PD-0072-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/20/2015 3:47:40 PM Accepted 5/22/2015 10:48:52 AM ABEL ACOSTA No. PD-0072-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JAMES EDWARD LEMING, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Gregg County
* * * * *
STATE’S BRIEF ON THE MERITS
May 22, 2015
LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax) NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
Appellant: James Edward Leming.
Appellee: The State of Texas.
Trial Judge: Hon. Alfonso Charles.
Trial and appellate counsel for Appellant: Clement Dunn, Attorney at Law, 140 East Tyler Street, Suite 240, Longview, Texas 75601.
Trial counsel for the State: Christopher Botto, Assistant District Attorney, 101 East Methvin, Suite 333, Longview, Texas, 75601.
Appellate counsel for the State: Zan Colson Brown, Assistant District Attorney, 101 East Methvin, Suite 333, Longview, Texas, 75601, and Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.
i TABLE OF CONTENTS
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1) Must a movement into another lane of traffic be unsafe before it can be deemed a violation of TEX. TRANSP. CODE § 545.060(a)?
2) Should a tip be deemed reliable when a person calls police to report erratic driving, provides his first name, remains on the telephone with the dispatcher, and follows the suspect’s car until an officer arrives and the officer is able to independently corroborate information the caller provided?
3) Did the court of appeals err by reversing the trial judge’s ruling on a motion to suppress that Appellant committed a traffic violation when the same facts objectively demonstrated reasonable suspicion?
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii INDEX OF AUTHORITIES
Alabama v. White, 496 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 11
Bass v. State, 64 S.W.3d 646 (Tex. App.– Texarkana 2001). . . . . . . . . . . . . . . . . . 4
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)... . . . . . . . . . . . . . . . . . . 5
Curtis v. State, 238 S.W. 376, 380 (Tex. Crim. App. 2007).. . . . . . . . . . . 12, 13, 14
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . 11
Devenpeck v. Alford, 543 U.S. 146, 153 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 12, 14
Fox v. State, 900 S.W.2d 345 (Tex. App.– Fort Worth, 1995).. . . . . . . . . . . . . . . 12
Hernandez v. State, 983 S.W.2d 867 (Tex. App.–Austin 1998).. . . . . . . . . . . . . . . 5
Innes v. State, 293 S.W. 821 (Tex. Crim. App. 1926) .. . . . . . . . . . . . . . . . . . . . . 13
Illinois v. Gates, 463 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Leming v. State, 454 S.W.3d 78 (Tex. App.–Texarkana, 2014)... . . . . . . . . . . 1, 4, 9
Lothrop v. State, 372 S.W.3d 187 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 7, 8
Mahaffey v. State, 316 S.W.3d 633 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . .5, 6
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . 9
Navarette v. California, 134 S. Ct. 1683 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Plouff v. State, 192 S.W.3d 213(Tex. App. – Houston [14th Dist.] 2006).. . . . . . 13
State v. Cerny, 28 S.W.3d 796 (Tex. App.– Corpus Christi 2000).. . . . . . . . . . . . . 5
iii State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012)... . . . . . . . . . . . . . . . . . . 9
State v. Elias, 339. S.W.3d 667 (Tex. Crim. App. 2011) .. . . . . . . . . . . . . . . . . . . 15
State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013). . .. . . . . . . . . . . . . . . . 14
State v. Field, 847 P.2d 1280 (Kan. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State v. Tarvin, 972 S.W.2d 910 (Tex. App.–Waco 1998). . . . . . . . . . . . . . . . . . . . 5
Texas v. Brown, 460 U.S. 730 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Volosen v. State, 277 S.W.3d 77 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 14
Statutes
TEX. GOV’T CODE § 311.021(2)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
TEX. TRANSP. CODE §131.902(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. TRANSP. CODE § 203.031(a-1)(4)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
TEX. TRANSP. CODE § 257.026 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. TRANSP. CODE § 545.051(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. TRANSP. CODE § 545.058(a)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. TRANSP. CODE § 545.060(a).. . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 6, 7, 8, 14, 15
TEX. TRANSP. CODE § 545.101(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other
http://www.mirriam-webster.com/dictionary/practical.. . . . . . . . . . . . . . . . . . . . . 6n
http://www.vocabulary.com/articles/chooseyourwords/practical-practicable. . . . 6n
iv No. PD-0072-15
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State Prosecuting Attorney respectfully presents to this Court its brief on
the merits.
