No. 05-10-00554-CR
Opinion Filed March 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-81964-09.
Before Justices Fitzgerald, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
A jury found appellant Martin George guilty of misdemeanor driving while intoxicated (DWI). The trial judge assessed punishment of a $750 fine and 120 days' confinement, suspended the sentence, and placed George on 18 months' community supervision. In a single issue George appeals his conviction, asserting the trial court erred in denying George's motion to suppress. We affirm the trial court's judgment.
Background
Officer Daniel Tyler of the Plano Police Department saw a truck stopped in the right-hand northbound lane of Avenue K in Plano, Texas. After observing, and then following, the truck, Officer Tyler initiated a stop of the truck. Following field sobriety tests, Officer Tyler arrested George, the driver of the truck, for DWI. George filed a motion to suppress any evidence discovered after the stop, asserting Officer Tyler did not have reasonable suspicion to stop him. At the hearing on the motion to suppress, Officer Tyler testified he was a military police officer for several years before he joined the Plano Police Department. He has been a certified peace officer since November 2008. He began field training and was initiating traffic stops in January 2009. Officer Tyler testified he had dealt with intoxicated drivers before this stop and he had received training with regard to intoxicated drivers. On February 5, 2009, Officer Tyler was working the 10:30 p.m. to 6:30 a.m. shift. He was accompanied by his training officer. While patrolling at about 2:40 a.m. on the morning of February 6, 2009, Officer Tyler noticed a pickup truck parked in the right-hand lane of Avenue K at an intersection. Officer Tyler observed the truck remaining stationary in the lane of traffic for thirty seconds to a minute. Officer Tyler wrote in his report that George, the operator of the truck, was impeding traffic. According to Officer Tyler, remaining stationary at the stop sign was a violation of Plano ordinance section 12.98-1 which provides for no parking on thoroughfares. Officer Tyler observed the vehicle for 30 seconds to a minute to try to determine the driver's intention. He then pulled his patrol car behind the truck, because he thought the situation could involve a motorist in need of assistance. When Officer Tyler moved his patrol car behind the truck, George's truck moved forward. Given the time of night and the minimal traffic, Officer Tyler decided to follow the truck to observe George's driving. Officer Tyler followed George's vehicle for about a mile. In that mile, Officer Tyler observed the truck weaving in its lane of traffic, although the truck did not cross over any traffic lanes. Officer Tyler also observed that on one or two occasions, the truck almost contacted the right-hand curb. Given his observations, Officer Tyler believed the driver of the truck may have been impaired. Officer Tyler then initiated a traffic stop of the truck driven by George. The State introduced the recording from the police cruiser's dashboard camera. The recording depicted George's truck while being followed by Officer Tyler and the stop of George's vehicle. The trial court denied the motion to suppress. The trial court also entered an order adopting the State's proposed findings of fact and conclusions of law. Those findings included findings that: Officer Tyler is a licensed Texas peace officer who was a military police officer for several years prior to becoming a licensed Texas police officer; on February 6, 2009, Officer Tyler noticed George's vehicle parked in the right-hand lane of traffic for thirty seconds to a minute; Officer Tyler was concerned about the vehicle being stopped in the lane of traffic and the well being of the driver and occupants; after the vehicle began traveling and being followed by Officer Tyler, the vehicle was weaving within its lane of traffic and came into close proximity to the curb on a couple of occasions; and Officer Tyler conducted a traffic stop by initiating his overhead lights. The trial court also found Officer Tyler was a credible witness and his testimony was believable. The trial court concluded that: Officer Tyler was justified in initiating a traffic stop of George's truck on February 6, 2009; Officer Tyler had reasonable suspicion to investigate possible criminal activity afoot and to believe George had violated Plano ordinance section 12-98.1; and all evidence resulting from the detention of George was obtained properly and was admissible in trial. Analysis
George contends the State failed to prove that reasonable suspicion existed for Officer Tyler's initial stop of George's vehicle because Officer Tyler did not present specific, articulable facts that, when combined with rational inferences from those facts, would have led him to reasonably conclude that George actually was, had been, or soon would be engaged in criminal activity. In response, the State argues the stop was justified because, based on the totality of the circumstances, Officer Tyler had reasonable suspicion to believe George may have been intoxicated. After reviewing the record, we agree with the State. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Therefore, we give almost total deference to the trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same deference to mixed questions of law and fact if resolution of those questions turns on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. We review de novo the application of legal principles to a specific set of facts, including the trial court's determination of reasonable suspicion. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Guzman, 955 S.W.2d at 87-88. When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). A law enforcement officer is justified in briefly detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). "Reasonable suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity." Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). The reasonable suspicion determination disregards the subjective intent of the officer making the stop and looks solely to whether there was an objective basis for the stop. Ford, 158 S.W.3d at 492. The determination of whether an officer had reasonable suspicion is made by considering the totality of the circumstances. Curtis v. State, 238 S.W.3d 376, 379-80 (Tex. Crim. App. 2007); Ford, 158 S.W.3d at 492-93. Because Officer Tyler did not have a warrant when he stopped George, the burden was on the State to demonstrate the reasonableness of the stop. Ford, 158 S.W.3d at 492. Here, Officer Tyler testified he observed George's vehicle remaining stationary for a prolonged period of time in a lane of traffic, and, once moving, weaving within its lane and almost striking the curb. Based on his observations, Officer Tyler believed the driver of the vehicle may have been impaired. George argues that the only objective basis for a suspicion that some criminal activity was occurring was the purported violation of the Plano ordinance regarding remaining stationary in a lane of traffic. George contends the State failed to establish what conduct allegedly committed by George and observed by Officer Tyler constituted a violation of Plano ordinance section 12-98.1. Assuming, without deciding, that a violation of an ordinance was not established at the hearing of the motion to suppress, it is not necessary that the conduct violate a particular statute in order to give rise to reasonable suspicion. Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.-Houston [14th Dist.] 1997, no pet.). It is irrelevant that remaining stationary in a lane of traffic may or may not have been criminal in and of itself. See Held v. State, 948 S.W.2d 45, 51 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd) (holding that an officer's observation of a driver weaving back and forth across several lanes of traffic is sufficient to give rise to a reasonable suspicion that the driver may be intoxicated, and it is irrelevant that the actual weaving may or may not be criminal in and of itself); see also Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd) (one of the functions of patrol officers is to investigate what they reasonably perceive to be unsafe driving by motorists on public streets). Officer Tyler testified he knew that stopping in the roadway was prohibited. However, that was not his only reason for stopping George. In addition to observing George's vehicle remain stationary in a lane of traffic for a lengthy period, Officer Tyler testified to his objective observations of George's vehicle weaving within his traffic lane and nearly striking the right-hand curb on one or two occasions. See State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.-Waco 1998, pet. ref'd) (opining that weaving in one's own lane can justify investigatory stop when that weaving is eratic, unsafe, or tends to indicate intoxication); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.-Tyler 1996, no pet.) (driver's dangerous weaving, including weaving inside his driving lane, gave troopers reasonable suspicion to believe he was driving under the influence). Officer Tyler testified all of these facts led him to believe the driver might be impaired and prompted him to stop George's vehicle. Based on the totality of the circumstances, Officer Tyler's specific, articulable facts, together with inferences from those facts, were sufficient to support the trial court's conclusion that Officer Tyler was justified in initiating a traffic stop of George's vehicle and Officer Tyler had a reasonable suspicion to investigate possible criminal activity. Accordingly, the trial court did not err by overruling George's motion to suppress. We resolve George's sole issue against him. We affirm the trial court's judgment.