State v. Alderete

314 S.W.3d 469, 2010 WL 1634580

• Court: Court of Appeals of Texas
• Decided: July 28, 2010
• Docket: 08-09-00066-CR
• Status: Published

Opinions

OPINION

GUADALUPE RIVERA, Justice.

The State appeals the trial court’s order granting Ana Maria Alderete’s motion to suppress. After reviewing the applicable law, we sustain the State’s sole issue, reverse the order of the trial court, and remand for further proceedings.

BACKGROUND

Alderete was charged by information for the offense of driving while intoxicated. Subsequently, Alderete filed a motion to suppress, alleging the initial stop was unlawful. Alderete did not challenge any of the officers’ actions after her vehicle was stopped.

At the suppression hearing, Officer Anthony Alegre testified that he is employed with the El Paso Police Department and has been so for a year and a half, that he is assigned to the patrol division, and that he has received training in the investigation of driving-while-intoxicated offenses, including the traffic stops relating to such offenses. Based on his training and experience, Officer Alegre noted that some of the common characteristics exhibited by intoxicated drivers include driving at nighttime and swerving within or outside their lane of traffic.

Similarly, Officer Daniel Garcia testified that he too is employed with the El Paso Police Department and has been so for four years, and that he has received training in the investigation of driving-while-intoxicated offenses. Like Officer Alegre, Officer Garcia, based on his training and experience, found swerving within or outside a driver’s lane of traffic, driving without lights, making erratic turns, driving too slow or too fast, and driving late at night to be common characteristics of those committing the driving-while-intoxicated offense.

Both officers related that on November 5, 2007, at approximately 3 a.m., they were traveling west on Interstate 10 when they observed Alderete driving a Jeep Cherokee in front of them, in the same lane. As they followed Alderete, Officer Alegre observed her swerving inside the lane. Traffic was light, but the officers could not recall whether Alderete came close to contacting or endangering another car. The officers could not recall how many times they saw the vehicle swerve, but after following Alderete for half of a mile, Officer Alegre noted she was unable to drive in a straight manner and stay within the lane. Consequently, the officers initiated a traffic stop, not because she violated the traffic code, but because she was swerving within her lane at a late hour, which based on their experience, indicated that she was intoxicated.

Based on the testimony presented, Al-derete asserted that there was no evidence of intoxication and that swerving within a lane is not a traffic violation; thus, she asked the trial court to grant her motion to suppress on grounds that the officers lacked authority to initiate a stop. The State disagreed, arguing that although a traffic code violation may not have been committed, the officers had reasonable suspicion to stop Alderete for driving while intoxicated. The trial court agreed with Alderete. In its findings of fact and conclusions of law, the trial court found that the officers’ testimonies were credible, but concluded that Alderete’s swerving within the lane was not a traffic code violation and therefore, that the officers lacked authority to initiate a stop.

DISCUSSION

On appeal, the State asserts in a single issue that the trial court erred by granting Alderete’s motion to suppress. According to the State, the officers did not need to find a violation of the traffic code before stopping Alderete as they had reasonable suspicion to initiate a stop for driving while intoxicated when, in light of their training and experience, Alderete swerved within her lane, at a late hour, for half of a mile, which indicated that she was intoxicated. Alderete responds that no traffic violation occurred and her swerving within the lane, at a late hour, was insufficient to provide reasonable suspicion that she was driving while intoxicated.

Standard of Review

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). We do not engage in our own factual review as the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009). Rather, we give almost total deference to a trial court’s determination of historical facts, particularly when the trial court’s findings are based on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman, 955 S.W.2d at 89. However, we review de novo the application of legal principles to a specific set of facts, including the trial court’s determination of reasonable suspicion and probable cause. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); Guzman, 955 S.W.2d at 87. Indeed, when the trial court files findings of fact and conclusions of law virtually accepting the credibility of the officers and the State’s version of events, the only question before us is whether the trial court properly applied the law to the facts it found. See State v. Ballman, 157 S.W.3d 65, 69 (Tex. App.-Fort Worth 2004, pet. ref'd).