STATEMENT REGARDING ORAL ARGUMENT
The State did not request argument and the Court did not grant it.
STATEMENT OF THE CASE
Appellant pled guilty to felony driving while intoxicated and was sentenced to
ten years’ confinement. He appealed the denial of his motion to suppress. The Court
of Appeals reversed. Leming v. State, 454 S.W.3d 78 (Tex. App.–Texarkana, 2014).
1 ISSUES PRESENTED
1) Must a movement into another lane of traffic be unsafe before it can be deemed a violation of TEX. TRANSP. CODE § 545.060(a)?
2) Should a tip be deemed reliable when a person calls police to report erratic driving, provides his first name, remains on the telephone with the dispatcher, and follows the suspect’s car until an officer arrives and the officer is able to independently corroborate information the caller provided?
3) Did the court of appeals err by reversing the trial judge’s ruling on a motion to suppress that Appellant committed a traffic violation when the same facts objectively demonstrated reasonable suspicion?
STATEMENT OF FACTS
A Longview police officer was dispatched to a busy road at approximately 2:00
p.m. to investigate a report from a caller named “Arliss” that a white Jeep was
“swerving from side to side.” RR2: 6-8. The officer located the Jeep and advised the
caller, who was still following it, to “back off.” RR2: 7. The officer followed the
car and saw it drift left to the center line and back to the right several times, coming
within a few inches of the curb twice. RR2: 8. He testified that the “tires were on the
stripes.” RR2:8. The officer also noted that the car was traveling thirteen miles per
hour below the speed limit and continued to slow as he followed it. RR2: 8, 15. He
believed the driver was “somehow impaired” or had “a medical issue” and that
swerving and low speed “was an indication that the driver is somehow either
distracted or physically not able to operate his motor vehicle correctly.” RR2: 9.
2 The officer stopped the car and ultimately arrested Appellant for driving while
intoxicated. RR2: 12-13. The patrol car’s dash camera video of the stop and the
moments preceding it was admitted into evidence. RR2: 9-10.
The trial court denied the motion to suppress, stating that a traffic violation
occurred when Appellant’s car, “cross[ed] the center stripe and move[ed] partially
into another lane of traffic.” CR: 13-14. The court also noted that “the officer had
received information from a named informant that the car was driving erratically.”
CR: 13-14.
SUMMARY OF THE ARGUMENT
Section 545.060(a) of the Transportation Code includes two requirements: 1)
that a driver remain in one lane if it is practical to do so, and 2) that any departure
from the lane be done safely. Failure to abide by either provision is a violation.
Therefore, the officer’s observation of Appellant’s tires crossing the stripes without
apparent reason justified the stop, even if his departure from the lane was not unsafe.
The 911 report about Appellant’s car swerving from side to side was sufficiently
reliable to be considered in the analysis because the caller provided his first name,
location, and a description of the suspect car, which he followed until police arrived
and “waived him off.” The report and the officer’s observations were sufficient to
provide reasonable suspicion of driving while intoxicated even if the officer did not
3 subjectively suspect intoxication. Specialized training or experience is not necessary
to support objectively reasonable suspicion that, regardless of the time of day, a
driver who demonstrably weaves for an extended period of time is intoxicated.
ARGUMENT
Court of Appeals’ opinion
The Court of Appeals held that the car’s movement did not constitute a traffic
offense because, even assuming it crossed into another lane of traffic, Appellant’s
driving was not unsafe. Leming, 454 S.W.3d at 83. It also held that Arliss was not
a “named” informant, equating him instead with an anonymous caller. Id. at 83-84.
Because no traffic violation occurred, the Court reasoned that the stop was justified
only if the officer was acting in his community caretaking function, which, it held, he
was not. Id. at 84, 86.
