Opinion issued February 5, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00278-CR
____________
STEPHEN LOWRY CASTANEDO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Bosque County, Texas
Trial Court Cause No. 07-06-14119-BR
MEMORANDUM OPINION
A jury found appellant, Stephen Lowry Castanedo, guilty of the felony offense of driving while intoxicated (1) and assessed his punishment at confinement for 10 years. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence.
We affirm.
Factual and Procedural Background
In the trial court, appellant moved to suppress evidence of "any oral, written, or video, or audio recorded statements, acts, or refusals to perform field sobriety tests either at the scene of the arrest or at the officer's video room."
At the trial court's hearing on appellant's motion, Valley Mills Police Department Officer T. Field testified that on March 24, 2007, he was dispatched to Highway 6 by the Bosque County Sheriff's Department to investigate a report from an informant that a car was "weaving all over the road." While driving to Highway 6 in his patrol car, Field received a telephone call, through dispatch, from a second informant who told Field that he was driving behind a car that was weaving "all over the road." The second informant's description of the car matched the description of the car that Field was attempting to locate. Field then drove up to the car of the second informant, who advised Field that the car right in front of him was "weaving." When Field pulled his patrol car behind the car described by the informant, Field saw the car "bumping the lines" and noticed that it was being driven erratically. Based on his personal observation and the informants' reports, Field stopped the car. When he approached the car, Field discovered that appellant was the driver of the car. Noticing the smell of alcohol emanating from the car, Field called for a highway patrolman to administer a field sobriety test. Texas Department of Public Safety Trooper J. Sparkman arrived and administered a field sobriety test. Based upon appellant's performance on the field sobriety test, Sparkman took appellant into custody. Before leaving the scene, Officer Field obtained "names and identifiers for the other witnesses that saw and observed" appellant's driving.
On cross-examination, Field conceded that he did not observe appellant cross over the yellow line into oncoming traffic. However, Field did explain that although he mostly observed appellant weaving in his lane, he also observed appellant cross over the shoulder line.
Reasonable Suspicion
In his sole point of error, appellant argues that the trial court erred in denying his motion to suppress evidence because "the State offered no evidence of any violation to justify a traffic stop" and the "officer in question did not express specific articulable facts to justify a warrantless traffic stop."
In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determinations on all fact questions and on application-of-law-to-fact questions (2) that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). On all other application-of-law-to-fact questions, we apply a de novo standard of review. Id. at 652-53. We view the record and all reasonable inferences from the record in the light most favorable to the trial court's 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. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
A "stop" by a law enforcement officer "amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections." Carmouche, 10 S.W.3d at 328. However, it is well-established that a law enforcement officer may stop and briefly detain a person 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, 1880 (1968); Carmouche, 10 S.W.3d at 328. In order to stop or briefly detain an individual, an officer must be able to articulate something more than an "inchoate and unparticularized suspicion or 'hunch.'" Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Instead, an officer must have "reasonable suspicion" that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when the officer has some minimal level of objective justification for making the stop, i.e., when the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 88 S. Ct. at 1880; see also Alabama v. White, 496 U.S. 325, 329-30, 110 S. Ct. 2412, 2416 (1990). We disregard the subjective belief of the officer in our reasonable suspicion analysis and consider the totality of the circumstances objectively. Ford, 158 S.W.3d at 492-93.
Reasonable suspicion may arise from the personal observations of a law enforcement officer or from an informant's tip that has sufficient indicia of reliability. Carmouche, 10 S.W.3d at 328 (citing Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923-24 (1972)). In determining the reliability of an informant's tip, courts look at two aspects of the tip, the content of the information provided and the degree of reliability. Alabama, 496 U.S. at 330, 110 S. Ct. at 2416. The strength of one factor can sufficiently balance the weakness of the other factor to create reasonable suspicion. Id. For example, if a tip is received from an anonymous informant, creating a relatively low degree of reliability, "more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.
