Opinion issued November 7, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00905-CR
———————————
LETICIA PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Case No. 2181639
MEMORANDUM OPINION
After the trial court denied her motion to suppress evidence, appellant, Leticia
Perez, pleaded guilty to driving while intoxicated.1 The trial court found appellant
guilty and assessed her punishment at one year of confinement, which it suspended,
1
See TEX. PENAL CODE § 49.04.
placing her on community supervision for 18 months. In her sole issue on appeal,
appellant contends the trial court erred in denying her motion to suppress. We
affirm.
BACKGROUND
Sometime after midnight on December 15th, 2017, Harris County Deputy
Constable T. Newsome was on night patrol in Northeast Harris County on a feeder
road running alongside Beltway 8. There, he observed a car driven by appellant.
There was no other traffic in the immediate vicinity of appellant. Newsome, a police
officer trained and experienced in detecting drunk drivers, followed appellant for
about a minute. During that short time period, appellant drifted from her lane four
times, with distances ranging from a few inches to a few feet. Upon appellant’s
fourth drift from her lane, Deputy Newsome turned on his siren and pulled appellant
over. Deputy Newsome believed that appellant’s actions constituted a violation pf
section 545.060(a) of the Transportation Code, commonly known as “failure to
maintain a single lane.” Newsome also believed that the drifting indicated that
appellant could have been intoxicated. After detaining appellant, Newsome
questioned her and conducted a field sobriety test, which appellant failed. Having
determined that there was probable cause to believe that appellant was intoxicated,
Deputy Newsome arrested her, and she was charged with the misdemeanor offense
of driving while intoxicated.
2
At trial, appellant filed a motion to suppress evidence, alleging that her
warrantless detention violated her Fourth Amendment right against unreasonable
searches and seizures. Specifically, she claimed that Deputy Newsome did not have
the reasonable suspicion necessary to conduct the traffic stop. The trial court denied
appellant’s motion to suppress. Shortly thereafter, appellant changed her plea to
“guilty” as a result of this ruling. Appellant was found guilty and was sentenced to
one year in county jail, probated for 18 months, and no fine. This appeal followed.
DENIAL OF MOTION TO SUPPRESS
In two issues, appellant contends the trial court erred in denying her motion
to suppress, arguing that the Deputy Newsome did not have reasonable suspicion to
detain her for either (1) driving while intoxicated or (2) violating section 545.060 of
the Texas Transportation Code by failing to maintain a single marked lane of traffic.
Applicable Law and Standard of Review
The United States and Texas Constitutions protect against unreasonable
searches and seizures. U.S. CONST. amend. IV.; TEX. CONST. art. 1, §9. No evidence
obtained in violation of the United States or Texas Constitutions can be admitted as
evidence against the accused at trial. TEX. CODE CRIM. PROC. art. §38.23. A
warrantless automobile stop is a Fourth Amendment seizure analogous to a
temporary detention, and it must be justified by reasonable suspicion. Berkemer v.
3
McCarty, 468 U.S. 420, 439 (1984); see Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011).
To suppress evidence based on a violation of the Fourth Amendment, the
defendant bears the initial burden of proof to rebut the presumption of proper police
conduct by establishing that the search or seizure occurred without a warrant. Abney
v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). The burden then shifts to the
State to prove that there was a reasonable suspicion that the person was violating the
law. Id. If the State has not shown sufficient evidence of reasonable suspicion, then
the traffic stop violates the Fourth Amendment. Brodnex v. State, 485 S.W.3d 432,
437 (Tex. Crim. App. 2016).
When reviewing a trial court’s ruling on a motion to suppress, we give almost
total deference to the court’s determination of the historical facts that the record
supports, especially when those fact-findings are based on an evaluation of the
witnesses’ credibility and demeanor. Leming v. State, 493 S.W.3d 552, 562 (Tex.
Crim. App. 2016); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At
a suppression hearing, the trial court is the sole finder-of-fact and is free to believe
or disbelieve any or all the evidence presented. Wiede v. State, 214 S.W.3d 17, 24-
25 (Tex. Crim. App. 2007). If the trial courtmakes express findings of fact, we view
the evidence in the light most favorable to the ruling and determine whether the
evidence supports these factual findings. Valtierra v. State, 310 S.W.3d 442, 447
4
(Tex. Crim. App. 2010). When a trial court makes no explicit findings of historical
fact, the appellate court should 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. See
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
We accord almost total deference to the trial court’s rulings on mixed
questions of law and fact if those decisions turn on the credibility and demeanor of
the witnesses. See Guzman, 955 S.W.2d at 89. We review de novo mixed questions
of law and fact that do not turn on witness credibility. Id. Despite its fact-sensitive
analysis, the “reasonableness” of a specific search or seizure under the Fourth
Amendment is subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62–63
(Tex. Crim. App. 2004).
Reasonable suspicion exists when the officer can “point to specific and
articulable facts, which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). For an
officer to have reasonable suspicion, these “specific and articulable” facts must
justify the traffic stop from the inception of the stop. State v. Duran, 396 S.W.3d
563, 568-69 (Tex. Crim. App. 2013). This is an objective standard that disregards
the subjective intent of the officer and only requires some minimal level of
justification for the stop. Brodnex, 485 S.W.3d at 437. However, the officer must
have more than an inarticulable hunch or mere good-faith suspicion that a crime was
5
in progress. Id. In deciding whether an officer had a reasonable suspicion, we
examine the facts that were available to the officer at the time of the investigation.
