COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00424-CR
JOHN ROBERT WHIDDEN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ------------
I. INTRODUCTION
Appellant John Robert Whidden appeals his conviction for driving while
intoxicated. In one point, Whidden complains that the trial court erred by
overruling his motion to suppress. Specifically, Whidden complains that the trial
court erred by finding that the arresting officer in this case had reasonable
suspicion to initiate a traffic stop. We will affirm.
1 See Tex. R. App. P. 47.4. II. BACKGROUND
Following an anonymous tip and after observing Whidden driving, police
officer James Intia initiated a stop of Whidden’s vehicle at roughly 12:30 a.m.,
October 19, 2008. Whidden was arrested and later charged with driving while
intoxicated. Whidden filed a motion to suppress, alleging that Intia lacked
reasonable suspicion to stop him. After a hearing, the trial court denied
Whidden’s motion. Afterwards, Whidden entered a plea of guilty to the charge
against him but reserved his right to appeal the trial court’s ruling on the motion
to suppress.
Intia testified at the suppression hearing. Intia said that he works as a
police officer for the City of Keller, Texas. He has been a police officer in Keller
for approximately five and a half years. According to Intia, he was working the
night shift when he received a dispatch call regarding Whidden’s SUV. The call
notified him that a white SUV, traveling at high speed, was heading westbound
on Keller Parkway. Intia was less than a quarter mile away at the time. As Intia
approached the intersection of South Main Street and Keller Parkway, he
observed ―a white SUV, which appeared to be traveling at a high rate of speed.‖
After initiating his overhead lights to circumvent traffic, Intia turned off his
overhead lights and briefly followed the SUV, which he described as a match for
the vehicle description he had been given by dispatch. Intia said that although
he did not track Whidden’s vehicle with a radar detector, ―from [his] training and
experience, it appeared that [Whidden] was going at a speed greater than the
2 posted speed limit.‖ Intia said that he followed Whidden ―just to add reasonable
suspicion‖ to his stop and that he observed Whidden ―fail to maintain a single
lane and [Whidden] almost [strike] another vehicle as well.‖ Intia described
Whidden’s alleged failure to maintain a lane as a reaction to him having
approached the vehicle in front of him too quickly: ―[Whidden] was coming up fast
behind that vehicle in front of him, and he -- I saw his brakes go on and he
looked really close to the vehicle that was in front of him. Then he kind of
swerved over to the right because his right tires went over the [solid white] line.‖
Intia said that Whidden nearly collided with the vehicle in front of him.
By Intia’s account, Whidden had violated multiple traffic laws, including:
speeding, failure to maintain a single lane, and following the vehicle in front of
him too closely. When asked why he stopped Whidden, Intia said, ―Because of
his driving behavior. From my training and experience, it’s just one of the signs
of a possible intoxicated driver.‖ On cross-examination, Intia maintained that the
reason he initiated a stop of Whidden’s vehicle was because of Whidden’s erratic
driving, including the multiple traffic violations he allegedly observed Whidden
engage in. The State also played a dashboard video for the trial judge from
Intia’s in-car camera showing Intia following Whidden briefly before initiating the
stop.
After Whidden’s plea, the trial court assessed punishment at ten years’
confinement but suspended imposition of the sentence and placed Whidden on
community supervision for a period of four years. This appeal followed.
3 III. DISCUSSION
In his sole point, Whidden argues that the trial court erred by denying his
motion to suppress. Specifically, Whidden argues that the trial court erred by
finding that Intia had reasonable suspicion to stop him. We disagree.
A. 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 v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); 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
4 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 818.
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable
to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00424-CR
JOHN ROBERT WHIDDEN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ------------
I. INTRODUCTION
Appellant John Robert Whidden appeals his conviction for driving while
intoxicated. In one point, Whidden complains that the trial court erred by
overruling his motion to suppress. Specifically, Whidden complains that the trial
court erred by finding that the arresting officer in this case had reasonable
suspicion to initiate a traffic stop. We will affirm.
1 See Tex. R. App. P. 47.4. II. BACKGROUND
Following an anonymous tip and after observing Whidden driving, police
officer James Intia initiated a stop of Whidden’s vehicle at roughly 12:30 a.m.,
October 19, 2008. Whidden was arrested and later charged with driving while
intoxicated. Whidden filed a motion to suppress, alleging that Intia lacked
reasonable suspicion to stop him. After a hearing, the trial court denied
Whidden’s motion. Afterwards, Whidden entered a plea of guilty to the charge
against him but reserved his right to appeal the trial court’s ruling on the motion
to suppress.
