COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
|
SCOTT ROBERT LEGGETT,
Appellant,
v.
THE STATE OF TEXAS,
Appellee. |
'
'
'
'
' |
No. 08-01-00015-CR
Appeal from the
County Criminal Court No. 7
of Dallas County, Texas
(TC# MB99-34395-H) |
O P I N I O N
This is an appeal from a conviction for the offense of driving while intoxicated. Trial was to the court upon a plea of not guilty to the offense, and the court assessed the punishment at 180 days= confinement in the Dallas County Jail probated for two (2) years and a fine of $600. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
At trial, the State offered the testimony of Officer Timothy Cassout who was employed by the Irving Police Department. Cassout testified that while on duty on December 11, 1999 shortly after 1 a.m., he observed Appellant driving his vehicle on the inside lane and swerved over towards the middle lane with both passenger side tires crossing over the lane. He then made an abrupt, jerking lane change back into his original inside lane. Cassout continued to follow Appellant and Appellant kept weaving from line to line inside the lane. From these observations, Cassout inferred three things: Appellant could have car problems, a distraction in the vehicle, or he could be intoxicated. Cassout initiated a traffic stop. According to Cassout=s testimony, there was a Amoderate@ odor of alcohol from inside the vehicle and the Appellant had Abloodshot@eyes. Cassout then asked Appellant for his driver=s license but he produced a credit card instead. When Appellant corrected the problem, Cassout conducted sobriety tests. Cassout concluded that Appellant was intoxicated and placed him under arrest. Cassout also testified that he pulled Appellant over on a sloped terrain and the weather was windy. Additionally, there was not much traffic when Appellant was pulled over and that, in fact, the officer=s vehicle was the only vehicle on the highway. Appellant=s condition was orderly and his speech was not slurred.
Torrie Hollis, witness for Appellant, testified that she was a passenger in Appellant=s vehicle when he was pulled over. Hollis met with Appellant earlier that evening and spent the evening with him According to Hollis, Appellant had five drinks over the course of a six-hour evening, which included dinner and dancing. Hollis also said that Appellant showed no signs of intoxication, such as stepping on her feet or speeding when he was driving. She did not notice Appellant weave or drive unsafely. Hollis related that the painted traffic lanes at that stretch of road were faded and were difficult to see.
II. DISCUSSION
In his sole issue, Appellant asserts that the trial court erred in failing to grant his motion to suppress the evidence in that the facts do not support that the stop by the officer was reasonable.
In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. The amount of deference a reviewing court affords to a trial court's ruling on a mixed question of law and fact often is determined by which judicial actor is in a better position to decide the issue. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). If the issue involves the credibility of a witness, thereby making the evaluation of that witness's demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts. See id. In other situations, if the issue is whether an officer had probable cause to seize a suspect under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination. See id. Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. See id.
In a hearing on a motion to suppress, the trial judge is the sole trier of fact, and he or she may choose to believe or disbelieve any or all of the witnesses' testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Under Guzman, we must give great deference to the trial court's ruling to the extent that it involved an evaluation of the credibility of witnesses or an evaluation of their demeanor. Because the trial court overruled Appellant's motion to suppress, we will presume that the judge found the police officer's testimony credible. However, we will review the issue of "reasonable suspicion" de novo. See Guzman, 955 S.W.2d at 87.
The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him or her to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38‑39 (Tex. Crim. App. 1997). When a detention is based upon conduct by the suspect, the conduct need not itself be unlawful or in some sense inconsistent with innocence. Innocent behavior will frequently provide the basis for a showing of probable cause or reasonable suspicion and in making a determination of probable cause or reasonable suspicion, the relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular types of noncriminal acts. Id. at 38. Also, objective facts, meaningless to the untrained, when used by trained law enforcement officers can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person. Id. at 37‑38.
Appellant maintains that because there were no other cars save Cassout=s police vehicle on the road that morning, there was nothing to indicate that Appellant=s actions were unsafe or that anyone was placed in danger. Further, Appellant asserts that the testimony concerning the faded lane lines indicated that it was impossible to commit the offense.[1] Therefore, there was no reasonable basis for stopping Appellant=s vehicle. In support of his argument, Appellant cites Hernandez v. State 983 S.W.2d 867 (Tex. App.--Austin 1998, pet. ref=d) and State v. Tarvin 972 S.W2d 910 (Tex. App.--Waco 1998, pet ref=d). The reasoning of these cases, however, does not support Appellant=s argument. The decision in Hernandez rested heavily on the officer=s testimony that he was concerned only about the driver=s Awell being@ not whether he believed the driver was intoxicated. Hernandez, 983 S.W.2d at 870. In Tarvin, the court noted that the officer never testified that he was conducting an investigatory stop, or whether there were other infractions, or any other suspicious activity that would justify a stop. Tarvin, 972 S.W.2d at 912. Moreover, Appellant erroneously relies on Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.--Beaumont 2000, not pet.) because in that case there was no evidence by either officer that the driving was made unsafe. Here, Officer Cassout testified that Appellant made an abrupt jerk back into his own lane after weaving into another. He was then seen to weave back and forth within his lane. In Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.--Houston 14th Dist. 1997, no pet.), the court held:
We decline to interpret section 545.060 so as to permit a driver to weave throughout all lanes of traffic so long as no other vehicles are in the immediate vicinity . . . . The fact that no other cars were around appellant at the time he was weaving may be a defense to a traffic citation. However, it does not negate a stop based on reasonable suspicion that the driver of the motor vehicle has lost control of his mental and physical faculties by the ingesting of alcohol and/or drugs. Traffic laws are designed to protect not only the safety of other persons in other vehicles, but also the safety of the driver in question.
Id. at 453.
In the present case, the fact that no other cars were around and there was testimony that the lane lines were faded may be a defense to a traffic citation, however, these factors do not nullify a reasonable suspicion the driver of the vehicle has lost control of his mental and physical faculties due to the ingesting of alcohol or drugs. We do not agree with Appellant that crossing a dividing lane with both right wheels, abruptly jerking the vehicle back into the lane and then weaving within that lane is indicative of safe operation of the vehicle. Accordingly, we overrule Appellant=s sole issue on appeal.
Having overruled Appellant=s sole issue on appeal, we affirm the judgment of the trial court.
August 26, 2002
RICHARD BARAJAS, Chief Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] Tex. Transp. Code Ann. ' 545.060 (Vernon 1999). Driving on Roadway Laned for Traffic, provides:
(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made safely.