TEX. TRANSP. CODE § 545.060(a)
Section 545.060 states, “(a) An operator on a roadway divided into two or more
clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within
a single lane; and (2) may not move from the lane unless that movement can be made
safely.” The Court of Appeals held that movement out of a single lane does not
violate the statute unless it is unsafe, citing Bass v. State, 64 S.W.3d 646, 651 (Tex.
4 App.– Texarkana 2001, pet. ref’d).1 Bass relied on Hernandez v. State, 983 S.W.2d
867 (Tex. App.–Austin 1998, pet. ref’d), which held that the vagueness of the “as
nearly as practical” clause in subsection (1) indicates it was not intended to be a
separate requirement apart from safety. Id. at 871.
However, under TEX. GOV’T CODE § 311.021 (2), it is presumed that the entire
statute was intended to be effective. It seems unlikely that the Legislature gave the
“as nearly as practical” clause its own subsection but intended that it be entirely
superfluous. In addition, general statutory construction principles do not permit terms
in a statute that are ambiguous to be ignored. Instead, when a term is ambiguous, the
reviewing court uses extratextual sources to discern the legislative intent. Boykin v.
State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).
Hernandez found “as nearly as practical” to be ambiguous because the
Legislature chose the term practical, which it defined as “manifested in practice;
capable of being put to good use,” rather than practicable, meaning, “capable of being
accomplished; feasible; possible.” Id. (quoting Bryan A. Garner, A Dictionary of
Modern Legal Usage 678 (2d ed. 1995)). However, practical has other definitions
1 This Court has acknowledged the opinions in Bass, State v. Cerny, 28 S.W.3d 796, 800 (Tex. App.– Corpus Christi 2000, no pet.), and State v. Tarvin, 972 S.W.2d 910, 910-11 (Tex. App.–Waco 1998, pet. ref’d), but has not adopted their interpretation of the statute. Mahaffey v. State, 316 S.W.3d 633, 640 n.35 (Tex. Crim. App. 2010). 5 that make more sense in the context in which it is used in this statute. See Mahaffey,
316 S.W.3d at 635 (noting several definitions of “turn” but using the one that applied
in the context of driving when construing a Transportation Code provision). Miriam
Webster defines practical, inter alia, as “likely to succeed and reasonable to do or
use.”2
Practical and practicable have similar meanings; their distinction is primarily
one of usage. Practical is akin to sensible or reasonable, and practicable is closer to
feasible or possible.3 In that light, either practical or practicable make sense in the
context of the statute.4 Practical, however, allows the driver a bit more leeway. So
2 http://www.merriam-webster.com/dictionary/practical 3 http://www.vocabulary.com/articles/chooseyourwords/practical-practicable
With regard to traffic lanes, the Transportation Code appears to use 4
practical and practicable synonymously. See TEX. TRANSP. CODE § 545.060(a); TEX. TRANSP. CODE § 545.051(b) (“An operator of a vehicle... shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway...”); TEX. TRANSP. CODE § 545.101(a) (“To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.”). The Transportation Code uses these terms in other contexts as well. See TEX. TRANSP. CODE §131.902(d) (“No other route is possible or practicable.”); TEX. TRANSP. CODE § 257.026 (road district annexation permitted if it is “feasible and practical.”). TEX. TRANSP. CODE § 203.031(a-1)(4)(B) includes the phrase, “the most practicable extent possible.” In that provision, practicable must mean something other than possible, otherwise it would be nonsensical. This example illustrates the importance of considering the context of undefined terms in a statute.
6 while it may be feasible or possible to drive entirely in one lane, it may not be
sensible or reasonable to do so if there is a large pothole or turtle5 in the lane. Under
those circumstances, it might be more reasonable to temporarily leave one’s lane to
avoid the obstacle. Similarly, while it is possible to remain entirely in one’s lane
behind a slow-moving bicycle, it may not be reasonable to do so. Under those
circumstances, it is reasonable (or practical) to pass, by either leaving the lane entirely
or moving partially into another lane until the pass is completed. Sometimes it is
reasonable to use both lanes at the same time, straddling the line marker. This may
occur in icy conditions or when a road is flooded and the only clear path requires
taking up two lanes. The practicality requirement of section 545.060(a) prohibits
indiscriminate straddling, aimless weaving, or capricious lane changing, but it allows
departure from the lane for sensible reasons.