Id. We disregard any subjective intent of the officer making the stop and look solely
to whether an objective basis for the stop exists. Ford v. State, 158 S.W.3d 488, 492
(Tex. Crim. App. 2005). A reasonable-suspicion determination is made by
considering the totality of the circumstances. Id. at 492–93.
Analysis
We first consider whether Deputy Newsome had reasonable suspicion to
believe that appellant had committed the offense of driving while intoxicated. A
person commits the offense of driving while intoxicated if the person is intoxicated
while operating a motor vehicle in a public place. TEX. PENAL CODE § 49.04(a).
Reasonable suspicion depends on the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.
Navarette v. California, 572 U.S. 393, 402 (2014). Under that commonsense
approach, we can appropriately recognize certain driving behaviors as sound indica
of drunk driving. Id. Texas courts have recognized a wide range of behaviors that
fall into this category and give rise to a reasonable suspicion of driving while
intoxicated. See e.g., Leming, 493 S.W.3d at 563–65 (holding that driving well
below the speed limit and weaving in and out of lanes gave rise to reasonable
suspicion); Nevedomsky v. State, No. 01-12-00105-CR, 2013 WL 655194 at *4 (Tex.
6
App.—Houston [1st Dist.] Feb. 21, 2013, pet. ref’d) (mem. op., not designated for
publication) (holding that drifting onto shoulder of highway and failure to signal
gave rise to reasonable suspicion of drunk driving); see also Tex. Dep’t of Pub.
Safety v. Ardoin, 515 S.W.3d 910, 915 (Tex. App.—Eastland 2017, no pet.) (holding
that striking or almost striking curb gave rise to reasonable suspicion). A
determination that reasonable suspicion exists need not rule out the possibility of
innocent conduct. Leming, 493 S.W.3d at 565.
Appellant relies on State v. Bernard to argue that Newsome did not have
probable cause to believe that appellant had committed the offense of DWI. 545
S.W.3d 700, 702 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In Bernard, the
State appealed after the trial court granted the defendant’s motion to suppress. Id.
The court of appeals, after applying the standard of review giving deference to the
trial court’s determination of factual issues, upheld the trial court’s ruling granting
the motion to suppress, noting that (1) the defendant “left his lane by a few inches
only twice, which we do not characterize as weaving,” (2) “there was no evidence
of aggressive driving or the location of the stop being near a bar district,” even
though the stop occurred at approximately 3:20 a.m., and (3) the record did not show
that the “trial court failed to take [the officer’s] experience and training into account
in reaching its conclusions that [the officer] lacked reasonable suspicion for the
stop.” Id. at 706–07. The court concluded that the officer lacked reasonable
7
suspicion to stop the defendant for DWI because “[the defendant’s] leaving his lane
by a few inches only twice, the time of the stop, and [the officer’s] training and
experience—do not amount to specific, articulable facts that, combined with rational
inferences from those facts, would have led [the officer] reasonably to conclude that
[the defendant] was driving while intoxicated.” Id. at 707.
In contrast, in Curtis v. State, the defendant, Curtis, was stopped by a police
officer after the officer witnessed him weave “at least three times out of his lane over
a relatively short distance of a few hundred yards.” 238 S.W.3d 376, 380 (Tex. Crim.
App. 2007). The police officer, who had training and experience in detecting drunk
driving, pulled Curtis over at 1:00 AM. Id. at 380. Considering the totality of the
circumstances, the Court of Criminal Appeals held that the police officer had the
reasonable suspicion necessary to detain Curtis and investigate him for DWI. Id. at
381.
This case is more like Curtis than Bernard. Here, appellant drifted out of her
lane four times in approximately one minute before Deputy Newsome pulled her
over—with the drifting ranging in distance from several inches to several feet. At
one point, appellant’s vehicle completely straddled the line separating the lanes of
traffic. Deputy Newsome, experienced and trained in detecting drunk driving, pulled
appellant over after midnight. Evaluating the totality of the circumstances and giving
deference to the trial court’s implicit fact findings as we must, we conclude that the
8
trial court did not err in concluding that appellant’s erratic driving behavior gave rise
to the minimal level of justification required for an investigatory detention. See
Brodnex, 485 S.W.3d at 437. These circumstances are sufficient to meet the low
standard required to show reasonable suspicion of a DWI offense. See Leming, 493
S.W.3d at 565. (“We would deem it counterproductive and contrary to common
sense to set the reasonable-suspicion bar for driving while intoxicated so high that
law enforcement must hesitate to investigate such hazardous driving for fear that the
stop will later be invalidated.”).
We overrule issue one.
In issue two, appellant contends that Deputy Newsome did not have
reasonable suspicion to detain appellant for violating section 545.060(a) of the
Transportation Code for failing to maintain a single lane of traffic. Because Deputy
Newsome had reasonable suspicion to detain appellant and investigate further for
driving while intoxicated, we need not determine whether he also had reasonable
suspicion to detain appellant for a violation of section 545.060(a) of the
Transportation Code.
We overrule issue two.
9
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
10