COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-336-CR
THE
STATE OF TEXAS APPELLANT
V.
JOHN
JOSEPH AREND APPELLEE
------------
FROM
COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION1
INTRODUCTION
The
State appeals from the trial court’s grant of Appellee’s motion to suppress
in a driving while intoxicated case. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On
May 9, 2003, Appellee filed a motion to suppress the evidence arising from the
traffic stop that led to his arrest for DWI on the basis that the traffic stop
was made without a warrant, probable cause, or reasonable suspicion under the
federal and state constitutions. The trial court conducted a hearing on
August 7, 2003. The State called Texas State Trooper Richard Barton as its
only witness. Trooper Barton testified that on December 29, 2002, at
approximately 2:40 a.m., he was parked in a marked unit on the shoulder of
Highway 121 running stationary radar. Trooper Barton described the roadway
as having three marked lanes northbound and southbound, separated by a concrete
barrier. Trooper Barton stated that while parked, he observed Appellee’s
vehicle traveling northbound in the center lane of traffic. As
Appellee’s vehicle approached, he “observed the vehicle move over the left
stripe and back over the right stripe just as it was approaching another vehicle
from behind.” Trooper Barton described the vehicle as “making kind of
a slow drifting movement” and stated that Appellee’s vehicle came within
approximately one foot of the other vehicle.
Trooper
Barton testified that he decided to follow Appellee’s vehicle and at that
point activated his dashboard video camera. Trooper Barton stated that he
followed Appellee’s vehicle for approximately forty-five to fifty seconds,
during which time he observed it weaving as it went around a curve. He
stated that “[t]he left side tires when it went around the curve were on top
of the stripe. It moved back towards the right. As I watched it
again, the right side tires again got on . . . just about on top of the right
stripe.” The State had Trooper Barton diagram the events to illustrate
what he had observed and also offered into evidence the video from his in-car
camera. Trooper Barton testified that he stopped the vehicle (1) “to
investigate the possibility that the driver might possibly be intoxicated or
impaired,” (2) because Appellee committed a traffic violation by
“[f]ail[ing] to drive in a single lane,” and (3) because he was concerned
that the driver could be having a medical problem or was possibly falling
asleep, suggesting that weaving does not always indicate that a driver is
intoxicated.
On
cross-examination, Trooper Barton stated that Appellee was not speeding nor did
he observe any erratic speed changes. Additionally, Trooper Barton agreed
that what he observed was weaving in the lane. Further, Trooper Barton
stated that he listed the reason for stopping Appellee’s vehicle in his report
as being for failure to drive in a single lane, but he did not include the
incident with the other vehicle nor did he include his concern that the driver
might be having a medical problem or falling asleep.
At
the conclusion of the hearing, the trial court granted Appellee’s motion to
suppress “finding that it appears fairly certain from the record, both as to
the drawing made by Trooper Barton and his testimony . . . that [Appellee’s]
vehicle weaved within a single lane and touched on the line of traffic but did
not cross over that line of traffic.”
The
State filed proposed findings of fact and conclusions of law, which were adopted
by the trial court. In its findings of fact, the trial court found that
Trooper Barton is a credible and reliable witness, that Trooper Barton only
observed “weaving within the lane,” and that Appellee’s “vehicle did not
actually go completely into another lane.” In its conclusions of law,
the trial court held that “Trooper Barton’s belief that the Defendant could
have been intoxicated due to the driving facts observed did not constitute a
reasonable and articulable suspicion that the Defendant’s activity was related
to a crime” and that “Trooper Barton’s belief that the Defendant committed
. . . Failure to Maintain a Single Lane . . . was erroneous because weaving
within the lane alone is not sufficient conduct to constitute a violation.”
While
the State concedes on appeal that Appellee did not drive into another lane of
traffic, the State argues that the trial court erred in granting Appellee’s
motion to suppress because (1) Trooper Barton had reasonable suspicion that
Appellee was driving while intoxicated, (2) Trooper Barton had reasonable
suspicion that Appellee committed the traffic violation of failing to maintain a
single lane, (3) Trooper Barton had probable cause that Appellee committed the
traffic violation of failing to maintain a single lane, (4) the trial court’s
ruling conflicts with Texas Code of Criminal Procedure article 14.01, (5) the
trial court’s ruling runs afoul of Terry v. Ohio,2
(6) the trial court’s ruling violates the Fourth Amendment to the United
States Constitution, (7) the trial court’s ruling violates article I, section
9 of the Texas Constitution, and (8) the trial court’s ruling was erroneous
because Trooper Barton’s actions were reasonable.
