Bracken v. State

282 S.W.3d 94, 2009 Tex. App. LEXIS 323, 2009 WL 112719

• Court: Court of Appeals of Texas
• Decided: January 15, 2009
• Docket: 2-06-361-CR
• Status: Published

Opinions

OPINION

ANNE GARDNER, Justice.

A jury convicted Appellant Robert David Bracken of driving while intoxicated (DWI) enhanced by a prior DWI conviction. The trial court sentenced Appellant to sixty days’ incarceration in the Tarrant County Jail and assessed a fine of $1,000. In three points, Appellant contends that the trial court erred by denying his motions to suppress, by denying his motion to limit any direct or indirect references to any prior arrests or convictions for DWI, and by allowing improper closing argument. We affirm.

Background

On September 3, 2004, Appellant was charged by information with driving while' intoxicated. The charging instrument contained an enhancement paragraph relating to Appellant’s previous DWI conviction.

On October 16, 2006, at a pretrial hearing, the trial court orally granted Appellant’s motion to prevent reference to any prior convictions and his motion to limit the prosecutor from referencing any prior DWI arrest or conviction. The trial court also considered Appellant’s motions to suppress, which sought to suppress any evidence seized by the officers in connection with the detention and arrest and any officer testimony concerning such evidence. After hearing testimony from the arresting officer, Tarrant County Sheriffs Deputy Howard Johnson, and Appellant and reviewing the in-car video of Appellant’s driving made by Deputy Johnson during part of the time that he was following Appellant, the trial court orally denied Appellant’s motion to suppress.

The videotape also captured Appellant’s sobriety tests performed at the police station. While the jury was deliberating, the jurors asked to see the videotape of Appellant’s tests at the stop and at the station. By agreement, the video was forwarded to the point of the test at the stop that would prevent the jury from hearing the part of the tape referencing Appellant’s prior conviction for DWI. But the judge noted that the “entire exhibit’s in evidence” and “if they want to see it, I’m going to let them see it.” The jury was given the tape to watch in the jury room.

1. Motion to Suppress

In his first point, Appellant argues the trial court erred by denying his motion to suppress because the State failed to show that Deputy Johnson had a reasonable suspicion for the initial traffic stop.¹

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). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified, on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez, 195 S.W.3d at 108-09; Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652-53.

Stated another way, when reviewing the trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). 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. Kelly, 204 S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 819.

Reasonable Suspicion

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. 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. 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 defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492. Once the defendant has made this showing, the burden of proof shifts to the State, which must then establish that the government agent conducted the search or seizure pursuant to a warrant or that the agent acted reasonably. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

The Supreme Court has held that a detention is reasonable under the Fourth Amendment if the government agent reasonably suspects a person of engaging in criminal activity. 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).² 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 the officer to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492-93. 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. at 492.

Analysis

At the suppression hearing, Deputy Johnson testified that he began to follow Appellant’s vehicle after he saw approximately half of the vehicle cross the yellow center lane divider at approximately 1:30 a.m. on FM 1187, a two-lane rural road that was undergoing construction work. He said that as he followed Appellant, Appellant weaved from one side of the lane to the other repeatedly, crossing or driving on the white and yellow lines and lane bumps several times. He testified that Appellant’s driving indicated to him “that [he] possibly had an intoxicated driver on hand.” When asked on cross-examination whether Appellant’s failure to maintain a single lane was dangerous, he answered that it was dangerous to Appellant himself because he was weaving in a construction zone with no shoulder and with concrete barriers and traffic barrels on the side of the road. He agreed that under the circumstances present at the time, i.e., a construction zone with no shoulder, it could be safer to drive closer to the center line if no oncoming traffic was present. After reviewing the in-car video he made during the pursuit, Deputy Johnson admitted that at one point his own vehicle drove on the lane bumps but said that in so doing he did not create a danger to anyone else.

The trial court also reviewed the in-car video, as has this court. It shows Appellant’s car drifting back and forth, repeatedly driving on or over the “Botts Dots,” or lane bumps, and paint-marker flags at either edge of the lane as it travels through a construction zone on a two-lane country road in the dark.

Appellant testified that he never crossed the center line. He said that his tires touched the center-line lane bumps once or twice, but as soon as he felt the bumps, he moved back into the center of the lane.

Deputy Johnson identified three aspects of Appellant’s driving as giving rise to a reasonable suspicion for the traffic stop: Appellant’s crossing over the center line by half a vehicle’s width; crossing or driving on the fog line; and weaving back and forth within his lane over the course of several miles, which led him to suspect that Appellant was intoxicated. Transportation code section 545.051 provides that an operator on a roadway of sufficient width shall drive on the right half of the roadway unless the operator is passing another vehicle, an obstruction necessitates moving the vehicle to the left of the center of the roadway, the operator is on a roadway divided into three marked lanes for traffic, or the operator is on a roadway restricted to one-way traffic. Tex. Transp. Code Ann. § 545.051(a) (Vernon 1999). Deputy Johnson testified that when he first saw Appellant’s vehicle, Appellant crossed the center line of the two-lane, two-way roadway by half a vehicle’s width; in other words, Appellant failed to drive on the right, and none of section 545.051(a)’s exceptions to this requirement apply. This observation alone was enough to create a reasonable suspicion that Appellant had violated the law. See Rubeck v. State, 61 S.W.3d 741, 745 (Tex.App.-Fort Worth 2001, no pet.) (op. on reh’g) (holding officer’s observation of defendant’s vehicle crossing center line one time provided reasonable suspicion for traffic stop).