In support of his argument that Officer Field's observations did not create reasonable suspicion to stop or detain him, appellant relies on three cases: State v. Huddleston, 164 S.W.3d 711 (Tex. App.--Austin 2005, no pet.); Hernandez v. State, 983 S.W.2d 867 (Tex. App.--Austin 1998, pet. ref'd); and State v. Tarvin, 972 S.W.2d 910 (Tex. App.--Waco 1998, pet. ref'd). In all of these cases, law enforcement officers initiated traffic stops of individuals based on the officers' observations that the individuals had crossed into another lane or crossed a fog line without endangering any other cars. See Huddleston, 164 S.W.3d at 713-14 (reasoning that officer's observation of car drifting "twice to the right side of the roadway and cross[ing] over the white shoulder stripe, or fog line" did not create reasonable suspicion); Hernandez, 983 S.W.2d at 868-70 (holding that State did not show reasonable suspicion based on officer's observation that defendant's car "drifted slightly across a lane marker a single time"); and Tarvin, 972 S.W.2d at 910-12 (finding no reasonable suspicion for detention when defendant's tires crossed "the solid white line at the right-hand side of the road on two or three occasions"). Here, as in these cases, Officer Field stopped appellant after observing him weave within his own lane and cross over the fog line without endangering any other cars. However, in considering the totality of the circumstances, we note that Officer Field also based his reasonable suspicion on reports from two informants that appellant was weaving "all over the road."
In Hawes v. State, we considered whether a law enforcement officer may rely on an informant's tip to form reasonable suspicion. 125 S.W.3d 535, 539-40 (Tex. App.--Houston [1st Dist.] 2002, no pet.). We noted that "[o]ne who presents himself to an officer while driving a vehicle through which his identity might easily be traced puts himself in the position to be held accountable for the reliability of the information." Id. at 539. In Hawes, a tow truck driver reported that a car was driving erratically, and he provided a license plate number, a description of the car, the car's location, and its direction of travel. Id. at 537. The tow truck driver also stated that he was following the car. Id. Based on this information, a police officer located both vehicles. Id. Although he did not personally witness any traffic violations, the police officer stopped the driver based on the information provided by the tow truck driver. Id. The the tow truck driver did not meet "face to face" with the officer; nevertheless, we reasoned that by following the driver until the police officer arrived, the tow truck driver placed "himself in a position where he could be identified [which] increased the reliability of the information and helped justify the stop." Id. at 539-40.
Here, the second informant reported that appellant's car was weaving all over the road, and he followed appellant's car until Officer Field located the two cars. As in Hawes, this driver was not identified at the suppression hearing, but he was driving a "readily traceable vehicle that the officer observed following the suspect." Id. at 539. Therefore, his willingness to place himself in a position where he could be readily identified increased the reliability of his information and helped to justify the stop. See id. Additionally, by following appellant's car, this second informant clearly identified appellant's car to Officer Field. See id. Moreover, the informant's reliability was increased by the fact that another driver had already reported that appellant's car had been "weaving all over the road."
Appellant asserts that the information from the informants amounted to nothing more than "hearsay testimony regarding unproven and unsubstantiated telephone and radio calls." However, appellant never objected that these statements were hearsay or unreliable at the suppression hearing. Appellant further argues that allowing the trial court's ruling to stand "will give way to the slippery slope of allowing unwarranted traffic stops based on unproven and potentially unreliable phone calls while completely ignoring the actual observations of a detaining officer." However, the fact that the informant placed himself in a position to be readily identified vitiates appellant's concern. See id. at 539-40.
Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence because the testimony at the suppression hearing indicated that Officer Field had reasonable suspicion to stop appellant.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Duggan. (3)
Do not publish. Tex. R. App. P. 47.2(b).
1. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003), § 49.09(b) (Vernon Supp.
2008).
2. Also referred to as "mixed questions of law and fact." Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997).
3.