Opinion
NO. 01-17-00433-CR
07-10-2018
SCOTT ANTHONY BURTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCR-070896
MEMORANDUM OPINION
After the trial court denied a motion to suppress evidence filed by appellant, Scott Anthony Burton, appellant pleaded no contest to the third-degree felony offense of driving while intoxicated—third offense or more. Pursuant to an agreement between appellant and the State, the trial court assessed appellant's punishment at ten years' confinement, probated for six years, and imposed a $750 fine. In his sole issue on appeal, appellant argues that the trial court erred in denying his motion to suppress because the arresting officer did not have reasonable suspicion to conduct the traffic stop.
See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017) (setting out misdemeanor offense of driving while intoxicated), § 49.09(b)(2) (West Supp. 2017) (enhancing offense to third-degree felony if person has two prior convictions for driving while intoxicated).
We affirm.
Background
The State indicted appellant for felony driving while intoxicated (DWI). Appellant filed a pre-trial motion to suppress, arguing, among other things, that the arresting officer lacked reasonable suspicion to conduct a traffic stop. Over the course of two days, the trial court held a hearing on appellant's motion to suppress and addressed only the issue of reasonable suspicion for the traffic stop.
Fulshear Police Department Officer K. Zieschang testified that he was on patrol around 11:30 p.m. on September 13, 2015, when he encountered appellant driving his car in Fulshear. Officer Zieschang testified that Fulshear is a fairly small town—only thirteen square miles—and that, out of approximately 200 arrests made by the Fulshear Police Department in 2015, approximately sixty of those arrests were for DWI. He stated that he has made approximately twenty-five to thirty DWI arrests. Officer Zieschang testified that Fulshear has two bars and several restaurants that serve alcohol and that none of these establishments stay open past midnight, with the restaurants closing around 10:00 or 11:00 p.m. Appellant was driving his car eastbound on FM 1093, which Officer Zieschang described as a two-lane road with no median. He stated that FM 1093 is a common location for officers to make traffic stops for suspicion of DWI because the road is a "major thoroughfare" through the city and is located near Fulshear's bars and restaurants.
Officer Zieschang testified that appellant was driving on FM 1093, heading away from the area in Fulshear where the bars and restaurants were located. He testified that he initially started following appellant because appellant was driving under the posted speed limit, which Zieschang found unusual because there was little traffic on the road. Officer Zieschang stated that he witnessed appellant "weaving" within his lane, coming close to the center line dividing the roadway, and eventually driving on top of the center line for several dozen yards. At one point, Officer Zieschang observed appellant weave towards the center of the road while there was oncoming traffic, and although Zieschang could not estimate how close appellant's vehicle came to the oncoming traffic, he testified that it was "[c]lose enough to make [him] feel uncomfortable." The trial court admitted a copy of the recording from Officer Zieschang's dash camera, which showed appellant's vehicle.
Officer Zieschang stated that he conducted a traffic stop of appellant for two reasons: appellant committed the traffic violation of failure to maintain a single lane, and Zieschang had reasonable suspicion to believe that appellant was driving while intoxicated. Officer Zieschang identified several factors that supported his reasonable suspicion, including the facts that appellant was driving away from an area of Fulshear that had establishments that sold alcohol; that these establishments had either just closed or were about to close; that the Fulshear Police Department has made many DWI arrests in that area; that appellant was driving under the posted speed limit in light traffic, even when the speed limit increased from forty-five miles per hour to fifty-five miles per hour; and appellant was weaving within his lane, including driving on the line separating the two lanes of FM 1093.
The trial court denied appellant's motion to suppress and made the following findings of fact and conclusions of law on the record:
Based on the totality of the circumstances, the Court finds that the basis for the temporary detention or stop was legal. It was based on reasonable suspicion.
