Nos. 13-03-133-CR, 13-03-134-CR
Opinion delivered and filed August 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the County Court at Law No. 2 of Cameron County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
Memorandum Opinion by Justice GARZA.
In this opinion, we address two separate appeals: one filed by Linda Madrigales and another filed by her husband, Benjamin Madrigales. Appellant Linda Madrigales was convicted of unlawfully carrying a weapon and was given a suspended sentence of three months' confinement in jail. Appellant Benjamin Madrigales was convicted of driving while intoxicated and was given a suspended sentence of six months' confinement in jail and assessed a fine of $600. On appeal, both appellants raise a common issue: the trial court erred in denying their respective motions to suppress because the mere weaving of an automobile between lanes of traffic does not justify a traffic stop. According to appellants, weaving or drifting between lanes of traffic is not a traffic offense unless it occurs in an unsafe manner and, in this case, the State produced no evidence that the weaving of their automobile, if any, was unsafe. Appellants argue that the officer who arrested them therefore had no reasonable suspicion to justify the traffic stop that led to their arrests. Although appellants were convicted of different offenses, tried under different cause numbers, and filed separate appeals, we decide their appeals in a single opinion so that we may address the issue of whether the arresting officer had a reasonable suspicion to detain them, which is the only issue raised by Ben Madrigales. In addition, we also address Linda Madrigales's second and final issue: the trial court committed reversible error by failing to instruct the jury concerning the defense of traveling. We conclude that the motions to suppress were properly denied and that Linda Madrigales was not entitled to a jury instruction on the defense of traveling. The trial court's judgment in both cases is therefore affirmed.
Tex. Pen. Code Ann. § 46.02 (Vernon 2003).
Tex. Pen. Code Ann. § 49.04 (Vernon 2003).
I. Motions to Suppress
A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Zayas v. State, 972 S.W.2d 779, 786 (Tex. App.-Corpus Christi 1998, pet. ref'd). The trial court abuses its discretion only if it acts arbitrarily and unreasonably, without reference to any guiding rules or principles. Id. at 787. At a hearing on a motion to suppress, the trial court is the sole judge of the credibility of the witnesses. Freeman v. State, 723 S.W.2d 727, 729 (Tex.Crim.App. 1986). On appeal, the evidence is viewed in the light most favorable to the court's ruling. Armendariz v. State, 123 S.W.3d 401, 402 n. 1 (Tex.Crim. App. 2003). Although we defer to the trial court's findings of historical facts based on credibility and demeanor, we review de novo a trial court's determination of reasonable suspicion and probable cause. Zayas, 972 S.W.2d at 787. The reasonableness of a driving-while-intoxicated investigative detention is determined by the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). An officer may temporarily stop and investigate a vehicle if the officer has reasonable suspicion based on articulable facts that the detainee is connected to unusual activity with some indication that the activity is related to crime. Bright v. State, 865 S.W.2d 135, 137 (Tex. App.-Corpus Christi 1993, pet. ref'd) (citing Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim. App. 1986)). After reviewing the record, we conclude that, before he stopped appellants' vehicle, the officer who detained and later arrested appellants had a reasonable suspicion that appellant Ben Madrigales was driving while intoxicated. During the pretrial hearing on appellants' motions to suppress, Robert Trevino, the arresting officer, testified that at about 2 a.m. on the night of the arrest, he was in his police cruiser on Highway 100. He heard a call over the police radio to be on the look out for a possible drunk driver heading eastbound on Highway 100 in a white pick-up truck. The police dispatcher supplied the truck's license plate information and added that the report had been made by a concerned citizen who had observed the truck weave between lanes of traffic. The concerned citizen was following the pick-up truck into Officer Trevino's jurisdiction and was using his cellular phone to remain in contact with the police dispatcher. According to Officer Trevino, when he heard the call over the radio there was very little traffic on the highway, but about fifteen minutes later, he observed a white truck heading eastbound, which fit the description given by the dispatcher. He pursued the truck and confirmed that its license plate information matched the information he heard over the radio. As he followed the white truck, Officer Trevino observed it weave between different lanes of traffic several times. He activated his overhead sirens and initiated a traffic stop to investigate a possible DWI. This detention ultimately led to the arrest of both appellants. We conclude that the foregoing testimony substantiates sufficient articulable facts to demonstrate Officer Trevino's reasonable suspicion that appellant Benjamin Madrigales was committing a DWI in his presence. See, e.g., Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd) (weaving back and forth across three lanes at 2 a.m. is sufficient to raise a reasonable suspicion of driving while intoxicated). Appellants' detention was therefore not unreasonable. Appellants argue to the contrary. They contend that a vehicle's mere weaving between lanes of traffic does not justify an investigative detention because