Opinion
No. 10-04-00345-CR
Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2, Johnson County, Texas, Trial Court No. M200301848. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice Gray concurring)
MEMORANDUM OPINION
Antonio Serrana pleaded guilty to driving while intoxicated after the court denied his suppression motion. Pursuant to a plea bargain, the court sentenced him to 180 days in jail, suspended imposition of sentence, and placed him on community supervision for two years. Serrana contends in his sole issue that the court abused its discretion by denying his suppression motion. We will affirm. The facts are undisputed. A DPS trooper observed Serrana's car driving on Interstate 35. Serrana's car came to the trooper's attention because it was weaving within its lane. Serrana's car drove onto the white lane marker on the right side of the lane then back into the lane of travel. The car then drove completely over the right-hand lane marker then "jerked" back into the lane. These movements all occurred within a distance of one-half mile. The trooper suspected that the driver may be intoxicated and pulled the car over to investigate further. Serrana contends that the facts of his case are analogous to those in Hernandez v. State. 983 S.W.2d 867 (Tex.App.-Austin 1998, pet. ref'd). In that case, the defendant's car drifted about eighteen inches into another lane of traffic a single time. The officer testified that he was concerned about the driver's "well-being." Id. at 868-69. These were the only bases recited for the stop. The Austin Court concluded that the State had not satisfied its burden of proving that the stop was reasonable because: (1) the officer did not testify that he suspected the defendant of being intoxicated; and (2) he did not "testify that anything about the objective circumstances — time, location, the vehicle's movement, etc. — would have led a reasonable officer to suspect the driver of being intoxicated." Id. at 870. In a similar case, this Court affirmed a trial court's order granting a suppression motion. See State v. Tarvin, 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. ref'd). In Tarvin, the officer testified that he pulled the defendant over after observing him drive "over" the right-hand lane marker two or three times. Id. at 910-11. It was unclear from the officer's testimony whether the right tires of the defendant's car ever crossed completely over the lane marker, and the trial court found that they had not. Id. at 910-11 n. 2. As in Hernandez, the officer did not testify that he suspected the defendant to be intoxicated. Id. at 912. Serrana's case is different from these. The trooper here testified that after observing Serrana's driving he suspected that Serrana may be intoxicated. Cf. Hernandez, 983 S.W.2d at 870; Tarvin, 972 S.W.2d at 912. Unlike Tarvin, the trooper here testified that Serrana's tires crossed completely over the right-hand lane marker. Cf. Tarvin, 972 S.W.2d at 910-11 n. 2. And unlike Hernandez, the trooper here testified that Serrana's return to the lane of travel after his "second weave" was "abrupt" and that Serrana "jerked" back into the lane of travel. Cf. Hernandez, 983 S.W.2d at 868-69. The trooper here testified that Serrana was weaving within his lane, that he drove onto the right-hand lane marker and back, and that he then drove across the right-hand lane marker before abruptly returning to the lane of travel. Based on these observations, the trooper decided to stop Serrana because he suspected that he may be intoxicated. These facts make Serrana's case more similar to others in which reasonable suspicion has been found. See e.g. James v. State, 102 S.W.3d 162, 171-72 (Tex.App.-Fort Worth 2003, pet. ref'd); Gajewski v. State, 944 S.W.2d 450, 452-53 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Accordingly, we cannot say that the court abused its discretion by denying Serrana's suppression motion. Thus, we overrule Serrana's sole issue and affirm the judgment.
CONCURRING OPINION
The discussion of Tarvin in the majority opinion will be difficult for many readers to reconcile, creating confusion and chaos, and could be considered misleading if it is not properly explained. State v. Tarvin, 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. ref'd). Tarvin is not a particularly good case to discuss in this opinion because the holding of Tarvin was based on a motion to suppress that was granted as distinguished from those cases in which a motion to suppress has been denied. This distinction makes all the difference in the world. This distinction is probably why neither Serrana nor the State cite Tarvin in their briefs. The analysis that applies to the facts when a motion to suppress has been granted versus when the motion has been denied is the same. The distinction between Tarvin and the other cases is not about the facts; but rather, it is about the related standard of review of the trial court's ruling. Thus, the "facts" of the two cases could be identically the same, in the cold appellate record, and we could have two different results. And based upon the applicable standard of review, both decisions could be properly affirmed. Because we are reviewing issues on which the trial court had to evaluate credibility of the witnesses, our standard of review is an abuse of discretion. This confusion could easily be avoided if we simply stayed focused on the issues and addressed the parties' arguments under the proper analysis related to motions to suppress that have been denied. Tarvin is just not good precedent for a fact-intensive discussion on this issue. It does not fit the analysis that is appropriate for this case. Notwithstanding the confusion created by the Court's effort to compare the facts in Tarvin with the facts of this case, the majority does get to the correct result. Accordingly, I concur in the judgment affirming the decision of the trial court to deny the motion to suppress and thus affirming the trial court's judgment.