Reed v. State

OPINION

BOB McCOY, Justice.

I. Introduction

Appellant Bonnie Miller Reed challenges the trial court’s denial of her motion to suppress in a driving while intoxicated (DWI) case. In one issue, Reed argues that the trial court erred by finding reasonable suspicion existed for her detention on suspected DWI. We affirm.

II. Factual and Procedural Background

Bedford Police Officer Chris Miller was the only witness at Reed’s suppression hearing.1 In addition to testifying that he had been a police officer for three years and had attended specialized training for field sobriety tests, he also testified to the following.

While out on routine patrol around 12:45 a.m. on February 12, 2008, he had seen a vehicle driving eastbound on State Highway 183 veer onto the shoulder of the roadway.2 When asked to describe how far the vehicle had crossed over onto the shoulder, Officer Miller stated, “[I]f you divide the vehicle down the middle, I would say the right-hand, or the passenger compartment, was off of the roadway on the shoulder. The driver’s side, or the left side, was still in the roadway.” Officer Miller activated his in-car video camera at that time and proceeded to follow the vehicle. He observed the driver, later identified as Reed, turn on her right-hand turn signal when there were no exits or roads to turn onto and leave the signal on for approximately one-quarter to one-half mile before moving into the exit lane. Officer Miller again saw Reed’s vehicle veer onto the shoulder of the roadway before it exited. Officer Miller stated and the videotape confirmed that when Reed’s vehicle veered onto the shoulder the second time, “[t]he passenger tires [were] clearly over the line.”

Officer Miller testified that although he had not seen Reed entering or leaving a bar, she had been driving away from an area of Bedford that contained several bars and restaurants that served alcohol, and that he had previously pulled over other drivers for DWI in that same area. When asked about Reed’s driving and the surrounding conditions, Officer Miller stated that Reed’s movements had not been jerky or violent but had been more like a gradual drift, that the traffic on the roadway had been light, and that Reed had not *419posed an immediate danger to any other vehicles. Officer Miller also stated that, based on his experience and training, intoxicated drivers sometimes drift.

Finally, Officer Miller testified that in addition to the probable cause from the traffic violations — that is, failure to maintain a single lane and illegal use of a turn signal — he had stopped Reed because he suspected that she might be intoxicated based on her driving, the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar driving characteristics.

After hearing all the evidence, the trial court denied Reed’s motion to suppress, and on March 18, 2009, it entered findings of fact and conclusions of law. The trial court’s findings were:

The [trial court] finds there was no traffic violation under Section 545.060(a) [of the] Transportation Code. There is no evidence that the Defendant’s failure to drive in a single lane was unsafe. The use of the turn signal was not done in an illegal manner. There was no probable cause for the stop. This leaves the question of whether there was reasonable suspicion to justify the stop.
The reasons against the unlawfulness of the detention in this case are:
1. No traffic violation.
2. Not weaving within the lane.
3. Nothing unsafe about weaving on to the shoulder.
4. Very light traffic.
5. No erratic speed changes.
6. Driving within the speed limit.
The reasons for the lawful detention in this case are:
1. Crossing on to the shoulder of the roadway by one-half width of the vehicle.
2. Crossing on to the shoulder a second time by a few inches.
3. Unusual use of turn signal. Turn[ed] on when not approaching an exit and kept on for an unusual length of time for approximately one-half mile.
4. Leaving the bar area of the city at approximately 12:45 a.m.
5. Based on the Officer’s training and experience, intoxicated drivers show these characteristics of driving.
6. Based on his training and experience, the officer suspected the driver might be intoxicated.

The trial court concluded that “the articulated facts justifying the stop were sufficient to overcome the articulated facts mitigating against the stop and were sufficient to give Officer Miller a reasonable suspicion to detain [Reed] for further investigation.” Thus, Reed’s “Fourth Amendment rights under the United States Constitution and under Article 1[,] Section 9 of the Texas Constitution were not violated.”

Reed subsequently pleaded guilty to the offense of DWI but preserved her right to appeal the denial of the motion to suppress. The trial court sentenced Reed to fifteen days’ confinement and assessed a $500 fine. This appeal followed.

