COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-013-CR
STEPHEN LEE DUNKELBERG APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
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OPINION
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A jury convicted Appellant Stephen Lee Dunkelberg of driving while
intoxicated (DWI), and the trial court sentenced him to six days’ confinement
and a $300.00 fine. In two points, Appellant appeals the trial court’s denial of
his motion to suppress the fruits of the stop of his vehicle and the detention of
his person. Because we hold that the trial court did not err, we affirm the trial
court’s judgment.
Background Facts
Officer Duane Ford testified that on June 5, 2005, at approximately 1:30
a.m., he observed a vehicle being driven in the outside lane in the 6300 block
of Davis in North Richland Hills, Texas. He testified that the vehicle was
“having a little bit of difficulty maintaining its lane” and weaved within its lane,
crossed the lane line, and struck several lines back and forth. When the driver
attempted to pull the vehicle over after Officer Ford activated his lights, the car
jumped the curb and stopped with a tire on the curb. This court has carefully
reviewed the videotape that Officer Ford made of the events he described and
determined that the videotape supports his testimony. After the stop, Appellant
was arrested for DWI. The trial court denied his motion to suppress, finding
that
• about 1:46 or 1:49 in the morning of June 5, 2005, Officer Ford
saw Appellant’s car weaving within its lane;
• at one point it crossed over the dividing line into another lane;
• “and that was his basis or his reasonable suspicion for stopping the
vehicle.”
The trial court also found that the vehicle did not stop immediately in response
to Officer Ford’s lights but continued for four or five blocks, pulled off to the
right after signaling, and then ran up over a curb in stopping.
2
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. 1 In reviewing the trial court’s decision, we do
not engage in our own factual review.2 The trial judge is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony.3 Therefore, we give almost total deference to the trial court’s
rulings on (1) questions of historical fact, even if the trial court’s determination
of those facts was not based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor.4 But when application-of-law-to-fact questions do not turn on
the credibility and demeanor of the witnesses, we review the trial court’s
1
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
2
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
3
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other
grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
4
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101,
108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53
(Tex. Crim. App. 2002).
3
rulings on those questions de novo.5
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling.6 When the trial court makes explicit fact findings, we determine
whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports those fact findings.7 We then review the trial court’s
legal ruling de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling.8 We must uphold the trial court’s
ruling if it is supported by the record and correct under any theory of law
applicable to the case even if the trial court gave the wrong reason for its
ruling.9
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
5
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
6
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
7
Kelly, 204 S.W.3d at 818–19.
8
Id. at 819.
9
State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W .3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
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specific, articulable facts.10 An officer conducts a lawful temporary detention
when he or she has reasonable suspicion to believe that an individual is
violating the law.11 Reasonable suspicion exists when, based on the totality of
the circumstances, 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 is, has been, or soon will be
engaged in criminal activity. 12 This is an objective standard that disregards any
subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists.13
Stop Based on Reasonable Suspicion
In his first point, Appellant contends that the stop was not based on
probable cause or reasonable suspicion. In his second point, Appellant
contends that the trial court erred by denying his motion to suppress. Appellant
argues that although the officer saw the vehicle weave within its lane, cross
the lane line, and strike several lines back and forth, there was no evidence that
10
Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
11
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
12
Id. at 492–93.
13
Id. at 492.
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Appellant failed to drive in a single marked traffic lane when it was unsafe to
do so.14 That is, Appellant argues that he did not violate section 545.060 of
the transportation code because there was no evidence that his driving was
unsafe. He further argues that because there was no evidence that he failed
to drive in a single lane when it was unsafe to do so, the officer had no
reasonable suspicion to stop Appellant’s vehicle. Appellant relies on State v.
Cerny,15 State v. Tarvin,16 and Hernandez v. State. 17
The Cerny court noted that the arresting officer did not articulate any
justification for stopping the defendant other than the officer’s suspicion that
the defendant had violated the traffic code, and while the traffic code required
the defendant’s actions to be unsafe, the record reflected mere weaving within
the lane and no indication that this weaving was unsafe.18 The Hernandez
court rejected the State’s contention that the officer’s observing the defendant
weaving within his own lane justified an investigatory detention because the
officer did not testify that, based on his experience, he subjectively suspected
14
See Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).
15
28 S.W.3d 796 (Tex. App.—Corpus Christi 2000, no pet.).
16
972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d).
17
983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d).
18
Cerny, 28 S.W.3d at 801.
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the defendant of being intoxicated. 19 The Hernandez court additionally noted
that the officer did not testify to anything about the objective circumstances,
time, location, or the vehicle’s movement that would have led a reasonable
officer to suspect the driver of being intoxicated; rather, the officer testified
only that he was concerned about the driver’s well-being. 20 The Tarvin court
noted that, although the officer observed Tarvin’s weaving within his own lane
of traffic, the officer “never testified that he was conducting an investigatory
stop, nor did he testify to suspecting any criminal activity other than weaving
out of the lane.” 21
Unlike the officers in those three cases, Officer Ford testified that, based
on his training and experience, he believed that Appellant might be driving while
intoxicated given the manner in which the vehicle was operated in conjunction
with the time of night. He testified that he stopped the vehicle “due to an
investigative stop because, as you well know, in the NHTSA manual, . . .
[weaving] is one of the sixteen clues that could be a possible intoxicated
driver.”
19
Hernandez, 983 S.W.2d at 870.
20
Id.
21
Tarvin, 972 S.W.2d at 912.
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As the State points out, Officer Ford, like the officers in Walker v. State 22
and State v. Arend,23 testified that he conducted an investigatory stop
specifically because he believed there was a “possibility” Appellant was driving
while intoxicated. Officer Ford’s dashboard video of Appellant’s driving
supports the officer’s testimony that Appellant was weaving from one set of
reflectors on the road to the other and that he crossed the lane divider at least
once. The video also supports Officer Ford’s testimony that Appellant was
slow to react to the officer’s emergency lights. Officer Ford further testified
that in his experience, intoxicated drivers are frequently encountered at that
time of night and that his training showed that weaving is one of the sixteen
clues that a driver is intoxicated.
22
No. 02-04-00336-CR, 2006 WL 349704, at *5 (Tex. App.—Fort Worth
Feb. 16, 2006, no pet.) (mem. op., not designated for publication).
23
No. 02-03-00336-CR, 2005 WL 994710, at *5 (Tex. App.—Fort Worth
April 28, 2005, pet. ref’d) (mem. op., not designated for publication).
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Viewing the evidence in the light most favorable to the trial court’s ruling,
we hold that the trial court properly found that Officer Ford had reasonable
suspicion to stop Appellant and that the trial court properly denied his motion
to suppress. We overrule Appellant’s two points and affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, J.; CAYCE, C.J.; and LIVINGSTON, J.
PUBLISH
DELIVERED: October 2, 2008
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