No. 05-04-01428-CR
Opinion Issued July 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause No. 366-82227-03. Affirmed.
Before Justices BRIDGES, FRANCIS, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The trial court convicted Alfonso Eduardo Araya of possession of cocaine on his plea of guilty. The judge assessed a three year sentence and a $500 fine, suspended his confinement in the Texas Department of Criminal Justice, and placed appellant on community supervision for three years. In one issue, appellant maintains the trial court erred in denying appellant's motion to suppress. We affirm the trial court's judgment.
THE EVIDENCE
At the hearing on the motion to suppress, the State stipulated that appellant's arrest was without warrant. Only two witnesses testified-Tammy Stallcup, a civilian employed as a 911 dispatcher for the City of Plano, and James Williams, a Plano Police Officer. Both witnesses testified that the street in question had six lanes, three northbound and three southbound, divided by a curbed median. 1. Stallcup's Testimony
Stallcup testified that as a 911 operator, she worked from 11:00 p.m. to 7:00 a.m. On the night in question, she left the Plano Municipal Center for "lunch" at 3:00 a.m. As she drove away from the building, she saw a gray SUV stopped in the middle of the road. She "went around him" and continued until she stopped at the light at 18th street. While Stallcup was stopped, this same SUV came up behind her without slowing down. She "took off" and "ran the light" because the SUV did not appear as if it would stop for the light. Stallcup watched the SUV swerve from one side of the road to the other, hitting and "riding" the curbs on each side of the divided six lane road. She called the "main number," as opposed to 911, gave "them" a partial license plate number, and described the vehicle, her location, and the driver. She was able to see the driver's face because, "when he would do a U-turn[,] he would look directly at [her]." As they approached signal lights, the SUV would stop at green lights, but then go through the intersection when the light turned red. Other times, he would just stop in the middle of the road and then suddenly accelerate. Stallcup continued to relay her location to the dispatcher and followed the SUV until the arresting officer stopped appellant. When the police arrived and stopped the SUV, Stallcup pulled her vehicle in behind the police car and gave "them a statement." 2. Williams's Testimony
Williams testified that on the night in question, he was dispatched to the location because a complainant called in and reported a reckless driver nearly rear-ended her vehicle. As he drove toward the location, the dispatcher continued to give him updates on a "possible drunk driver." Williams identified the vehicle and began to follow it. When appellant's vehicle stopped at a light, he was actually straddling the lane markers. When the light turned green, appellant drove off and Williams followed appellant. After a short distance, Williams "activated [his] lights" and attempted to stop appellant's vehicle. Appellant drove for some distance before he finally stopped. Appellant pulled over toward the right lane, but stopped in the middle lane instead of the extreme right lane. Stallcup had pulled in behind Williams and identified appellant's vehicle. As Williams approached the rear of appellant's vehicle, he smelled "a slight odor of alcohol" and asked appellant for his driver's license and proof of insurance. Appellant appeared dazed and fumbled through his wallet, but he never found his insurance card. A second officer arrived and watched appellant while Williams ran appellant's name through the computer. As the second officer watched, appellant "put his hand up on the visor like he was going for his garage door opener." The second officer told appellant to "show his hands." Instead, appellant reached down between the driver's seat and the door. At this point, Williams returned to appellant's vehicle and asked appellant to step out of his vehicle. When appellant did not move, Williams opened the driver's door and a saw several small "baggies" on the floorboard between the driver's seat and the driver's door panel. A couple of the "baggies" fell out of the vehicle. DID THE TRIAL COURT CORRECTLY RULE ON THE MOTION TO SUPPRESS?
