No. 05-05-01404-CR
Opinion issued June 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-87801-4. Reversed and Remanded.
Before Justices MORRIS, O'NEILL, and MAZZANT.
Opinion By Justice MAZZANT.
The State appeals the trial court's order granting Huayi Pei's pretrial motion to suppress evidence. In two issues, the State argues that evidence of a traffic law violation gave the officer reasonable suspicion to stop Pei's vehicle and the officer had reasonable suspicion to believe Pei was driving while intoxicated. For the following reasons, we reverse the trial court's order and remand the case for further proceedings consistent with this opinion.
Factual Background
Pei was charged with driving while intoxicated. He filed a pretrial motion to suppress, alleging his arrest was not supported by warrant or probable cause. During the hearing, Shawn Casey of the Plano Police Department testified that he was traveling east on Park Boulevard in Plano, Texas, at approximately 4:40 a.m. when he saw the car in front of him drift over the center lane divider and into the right lane. He turned on his in-car video camera and followed the vehicle. The car moved back into the center lane but began weaving back and forth within the lane. He followed the car for about one and one-half and over three-quarters of one mile. Casey testified that he had arrested many motorists for driving while intoxicated in his nine years as a law enforcement officer and was aware of several establishments in the area of Park Boulevard that served alcohol. Based on the time of day, the location, and his experience as a law enforcement officer, Casey decided to stop the car for suspicion of driving while intoxicated. He activated his emergency lights and the car eventually moved off to the right and onto a side street before coming to a stop. After conducting several field sobriety tests, Casey arrested Pei for driving while intoxicated. During the suppression hearing, Casey testified that after reviewing the videotape from his patrol car surveillance camera he noticed Pei's left brake lamp was not working. Although Casey believed the broken brake lamp could have given him reasonable suspicion to stop Pei's vehicle, he admitted it did not enter into his decision to stop Pei. After conducting the pretrial hearing, the trial court granted Pei's motion to suppress. The trial court determined that Casey's testimony was credible but believed the evidence, which included the videotape, did not rise to the level of reasonable suspicion. The State argues the trial court erred in granting Pei's motion to suppress because (1) the evidence of Pei's broken brake light gave Casey reasonable suspicion, if not probable cause, to stop the vehicle and (2) Casey had reasonable suspicion to believe Pei was driving while intoxicated. Discussion
We begin with the State's second issue which claims the officer had reasonable suspicion to stop Pei for driving while intoxicated. Pei argues the trial court properly granted his motion to suppress because Casey did not have reasonable suspicion to stop his vehicle for driving while intoxicated. Standard of Review We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); 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). 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 questions of historical fact and 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). In this case, the determination of reasonable suspicion rests entirely on Casey's credibility because he was the only witness who testified. 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. State v. Ballman, 157 S.W.3d 65, 69 (Tex.App.-Fort Worth 2004, pet. ref'd); see also Carmouche, 10 S.W.3d at 327-28. This is especially true in a case like this where the State does not contest the trial court's findings of fact and the trial court found the arresting officer was credible but concluded his testimony was insufficient to establish reasonable suspicion. Ballman, 157 S.W.3d at 69; see also Ross, 32 S.W.3d at 856-58. Thus, we apply a de novo review to determine whether the trial court correctly applied the law to the facts it found. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); Ballman, 157 S.W.3d at 69. Reasonable Suspicion The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. Police officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). A detention may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Id. at 21; Carmouche, 10 S.W.3d at 328. The reasonableness of the 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 the person detained actually is, has been, or soon will be engaged in criminal activity. See Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). We look to the facts available to the officer at the moment of the stop to determine if those facts amount to more than a mere hunch or suspicion. See Davis v. State, 947 S.W.2d 240, 242-43 (Tex.Crim.App. 1997). Analysis An officer may be justified in stopping a driver based on a reasonable suspicion of driving while intoxicated. 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). Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion the driver is intoxicated even without evidence of a violation of a specific traffic law. See, e.g., Cook, 63 S.W.3d at 929; McQuarters v. State, 58 S.W.3d 250, 255 (Tex.App.-Fort Worth 2001, pet. ref'd); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd); Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Ortiz v. State, 930 S.W.2d 849, 856 (Tex.App.-Tyler 1996, no pet.); Fox v. State, 900 S.W.2d 345, 347 (Tex.App.-Fort Worth 1995), pet. dism'd as improvidently granted, 930 S.W.2d 607 (Tex.Crim.App. 1996). In the present case, Casey testified that, based on his nine years of law enforcement experience, he believed Pei was driving while intoxicated based on his initial observation of Pei's vehicle going over the center lane divider and the continued weaving as he followed Pei for approximately three-quarters of one mile. Therefore, based on the totality of the circumstances, we conclude Casey had specific, articulable facts which, taken together with rational inferences from facts based on his experience, justified his reasonable suspicion that Pei was driving while intoxicated. We further conclude the trial court erred in granting Pei's motion to suppress for lack of reasonable suspicion Pei was driving while intoxicated. Consequently, we do not reach the State's first issue. See Tex.R.App.P. 47.1. We reverse the trial court's judgment and remand for proceedings consistent with this opinion.