Aziewicz v. State

Full title: SUZANNA FELICIA AZIEWICZ, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jun 21, 2006

No. 10-05-00164-CR (Tex. App. Jun. 21, 2006)

Opinion

No. 10-05-00164-CR

Opinion delivered and filed June 21, 2006. DO NOT PUBLISH.

Appeal fromthe County Criminal Court No. 8, Tarrant County, Texas, Trial Court No. 0933212. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Suzanna Aziewicz appeals the denial of her suppression motion in this misdemeanor DWI. She contends in her sole point that the State failed to prove that her arresting officer had reasonable suspicion for a traffic stop. We will affirm. An Arlington police officer observed a car driving on Highway 360 at about 3:00 in the morning which was constantly applying its brakes for no apparent reason. The officer then noticed Aziewicz's Isuzu Rodeo directly in front of this other car. Aziewicz "all of a sudden" veered over to the far right lane as if she were about to exit the highway and then she "veered right back onto the roadway." The officer testified that Aziewicz made these maneuvers in an unsafe manner. The first car exited, while Aziewicz continued south on the highway. Aziewicz was weaving within her lane; she "slammed" on her brakes for no apparent reason; and she was driving about 10 miles per hour below the posted speed limit. The officer suspected that Aziewicz may be intoxicated and pulled the car over to investigate further. Aziewicz cites three decisions which she contends control the disposition of her case: State v. Palmer, No. 02-03-00526-CR, 2005 WL 555281 (Tex.App.-Fort Worth Mar. 10, 2005, pet. granted) (not designated for publication); Richardson v. State. 39 S.W.3d 634 (Tex.App.-Amarillo 2000, no pet.); State v. Tarvin, 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. ref'd). Palmer is problematic for at least two reasons. First, it is an unpublished decision. Tex.R.App.P. 47.7 ("Opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, `(not designated for publication).'"). And second, the Court of Criminal Appeals has granted review on the particular issue of whether the court of appeals correctly upheld the trial court's decision that the arresting officer did not have reasonable suspicion to make a traffic stop. See State v. Palmer, No. 05-0555 (Tex.Crim.App. Oct. 19, 2005) (order granting discretionary review). Nevertheless, we will address the Palmer holding and discuss why it may be distinguished. In Palmer, the officer testified about several observations which caused him to suspect the driver of the car he was following may be intoxicated:

• the car was driving 5 miles per hour below the posted speed limit;

• the car was "riding the right line of the roadway";

• the driver changed lanes into an entrance ramp lane before being forced back into the rightmost lane when the entrance ramp lane ended;

• the driver turned on his right turn signal even though there was no lane to turn into, then the driver turned off his signal and continued on before again turning on his right turn signal;

• the driver then exited the highway and, according to the officer, applied his brakes in a sudden and unsafe manner

• the driver again activated his right turn signal and moved onto the service road, crossing over the double white line;

• then just before reaching a intersection, the driver slowed down and moved partially into the right-turn-only lane before rolling forward into the go-straight lane and coming to a stop.

Palmer, 2005 WL 555281, at *1. The Fort Worth Court observed that the driver was not traveling in the passing lane, did not erratically change speeds, was not weaving within his own lane, and did not have trouble maintaining a single lane of traffic. The Court also observed that the videotape did not support the State's assertion that the driver applied his brakes in a sudden and unsafe manner. The court concluded that, under the totality of the circumstances, these were not sufficient articulable facts to uphold a finding of reasonable suspicion. Id., 2005 WL 555281, at *3. In Richardson, the officer observed a car driving about 20 miles per hour below the posted speed limit on an interstate at about 2:00 in the morning. Because of this, the officer believed the driver may be intoxicated. Richardson, 39 S.W.3d at 636. This was the sole basis for the stop. Id. at 640. The Amarillo Court concluded that, because the officer agreed there were at least two reasons other than intoxication which could explain the driver's slow speed, driving slowly, standing alone, did not provide reasonable suspicion that the driver was intoxicated. Id. In Tarvin, the officer testified that he pulled the defendant over after observing him drive "over" the right-hand lane marker two or three times. See 972 S.W.2d at 910-11. It was unclear from the officer's testimony whether the right tires of the defendant's car ever crossed completely over the lane marker, and the trial court found that they had not. Id. at 910-11 n. 2. The officer did not testify that he suspected the defendant to be intoxicated. Id. at 912. Aziewicz's case differs from Palmer and Tarvin because those were both State's appeals from the grant of suppression motions. Cf. Palmer, 2005 WL 555281, at *1; Tarvin, 972 S.W.2d at 910. Aziewicz's case differs from Richardson and further differs from Tarvin because the officer observed more than just one aspect of Aziewicz's driving which caused the officer to suspect she may be intoxicated. Cf. Richardson, 39 S.W.3d at 640; Tarvin, 972 S.W.2d at 912. Aziewicz's case also differs from Tarvin because the officer in fact stated that he suspected Aziewicz was intoxicated. Cf. Tarvin, 972 S.W.2d at 912. The trooper here testified to several aspects of Aziewicz's driving which caused him to suspect she may be intoxicated. Aziewicz cites cases (other than Palmer) which isolate two of the officer's observations and hold that such an observation, standing alone, does not give rise to reasonable suspicion. However, a finding of reasonable suspicion must be based on the totality of the circumstances and not by analysis of each particular observation in isolation. See Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App. 2005). Under the totality of the circumstances, giving appropriate deference to the trial court, we cannot say that the court abused its discretion by denying the suppression motion. See James v. State, 102 S.W.3d 162, 171-72 (Tex.App.-Fort Worth 2003, pet. ref'd); Gajewski v. State, 944 S.W.2d 450, 452-53 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Therefore, we overrule Aziewicz's sole point and affirm the judgment.