Jo Anne Paez v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00824-CR

Jo Anne PAEZ,
Appellant

v.

The STATE of Texas,
Appellee

From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-23-0761
Honorable Kirsten Legore, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice
Dissenting Opinion by: Velia J. Meza, Justice

Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: September 24, 2025

AFFIRMED

Appellant Jo Anne Paez was arrested and charged with driving while intoxicated (“DWI”),

a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04(a). She filed a pretrial motion to

suppress any evidence resulting from the traffic stop that led to her arrest, but the trial court denied

Paez’s motion. In one issue, Paez complains that the trial court abused its discretion in denying
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her motion to suppress because the arresting officer failed to articulate any facts that would have

given him reasonable suspicion to suspect she was driving while intoxicated. We affirm.

I. BACKGROUND

At the hearing on Paez’s motion to suppress, Barry Ray, a police officer with the Seguin

Police Department, testified that he was driving his patrol unit at approximately 1:30 a.m., when a

vehicle driven by Paez turned from an intersecting road in front of Officer Ray’s patrol unit.

Officer Ray articulated four factors that led him to suspect Paez was driving while intoxicated.

First, Officer Ray noticed that Paez was driving as slow as twenty miles-per-hour in a thirty-miles-

per-hour zone. Second, Officer Ray observed that Paez would “speed up and then she would slow

down gradually over a little bit of time.” 1 Officer Ray “paced” Paez’s vehicle as driving as slow

as twenty miles-per-hour and then twice speeding up to thirty-two miles-per-hour. He

characterized these varying speeds as an inability to control speed. Officer Ray noted that,

according to a National Highway Traffic Safety Administration (“NHTSA”) study, driving less

than ten miles under the posted speed limit “and/or” varying speeds are cues that the driver might

be impaired. He observed that there were no external factors, such as traffic, the surface of the

roadway, or weather, that would have required Paez to vary her driving speed. Third, Officer

Ray’s training taught him that peak DWI hours are between 10:00 p.m. and 4:00 a.m., and he noted

that 1:30 a.m. was “right in the middle” of the peak DWI hours. Fourth, Officer Ray knew that

Paez was driving from an area where several establishments sold alcoholic beverages. Officer Ray

followed Paez for about half a mile before initiating a traffic stop.

The trial court denied Paez’s motion to suppress. Thereafter, Paez pleaded nolo contendere

pursuant to a plea-bargain agreement. The trial court, in accordance with the plea-bargain

1
The trial court admitted dashcam video of Paez’s vehicle as Officer Ray followed her and conducted a traffic stop.

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agreement, signed an order that granted Paez deferred adjudication and placed her on community

supervision for one year. The trial court also certified that Paez had permission to appeal its denial

of her motion to suppress, and it signed findings of fact that we have incorporated into the

preceding paragraph. Paez timely appealed.

II. DISCUSSION

A. Standard of Review

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

standard of review.” Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). “[W]e

afford almost complete deference to the trial court in determining historical facts,” but “we review

de novo whether the facts are sufficient to give rise to reasonable suspicion in a case.” Id. at 190.

Where the trial court makes express findings of fact, as here, we view the evidence in the light

most favorable to those findings and determine whether the evidence supports the fact findings.

See State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). Unless the trial court abused its

discretion by making a finding not supported by the record, an appellate court will defer to the trial

court’s fact findings and not disturb the findings on appeal. See Miller v. State, 393 S.W.3d 255,

262–63 (Tex. Crim. App. 2012)

B. Applicable Law

The Fourth Amendment to the United States Constitution guarantees protection against

unreasonable searches and seizures. U.S. CONST. amend. IV; Hubert v. State, 312 S.W.3d 554,

560 (Tex. Crim. App. 2010). These constitutional protections extend to investigatory stops of

persons or vehicles that fall short of a traditional arrest. Ramirez-Tamayo v. State, 537 S.W.3d 29,

36 (Tex. Crim. App. 2017) (citing United States v. Arvizu, 534 U.S. 266, 273, (2002)). A police

officer has reasonable suspicion to detain a person when the officer has specific, articulable facts

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

conclude that the detained person is, was, or soon will be engaged in criminal activity. Id. at 36.

