Ford to constitute reasonable
suspicion to stop the driver because the officer did not verify the driver’s speed with a radar gun).
As such, we conclude that Officer Acuña’s testimony does not run afoul of the prohibition of
conclusory testimony promulgated in Ford. See Tuong Du, 2017 WL 227859, at *4; Ford, 158
S.W.3d at 493–94; see also Hausherr, 404 S.W.3d at 671 (officer relayed sufficiently specific facts
to warrant a finding of reasonable suspicion under Ford where he testified that he was trained to
visually estimate speed, that the driver was traveling over the posted speed limit in an area
containing apartment complexes and pedestrian traffic).
In sum, Officer Acuña’s testimony supports the trial court’s finding that he observed Al-
Hanna’s vehicle traveling at least 10 miles per hour over the posted limit. His testimony
established specific and articulable facts which, combined with his testimony regarding his training
and experience in detecting speeding vehicles, are sufficient to support the trial court’s conclusion
that Officer Acuña had formed a reasonable suspicion to initiate a traffic stop of Al-Hanna’s
vehicle for a speeding violation. See Dillard, 550 S.W.2d at 53 (an officer does not need to know
the exact speed at which the defendant was driving to establish reasonable suspicion to conduct a
traffic stop for a speeding violation); Tuong Du, 2017 WL 227859, *4 (reasonable suspicion
existed where the officer conducting a traffic stop for speeding testified that he had seven years’
10
experience in gauging speed and verifying it using his radar, that he had developed the ability to
accurately assess a driver’s speed by sight, and that he determined the defendant’s speed based on
his training and experience and by comparing its speed to the speed of other vehicles in the area);
Hausherr, 404 S.W.3d at 671 (officer who was trained to visually estimate speed had reasonable
suspicion to stop driver where the officer observed the driver traveling above the posted speed
limit in an area with apartment complexes, businesses, pubs, and pedestrian traffic, which was not
reasonable and prudent under the circumstances).
Giving deference to the trial court’s factual determination that Officer Acuña saw what he
claimed to see, we conclude that the record supports the trial court’s conclusion that he articulated
a reasonable suspicion to conduct a traffic stop for a suspected speeding violation.
Probable Cause
Having determined that Officer Acuña had reasonable suspicion to stop Al-Hanna, we now
address Al-Hanna’s argument that he was arrested without supporting probable cause, and that the
Intoxylyzer results should have been suppressed by the trial court. Interactions between police
and civilians are divided into three categories: encounters, investigative detentions, and arrests.
State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex. Crim. App. 2000). “A person is in ‘custody’ only
if, under the circumstances, a reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128
L. Ed. 2d 293 (1994)). “The ‘reasonable person’ standard presupposes an innocent person.” Id.
(citing Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (emphasis
in original)). We apply the standard on an ad hoc, case-by-case basis, looking only at the
11
objective factors surrounding the person’s detention. Roberts v. State, Nos. 07-15-00282-CR, 07-
15-00283-CR, 2017 WL 2823777, at *5 (Tex. App.—Amarillo June 28, 2017, no pet.) (mem. op.,
not designated for publication) (citing State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.
2012)).
Whether a person is under custodial arrest or subject to an investigative detention is a
matter of degree and depends upon the length of the detention, the amount of force employed, the
officer’s opinion, and whether the officer actually conducts an investigation. Mahlow v. State,
No. 01-14-00753-CR, 2016 WL 888715, at *3 (Tex. App.—Houston [1st Dist.] Mar. 8, 2016, pet.
ref’d) (mem. op., not designated for publication); Woods v. State, 970 S.W.2d 770, 775 (Tex.
App.—Austin 1998, pet. ref’d). Additional factors we consider in determining whether a person
is under custodial arrest or subject to an investigative detention include the nature of the crime
under investigation, the degree of suspicion, the location of the stop, the time of day, and the
reaction of the suspect. Cano v. State, No. 03-15-00485-CR, 2017 WL 3908640, at *8 (Tex.
App.—Austin Aug. 24, 2017, pet. ref’d) (mem. op., not designated for publication). “[C]ommon
sense and ordinary human experience must govern over rigid criteria” when it comes to
determining the issue of custody. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997).
Further, given that allowances “must be made for the fact that officers must often make quick
decisions under tense, uncertain and rapidly changing circumstances[,]” there may be instances in
an investigative detention that reasonably justify an officer handcuffing a suspect, placing a
suspect in a police car, or transporting the suspect to another location for questioning. Id.; see
also Roberts, 2017 WL 2823777, at *2, 6–7 (driver under suspicion for intoxication manslaughter
was not under custodial arrest where she was handcuffed, placed in the backseat of a patrol vehicle,
12
and questioned away from the scene of the initial encounter because the vehicular accident scene
was chaotic and the driver was heavily intoxicated and exhibiting belligerent behavior at the time
of the encounter with law enforcement). As such, handcuffing a person and transporting him or
her to another location to continue the investigation does not automatically convert an investigative
detention into a custodial arrest. See Roberts, 2017 WL 2823777, at *6 (citing Ortiz, 382 S.W.3d
at 374).
Here, Al-Hanna argues that the encounter between him and law enforcement escalated
from an investigative detention to a custodial arrest when officers handcuffed him, placed him in
a patrol vehicle, transported him to the police station, and detained him in a holding cell. We
disagree.
Concerning the officer’s opinion, the amount of force employed, and the reaction of the
suspect, Officer Acuña testified during the suppression hearing that Al-Hanna exited his vehicle
after parking in the residence’s driveway and refused to speak with him or obey his commands,
instead expressing his desire to speak with his parents, who had exited the residence at that point.
