Affirmed and Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00293-CR
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GARY L. COLEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Cause No. 1099280
O P I N I O N
Appellant, Gary L. Coleman, was convicted by a jury of driving while intoxicated. The trial court imposed a punishment of 30 days= confinement in the Harris County Jail and assessed a fine of $600.00. Appellant raises a single issue on appeal in which he contends the trial court erred in denying his motion to suppress. We affirm.
On February 1, 2002, Officer Chris Green of the Houston Police Department=s DWI task force was in a parking lot east of the intersection of Dairy Ashford and Westheimer where he had just finished issuing a traffic citation, when an unidentified citizen pulled up and informed him that there was a Apossible DWI driver going westbound on Westheimer.@ Because Green did not want to lose the vehicle, he thanked the man without getting his name and exited the parking lot, pulling up behind appellant=s Crown Victoria, which was stopped at a red light. Green notified Officer William Lindsey, who was also assigned to the DWI task force, of the possible DWI.
When the light changed, Green followed appellant. Green observed appellant=s vehicle Astart weaving from lane to lane.@ Green testified that appellant=s vehicle, which was in the third lane, crossed over to the second lane and returned to the third lane. Green followed appellant for Ahalf a block.@
As Lindsey pulled onto Westheimer, Charles Toole, a wrecker driver who knows Lindsey, pulled along side Lindsey and pointed out appellant=s vehicle and a Cadillac that appellant was following. Appellant=s vehicle caught Toole=s attention because it was driving erratically, i.e., A[w]eaving in the lanes, accelerating very quickly coming off the traffic lights.@ Toole testified that appellant=s vehicle nearly hit a couple of other vehicles and was Arunning up on the bumper of the Cadillac.@ Toole had followed and observed appellant=s vehicle and the Cadillac for about a mile.
Lindsey testified with regard to his observations of appellant=s vehicle:
Q. And what observations did you make of [appellant=s] vehicle?
A. Extreme difficulties maintaining a single lane. Crossing from one lane to another and back over again, several times.
Q. And when you say crossing from one lane to another, do you actually mean crossing the lane divider?
A. Yes, ma=am.
Green initiated a traffic stop on appellant=s vehicle, while Lindsey initiated a traffic stop on the Cadillac. When Green asked appellant for his driver=s license and insurance, he noticed the strong odor of an alcoholic beverage. Green asked appellant if he had been drinking. Appellant responded that he had not. After conducting a field sobriety test, Green determined that appellant was intoxicated, took him into custody, and transported him to ACentral Intox.@ Officer Richard Martinez performed another field sobriety test on appellant, and further observing bloodshot eyes, odor of alcohol, and slurred speech, concluded he was intoxicated. Appellant refused to submit to a breathalyzer test.
A trial court=s ruling on a motion to suppress is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). 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 their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). 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 controverted. Id. When, as in this case, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
An investigative detention occurs when the police stop and briefly detain an individual to ascertain his identity, the reason for being in the area, or other such similar inquiry. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991). Before a 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 Amust 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).
The determination of reasonable suspicion is made by considering the totality of the circumstances. Id. 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. Id. In other words, 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.
An officer may lawfully stop an individual for a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Green based the traffic stop on his belief that appellant=s driving was in violation of Section 545.060 of the Texas Transportation Code, which 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.
Tex. Transp. Code Ann. ' 545.060(a) (Vernon 1999).
Appellant complains that Green relied on only the statement of an anonymous individual and his personal observations, which consisted of appellant weaving, on one occasion only, from his own lane to the adjacent lane and back to his original lane. The record contradicts appellant=s position. For instance, Green testified that he observed appellant=s vehicle Astart weaving from lane to lane,@ indicating that he left his lane on more than one occasion. Additionally, Lindsey testified that he saw appellant=s vehicle weave from one lane to another Aseveral times.@[1] When there has been cooperation between members of the same law enforcement agency, Athe sum of the information known to the cooperating . . . officers at the time of an arrest@ is considered in a probable cause determination. Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982). In any event, swerving into another lane on just one occasion is sufficient to stop a person for violation of section 545.060. See Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (holding that drifting partially onto shoulder of freeway for one or two seconds and pulling back was sufficient for officer to reasonably believe that violation of section 545.060 had occurred).
Relying on opinions from other courts of appeals, appellant contends the statute is violated only when the vehicle=s movement is unsafe. See State v. Cerny, 28 S.W.3d 796, 800B01 (Tex. App.CCorpus Christi 2000, no pet.) (holding that although evidence established that defendant Awas weaving somewhat within his own lane of traffic,@ there was no evidence the defendant=s actions were unsafe); Ehrhart v. State, 9 S.W.3d 929, 930B31 (Tex. App.CBeaumont 2000, no pet.) (holding that because there was no evidence that touching solid white line was unsafe or dangerous, no traffic violation occurred and, thus, there was no basis for stop); Hernandez v. State, 983 S.W.2d 867, 870B72 (Tex. App.CAustin 1998, pet. ref=d) (holding single instance of crossing lane dividing line by 18 to 24 inches into lane of traffic traveling in same direction was not violation of section 545.060 where it was not shown to be unsafe or dangerous). Specifically, appellant complains that there is no evidence regarding the length of time he deviated from his lane, the conditions on Westheimer that evening, or whether any other vehicles were in close proximity to his vehicle. However, we have previously Adecline[d] 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 vicinity.@ Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.CHouston [14th Dist. 1997, no pet.). In any event, unlike Hernandez, Ehrhart, and Cerny, appellant was observed by Green and Lindsey as doing more than just drifting into an adjacent lane once, touching a lane marker, or weaving within his own lane of trafficCthey observed appellant swerving into other lanes of traffic several times. Even if we agreed with appellant=s contention that he did not violate section 545.060, his conduct and the surrounding circumstances certainly raised a reasonable suspicion that he was driving while intoxicated.
Considering the totality of the circumstances, the evidence is amply sufficient to justify the stop at issue here. Appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed March 16, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Emphasis added.