Under this standard, we consider whether there was an objectively justifiable basis for the

detention. Id. We look to the totality of the circumstances in assessing the existence of reasonable

suspicion and consider whether the officer who detained the person had a particularized and

objective basis for suspecting wrongdoing. Id.

C. Analysis

Paez complains that the trial court abused its discretion in denying her motion to suppress

because Officer Ray failed to articulate any facts that would have given him reasonable suspicion

to suspect she was driving while intoxicated. She specifically challenges Officer Ray’s first (slow

speed), second (varying speed), and fourth (proximity to bars) factors.

In assailing the first and second factors supporting Officer Ray’s suspicion that Paez was

driving while intoxicated, Paez argues that “driving between 21 miles per hour and 30 miles per

hour on a road where the speed limit is 30 m.p.h. is not a cue of intoxication” and “[a] finding that

any driving under the speed limit may be stopped and investigated for [DWI] forces citizens to

choose between driving over the speed limit, and potentially being detained, or driving under the

speed limit, and similarly being detained.”

As a primarily matter, we note that driving a third under the speed limit, which Paez was

doing, together with other circumstances, has been held to support a finding of reasonable

suspicion that the driver was driving while intoxicated. See Aguilar v. State, No. 03-11-00133-

CR, 2012 WL 677505, at *1 (Tex. App.—Austin Mar. 2, 2012, no pet.) (mem. op., not designated

for publication) (noting that sheriff’s deputy “observed that [defendant’s vehicle] was traveling

between 40 to 45 miles per hour, approximately 20 miles per hour below the posted speed limit of

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60 miles per hour.”). Regardless, Paez’s argument fails to appreciate that the fluctuation or

variance of her driving speed may have been an appropriate factor for Officer Ray to consider

under the totality of the circumstances. See Marrero v. State, No. 03-14-00033-CR, 2016 WL

240908, at *5 (Tex. App.—Austin Jan. 14, 2016, no pet.) (mem. op., not designated for

publication) (“[B]oth deputies testified that the [defendant’s] vehicle’s speed ‘was not constant’

and ‘fluctuated’ as they were following it, and [one deputy] testified that [defendant] was driving

at least ten miles per hour below the speed limit.”).

In assailing the fourth factor, Paez acknowledges that Foster v. State, 326 S.W.3d 609, 614

(Tex. Crim. App. 2010), held that in light of “the time of night, the location [near Austin’s Sixth

Street bar district], [the police officer’s] training and experience, and [the defendant’s] aggressive

driving, it was rational for [the police officer] to have inferred that appellant may have been

intoxicated, thus justifying a temporary detention for further investigation.” Nevertheless, she

contends that Seguin, Texas is a “significantly smaller town — without a ‘bar district’” such as

Austin. However, the Texas Court of Criminal Appeals did not key its analysis to the size of the

city. Instead, it held that “we believe that [a] location near a bar district where police have made

numerous DWI arrests is also a relevant factor in determining reasonable suspicion.” Id. at 613.

Officer Ray testified that Paez was driving from an area where several establishments sold

alcoholic beverages. This testimony is sufficient under Foster to be considered among the totality

of the circumstances. Id. 613–14.

In summation, Officer Ray testified — and the trial court found — that he suspected Paez

was driving while intoxicated based on: (1) Paez’s driving approximately ten miles-per-hour under

the posted speed limit of thirty miles-per-hour; (2) Paez’s failure to maintain a consistent speed;

(3) the time of night; and (4) the area Paez was coming from. These four factors, when viewed in

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the light most favorable to the trial court’s ruling, support the trial court’s conclusion that Officer

Ray had reasonable suspicion, based on the totality of the circumstances, to believe that Paez had

committed the offense of driving while intoxicated, and he was justified in stopping Paez for that

reason. See Rodriguez, 521 S.W.3d at 8; Ramirez-Tamayo, 537 S.W.3d at 36; Foster, 326 S.W.3d

at 613–14; and Marrero, 2016 WL 240908, at *5. Accordingly, we cannot conclude that the trial

court abused its discretion in denying Paez’s motion to suppress. We overrule Paez’s sole issue.

III. CONCLUSION

We affirm the trial court’s order denying Paez’s motion to suppress.

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH

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