Al-Hanna’s “belligerent” behavior continued, and so Officer Acuña handcuffed Al-Hanna and
placed him in the squad car “to make sure nobody got hurt.” Officer Acuña testified that he told
Al-Hanna’s parents that he was handcuffed to make sure nobody got hurt and the parents were
very understanding. Soon, other members of Al-Hanna’s family arrived. Officer Acuña testified
Al-Hanna was not listening to the officers’ requests while others were present, and thus, he became
more concerned with the safety of the situation and Al-Hanna’s level of cooperation. Given these
circumstances, we find the record supports the officer’s testimony that it was reasonable to
handcuff and transport Al-Hanna to a place more conducive to a safe investigation. See Roberts,
13
2017 WL 2823777, at *2, 6–7; Mahlow, 2016 WL 888715, at *4; see also Rhodes, 945 S.W.2d at
118 (handcuffing a person does not automatically convert an investigative detention into a
custodial arrest). Further, the record shows that (1) the stop occurred late at night, (2) Al-Hanna
was being investigated for DWI, and (3) Officer Acuña detected signs of intoxication in Al-Hanna;
these factors also support the conclusion that Al-Hanna was reasonably detained at the scene then
transported to the police station to complete the investigation. See Roberts, 2017 WL 2823777,
at *2, 6–7; Mahlow, 2016 WL 888715, at *4.
We also consider the length of the detention. See Mahlow, 2016 WL 888715, at *4. The
patrol vehicle’s dashcam video shows that officers detained Al-Hanna for approximately ten
minutes at the residence, and that he was transported from the scene of the initial encounter to the
police station for an additional twenty minutes. Once there, Officer Acuña and his partner briefly
met with Officer Senclair to discuss the investigation up to that point. Officer Senclair then met
with Al-Hanna and asked him if he would perform standardized field sobriety tasks, which Al-
Hanna declined. Officer Senclair then read Al-Hanna the Miranda warnings and the statutory
warning, and Al-Hanna agreed to the officer’s request to provide a breath sample. Thus, the
record suggests that the investigation was carried out in an efficient manner, and under the
circumstances Al-Hanna was not detained longer than necessary to determine whether he had
committed an offense. See id. (suspect was subjected to investigative detention where period
between initial stop, the suspect’s transportation to the police station, and the administration of a
breath test lasted less than an hour and a half); Castro v. State, 373 S.W.3d 159, 165 (Tex. App.—
San Antonio 2012, no pet.) (“[a] detention’s duration must demonstrate the officers efficiently
pursued an investigation to confirm or dispel their suspicions”).
14
Based on the foregoing, we conclude that Al-Hanna’s seizure was not a custodial arrest,
but rather an investigative detention carried out for the purpose of reasonably continuing the DWI
investigation at the police station. Therefore, the trial court did not err in denying Al-Hanna’s
motion to suppress the Intoxylyzer results. See Roberts, 2017 WL 2823777, at *2, 6–7; Mahlow,
2016 WL 888715, at *4.
Even if Al-Hanna was under custodial arrest when he was detained by law enforcement,
we find that Officer Acuña nonetheless had probable cause to arrest him for DWI. Probable cause
to effect a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances
within the arresting officer’s knowledge and of which he has reasonably trustworthy information
are sufficient to warrant a prudent person in believing that the person arrested had committed or
was committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
Like the test for reasonable suspicion, the test for probable cause is an objective one, in which we
do not consider the subjective beliefs of the arresting officer which is made under the totality of
the circumstances. Id. Probable cause requires more than a mere suspicion, but less than needed
to support a conviction. Id. While traffic violations alone are not sufficient to establish probable
cause for DWI, we consider the totality of the circumstances in determining whether probable
cause exists. Nava v. State, No. 08-11-00127-CR, 2012 WL 3364230, at *3 (Tex. App.—El Paso
Aug. 15, 2012, no pet.) (not designated for publication) (citing Illinois v. Gates, 462 U.S. 213, 283,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).
Here, Officer Acuña testified that he observed Al-Hanna exit his vehicle after driving on a
public street and pulling over in the driveway of his residence, and he thereafter refused to obey
Officer Acuña’s commands or to participate in field sobriety tasks. Officer Acuña also testified
15
that he detected the odor of alcohol emanating from Al-Hanna’s person, and noted that Al-Hanna
exhibited slurred speech and bloodshot eyes, which are classic signs that a person’s mental and
physical faculties might be impaired. See Markey v. State, 996 S.W.2d 226, 230 (Tex. App.—
Houston [14th Dist.] 1999, no pet.). Thus, having observed Al-Hanna driving in a public place
and exhibiting signs of intoxication and impairment, Officer Acuña was aware of specific facts
which, under the totality of the circumstances, were sufficient to lead a prudent person in believing
that Al-Hanna had been driving his vehicle while intoxicated.
As such, even if Al-Hanna was under custodial arrest when he was detained by law
enforcement, such arrest was supported by probable cause, and the trial court did not err in denying
Al-Hanna’s motion to suppress. See, e.g., State v. Garrett, 22 S.W.3d 650, 654–55 (Tex. App.—
Austin 2000, no pet.) (trial court erred in granting driver’s motion to suppress because officer had
probable cause to conduct warrantless arrest of driver suspected of DWI where the driver exhibited
unlawful driving behavior, smelled strongly of alcohol, had watery eyes, was unsteady on his feet,
and refused to participate in field sobriety tests); Markey, 996 S.W.2d at 230. Al-Hanna’s sole
issue is overruled.
CONCLUSION
Having overruled Al-Hanna’s sole issue, we affirm the judgment of the trial court.
GINA M. PALAFOX, Justice
January 10, 2019
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
16