This is based on the officer's testimony of his experience of similar driving characteristics with intoxicated drivers that he's dealt with in the past. Or suspected intoxicated drivers, I should say. Based on the time of the day, the weaving that was within the lane, the weaving towards the center of the lane, going below the posted speed limit, as
well as the fact that there was testimony that the driver was coming from an area that was populated with bars close to closing time.The trial court later signed more detailed written findings of fact and conclusions of law, including specific findings that Officer Zieschang had received training specifically related to DWI offenses, that appellant's vehicle was traveling below the posted speed limit, that Zieschang found this to be unusual, that appellant's vehicle weaved within its lane and drove on top of the line separating the lanes, that appellant was coming from the direction of Fulshear's bars and restaurants, and that Zieschang observed appellant's vehicle at or near closing time of the bars and restaurants. The trial court again concluded that Officer Zieschang had reasonable suspicion to stop appellant for suspicion of DWI.
Based on all of those factors, the Court finds that the officer did act reasonably, and there was reasonable suspicion for a traffic stop or detention.
After the trial court denied his motion to suppress, appellant pleaded no contest to the felony offense of DWI. Pursuant to an agreement between appellant and the State, the trial court assessed appellant's punishment at ten years' confinement, probated for six years, and imposed a $750 fine. This appeal followed.
Reasonable Suspicion for Traffic Stop
In his sole issue, appellant contends that the trial court erred in denying his motion to suppress the traffic stop because Officer Zieschang did not have reasonable suspicion to conduct the stop. Specifically, appellant argues that Officer Zieschang did not have reasonable suspicion that appellant had violated a traffic offense, nor did Zieschang have reasonable suspicion that appellant was driving while intoxicated. A. Standard of Review and Governing Law
See TEX. TRANSP. CODE ANN. § 545.060(a) (West 2011) (providing that person driving on roadway divided into two or more clearly marked lanes "shall drive as nearly as practical entirely within a single lane" and "may not move from the lane unless that movement can be made safely").
We review a trial court's denial of a motion to suppress for an abuse of discretion and apply a bifurcated standard of review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016). We afford almost complete deference to the trial court's determination of historical facts, especially the court's determinations that are based on the assessment of credibility and demeanor. Id.; Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We review de novo the question of whether the facts are sufficient to give rise to reasonable suspicion in a given case. Furr, 499 S.W.3d at 877; Crain, 315 S.W.3d at 48-49. When the trial court makes explicit fact findings, as here, we determine whether the evidence, viewed in the light most favorable to the findings, supports these fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will sustain the trial court's ruling if it is correct under any applicable theory of law. Furr, 499 S.W.3d at 877; Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013).
The Fourth Amendment prohibits unreasonable searches and seizures, and its protections extend to "brief investigatory stops of persons or vehicles that fall short of traditional arrest." Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017). The Fourth Amendment is satisfied if the officer's actions are supported by reasonable suspicion to believe that criminal activity "may be afoot." Id. (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002)). Reasonable suspicion exists when the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to reasonably conclude that the person is, has been, or soon will be engaged in criminal activity. Furr, 499 S.W.3d at 878 (quoting Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013)). The reasonable suspicion standard is less demanding than probable cause, "and requires a showing considerably less than preponderance of the evidence," but the Fourth Amendment still requires "at least a minimal level of objective justification for making the stop." Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000)).
Reasonable suspicion is an objective standard that disregards the subjective intent of the officer. Id. Instead, the analysis considers whether there was an objectively justifiable basis for the stop. Wade, 422 S.W.3d at 668. We consider the totality of the circumstances. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). Circumstances may seem innocent in isolation, but "if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified." Id.; Leming v. State, 493 S.W.3d 552, 565 (Tex. Crim. App. 2016) ("The possibility of an innocent explanation does not deprive the [detaining] officer of the capacity to entertain reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal."); Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015) ("A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct."). Furthermore, in determining whether reasonable suspicion exists, "a reviewing court may take into account an officer's ability to 'draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that might well elude an untrained person.'" Ramirez-Tamayo, 537 S.W.3d at 36 (quoting Arvizu, 534 U.S. at 273, 122 S. Ct. at 750-51). We must give "due weight" to factual inferences drawn by local judges and law enforcement officers. Id. B. Analysis
Appellant argues that the State presented no evidence that he was driving while intoxicated and that, based on Officer Zieschang's testimony, it was "totally unreasonable" to believe that the evidence indicated that appellant was intoxicated. We disagree.
