Opinion issued May 25, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00660-CR
MATTHEW BRENT DAVIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Cause No. 1279950
MEMORANDUM OPINIONAppellant, Matthew Brent Davidson, was charged with the misdemeanor offense of driving while intoxicated (DWI). After the trial court denied appellant’s pretrial motion to suppress, appellant pled guilty to the DWI offense and pled “true” to the allegations in the enhancement paragraph that appellant had a previous conviction for DWI. The trial court sentenced appellant to confinement for one year, suspended for two years of community supervision, and assessed a $400 fine. In three issues, appellant challenges the denial of his motion to suppress.
We affirm.
Background
At the hearing on the motion to suppress, the trial court heard the testimony of Houston Police Officer Donald Egdorf. The following is a summary of Officer Egdorf’s testimony.
On January 14, 2005, at approximately 2:45 a.m., Officer Egdorf was patrolling on the west side of Houston when he noticed appellant driving a white Expedition. Appellant was traveling on Chimney Rock Road and approaching the Southwest Freeway. Officer Egdorf observed that appellant was swerving back and forth within his lane. Officer Egdorf found appellant’s swerving to be “unsafe” and “unusual.”
Using the computer in his patrol car, Officer Egdorf checked appellant’s license plate number and learned that appellant’s vehicle registration had expired and that appellant had outstanding city warrants. As appellant was about to enter the freeway, Officer Egdorf, who was following appellant, activated the emergency lights on his patrol car and initiated a traffic stop on the entrance ramp to the freeway.
When he approached the vehicle, Officer Egdorf noticed that the registration sticker on appellant’s windshield was expired. Officer Egdorf also noticed that appellant’s breath smelled of alcohol and that appellant’s speech was slurred. The stop ultimately resulted in appellant being charged with DWI.
Appellant filed a motion to suppress the evidence obtained as a result of the stop by Officer Egdorf. The trial court denied the motion, and appellant appeals that ruling.
Standard and Scope of Review
We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Because the trial court observes the demeanor and appearance of the witnesses, it may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. See Hawes v. State, 125 S.W.3d 535, 538 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). We will sustain the trial court’s ruling on the admissibility of the evidence if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Reasonable Suspicion Required for Stop
A routine traffic stop closely resembles an investigative detention. Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3149–50 (1984)). Law enforcement officers may stop and briefly detain a person for investigative purposes on less information than would be required to support a custodial arrest, which requires a probable cause determination. Id. (citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1879–81 (1968)). Before an investigative detention is justified, the officer must possess reasonable suspicion to detain the suspect, i.e., the officer must have specific, articulable facts, which, in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for investigation. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). The articulable facts “must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.” Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). There need only be an objective basis for the stop; the subjective intent of the officer is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
When a police officer stops a defendant without a warrant and without the defendant’s consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop within the totality of the circumstances. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986); see also Garcia, 43 S.W.3d at 530. In conducting the totality of the circumstances determination, the reviewing court uses a bifurcated standard of review: (1) giving almost total deference to a trial court’s determination of historical facts and application of law to fact questions that turn on credibility and demeanor and (2) reviewing de novo the application of law to fact questions that do not turn on credibility and demeanor. Garcia, 43 S.W.3d at 530. We give almost total deference to the trial court in determining what the actual facts are and review de novo whether those facts are sufficient to give rise to reasonable suspicion. Id.
Analysis of Stop at Issue
Appellant challenges the denial of his motion to suppress in three issues. Specifically, appellant contends that (1) “the trial court erred in denying appellant’s motion to suppress evidence seized following an illegal, warrantless traffic stop”; (2) “the warrantless traffic stop and detention of appellant was unreasonable and in violation of the Fourth Amendment of the United States Constitution;” and (3) “the evidence seized following the warrantless stop and arrest of appellant is inadmissible pursuant to article 38.23(A)” of the Texas Code of Criminal Procedure.
A. Basis for Stop
In support of these three issues, appellant argues that “[t]he State did not produce evidence which provided articulable facts that a traffic violation had occurred or that Appellant was engaging in any criminal activity.” Appellant contends that Officer Egdorf initiated the stop either because the officer saw appellant weave within his own lane or because he saw appellant swerve as he was entering the freeway. Citing supporting case law, appellant contends that neither can be a basis to show that Officer Egdorf possessed the requisite reasonable suspicion to initiate the traffic stop.
Appellant first claims that the record affirmatively shows that Officer Egdorf stopped him for drifting within his own lane. Appellant contends that Officer Egdorf testified that he turned on his emergency lights to initiate the stop based on the officer’s observation that appellant was “jerking” right to left within his own lane on Chimney Rock Road. When asked by the State to articulate for the trial court “exactly what led you to believe you had this reasonable suspicion to stop” appellant, Officer Egdorf responded as follows: “My initial reasonable suspicion came from the swerving back and forth, then the expired tag and . . . the warrant hit on the vehicle.” Appellant contends that this shows that the stop was based on appellant’s “swerving back and forth.”
On cross-examination, Officer Egdorf testified that what initially caught his attention was appellant’s swerving within his own lane on Chimney Rock. When asked if that was the basis for the stop, Officer Egdorf clarified that the swerving was the basis for checking appellant’s license on the computer. Officer Egdorf testified that he “ran” appellant’s license plate on his computer before he made the stop. On recross-examination when directly asked whether he made the decision to stop appellant’s vehicle based on the driving that he saw, Officer Egdorf responded, “No, sir.”