When subsections (1) and (2) are read together, the statute requires a driver to
remain entirely in a single lane as nearly as is sensible or reasonable to do so but, if
it is reasonable or sensible to deviate, the operator must do so safely. This
requirement of both practicality and safety is consistent with TEX. TRANSP. CODE §
545.058(a), which permits driving on the shoulder if: 1) it is necessary to achieve one
of the purposes enumerated in the statute, and 2) it may be done safely. Lothrop v.
5 See Mahaffey, 316 S.W.3d at 640. 7 State, 372 S.W.3d 187, 190-91 (Tex. Crim. App. 2012). Lothrop held, “the offense
of illegally driving on an improved shoulder can be proved in one of two ways: either
driving on the improved shoulder was not a necessary part of achieving one of the
seven approved purposes, or driving on the improved shoulder could not have been
done safely.” Id. That same rationale applies to this statute.
Section 545.060 allows a driver to move out of his lane if it is impractical to
remain in a single lane and the movement can be performed safely.6 The Court of
Appeals erred by reading the practicality element completely out of the statute.
Regardless of whether it was safe for Appellant to leave his lane, it reasonably
appeared to be sensible or reasonable for him to remain in his lane without drifting
or deviating from it. Therefore, the traffic stop was valid.
911 call
The Court of Appeals refused to consider Arliss’ report that Appellant’s car
was “swerving from side to side” in its analysis of the validity of the stop because
“there was no evidence presented that would have given [the officer] any reason to
6 This Court need not decide in this case whether the statute proscribes separate offenses or separate manners and means of committing the same offense, only that both subsections must be followed and failure to do either is an offense.
8 attribute credibility to the caller.” Leming, 454 S.W.3d at 83-84.7 However,
“[R]easonable suspicion can arise from information that is less reliable than that
required to show probable cause. . .” Alabama v. White, 496 U.S. 325, 330 (1990).
And Arliss’ report was sufficiently reliable to be considered in the determination of
whether the stop of Appellant’s car was valid.
This Court has recognized a continuum of reliability of civilian reports to
police, from a named “concerned citizen” who reports a crime in the performance of
his civic duty at one end of the spectrum to a “snitch” with ulterior motives at the
other end. State v. Duarte, 389 S.W.3d 349, 355-56 (Tex. Crim. App. 2012). “The
citizen-informer is presumed to speak with the voice of honesty and accuracy.” Id. at
356. This presumption is based, in part, on the fact that he is not associated with the
“criminal milieu,” as is the snitch. Id. But a named informer is also more trustworthy
due to the element of accountability; by identifying himself to police, he is subject to
liability if his report is false. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim.
App. 2011). An anonymous tipster, who cannot be held accountable and whose
reliability is unknown, does not enjoy this presumption. Id.
7 The Court also did not believe the videotape showed the car “swerving from side to side” as Arliss reported, but only “drifting.” Id. at 84. However, Arliss’ observations occurred before the officer arrived. Appellant could have been swerving earlier and moderated to a “drift” when the officer began following and videotaping him. 9 In Navarette v. California, 134 S. Ct. 1683 (2014), Highway Patrol officers
received an anonymous 911 call that identified the make, license plate, and location
of a truck that had nearly run the caller off the road. Id. at 1689. An officer spotted
the truck several miles from the reported location and conducted a stop. Id. The
Supreme Court noted that anonymous tips are normally insufficiently reliable because
the veracity of the tipster is unknowable. Id. at 1688. However, it held that under the
facts in that case, the report had sufficient indicia of reliability. Id. at 1688-89. First
the report was entitled to greater weight because it included a detailed description of
the incident and the caller claimed to be an eyewitness. “[An informant’s] explicit and
detailed description of alleged wrongdoing, along with a statement that the event was
observed firsthand, entitles his tip to greater weight than might otherwise be the
case.” Navarette, 134 S. Ct. at 1689, quoting Illinois v. Gates, 462 U.S. 213(1983).
