No. 05-04-01534-CR
Opinion Issued June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause Nos. MB03-64736-K. Affirmed.
Before Justices FITZGERALD, FRANCIS, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
David Kent Anderson entered his plea of nolo contendere to driving while intoxicated. The trial court followed the plea bargain agreement and sentenced appellant to 150 days confinement in the Dallas County Jail and a $900 fine, suspended the jail sentence, and placed appellant on community supervision for twenty-four months. In two points of error, appellant contends the trial court erred in not granting his motion to suppress because his warrantless detention violated the United States Constitution, the Texas Constitution, and Texas statutes. We affirm the trial court's judgment.
THE EVIDENCE
At the suppression hearing, only Gilbert Arevalo (the officer), a Dallas Police Officer, testified he was on patrol in the particular area of Northwest Highway that contains a large number of restaurants, clubs, and bars. It was about 1:52 a.m., and the bars closed at 2:00 a.m. He described the area as high-traffic although that morning the traffic appeared to be medium. This portion of Northwest Highway has three lanes in each direction. The officer was behind appellant who was driving in the far left lane. The officer watched as appellant's vehicle swerved into the center lane three separate times. Each time appellant's right tires would "move over" into the center lane, remain there about three seconds, and then appellant would "jerk back" into the left lane. The officer decided to pull appellant over because his failure to maintain a single lane and his swerving in and out of the center lane made driving unsafe for other drivers turning into the center lane. The officer activated his lights and appellant stopped his vehicle at the entrance ramp to Stemmons Freeway. When the officer approached appellant, the officer detected a strong smell of alcohol and saw appellant's bloodshot eyes. Appellant told the officer that he had been entertaining clients. When the officer questioned appellant about how much he had to drink, appellant replied that "he lost count." It was then that the officer administered field sobriety tests to appellant and arrested appellant because of his performance on those tests. DID THE TRIAL COURT ERR IN OVERRULING APPELLANT'S MOTION TO SUPPRESS?
In two points of error, appellant argues that the stop of his vehicle and his detention was without a warrant, probable cause, or reasonable suspicion and violated the Fourth and Fourteenth amendments to the United States Constitution, article 1, section 9 of the Texas State Constitution, and article 38.23 of the Texas Code of Criminal Procedure. Appellant also argues that the officer stopped appellant for failure to maintain a single lane and the evidence is insufficient to show the officer "had reasonable suspicion to believe appellant was driving while intoxicated or reasonable suspicion or probable cause to believe appellant had committed the traffic violation of failure to maintain a single lane in violation [of] section 545.060 (a) of the Texas Transportation Code." Appellant maintains because the officer could not recall if any other car was in the center lane when appellant crossed into the center lane or if appellant's vehicle caused any problem for another vehicle, it was safe for appellant to move into another lane. The State responds that it produced sufficient facts to support the officer's reasonable suspicion that appellant violated a traffic law. Additionallly, the State argues that a defense to a traffic offense does not negate an officer's reasonable suspicion as a basis for a traffic stop. 1. Standard of Review
To justify an investigative stop, an officer must have specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the detained person is connected to a criminal activity. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). To justify a continued detention once officers achieve the purpose of the initial detention, additional articulable facts or rational inferences must support the conclusion that the detained person is involved in further criminal activity. See Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App. 1997). Reasonable suspicion requires that something out of the ordinary is occurring and some indication that the unusual activity is related to a crime. See id. at 244. We review the totality of the circumstances to determine if the officer had a particular and objective basis for having suspected wrongdoing. See United States. v. Arvizu, 534 U.S. 266, 273 (2002); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). In evaluating the totality of the circumstances, we use a bifurcated standard of review-we give almost total deference to the trial court's determination of historical facts that are supported by the record and review de novo the trial court's application of law to facts not turning on credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). If the trial court made no findings of fact, we assume the trial court made findings of fact that the record supports and those findings support the trial court's conclusions. See Balentine, 71 S.W.3d at 768; Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). 2. Applicable Law
"A routine traffic stop closely resembles an investigative detention." Martinez v. State, 29 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). To commit a traffic offense, a driver's vehicle must not stay within its own lane and any "movement [out of that lane] is not safe or is not made safely." See Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.-Austin 1998, pet. ref'd) (interpreting Tex. Transp. Code Ann. § 545.060 (a) (Vernon 1999)). The statute creates only one offense — "moving out of a marked lane when it is not safe to do so." Id. An officer who detains the driver must have sufficient articulable facts to give rise to a reasonable suspicion that appellant committed a traffic offense. See Garcia, 43 S.W.3d at 530-31; Hernandez, 983 S.W.2d at 871. A driver can violate section 545.060 even when no other vehicles are in the immediate vicinity. See Gajewske v. State, 944 S.W.2d 450, 453 (Tex.App.-Houston [14th Dist.] 1997, no pet.). A defense to a traffic offense does not negate the reasonable suspicion that justified the stop. See Praska v. State, 557 S.W.2d 83, 85-86 (Tex.Crim.App. 1977). 3. Application of Law to Facts
Appellant relies on State v. Cerny, 28 S.W.3d 796 (Tex.App.-Corpus Christi 2000, no pet.); State v. Arriaga, 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. ref'd); Hernandez, 983 S.W.2d at 868, 871-72; and State v. Travin, 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. ref'd), to show the officer did not have reasonable suspicion to stop appellant. Because the facts in each of these cases are distinguishable from the facts in this case, appellant misplaces his reliance on them. In both Cerny and Travin, the defendants never left their lanes of traffic. See Cerny, 28 S.W.3d at 800-01; Travin, 972 S.W.2d at 911. In Arriaga, the State neither offered specific facts to show Arriaga's driving was erratic or unsafe nor objective circumstances such as time, location, or vehicle movement. Arriaga, 5 S.W.3d at 807. Rather, the officer could not remember how many times Arriaga left his lane, but his vehicle "drifted" between two and seven times over a one and a half miles. Id. The Hernandez court recounted the only evidence before it, the arresting officer's testimony. That officer testified (1) Hernandez slowly drifted into another lane one time and then moved back into his original lane, (2) the arresting officer stopped Hernandez within seconds, and (3) he stopped Hernandez because of concern about Hernandez's well-being, not because his driving was unsafe. Hernandez, 983 S.W.2d at 868. The record contained no testimony of any objective circumstances-time, location, or the vehicle's movement. A single drift, without more, did not support a reasonable suspicion to stop Hernandez. Id. at 871-72. Here, only the officer testified, and cross-examination raised no conflicting facts. Unlike Hernandez, the officer followed appellant and observed him cross from the left lane into the center lane three times. The location where this stop occurred contains a large number of restaurants, clubs, and bars that closed at 2:00 a.m. The officer first saw appellant at closing time. A medium flow of traffic existed on this specific area of Northwest Highway. Each time appellant swerved into the center lane, he would "jerk back" into the left lane. The officer decided to stop appellant for failure to maintain a single lane because his swerving in and out of the center lane made driving unsafe for other drivers turning into the center lane. The officer activated his lights on the service road to Stemmons Freeway and appellant stopped his vehicle at the entrance ramp to the freeway. The above testimony shows that appellant would "drift" into the center lane and "jerk" back each time, not that he moved "from his lane after ascertaining that such movement can be made safely." This fact, when coupled with the other circumstances, gave the officer a reasonable basis for suspecting appellant committed a traffic offense. We resolve appellant's issues against him. We affirm the trial court's judgment.