Opinion
No. 05-04-00820-CR
Opinion Issued April 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, Dallas County, Texas, Trial Court Cause No. MB03-32501-A. Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Alberto Sanchez appeals his driving while intoxicated (DWI) conviction. After the trial court denied appellant's motion to suppress, he entered a plea of nolo contendere, and the trial court sentenced him to 365 days' confinement, probated for twenty-four months, and a $1500 fine. In two issues, appellant argues the arresting officer had no reasonable suspicion to detain him, and the evidence against him should therefore have been suppressed. We affirm the trial court's judgment. At 2:45 a.m. on April 2, 2003, Grand Prairie police officer Ronnie Morris was driving through an apartment complex parking lot. Morris had his lights off because of the many auto thefts and burglaries in the area. Morris heard a man screaming, and he stopped his car and rolled down the windows. Outside one of the buildings, Morris saw a man standing in the grass in front of a parking space and making arm motions to the left and right. A red truck was pulling in and out of the parking space. At one point, the truck struck a van opposite from the truck, causing the van to bounce up and down and making a noise which Morris heard from approximately thirty yards away. When Morris investigated, he determined there was no damage to the van, but he arrested appellant for DWI. The trial court denied appellant's motion to suppress the evidence against him, and appellant entered a plea of nolo contendere. The trial court found appellant guilty, and this appeal followed. In his first and second issues, appellant argues his rights under Article I, section 9 of the Texas Constitution and the Fourth Amendment of the United States Constitution were violated because Morris had no reasonable suspicion to temporarily detain appellant, and all evidence obtained pursuant to that detention should have been suppressed. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). 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. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. Id. Here, the trial judge was free to believe Morris' testimony that, at 2:45 a.m., he saw appellant backing in and out of a parking space and witnessed appellant hit a van, causing it to bounce up and down and making a noise which Morris heard from approximately thirty yards away. Assuming that Morris' subsequent encounter with appellant amounted to a temporary detention and not merely an encounter requiring no justification for the purpose of asking appellant questions, we conclude the trial court did not err in concluding Morris had reasonable suspicion to approach and temporarily detain appellant after witnessing him strike the van. See Johnson, 912 S.W.2d at 233-35 (framers of Texas Constitution chose to draft Art. I, § 9 to protect Texas citizens from unreasonable searches and seizures in same way they were protected by federal government); State v. Crawford, 120 S.W.3d 508, 510 (Tex.App.-Dallas 2003, no pet.) (police do not violate Fourth Amendment by approaching individual on the street or in another public place and questioning him). Accordingly, the trial court did not abuse its discretion in overruling appellant's motion to suppress. See Guardiola, 20 S.W.3d at 223. We overrule appellant's first and second issues. We affirm the trial court's judgment.