Applicable Law

A law-enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997) (citing Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App. 2007). The reasonable suspicion determination disregards the subjective intent of the officer making the stop and looks solely to whether there was an objective basis for the stop. Ford, 158 S.W.3d at 492.

In Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007), the Court of Criminal Appeals reaffirmed its previous holding that the “as consistent with innocent activity as with criminal activity” construct is not a viable test for determining reasonable suspicion. The Court noted that “there may be instances when a person’s conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion.” Id. at 380. According to the Court, the question, in determining reasonable suspicion to stop, is based on the totality of the circumstances, including the consideration of the officers’ training and experience. Curtis, 238 S.W.3d at 379-80. Indeed, when innocent facts, meaningless to the untrained, are used by trained law-enforcement officers, those facts, combined with permissible deductions therefrom, may form a legitimate basis for suspicion of criminal activity. See Woods, 956 S.W.2d at 38-39.

Application

Here, the trial court concluded that the officers lacked reasonable suspicion to stop Alderete because her swerving did not violate the traffic code. However, there is no requirement that a traffic regulation must be violated in order for an officer to have sufficient reasonable suspicion to justify a stop of a vehicle. James v. State, 102 S.W.3d 162, 172 (Tex.App.Fort Worth 2003, pet. ref'd); Cook v. State, 63 S.W.3d 924, 929 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Rather, an officer may be justified in stopping a vehicle based upon a reasonable suspicion of driving while intoxicated, which is a penal offense. Curtis, 238 S.W.3d at 379; James, 102 S.W.3d at 172; Cook, 63 S.W.3d at 929; Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In this case, Officer Garcia testified that Alderete was stopped not because of a violation of the traffic code, but based on suspicion of intoxication, an argument articulated by the prosecutor and implicitly rejected by the trial court.¹

In Curtis, the Court of Criminal Appeals found sufficient evidence from which the trial court could have found reasonable suspicion for the stop. Curtis, 238 S.W.3d at 381. There, the first officer testified that he had received specialized training in detecting individuals driving while intoxicated, it was part of his training that a driver’s weaving in and out of a lane was a possible indication that the driver was intoxicated, and appellant weaved at least three times out of his lane over a relatively short distance of a few hundred yards at one o’clock in the morning. Curtis, 238 S.W.3d at 380. The second officer testified that he had been a state trooper for over 23 years, he was “certified in different ways” to detect intoxicated drivers, he, like the arresting officer, was also trained to consider weaving as a possible sign of intoxicated driving, and appellant’s vehicle had been “doing a considerable amount of weaving” in and out of his lane that night. Id. According to the Court, the trial court could have reasonably concluded, based on the totality of the circumstances, that the officers had reasonable suspicion to stop appellant for driving while intoxicated. Id. In so doing, the Court noted that the intermediate court erred by solely analyzing whether weaving, by itself, gave rise to a suspicion of intoxication without considering the other evidence presented. Id. at 379-81.

The facts here are somewhat similar. The record reflects that the stop occurred at 3 a.m., and Officer Garcia testified that most driving-while-intoxicated offenses occur between 9 p.m. and 7 a.m. Alderete was unable to drive in a straight manner as she swerved within her lane for half of a mile on the interstate, a much longer period of time than the few hundred yards observed in Curtis.2 Both officers testified that they were trained to detect individuals driving while intoxicated and that weaving is a common characteristic of intoxicated drivers. Finally, both officers stated that they received training in investigating driving-while-intoxicated offenses and had in fact investigated many such offenses. When viewing the totality of the circumstances and considering the officers’ collective training and experience in investigating driving-while-intoxicated offenses, we find the officers could have formed reasonable suspicion to stop Alderete on suspicion of driving while intoxicated when she continuously swerved within her lane for half of a mile in the early morning hours.³ See Curtis, 238 S.W.3d at 380-81. Accordingly, we hold that the trial court’s focus on the sole issue of weaving within the lane not giving rise to a reasonable suspicion that a traffic-code violation was committed, was error in that the court failed to consider whether the officers had reasonable suspicion, based on the totality of the circumstances, that Alderete was driving while intoxicated.⁴ We therefore find that the trial court abused its discretion by granting Alderete’s motion to suppress.