it does not constitute a traffic offense unless the movement is unsafe. Although we agree with appellants that a vehicle's movement between lanes of traffic is not an offense unless it is unsafe, that proposition does not resolve the issue of whether the officer had a reasonable suspicion of DWI based on the information supplied by the concerned citizen and his own personal observations of appellants' vehicle. Appellants cite five cases to establish the impropriety of the detention that occurred in this case, but, notably, none of those cases involved any complaint by a concerned citizen that a suspect was DWI. In each of the cases cited by appellants, a police officer conducted a traffic stop based solely on his first-hand observations of the suspect's vehicle. In this case, a concerned citizen reported a drunk driver. The concerned citizen was an off-duty police officer who gave the police very specific information describing the suspect's vehicle, its location, and its behavior. Thus, the officer in this case detained appellants on more information than just his first-hand observations of their vehicle's weaving. Even more fundamentally, four of the five cases cited by appellants do not address the legal issue presented by this case. In those cases, the officer initiated a traffic stop — not to check for a possible DWI — but to address the suspect's failure to maintain a single lane of traffic. On appeal, each court held that because the suspect's failure to maintain a single lane was not unsafe, no offense had occurred, the officer had nothing to investigate, and there was no basis to initiate a traffic stop. The detentions were therefore unreasonable. In contrast, in this case, the traffic stop was not made to investigate the vehicle's failure to maintain a single lane of traffic — it was initiated to investigate a possible DWI offense. Therefore, the issue in this case is whether the officer had a reasonable suspicion of DWI and not whether the officer had a reasonable suspicion of failure to maintain a single lane of traffic. The four cases cited by appellant do not discuss whether the officer had a reasonable suspicion of DWI. They are therefore inapposite. Although the fifth case cited by appellant does address an officer's reasonable suspicion of DWI, it is nevertheless unhelpful. In Hernandez, a police officer witnessed the defendant's vehicle slowly drift no more than two feet into a different lane of traffic traveling in the same direction. The officer then initiated a traffic stop. The court held that because the officer did not even subjectively suspect that the driver was DWI, but was instead concerned for the driver's well-being, he did not have a reasonable suspicion of DWI. In this case, the officer observed different behavior than the officer in Hernandez: he witnessed the vehicle weave between lanes of traffic several times, whereas in Hernandez, the vehicle left its lane only once. Furthermore, unlike the officer in Hernandez, the officer in this case initiated the traffic stop for the specific purpose of investigating a possible DWI that was reported by a concerned citizen and not to merely check on the suspect's "well-being." For these reasons, we conclude that Hernandez does not control the issue presented by this case. In sum, we reject appellants' argument and hold that Officer Trevino's actions in detaining and investigating appellants for DWI were reasonable. The motions to suppress were properly denied. II. Jury Instruction on Defense of Traveling
In her second issue, appellant Linda Madrigales argues that the trial court erred by denying her request for a jury instruction on the defense of traveling. Generally, when evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). The evidence that raises the issue may be strong, weak, contradicted, uncontradicted, or even unbelievable. See id. When the evidence fails, however, to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Id. We must uphold the trial court's decision if it is supported by any theory, regardless of the explicit reason given by the trial court. See Robbins v. State, 88 S.W.3d 256, 262 (Tex.Crim.App. 2002). Traveling is a statutory defense to the offense of unlawfully carrying a firearm. Although Texas courts have never explicitly defined traveling, they generally consider the distance, time, and mode of travel in determining whether the travel defense is available. See Soderman v. State, 915 S.W.2d 605, 609 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd, untimely filed). The traveling defense is not available to one who makes a journey so short that it is "no real journey." See Martinez Sanchez v. State, 122 S.W.3d 347 (Tex. App.-Texarkana 2003, pet. ref'd). Thus, a person embarking on a day trip with travel time of around two hours in each direction is not a traveler. See George v. State, 234 S.W. 87, 89 (Tex. Crim App. 1921); see also Wortham v. State, 252 S.W. 1063, 1064 (Tex. 1923) (if the two points of travel are within an hour and a half's journey of each other, a person is not a traveler). At trial, appellant Benjamin Madrigales testified that when he and his wife were stopped by the police, they were returning from a day of fishing at the beach. The trip from his home in Mission, Texas to their destination at South Padre Island took approximately two hours. Based on these facts, we conclude, as a matter of law, that appellants were not travelers and that appellant Linda Madrigales was not entitled to a jury instruction on the defense of traveling. See George, 234 S.W. at 89. III. Conclusion
Having considered and overruled the issues raised in each appeal, we affirm the trial court's judgment in both cases