Intia testified at the suppression hearing. Intia said that he works as a
police officer for the City of Keller, Texas. He has been a police officer in Keller
for approximately five and a half years. According to Intia, he was working the
night shift when he received a dispatch call regarding Whidden’s SUV. The call
notified him that a white SUV, traveling at high speed, was heading westbound
on Keller Parkway. Intia was less than a quarter mile away at the time. As Intia
approached the intersection of South Main Street and Keller Parkway, he
observed ―a white SUV, which appeared to be traveling at a high rate of speed.‖
After initiating his overhead lights to circumvent traffic, Intia turned off his
overhead lights and briefly followed the SUV, which he described as a match for
the vehicle description he had been given by dispatch. Intia said that although
he did not track Whidden’s vehicle with a radar detector, ―from [his] training and
experience, it appeared that [Whidden] was going at a speed greater than the
2 posted speed limit.‖ Intia said that he followed Whidden ―just to add reasonable
suspicion‖ to his stop and that he observed Whidden ―fail to maintain a single
lane and [Whidden] almost [strike] another vehicle as well.‖ Intia described
Whidden’s alleged failure to maintain a lane as a reaction to him having
approached the vehicle in front of him too quickly: ―[Whidden] was coming up fast
behind that vehicle in front of him, and he -- I saw his brakes go on and he
looked really close to the vehicle that was in front of him. Then he kind of
swerved over to the right because his right tires went over the [solid white] line.‖
Intia said that Whidden nearly collided with the vehicle in front of him.
By Intia’s account, Whidden had violated multiple traffic laws, including:
speeding, failure to maintain a single lane, and following the vehicle in front of
him too closely. When asked why he stopped Whidden, Intia said, ―Because of
his driving behavior. From my training and experience, it’s just one of the signs
of a possible intoxicated driver.‖ On cross-examination, Intia maintained that the
reason he initiated a stop of Whidden’s vehicle was because of Whidden’s erratic
driving, including the multiple traffic violations he allegedly observed Whidden
engage in. The State also played a dashboard video for the trial judge from
Intia’s in-car camera showing Intia following Whidden briefly before initiating the
stop.
After Whidden’s plea, the trial court assessed punishment at ten years’
confinement but suspended imposition of the sentence and placed Whidden on
community supervision for a period of four years. This appeal followed.
3 III. DISCUSSION
In his sole point, Whidden argues that the trial court erred by denying his
motion to suppress. Specifically, Whidden argues that the trial court erred by
finding that Intia had reasonable suspicion to stop him. We disagree.
A. 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 v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); 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
4 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 818.
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable
to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then
review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 819.
5 We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case, even if the trial court gave
the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
B. Legality of the Stop
The Fourth Amendment2 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.
2 Where, as in this case, the appellant has not separately briefed state and federal constitutional claims, we assume that the appellant claims no greater protection under the state constitution than that provided by the federal constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Therefore, we will analyze Whidden’s claim solely under the Fourth Amendment of the United States Constitution, following guidelines set by the United States Supreme Court in interpreting the Fourth Amendment. See State v. Guzman, 959 S.W.2d 631, 633–34 (Tex. Crim. App. 1998).
6 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
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
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.
It is well settled that a traffic violation committed in an officer’s presence
authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim.
App. 1982) Furthermore, an officer is justified in stopping a driver based upon a
reasonable suspicion of driving while intoxicated, even in the absence of a traffic
violation. James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003,
pet. ref’d); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth
2001, pet. ref’d) (stop justified based on reasonable suspicion that defendant,
who crossed the left lane stripe twice, was intoxicated); Cook v. State, 63 S.W.3d
924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (reasoning that even
if defendant’s driving did not constitute a traffic violation, it did provide reasonable
suspicion that the defendant was driving while intoxicated). To be sure, erratic or
7 unsafe driving may furnish a reasonable suspicion that the driver is intoxicated,
regardless of any evidence regarding whether a violation of a specific traffic law
occurred. Cook, 63 S.W.3d at 929; McQuarters, 58 S.W.3d at 255; Fox v. State,
900 S.W.2d 345, 347 (Tex. App.—Fort Worth 1995, pet. dism’d) (driver’s conduct
sufficient to justify stop based upon reasonable suspicion that something out of
the ordinary was occurring, even though no single act was illegal).
In this case, Intia testified that although he observed Whidden commit
multiple traffic violations, the reason he stopped Whidden was ―[b]ecause of his
driving behavior. From my training and experience, it’s just one of the signs of a
possible intoxicated driver.‖ Intia testified that he observed Whidden driving too
fast, following another vehicle too closely, and that Whidden’s excessive speed
and failure to maintain a proper distance from the vehicle in front of him caused
him to forcefully apply his brakes and swerve over the shoulder’s solid-white line.
Furthermore, Intia’s attention toward Whidden was based on information supplied
by an anonymous citizen informant whose information about the vehicle, the
driver’s excessive speed, and location were verified when Intia spotted
Whidden’s SUV. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App.
2005), cert. denied, 546 U.S. 1150 (2006) (―The factual basis for stopping a
vehicle need not arise from the officer’s personal observation, but may be
supplied by information acquired from another person.‖). Additionally, this court
has reviewed Intia’s dashboard video of Whidden’s driving. The video supports
Intia’s testimony that Whidden followed the vehicle in front of him too closely—
8 forcing him to suddenly apply his brakes and weave over the shoulder stripe.
Viewing the facts in a light most favorable to the trial court’s ruling and viewing
the totality of the circumstances, we conclude that Intia possessed specific,
articulable facts that when combined with rational inferences from those facts,
would have led him to reasonably conclude that Whidden was engaged in the
criminal activity of driving while intoxicated. See Ford, 158 S.W.3d at 492–93.
Thus, the trial court did not err by denying Whidden’s motion to suppress. We
overrule Whidden’s sole point.
IV. CONCLUSION
Having overruled Whidden’s sole point, we affirm the trial court’s judgment.
BILL MEIER JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 10, 2011