CONCLUSION

We sustain the State’s sole issue, reverse the order of the trial court, and remand the case to the trial court for further proceedings.

GUADERRAMA, Judge, dissenting, sitting by assignment.

1 . We pause to note that the dissent suggests that the officer must specifically testify that the reason for the stop must be the same as that argued to the court by the prosecutor. Acceptance of that position is contrary to settled law. See, e.g., Williams v. State, 726 S.W.2d 99, 100-01 (Tex.Crim.App.1986) (concluding defendant’s parking on two-way roadway with left wheels next to curb and right wheels more than eighteen inches from curb in violation of section 545.303(a)’s predecessor justified stop, despite officer's testimony that he stopped defendant because of suspected drug transaction); Singleton v. State, 91 S.W.3d 342, 347-48 (Tex.App.-Texarkana 2002, no pet.) (not limiting review of reasonableness of stop to violations officer cited; though officer testified stop was due to prohibition against "exhibition of acceleration,” stop was justified on basis of unsafe driving); State v. Salazar, No. 05-08-01511-CR, 2009 WL 2246133, at *2 (Tex.App.-Dallas July 29, 2009, no pet.) (mem. op., not designated for publication) (parking violation did not need to be mentioned in officer's report nor did it need to be officer’s primary basis for approaching defendant to supply the justification for the stop); Boyle v. State, No. 01-01-00405-CR, 2002 WL 1340322, at *1, 3 (Tex. App.-Houston [1st Dist.] June 20, 2002, no pet.) (op., not designated for publication) (reasonable suspicion for stop based on traveling in the left lane without passing another vehicle existed despite officer’s failure to articulate that reason as the basis of the stop). Even the United State Supreme Court recently noted that "the fact that the officer does not have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 594, 160 L.Ed.2d 537 (2004) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

2 . The dissent states that the officers only observed Alderete’s vehicle for approximately thirty seconds; however, neither officer testified to how long they observed the vehicle.

3 . We note that Alderete cites to two intermediate appellate court cases in her brief in asking us to uphold the trial court’s decision. However, those cases predate the Court of Criminal Appeals' decision in Curtis. Moreover, Alderete’s reliance on State v. Dixon, 206 S.W.3d 587, 588, 590-91 (Tex.Crim.App.2006), is also misplaced as the officers in that case did not stop the vehicle on suspicion of driving while intoxicated but rather based on a traffic-code violation, which was invalidated by the trial court, who did not believe the officers’ testimony and found that the turns made by the defendant were not unlawful.

4 .The dissent argues that swerving within the lane is not a traffic offense, that an officer's graveyard shift is insufficient to conclude that most driving-while-intoxicated offenses occur at night, that the officer’s training in detecting drunk drivers was deficient as no evidence was presented as to the hours of training provided, the training involved, or how the training assisted in differentiating between drunk and sober drivers, and that although weaving is a characteristic of drunk driving, there was no other testimony that Alderete failed to maintain a steady speed, that she inappropriately applied her brakes, or that she drove erratically. Although the dissent states that he applied the totality-of-the-circumstances test, he has actually engaged in a divide-and-conquer approach arguing assumptions that were not presented to the trial court, which the United States Supreme Court and the Court of Criminal Appeals have condemned. See United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Garcia-Cantu, 253 S.W.3d at 244; Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007). We therefore hold fast to our totality-of-circumstances analysis set out above.

Moreover, we note that the trial court found the officers’ testimonies credible. This the trial court was entitled to do, and we, as a reviewing court, cannot deviate from that . finding but rather simply review whether the trial court properly applied the law to the facts. Ballman, 157 S.W.3d at 69. Therefore, the dissent cannot now suggest that the officers’ testimonies were lacking in their training and experience in detecting intoxicated drivers or what characteristics are associated with drunk driving.