STANDARD OF REVIEW
The
Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. For an
arrest to be justified under the Fourth Amendment, it must be accompanied by
probable cause to believe that a person has engaged in or is engaging in
criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S.
Ct. 168, 171 (1959). A detention, however, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. at 22, 88 S.
Ct. at 1880; Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000). The reasonableness of a temporary detention must be examined in
terms of the totality of the circumstances and will be justified when the
detaining officer has specific, articulable facts that taken together with
rational inferences from those facts, lead him to conclude that the person
detained actually is, has been, or soon will be engaged in criminal activity. Ford
v. State, No. PD-1946-03, 2005 WL 544796, at *3 (Tex. Crim. App. March 9,
2005); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).
We
review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Ford, 2005 WL 544796, at *3; Carmouche,
10 S.W.3d at 327; 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. State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard,
987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore, we give almost
total deference to the trial court's rulings on (1) questions of historical fact
and (2) application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53
(Tex. Crim. App. 2002); Harrison v. State, 144 S.W.3d 82, 85 (Tex.
App.—Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62.
However, when the trial court's rulings do not turn on the credibility and
demeanor of the witnesses, we review de novo a trial court's rulings on mixed
questions of law and fact. Ford, 2005 WL 544796, at *3; Johnson,
68 S.W.3d at 652-53.
When
the only evidence presented in a motion to suppress hearing is the testimony of
the arresting officer (which, if believed, clearly adds up to a reasonable
suspicion or probable cause) and the trial court grants the motion without
filing findings of fact or any other explanation, there is not a “concrete”
set of facts that can be implied from such a ruling. Ross, 32 S.W.3d at
856. The trial court may have disbelieved the officer on at least one material
fact, or the trial court may be in a situation in which it does not know what
exactly the facts are, but it does know (on the basis of demeanor, appearance,
and credibility) that they are not as the witness describes. Id. In this
situation, we do not necessarily have a set of historical facts to which we may
apply the law. Id. The determination of probable cause rests entirely on
the credibility of the lone witness. Id. This scenario is a mixed
question of law and fact, the resolution of which turns on an evaluation of
credibility and demeanor. Id. The proper standard of review is therefore
“almost total deference” to the trial ruling. Id.; see also State
v. Ballman, 157 S.W.3d 65, 69 (Tex. App.—Fort Worth 2004, no pet.).
When
the sole witness at the motion to suppress hearing is the arresting officer and
the trial court files findings of fact and conclusions of law, the only question
before us is whether the trial court properly applied the law to the facts it
found. Ballman, 157 S.W.3d at 69 (citing Carmouche, 10
S.W.3d at 327-28; Guzman, 955 S.W.2d at 86-87, 89; Harrison, 144
S.W.3d at 85; James v. State, 102 S.W.3d 162, 169-79 (Tex. App.—Fort
Worth 2003, pet. ref'd)). This is especially true in a case like this
where the State has not contested the trial court's findings of fact, and the
trial court found the arresting officer to be credible but concluded his
testimony was insufficient as a matter of law.3
Ballman, 157 S.W.3d at 69 (citing Ross, 32 S.W.3d at 856-58; Guzman,
955 S.W.2d at 89; State v. Maldonado, No. 01-03-00774-CR, 2004 WL
2306703, at *2 (Tex. App.—Houston [1st Dist.] Oct. 14, 2004, no pet.)).
Therefore, we will apply a de novo review to determine whether the trial court
correctly applied the law to the facts it found. Ballman, 157 S.W.3d at
69; see Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004)
(explaining application of various standards of review to warrantless searches
and searches pursuant to a warrant) (citing Ornelas v. United States, 517
U.S. 690, 697-98, 116 S. Ct. 1657, 1662 (1996)). Because the trial court
entered findings of fact and conclusions of law and because the trial court
found Trooper Barton to be both credible and reliable, we must give that court
almost total deference in reviewing those historical facts found but review de
novo the application of the law to those facts. See Ross, 32 S.W.3d
at 856-58; Ballman, 157 S.W.3d at 69.
