NUMBER 13-03-040-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ANDREW SCOTT WINTERS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Criminal Court at Law No. 5
of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
Appellant, Andrew Scott Winters, was charged with the misdemeanor offense of driving while intoxicated, (1) enhanced by a prior felony conviction. After the trial court denied his motion to suppress, appellant pled guilty, pursuant to a plea agreement, to the offense and "true" to the enhancement paragraph. The trial court found appellant guilty, found the enhancement allegation "true," and sentenced appellant to thirty days in jail. In a single issue, appellant contends that the trial court erred in overruling his motion to suppress because the arresting officer was not justified in stopping his vehicle. We affirm.
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
The record contains the trial court's certification that this "is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial, and not withdrawn or waived, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2).
A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.-Corpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89. However, we review de novo questions of law and "mixed questions of law and fact" that do not turn on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89. Where, as here, no findings of fact are filed by the trial court, "we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Ross, 32 S.W.3d at 855. Because the issue in this case does not involve a disagreement about the facts or credibility of the witness, but rather whether the officer had either probable cause or a reasonable suspicion to stop Winters, we review the trial court's ruling de novo. See id. at 856; Guzman, 955 S.W.2d at 89. If the judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. See Ross, 32 S.W.3d at 855-56. In the context of driving while intoxicated investigatory detentions, the totality of the circumstances test is the current reasonableness standard for reviewing warrantless arrests. Cerny v. State, 28 S.W.3d 796, 798 (Tex. App.-Corpus Christi 2000, no pet.)
A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulabe facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. See Terry v. Ohio, 392 U.S. 1, 29-30 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Cerny, 28 S.W.3d at 800. This "reasonable suspicion" requires "that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime." Davis, 947 S.W.2d at 244 (quoting Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992)). The reasonableness of a stop turns on the totality of the circumstances present in each case. See Cerny, 28 S.W.3d at 800. However, if an actual violation of law is observed, there is probable cause for the traffic stop, and law enforcement officials are free to enforce the laws and detain a person for that violation. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Cerny, 28 S.W.3d at 800. However, in determining whether a traffic violation has been committed, the principles of Terry apply, just as they do to other crimes. Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim App. 1977); Cerny, 28 S.W.3d at 800. The standard is an objective one: there need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim. App. 2001). An objectively valid stop may be upheld even if made for an improper reason. See Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000). The court's review is not limited to the violations an officer lists in making the stop; the test is whether the articulated facts about which the officer testified would, in light of the officer's experience and personal knowledge, together with inferences from those facts, warrant a reasonable person to believe that a violation had occurred. See Garcia, 43 S.W.3d at 530; Davis, 947 S.W.2d at 242-43.
When an 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. Cerny, 28 S.W.3d at 800 (citing Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986)).
Appellant argues that there was no probable cause or reasonable suspicion to stop his vehicle because there was no evidence that he failed to drive in a single marked traffic lane when it was unsafe to do so. See Tex. Trans. Code Ann. § 545.060(a) (Vernon 1999). Appellant argues that because there was no evidence or testimony that his actions were unsafe, the evidence does not support a finding that the arresting officer had a reasonable belief that he violated section 546.060(a) of the transportation code. See id.
Section 546.060(a) of the transportation code 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.
Id.
The only witness to testify at the hearing on appellant's motion to suppress was the arresting officer, Deputy Troy Stewart of the Harris County Constable's Office. Deputy Stewart testified that around 2:00 a.m. on September 12, 2002, he observed appellant's vehicle traveling eastbound in the center lane of a three-lane roadway. Stewart testified appellant's vehicle failed to "stay within the dividing lines of the solid line or the stripy [sic] line that separates the traffic on the roadway." According to Stewart, appellant's vehicle crossed into another lane of traffic going in the same direction "several times." Although Stewart activated his emergency lights and siren, appellant's vehicle continued for approximately three quarters of a mile to a mile before it pulled over. Stewart testified that based on his training and experience as a police officer, he believed the appellant could have been "under the influence of an alcoholic beverage or impaired."
In support of his argument that there is no evidence his actions were unsafe and thus, no evidence he violated section 545.060(a), appellant cites this Court's opinion in Cerny. Our decision in Cerny relied on Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.-Austin 1998, pet. ref'd), and State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.-Waco 1998, pet. ref'd), in finding no "reasonable suspicion" to believe section 545.060(a) had been violated. See Cerny, 28 S.W.3d at 801. In Cerny, we held that weaving somewhat in one's own lane of traffic, without more evidence indicating that such movement was unsafe, did not furnish the officer with reasonable suspicion to believe the defendant was violating section 545.060(a). See id.
In Hernandez, the officer observed the defendant drift partially from the right lane into the adjacent left lane going in the same direction. See Hernandez, 983 S.W.2d at 868-69. The officer testified the vehicle crossed into the adjacent lane about eighteen inches to two feet. See id. He testified the lane change was unsafe because "[i]t was failing to maintain a single-marked lane." He also testified that the lane-change was the only reason he stopped Hernandez. See id.
In Tarvin, the officer testified he observed the defendant's vehicle drift over the white line at the right-hand side of the road two or three times. See Tarvin, 972 S.W.2d at 910-11. The officer testified he stopped the defendant because his vehicle crossed over the white line. See id. at 912. The Waco court concluded that the evidence did not support a finding that the officer had a reasonable suspicion that the defendant had violated section 545.060(a). See id.
At the suppression hearing, Deputy Stewart testified that he had ten years' experience as a police officer, was licensed in field sobriety, and was trained to spot behavior patterns leading to a belief that a person is intoxicated. He testified that after he observed appellant crossing the lane marker several times, he activated his emergency siren and lights and pulled appellant over. He testified that he understood that a violation of the transportation code occurred if a vehicle failed to stay within a single lane, regardless of whether such failure was safe or unsafe. Deputy Stewart also testified that based on his training, experience, and education as a police officer, appellant's crossing the lane marker several times and his failure to stop within three quarters of mile to a mile (2) led him to believe that appellant "could be under the influence of an alcoholic beverage or impaired."
We conclude that Cerny, Hernandez, and Tarvin are distinguishable from the present case. Unlike the present case, in those cases, there was no evidence that the officer stopped the defendant because the officer believed the defendant was intoxicated. See Cerny, 28 S.W.3d at 799; Hernandez, 983 S.W.2d at 870; Tarvin, 972 S.W.2d at 912.
We conclude it is unnecessary for us to determine whether Stewart had a reasonable belief that appellant had violated section 545.060 of the transportation code.
Here, appellant was observed crossing the lane marker "several times" at 2:00 a.m. Stewart testified that he believed appellant could be driving while intoxicated or otherwise impaired. Viewing the record, as we must, in the light most favorable to the trial court's ruling, see Guzman, 955 S.W.2d at 89, we find that, based on the totality of Stewart's testimony as to the facts and the rational inferences to be drawn from those facts, appellant's driving behavior was sufficient to justify the officer in stopping appellant based on a reasonable suspicion that appellant was driving while intoxicated. See Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd) (finding evidence sufficient to raise reasonable suspicion of driving while intoxicated where officer observed appellant's vehicle weaving across three lanes of traffic at 2:00 a.m.).
We overrule appellant's issue and AFFIRM the judgment of the trial court.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this the
27th day of August, 2004.
1. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003).
2.