In a sole issue, appellant argues that the only justification for stopping appellant was a failure to maintain a single lane. Citing the Fourth Amendment to the United States Constitution, article 1, section 9 of the Texas Constitution, Chapter 14 of the Texas Code of Criminal Procedure, and section 545.060 of the Texas Transportation Code, appellant contends that unless the detaining officer saw appellant violating a traffic law, the stop is unlawful. Additionally, appellant maintains the record contains no evidence he was driving unsafely. The State responds that Stallcup's observations relayed to the dispatcher and then to Williams, when coupled with Williams's own observations, provided reasonable suspicion to temporarily detain appellant. The State also argues that appellant has forfeited any right to complain under the Texas Constitution or Chapter 14 of the code of criminal procedure because appellant never referred to either one in his motion to suppress. Appellant's omnibus pretrial motion recites the arrest and search were without warrant, probable cause, and "violated the laws of the constitution of the State of Texas and the United States." However, his memorandum supporting the motion, as well as his arguments at trial and on appeal, focus on his claim that there was no evidence to support a stop for the traffic violation of failure to maintain a single lane. We will, therefore, limit our review to that issue. 1. Standard of Review
We review motions to suppress under the standard set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). 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 the record supports and review de novo the trial court's applying the law to the facts not turning on credibility and demeanor. See Guzman, 955 S.W.2d at 89. 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 v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327-28 (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). Texas requires that a vehicle 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." Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999). A person violates this statute when his vehicle fails to stay within its own lane " and such movement is not safe or is not made safely." Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.-Austin 1998, pet. ref'd). The statute creates only one offense-"moving out of a marked lane when it is not safe to do so." Id. The officer must have sufficient articulable facts to give rise to a reasonable suspicion that appellant committed a traffic offense-failing to drive within a single lane. See id. at 869. An officer, who reasonably believes a motorist has committed a traffic offense, may lawfully stop and detain that motorist. See Garcia v. State, 43 S.W.3d at 530. 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 the detained person is connected to a criminal activity. See Balentine, 71 S.W.3d at 768. 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. An officer may make a warrantless arrest for any offense that is committed in the officer's view or presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). But, we look to the facts available to the officer at the moment of stop to determine if those facts amount to more that a mere hunch or suspicion. See Davis, 947 S.W.2d at 242-43. The factual basis for stopping a vehicle need not arise from the officer's personal observations, but may be supplied by another's information. See Adams v. Williams, 407 U.S. 143, 147 (1972). Detailed information given by a citizen to a dispatcher with sufficient indicia of reliability-reciting specific erratic driving and identifying the vehicle and location-later relayed to an arresting officer is sufficient corroboration for an officer to justify a temporary stop and detention. See Brother v. State, No. PD-1820-02, 2005 WL 1523693, at * 2 (Tex.Crim.App. June 29, 2005); Pipkin v. State, 114 S.W.3d 649, 654-56 (Tex.App.-Fort Worth 2003, no pet.). 3. Application of Law to Facts
Appellant moved to suppress all evidence seized by the police on the grounds that he was arrested without a warrant and without probable cause. Because the facts are undisputed, we begin by determining de novo whether reasonable suspicion or probable cause existed to justify the stop and arrest. See Ornelas v. United States, 517 U.S. 690, 699 (1996); Guzman, 955 S.W.2d at 89. Here, Stallcup described to the dispatcher appellant and his vehicle, together with a partial license number. She detailed his erratic driving, driving that forced her to run a red light to avoid being rear-ended. Stallcup continued to follow appellant and stayed in contact with the dispatcher. After Williams stopped appellant, Stallcup gave a written statement to the officer and testified at the suppression hearing. Williams personally observed appellant move from the center lane toward the right lane and straddle two lanes. Appellant remained straddling both lanes while stopped at a signal light and crossed through the intersection before returning to the center lane. When Williams turned on his lights, it took appellant some time to stop. And although appellant pulled over to the right lane, he stopped in the middle of the lane instead of moving to the extreme right. Stallcup's detailed information, corroborated by Williams's observations, was sufficient for Williams to believe appellant committed the traffic offense of failure to maintain a single lane. The trial court correctly denied appellant's motion to suppress. We resolve appellant's sole issue against him. We affirm the trial court's judgment.