DRIVING WHILE INTOXICATED
In
its first point, the State contends that the totality of the circumstances gave
rise to a reasonable suspicion that Appellee was driving while intoxicated and
points to the following evidence to support its contention: (1) Appellee’s
vehicle weaved several times; (2) his vehicle came within approximately a foot
of another vehicle; (3) Trooper Barton followed Appellee and confirmed that the
weaving was a problem and not a one-time occurrence; (4) Trooper Barton had
twenty-two years of experience; and (5) Trooper Barton testified that based on
his experience and training weaving is a good indicator of possible
intoxication. Furthermore, the record indicates that Trooper Barton
testified that he “stopped the vehicle to investigate the possibility that the
driver might possibly be intoxicated or impaired.” Appellee argues that
Trooper Barton’s only reason for stopping him was for failing to maintain a
single lane and that because the trial court found that Appellee’s weaving did
not constitute a traffic violation, Trooper Barton did not have reasonable
suspicion for his initial detention of Appellee.
There
is no requirement that a traffic regulation has been or is about to be violated
in order for an officer to have reasonable suspicion sufficient to justify a
stop of a vehicle. James, 102 S.W.3d at 172; see Cook v. State,
63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). An
officer may be justified in stopping a driver based upon a reasonable suspicion
of driving while intoxicated. James, 102 S.W.3d at 172. Erratic or
unsafe driving may furnish a sufficient basis for a reasonable suspicion that
the driver is intoxicated even absent evidence of violation of a specific
traffic law. See State v. Tarvin, 972 S.W.2d 910, 912 (Tex.
App.—Waco 1998, pet. ref’d) (opining that mere weaving in one’s own lane
can justify an investigatory stop when that weaving is erratic, unsafe, or tends
to indicate intoxication); see also Cook, 63 S.W.3d at 929 (holding that
while appellant’s driving may not have constituted a traffic violation, it did
provide reasonable suspicion that appellant was driving while intoxicated); McQuarters
v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001, pet. ref’d)
(finding that even if officer’s testimony failed to establish reasonable
suspicion that appellant violated traffic law, it did raise sufficient facts to
justify a stop based on reasonable suspicion that appellant was intoxicated); Gajewski
v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no
pet.) (finding that although appellant’s driving may not have constituted a
traffic violation, that did not negate a stop based on reasonable suspicion that
appellant was intoxicated); Fox v. State, 900 S.W.2d 345, 347 (Tex.
App.—Fort Worth 1995) (holding 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), pet. dism'd as improvidently granted,
930 S.W.2d 607 (Tex. Crim. App. 1996).
In
this case, Trooper Barton testified that, based on his experience, he believed
Appellee was possibly driving while intoxicated based on his initial observation
of Appellee’s vehicle weaving within his lane and the continued weaving as he
followed Appellee for approximately forty-five to fifty seconds. Therefore,
based on the totality of the circumstances, we conclude that Trooper Barton had
specific articulable facts, which taken together with rational inferences from
those facts based on his experience, justified his reasonable suspicion that
Appellee was driving while intoxicated. See Ortiz v. State, 930 S.W.2d
849, 853, 856 (Tex. App.—Tyler 1996, no pet.) (holding that officers’
observation of appellant’s vehicle that weaved left, hit the grassy median,
kicked up some dirt and grass, and then continued to weave within his lane two
or three times gave them reasonable suspicion that appellant was driving while
intoxicated); Davis v. State, 923 S.W.2d 781, 788 (Tex. App.—Beaumont
1996) (holding that stop was proper where officer testified that he suspected
driver was intoxicated or tired based on weaving within lane), rev’d on
other grounds, 947 S.W.2d 240 (Tex. Crim. App. 1997); Fox, 900 S.W.2d
at 347 (holding that officer’s observation of appellant’s vehicle’s speed
fluctuating between 40 and 55 mph and weaving within his own lane provided
sufficient specific facts to create a reasonable suspicion that some activity
out of the ordinary was occurring or had occurred). Therefore, we hold
that the trial court erred in granting Appellee’s motion to suppress for lack
of reasonable suspicion that Appellee was driving while intoxicated.
Consequently, we do not reach the State’s remaining points. See Tex. R. App. P. 47.1.
CONCLUSION
We
reverse the trial court’s judgment and remand for proceedings consistent with
this opinion.
ANNE
GARDNER
JUSTICE
PANEL
F: GARDNER, WALKER, and MCCOY, JJ.
DO NOT
PUBLISH
Tex. R. App. P. 47.2(b).
DELIVERED:
April 28, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
392 U.S. 1, 88 S. Ct. 1868 (1968).
3.
The State challenges the trial court’s “finding” that “Trooper
Barton’s belief that [Appellee] could have been intoxicated due to the driving
facts observed did not constitute a reasonable and articulable suspicion that [Appellee’s]
activity was related to a crime.” However, this is actually a challenge
to the trial court’s conclusion of law and not a challenge to a finding of
fact.