Second, the officers confirmed the truck’s location. Id. Third, the report was made
immediately after the incident, and contemporaneous reports of criminal activity
made under the stress of excitement have been treated as “especially reliable.” Id.
And fourth, use of the 911 system provided further proof of the caller’s veracity. Id.
at 1689-90. Because the system has known identifying and tracing features, “a
reasonable officer could conclude that a false tipster would think twice before using
such a system.” Id. at 1690.
10 All the Navarette factors are present in this case. Arliss was an eyewitness who
followed Appellant until police arrived. He described Appellant’s driving while, or
shortly after, observing it, and police were able to locate his and Appellant’s vehicles
based on the description he provided. Like Navarette, Arliss used the 911 system, but
he also gave police his first name. Under these circumstances a reasonable person
could deduce that police had access to his: first name, cell phone number, and the
licence plate number of his car. This information is arguably more identifying than
just the first and last name of a presumptively reliable “concerned citizen.” Arliss’
account of Appellant’s car “swerving from side to side” was reliable and should be
considered in the analysis of the traffic stop.
Reasonable suspicion of DWI
Reasonable suspicion exists when, examining the totality of the circumstances,
a police officer has specific, articulable facts that, combined with rational inferences
from those facts, would lead a reasonable officer to conclude the defendant is, has
been, or soon will be engaged in criminal activity. Derichsweiler v. State, 348
S.W.3d 906, 914 (Tex. Crim. App. 2011). This standard is less demanding than
probable cause, and probable cause in turn “falls far short of a preponderance of the
evidence.” Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009).
Arliss’ report and the officer’s observations were sufficient to provide
11 reasonable suspicion of driving while intoxicated. Appellant’s car was seen swerving
from side to side, crossing the lane marker, twice almost hitting the curb, and
traveling 13 miles per hour below the speed limit. In Curtis v. State, 238 S.W. 376,
380 (Tex. Crim. App. 2007), this Court held that a traffic stop was justified when the
car wove in and out of its lane several times late at night. See also Fox v. State, 900
S.W.2d 345, 347 (Tex. App–Fort Worth, 1995), pet. dism’d improv. granted, 930
S.W. 2d 607 (Tex. Crim. App. 1996) (weaving within lane and fluctuating speed
provided reasonable suspicion for stop).8
This Court has relied on an officer’s “training and experience” to find that
weaving provides reasonable suspicion of driving while intoxicated. See Foster v.
State, 326 S.W.3d 609 (Tex. Crim. App. 2010) (“In light of...Thomas’s training and
experience, and Foster’s aggressive driving, it was rational for Thomas to have
inferred that appellant may have been intoxicated.”); Curtis, 238 S.W.3d at 380 (“...it
was part of [officer’s] training that a driver’s weaving in and out of a lane was a
possible indication that the driver was intoxicated.”). But specialized knowledge is
not required for something so obvious and commonplace. Intoxication is sufficiently
8 The Kansas Supreme Court has examined cases from other jurisdictions and determined that weaving within the lane is alone sufficient to support reasonable suspicion of intoxication. See State v. Field, 847 P.2d 1280, 1284-1286 (Kan. 1993), and cases cited therein. 12 prevalent that lay witnesses have long been deemed competent to give an opinion
about it. Innes v. State, 293 S.W. 821, 822 (Tex. Crim. App. 1926) (opinion on
reh’g). It is a matter of common knowledge that intoxication diminishes a person’s
coordination, balance, and mental agility. Plouff v. State, 192 S.W.3d 213, 223-24
(Tex. App. – Houston [14th Dist.] 2006, no pet). And it is universally understood that
intoxication affects one’s ability to drive a car. Weaving is the hallmark of an
intoxicated driver, much like staggering is a classic indicator that a pedestrian is
intoxicated. Even a layman who sees frequent, pronounced weaving assumes that the
driver is impaired. It does not take specialized training or experience to reasonably
suspect driving while intoxicated under these circumstances.9 This is distinguishable
from facts not widely known outside law enforcement or the criminal element, such
as balloons being used to carry narcotics. See Texas v. Brown, 460 U.S. 730, 742-43
(1983).