The Court of Criminal Appeals has held that the time of day is a relevant factor in determining reasonable suspicion. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (considering fact that officers encountered defendant suspected of driving while intoxicated at 1:30 a.m.); Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App. 2007) (considering facts that officers observed defendant weaving in and out of his lane several times over short distance around 1:00 a.m.). The court has also held that "location near a bar district where police have made numerous DWI arrests" is a relevant factor in determining reasonable suspicion. Foster, 326 S.W.3d at 613 (considering fact that encounter with officers occurred within blocks of Austin's Sixth Street bar district); Reed v. State, 308 S.W.3d 417, 418, 421 (Tex. App.—Fort Worth 2010, no pet.) (considering officer's testimony that although he had not seen defendant entering or leaving bars, defendant had been driving away from part of town that had several establishments that sold alcohol, and officer had previously pulled over other drivers for DWI in same area). Courts also consider factors such as weaving or swerving within a lane—even if such weaving does not rise to the level of a separate traffic offense. See State v. Alderete, 314 S.W.3d 469, 473-74 (Tex. App.—El Paso 2010, pet. ref'd) (stating that there is no requirement that traffic regulation must be violated for officer to have sufficient reasonable suspicion to justify stop because stop may be justified upon reasonable suspicion of DWI, and considering officer's observation that defendant swerved within her lane for half mile).
Based on the totality of the circumstances, we conclude that the trial court did not err in determining that Officer Zieschang had reasonable suspicion to conduct a traffic stop of appellant. At the suppression hearing, Officer Zieschang testified that he encountered appellant driving on FM 1093 in the town of Fulshear around 11:30 p.m. He described Fulshear as a small town—with only thirteen square miles—that had two bars and several restaurants that served alcohol. These establishments were all located around FM 1093, a "major thoroughfare" through the town. All of these establishments closed by midnight, with the restaurants closing around 10:00 or 11:00 p.m. Officer Zieschang testified that the Fulshear Police Department made approximately sixty DWI arrests during 2015 and that FM 1093 was a common location for such arrests. He also stated that he has experience conducting DWI investigations, having made approximately twenty-five to thirty DWI arrests.
Officer Zieschang stated that he saw appellant driving eastbound on FM 1093, heading away from the area where the bars and restaurants were located. Appellant was driving below the posted speed limit of forty-five miles per hour, which Officer Zieschang found unusual because traffic on the road was light due to the late hour. He decided to follow appellant. While following appellant, Officer Zieschang observed appellant weave within his lane on several occasions. The weaving brought appellant close to the center line dividing FM 1093, and Officer Zieschang saw appellant drive on top of the center line for "several dozen yards." At one point, appellant weaved close to the center line while there was oncoming traffic, and he came close enough to the oncoming vehicle that Officer Zieschang was uncomfortable and believed that appellant was not driving in a safe manner. Officer Zieschang conducted a traffic stop and ultimately arrested appellant for driving while intoxicated.
We conclude that the State presented specific, articulable facts that, along with rational inferences from those facts, would lead Officer Zieschang to reasonably conclude that appellant was driving while intoxicated. See Furr, 499 S.W.3d at 878; Foster, 326 S.W.3d at 613-14; Curtis, 238 S.W.3d at 380-81. Contrary to appellant's assertion, the State presented more than "an inarticulate hunch of the officer not based in reality." See Foster, 326 S.W.3d at 614 (stating that, based on time of night, location near Sixth Street, officer's training and experience, and defendant's "aggressive" driving—consisting of revving his engine and "lurching" forward—officer "articulated 'something more than an inchoate and unparticularized suspicion or hunch' that objectively justified [defendant's] detention") (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989)). We hold that the evidence, viewed in the light most favorable to the trial court's fact findings, supports those findings, and, thus, the trial court did not abuse its discretion in denying appellant's motion to suppress. See Kelly, 204 S.W.3d at 818.
We overrule appellant's sole issue.
Because we conclude that the trial court did not err in determining that Officer Zieschang had reasonable suspicion to believe that appellant was driving while intoxicated, we need not address appellant's argument that Zieschang did not have reasonable suspicion that appellant committed a traffic violation by failing to maintain a single lane. See Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016) (stating that we sustain trial court's ruling on motion to suppress if ruling is correct on any applicable theory of law).
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).