III. Discussion

In her sole issue, Reed argues that the trial court erred by concluding that Officer Miller had reasonable suspicion, under both the United States and Texas constitutions, to stop her for suspected DWI.3

*420A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. 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). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const, amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

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 specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).4 An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492. 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. Id. 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. Id.

C.Analysis

In her sole issue, Reed argues that neither the trial court’s findings nor Officer Miller’s testimony rises to the level of proof required for an investigative detention for DWI. Reed cites several cases in support of her argument. See Fowler v. State, 266 S.W.3d 498, 505 (Tex.App.-Fort Worth 2008, pet. ref'd); State v. Palmer, *421No. 02-03-00526-CR, 2005 WL 555281, at *1, 3 (Tex.App.-Fort Worth Mar. 10, 2005, pet. dism’d) (mem. op., not designated for publication); State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.-San Antonio 1999, pet. ref'd); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd). These cases, however, are all distinguishable.

In Fowler, the officer testified that he had initiated the stop because Fowler’s truck had crossed into an adjacent same-direction lane by a tire’s width and had drifted within its own lane on two occasions. 266 S.W.3d at 499. In Arriaga, the officer testified that he had initiated the stop because Arriaga’s vehicle had drifted out of its lane on multiple occasions. 5 S.W.3d at 807. And in Tarvin, the officer testified that he had initiated the stop because Tarvin’s vehicle had been weaving within its own lane of traffic. 972 S.W.2d at 912. Here, however, Officer Miller not only testified that he had stopped Reed because of her driving violations, but also because he had suspected that she might be intoxicated based on the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar characteristics of driving. See Curtis v. State, 238 S.W.3d 376, 380-81 (Tex.Crim.App.2007) (applying the totality of the circumstances test and concluding that a rational inference could be made that the driver was intoxicated based on the driver’s weaving, the time of day, and the officer’s experience).

In Palmer, the officer testified to facts similar to those in this case. See 2005 WL 555281, at *1-2. However, the trial court in Palmer granted the defendant’s motion to suppress and did not enter findings of fact or conclusions of law. This court, on appeal, noted that the videotape from the officer’s in-car camera did not support the officer’s assertion that the driver had applied his brakes in a sudden and unsafe manner. Id. Thus, we concluded that, under the totality of the circumstances, the facts were insufficient to support reasonable suspicion. Id.

This appeal differs from Palmer in that the trial court here entered findings of fact and found Officer Miller’s testimony to be credible. Furthermore, the videotape from Officer Miller’s in-car camera supports his testimony. Thus, after giving almost total deference to the trial court’s rulings on application-of-law-to-fact questions that turn on credibility and demeanor and reviewing de novo those rulings that do not, we conclude that the totality of the circumstances surrounding the stop, support a reasonable suspicion that Reed was driving while intoxicated. Therefore, the trial court did not err by denying Reed’s motion to suppress. Accordingly, we overrule Reed’s first issue.

IY. Conclusion

Having overruled Reed’s sole issue, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

. The Stale also introduced the videotape of the stop made from the camera in Officer Miller's patrol unit.

. Officer Miller testified that the vehicle was driving westbound. A review of the videotape, however, shows that the vehicle was actually traveling eastbound. Because this is irrelevant to the issue at hand, we note it simply for the sake of accuracy.

. When, as in this case, the appellant has not separately briefed state and federal constitutional claims, we assume that the appellant claims no greater protection under the state constitution than that provided by the federal constitution. See Varnes v. State, 63 S.W.3d *420824, 829 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Therefore, we will analyze Reed's claim solely under the Fourth Amendment of the United States Constitution, following guidelines set by the United States Supreme Court in interpreting the Fourth Amendment. See State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App.1998).

. Because a routine traffic stop typically involves only a short, investigative detention, as opposed to a custodial arrest, we analyze traffic stops under the principles developed for investigative detentions set forth in Terry v. Ohio. 392 U.S. at 22, 88 S.Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex.App.-Fort Worth 2007, no pet.).