Appellant next contends that the evidence showed that Officer Egdorf stopped him because the officer saw him swerve as he entered the freeway. At the suppression hearing, appellant introduced a copy of the videotape taken from Officer Egdorf’s patrol car. The recording device for the videotape was activated when Officer Egdorf turned on his emergency lights to stop appellant as appellant entered the freeway. Appellant points out that the videotape shows Officer Egdorf asking appellant if his vehicle was experiencing mechanical problems because it was jerking back and forth as appellant entered the freeway. Appellant argues that this is “indisputable evidence of the reason for the traffic stop.” According to appellant, “[t]he only reason for the traffic stop was that the officer observed the vehicle jerk as it entered the freeway, which indicated possible mechanical problems.”
Appellant also contends that the record shows that his swerving as he entered the freeway was the basis for the stop by arguing that the evidence indicated that Officer Egdorf never saw appellant swerve within appellant’s own lane on Chimney Rock, but instead saw appellant swerve only as he entered the freeway. In addition to the videotape, appellant points to photographs of Chimney Rock Road that he introduced at the suppression hearing. Apparently attacking Officer Egdorf’s credibility, appellant asserts that Officer Egdorf testified that Chimney Rock had three lanes but the that photographs show five lanes. Appellant also points out that Officer Egdorf had only one-half of a block to observe appellant’s driving on Chimney Rock, suggesting that the officer had little time to observe appellant’s swerving.
We disagree with appellant that the evidence was “indisputable” that appellant was stopped because he swerved as he entered the freeway or because he was drifting within his own lane on Chimney Rock. To the contrary, the evidence was disputed. Officer Egdorf responded unequivocally that he did not stop appellant because of appellant’s driving. Rather, Officer Egdorf testified that appellant’s driving prompted him to run a computer check that revealed appellant had an expired vehicle registration and outstanding traffic warrants. According to Officer Egdorf, he did not initiate the stop until after the computer results came back. We do not agree that Officer Egdorf’s remarks on the videotape necessarily indicate that he stopped appellant because he saw him swerve as he entered the freeway.
In sum, it was the role of the trial court, as the finder of fact, to judge Officer Egdorf’s credibility and to decide the weight to be given to his testimony and to the other evidence. See Romero, 800 S.W.2d at 543. Here, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported in the record. Balentine, 71 S.W.3d at 768. In reviewing the evidence in the light most favorable to the trial court’s ruling, we conclude that the trial court believed Officer Egdorf’s testimony. Consequently, the trial court found that the stop was based on the computer information received by Officer Egdorf that appellant’s registration was expired and that appellant had outstanding warrants. See id. We also conclude that such implied finding was reasonably supported by the record. See id.
B. Probable Cause Not Required for Stop
Appellant also contends that “the State responded to the motion to suppress by arguing that, despite the driving facts, there was probable cause for the traffic offense of expired registration. Therefore, the State had the burden to prove that the warrantless stop was based upon the commission of the traffic offense.” Appellant points out that the State “produced no government record or computer printout corroborating [Officer Egdorf’s] claim that in the 15–20 second period in which he observed Appellant and activated his lights, he completed a check of the license plate number.” Appellant further asserts that “[p]robable cause for the alleged traffic violation did not exist until after the stop was completed and the officer approached Appellant’s vehicle to observe the front windshield.”
Here, the State was not required to establish probable cause for the stop. Circumstances short of probable cause to arrest may justify a temporary detention for the purpose of investigation. Icke v. State, 36 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Daniels v. State, 718 S.W.2d 702, 704–05 (Tex. Crim. App. 1986)). That is, an officer may approach a person for the purpose of investigating possible criminal behavior, even without probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880–81 (1968). A person may be stopped to determine that person’s identity or to obtain more information about a given situation. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). Nonetheless, the officer must have specific, articulable facts which, in light of his experience and personal knowledge, together with attendant inferences, would warrant a detention. See Gurrola, 877 S.W.2d at 302.
Officer Egdorf testified that he had received information over his patrol car’s computer that the registration of the vehicle appellant was driving was expired and that appellant had outstanding warrants. Based on that information, it was reasonable for Officer Egdorf to stop appellant to determine whether the registration was in fact expired and whether appellant was the person named in the outstanding warrants. See Hurtado v. State, 881 S.W.2d 738, 742 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). To authorize him to stop appellant’s vehicle, Officer Egdorf’s reasonable suspicion did not need to rise to the level of probable cause that appellant was operating a vehicle with expired registration or that he was the subject of outstanding warrants. See id.
Here, no government record or computer printout was introduced because neither the expired registration nor the outstanding warrants was ultimately the basis for appellant’s arrest. See id. Whether Officer Egdorf was telling the truth about receiving the information over the computer before he initiated the stop was a credibility assessment properly handled by the trial court as the fact finder. See Romero, 800 S.W.2d at 543. The lack of any documentation was but a factor for the trial court to consider in weighing Officer Egdorf’s credibility.
We hold that appellant has not shown that the trial court abused its discretion in denying his motion to suppress.
We overrule appellant’s first, second, and third issues.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Higley, and Bland
Do not publish. Tex. R. App. P. 47.2(b).