Appellant cites Ehrhart v. State, 9 S.W.3d 929 (Tex.App.-Beaumont 2000, no pet.), for the proposition that a vehicle’s touching the fog line two or three times does not justify a stop. In that case, one officer testified that the defendant’s vehicle crossed the left white line (not the yellow center stripe) once and the right white line twice. Id. at 930. Another officer testified that the defendant’s vehicle only touched the right white line twice. Id. There was no evidence that the defendant’s failure to maintain a single lane of travel was unsafe. Id. Ehr-hart is distinguishable from this case because it involved a different section of the transportation code, section 545.060(a), which provides that a driver must drive as nearly as practical within a single lane and may not move from the lane unless that movement can be made safely. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).³ We need not decide whether the suppression hearing evidence in this case supports a reasonable suspicion that Appellant violated section 545.060(a) because we have already determined that the evidence justified a stop based on Appellant’s violation of section 545.051(a), which does not contain an “unless the movement can be made safely” exception to the prohibition against crossing the center line. See id. § 545.051(a). Thus, whether Appellant could safely cross the center line is irrelevant to our reasonable suspicion analysis.

For these reasons, we hold that the trial court did not err by denying Appellant’s motion to suppress, and we overrule his first point.

2. Evidence of Prior DWI Conviction

In his second point, Appellant complains that the trial court erred by allowing the evidence concerning which it had granted a pretrial motion in limine (evidence of Appellant’s prior arrests and conviction for DWI) to be submitted to the jury during deliberations. During its casein-chief, the State offered the videotape that contained statements relating to Appellant’s prior arrests and conviction for driving while intoxicated. Appellant affirmatively stated that he had no objection to admission of the videotape, which was then admitted in its entirety and without limitation. See Delgado v. State, 235 S.W.3d 244, 251 (Tex.Crim.App.2007). The ruling on the motion in limine did not preserve any complaint. See Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985). Additionally, the conscientious trial judge did all he could to limit the jury’s viewing of the tape during deliberations to that portion which the jury had requested, the sobriety tests. We overrule Appellant’s second point.

3. Improper Argument

In his third point, Appellant argues that the State was allowed to mislead the jury in closing argument. The prosecutor stated, “Now if ya’ll can figure that out, you’re smarter than me. That means that his last drink was at the time that he got there, apparently. If you’re only there for an hour, your last drink can’t be an hour before you leave the bar. Does this make sense?”

Appellant argues that “[t]his false information was extremely damaging to [him] in several ways.” Appellant, however, did not object to the argument below, nor does he provide legal authority to support his position on appeal. He has therefore failed to preserve his complaint. See Tex. R.App. P. 33.1(a), 38.1(h); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001); Mosley v. State, 983 S.W.2d 249, 256, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). We overrule his third point.

Conclusion

Having overruled Appellant’s three points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

1 . The dissent contends that we are imposing a double standard for defendants and the State by allowing this appeal when the trial court did not reduce its denial of the motion to suppress to writing. The dissent urges that we should follow our opinion in State v. Cox, 235 S.W.3d 283 (Tex.App.-Fort Worth 2007, no pet.). In Cox, we held that the State could not appeal from the grant of a motion to suppress evidenced by only a docket entry because the trial court had not “entered” its ruling by reducing it to a signed written order, which we held was required by article 44.01. Id. at 284; see Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp.2008) (providing State entitled to appeal from grant of motion to suppress); art. 44.01(d) (providing appeal may not be taken more than fifteen days after order "entered” by court); Tex.R.App. P. 26.2(b) (providing State's time to appeal runs from date trial court “enters” order). Such an appeal is interlocutory and strictly governed by statute and is entirely different from the appeal in this case. We have never held that a written order denying a motion to suppress is a prerequisite to a defendant's appeal from a final judgment of conviction, and nothing in the code of criminal procedure supports such a requirement. See Tex.Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex.R.App. P. 25.2(a)(2); Montanez v. State, 195 S.W.3d 101, 105 (Tex.Crim.App.2006) (holding defendant appealing the denial of a motion to suppress was not required to request a ruling or object to trial court's refusal to rule when record showed that trial court implicitly overruled motion to suppress); Flores v. State, 888 S.W.2d 193, 196 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d) (holding that signed docket entry evidences trial court’s ruling on motion to suppress evidence even when denial of motion to suppress appears nowhere else in record).

2 . 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 Berlcemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex.App.-Fort Worth 2007, pet. dism’d, untimely filed).

3 . We recently analyzed section 545.060(a) and the circumstances under which it gives rise to a reasonable suspicion of a traffic violation in Fowler v. State, 266 S.W.3d 498 (Tex.App.-Fort Worth 2008) (en banc) (holding testimony that defendant's vehicle crossed into an adjacent same-direction lane one time by a tire's width and touched the white line two more times when it was not unsafe to do so did not show a reasonable suspicion for a traffic stop), pet. stricken, 2008 WL 5245352 (Tex.Crim.App.2008).