Some cases also rely, in part, on the time of day of the traffic stop or its
location near bars to find that bad driving allows reasonable suspicion of intoxication.
9 Both sober and intoxicated drivers may speed, fail to use their signals, or drive badly in other ways, but weaving almost always suggests some type of impairment. While it is possible that impairment can be caused by sleepiness or diabetic coma, the possibility of an innocent explanation does not defeat the reasonableness of the suspicion that impairment is due to alcohol or drugs. See Curtis, 238 S.W.3d at 378-79 (reiterating Court’s rejection of the “as consistent with innocent activity” test.). 13 See, e.g., Foster, 326 S.W.3d at 611, 614 (relying on officer’s testimony that “it is
common for many people to be impaired in Austin’s Sixth Street bar district late at
night.”); Curtis, 238 S.W.3d at 381 (court considered lateness of the hour in its
analysis). While those factors bolster a finding of reasonable suspicion, especially
if the driving facts are weak, they need not always be present to reasonably suspect
that intoxication is the cause of demonstrably poor driving.
Perhaps the Court of Appeals did not address reasonable suspicion for driving
while intoxicated because the State’s argument focused on community caretaking and
a violation of TEX. TRANSP. CODE § 545.060(a). But because the State prevailed in
the trial court, it was not obligated to raise alternative arguments or, for that matter,
any arguments on appeal. Volosen v. State, 277 S.W.3d 77, 80 (Tex. Crim. App.
2007). It is the responsibility of the Court of Appeals to review an appellant’s claims
“including any subsidiary issues that might result in upholding the trial court’s
judgment.” Id. In State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013), the
Court reiterated, “[A] first-tier appellate court should reject an appellant’s claim of
reversible error on direct appeal so long as the trial court correctly rejected it ‘on any
theory of law applicable to the case,’ even if the trial court did not purport to rely on
that theory.” Id. at 85 (citations omitted).
Here, the officer personally observed weaving and slow speed in heavy traffic.
14 Those facts led him to a subjective concern for Appellant’s welfare rather than
suspicion of a traffic offense or intoxication. But his subjective legal conclusions
about why the stop was justified are irrelevant. See State v. Elias, 339. S.W.3d 667,
675 (Tex. Crim. App. 2011) (an officer’s subjective reason for stopping a vehicle
need not be legitimate as long as the objective facts support the stop). “[A]n arresting
officer’s state of mind (except for the facts that he knows) is irrelevant to the
existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). The
validity of a arrest depends on the facts the officer observes, not whether he names
the correct offense. Id. Otherwise, “An arrest made by a knowledgeable, veteran
officer would be valid, whereas an arrest made by a rookie in precisely the same
circumstances would not.” Id.
Conclusion
The stop of Appellant’s car was valid because the officer observed a traffic
violation. Appellant’s failure to remain in his lane when it was reasonable to do so
violated section 545.060(a). Even if no violation occurred, the stop was justified by
reasonable suspicion of DWI based on a reliable 911 report that Appellant was
swerving from side to side and the officer’s observation of weaving and slow speed.
These facts would allow a reasonable person to suspect that Appellant was driving
while intoxicated.
15 PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals set
this case for submission, reverse the court of appeals’ judgment, and affirm the
conviction.
Respectfully submitted,
/s/ Lisa C. McMinn LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax)
16 CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool
this document contains 4402 words.
/s/ Lisa C. McMinn LISA C. McMINN State Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that on this 20th day of May, 2015, the State’s Brief
on the Merits was served electronically on:
Zan Colson Brown Assistant District Attorney 101 East Methvin, Suite 333 Longview, Texas, 75601 Zan.Brown@co.gregg.tx.us
Clement Dunn Attorney at Law 140 East Tyler Street, Suite 240 Longview, Texas 75601 clementdunn@aol.com